A power plant failed to show it was unaware of an unguarded opening in a walking platform that led to an employee’s death.
In Calpine Corp. v. Occupational Safety and Health Review Commission, a three-judge panel of the 5th U.S. Circuit Court of Appeals unanimously affirmed on Wednesday an Occupational Safety and Health Review Commission’s assessment of a $7,000 penalty against Houston-based Calpine Corp. after the worker’s fatal fall.
In 2010, Calpine hired Siemens Energy Inc. to overhaul a combustion turbine in one of its buildings at its Bethlehem, Pennsylvania, power plant. The turbine and two combustion chambers were surrounded by a walking platform made of steel grates with a bridge connecting them. Siemens disassembled portions of the walkway and removed some steel grates, leaving unguarded openings. On Dec. 21, 2010, a day crew was tasked with reassembling the platform, but the crew did not finish that day. An operations manager who had believed the platform to be unsafe the previous day assigned a worker to install a spark rod in one of the affected chambers in the early morning of Dec. 22; his body was found beneath the walking platform a few hours later. A U.S. Occupational Safety and Health Administration investigator issued Calpine a serious violation and fine of $7,000 for failing to have standard railing on temporary floor openings or having them constantly attended by someone.
An administrative law judge vacated the citation, but the OSHRC held that the administrative judge erred in finding that it was not reasonably predictable that Calpine employees would be exposed to platform openings, and reassessed the $7,000 penalty. Calpine appealed, arguing that the commission erred in finding that Calpine had knowledge that its employees were exposed to or had access to the condition at issue.
The 5th U.S. Circuit Court of Appeals affirmed the commission’s decision. The court held that the record demonstrates that supervisors and Calpine employees were aware that a temporary opening existed in the platform above the combines in the days prior to the employee’s fatal fall, and that regardless of what caused the employee’s fall, the unguarded openings were an OSHA violation if employees were exposed to or had access to them.
Although Calpine argued that there was no access or exposure to the violative condition, the appellate court found substantial evidence to support the commission’s holding that Calpine assigned its employees to complete a task that would bring them into the “zone of danger” from the unguarded platform opening.
Finally, the court dismissed Calpine’s argument that the incident was due to employee misconduct. The appellate court said that even if it “gave full credit to Calpine's assertions that it had an extensive safety policy … it would not change the facts showing employee exposure to the violative condition …”
Neither Calpine nor its attorney immediately responded to requests for comment.
An administrative law judge of the Occupational Safety and Health Review Commission affirmed a serious citation and $11,408 fine against a drilling employer after an employee’s finger had to be amputated following a workplace accident.