United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW 

COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

ON BRIEFS:

M. Patricia Smith, Solicitor; Joseph M. Woodward, Associate Solicitor; Heather Phillips, Counsel 

for Appellate Litigation; Scott Glabman, Senior Appellate Attorney; U.S. Department of Labor, 

Washington, D.C.

For the Complainant

Frank C. Botta, Esq.; Jeremy L.S. Samek, Esq.; Willis Siegfried, Esq.; Eckert Seamans Cherin & 

Mellott, LLC, Pittsburgh, PA

For the Respondent

DECISION

Before: MACDOUGALL, Chairman; ATTWOOD and SULLIVAN, Commissioners.

BY THE COMMISSION:

Calpine Corporation owns and operates a power generating plant in Bethlehem, 

Pennsylvania known as the Bethlehem Energy Center (BEC). Following an incident in which an 

employee fell to his death, OSHA inspected the BEC and issued Calpine a one-item serious citation

with a proposed penalty of $7,000. As amended, the citation alleges that Calpine violated 29 

SECRETARY OF LABOR,

CALPINE CORPORATION, and its 

successors

Complainant,

Respondent.

v. OSHRC Docket No. 11-1734
2

C.F.R. § 1910.23(a)(7), which requires that “[e]very temporary floor opening . . . have standard 

railings, or . . . be constantly attended by someone[.]”

1

Administrative Law Judge Dennis L. Phillips vacated the citation, finding that no Calpine 

employees were exposed to the violative condition. For the following reasons, we reverse the 

judge and affirm the citation.

BACKGROUND

At the time of the incident, Calpine had contracted with Siemens Energy, Inc. to perform 

a maintenance overhaul of several turbines at the BEC, including a turbine referred to as CT-6. 

During the overhaul, Siemens disassembled and then reassembled CT-6, which contains two 

combustion chambers with an upper platform surrounding each chamber that connects via a 

catwalk. The platform is slightly more than seventeen feet above the concrete floor of the building

and accessible using either of two ladders—one for the east chamber and one for the west chamber. 

To work on CT-6, Siemens had to remove grates from sections of the platform, creating several 

openings. 

On December 20, 2010, Calpine’s operations manager, Thomas Narkin, issued a work 

order that instructed the Calpine maintenance employees working the night shift to “install [a] new 

spark rod . . . in CT-6 where one was ‘borrowed’ for [another turbine] this past weekend.” The 

task, which could be performed by any one of the night shift’s four maintenance employees,

required accessing the upper platform, as the spark rod needed to be installed near the top of CT6 in the east chamber. During the night shift that began the evening of December 20, at 

approximately 4:30 a.m. on December 21, a Calpine lead maintenance operator (LMO), Timothy 

Lewis, entered the building that housed CT-6 using its southwest access door, intending to replace 

the spark rod.

2

 After Lewis entered the building and looked up from the ground level, he noticed 

the openings in the platform and decided that the task “wasn’t safe to do.” 

 

1 Subsequent to the issuance of the citation, OSHA promulgated a revised final rule for fall 

protection in general industry. See 81 Fed. Reg. 82,494 (Nov. 18, 2016) (Walking-Working 

Surfaces and Personal Protective Equipment (Fall Protection Systems)). Under the revised rule, 

there is no separate requirement for “temporary” floor openings; in addition, the standard permits 

the use of covers, travel restraint systems, or personal fall protection instead of guardrails. 29 

C.F.R. § 1910.28(b)(3)(i). 

2 Calpine’s night shift ran from 6:00 p.m. to 6:00 a.m. For each night shift, Calpine assigned an 

LMO to serve as a supervisor and three operator maintenance technicians to perform work. 
3

On the night shift that began the evening of December 21, Narkin listed the replacement 

task on a work order for the second time. He then left the work order and replacement part in the 

control room, which is located on the west side of CT-6. The work order did not mention that the 

upper platform contained openings.

3

 The platform opening at issue was “pretty close to” the west 

chamber ladder and had neither railings nor an attendant. 

During that night shift, sometime after 3:30 a.m. on December 22, another Calpine LMO 

entered the CT-6 building with work gloves on and the replacement part in his pocket, but without 

the tools required for the replacement task. No one saw what occurred after he entered the 

building. His co-workers found him around 5:30 a.m. on the concrete floor near the base of the 

west chamber ladder. He suffered fatal head and neck injuries as a result of a fall.4 

DISCUSSION

To establish a violation, “the Secretary must show by a preponderance of the evidence that:

(1) the cited standard applies; (2) there was a failure to comply with the cited standard; (3) 

employees had access to the violative condition; and (4) the cited employer either knew or could 

have known of the condition with the exercise of reasonable diligence.” Astra Pharma. Prods., 9 

BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 169 (1st Cir. 1982). 

On review, Calpine argues that § 1910.23(a)(7) does not apply here because “personal fall 

protection was always worn by [its] employees.” By the standard’s own terms, however, 

applicability is not conditioned on the absence of personal fall protection. Rather, the standard 

applies whenever there is a “temporary floor opening”; so, the Secretary’s burden to establish 

applicability is met when he shows that such an opening existed. See § 1910.23(a)(7) (“Every 

temporary floor opening shall have standard railings, or shall be constantly attended by 

 

3 Although the platform contained a total of four openings, the amended citation only alleges that 

an opening located close to the west chamber’s access ladder was violative. 

4 Neither the coroner nor a forensic pathologist, both of whom testified, could determine the precise 

location from which the decedent fell, although both agreed it was not likely that he fell through 

an opening in the upper platform. The pathologist stated that he had not been asked to determine 

from where the decedent fell and thus did not include it in his report. However, after reviewing 

information provided by Calpine, he came to believe that the decedent fell from somewhere near 

the ladder that led from the ground floor to a lower platform.
4

someone.”). Here, Calpine has not disputed the Secretary’s contention that the cited platform 

opening fits within the standard’s definition of floor opening or that the opening was temporary.5 

As to noncompliance, the use of an abatement measure that differs from that specified by 

a standard is not a defense. See, e.g., S.A. Storer and Sons Co. v. Sec’y of Labor, 360 F.3d 1363, 

1372 (D.C. Cir. 2004) (finding controlled access zone was not acceptable means of fall protection 

under cited fall protection provision and that argument ignored “plain language of the applicable 

regulations”). Calpine neither disputes testimony from both COs that the cited platform opening 

lacked railings nor claims that the opening was constantly attended. Therefore, we find that the 

Secretary has established both applicability and noncompliance. 

A. Exposure

To establish exposure, the Secretary must show that an employee was actually exposed to 

the cited condition or that access to the cited condition was reasonably predictable. Phoenix 

Roofing Inc., 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995), aff’d, 79 F.3d 1146 (5th Cir. 1996) 

(unpublished). As to actual exposure, the judge found that there was insufficient evidence that the 

decedent fell through the cited opening. On review, the Secretary makes no claim that the decedent 

or any other Calpine employee was actually exposed to the hazard posed by the unguarded 

opening;

6

so we examine only whether exposure to the violative condition was reasonably 

predictable.7

 

5 The standard defines a floor opening as “[a]n opening [that] measures 12 inches or more in its 

least dimension in any floor, platform, pavement, or yard through which persons may fall; such as 

a hatchway, stair or ladder opening, pit, or large manhole.” 29 C.F.R. §§ 1910.23(a)(7), 

1910.21(a)(2) (definition of floor opening). The coroner estimated that the cited opening was 

about 32 inches long on its right and left sides and that it was sufficiently large for a person to fall 

through. Narkin testified that the openings were not present under normal operating conditions,

and it is undisputed that they had been created during the overhaul project. 

6 Since the Secretary does not rely upon actual exposure, the cause of the employee’s death—

whether he fell through the cited platform opening or from a ladder—is not relevant and need not 

be resolved by the Commission. See Boeing Co., 5 BNA OSHC 2014, 2016 (No. 12879, 1977) 

(finding of a violation does not depend on the cause of the particular accident that led to the case); 

Concrete Constr. Corp., 4 BNA OSHC 1133, 1135 (No. 2490, 1976) (“The Act may be violated 

even though no injuries have occurred, and even though a particular instance of noncompliance 

was not the cause of injuries.”); Kansas City Power & Light Co., 10 BNA OSHC 1417, 1422 (No. 

76-5255, 1982) (“Indeed, both the judge and Respondent improperly define the hazard at issue in 

terms of the asserted cause of the specific incident that led to injury . . . .”).

7

In finding that exposure was not reasonably predictable, the judge relied on numerous factors 

that have no bearing on an exposure analysis. These factors include: (1) the low priority of the 
5

Reasonably predictable exposure is established by proving that “either by operational 

necessity or otherwise (including inadvertence) . . . employees have been, are, or will be in the 

zone of danger.” Nuprecon LP, 23 BNA OSHC 1817, 1819 (No. 08-1307, 2012) (citations 

omitted). Employees may come within the zone of danger “while in the course of assigned 

working duties, personal comfort activities while on the job or their normal means of ingressegress to their assigned workplaces.” Gilles & Cotting, Inc., 3 BNA OSHC 2002, 2003 (No. 504, 

1976); Donovan v. Adams Steel Erection, Inc., 766 F.2d 804, 812 (3d Cir. 1985) (“ ‘access,’ not 

exposure to danger is the proper test”). The Secretary need not show it was certain that employees 

would be in the zone of danger, but he must show that exposure was more than theoretically 

possible. Fabricated Metal Prods., Inc. 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997); Phoenix 

Roofing, 17 BNA OSHC at 1079; Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2195 (No. 90-

2775, 2000) (finding that it was “ ‘reasonably predictable’ that an employee would come into 

contact with the unguarded belt and pulley either while attempting to reposition the fan, or 

inadvertently while passing nearby”), aff’d, 268 F.3d 1123 (D.C. Cir. 2001).

To make this showing, the Secretary argues that it was reasonably predictable Calpine 

employees would be exposed to the platform opening at issue based on Narkin’s continuing work 

order to install the spark rod near the top of CT-6. We agree. It is undisputed that this assigned 

task required going on the upper platform containing the cited opening. The platform was not 

complete on December 20, when Narkin initially assigned the task, or on December 21, when he 

again assigned the task. 

In addition, as the Secretary argues, there was an established “nexus between the unguarded 

platform opening and the likely movements of employees assigned the task of replacing the spark 

 

assigned replacement task; (2) the conditional nature of the authorization to do the task; (3) 

Calpine’s training of employees to conduct safety assessments; (4) the decedent’s good safety 

record; and (5) the obviousness of the hazard. The alleged low priority of the assigned task is 

irrelevant because it was included on the work order and employees were expected to complete 

the task during the shift for which it was first assigned, if time permitted. Any task not completed 

during a night shift would typically be rolled over to the next night shift’s work order until it was 

completed, which is what happened here with the assigned replacement task. 

The remaining factors address the extent to which Calpine was entitled to rely on its employees to 

comply with its instructions and avoid engaging in violative conduct. However, such factors 

would relate to the affirmative defense of unpreventable employee misconduct, but not to 

exposure. In any event, these factors are moot given that, as discussed below, other considerations 

are dispositive of the affirmative defense alleged by Calpine.
6

rod.” Calpine does not dispute the Secretary’s claim that the cited opening was located “within a 

few feet of” and “closely adjacent” to the west chamber ladder.8 Two photographs in the record, 

along with testimony from one of the COs, confirm that the opening was immediately adjacent to 

this ladder, which had a hinged gate that allowed entrance onto the platform. The control room, 

where the work order and replacement spark rod were located, was also on the west side of CT-6. 

Although the work order did not specify that the spark rod needed to be installed in the east 

chamber, the record shows that use of the west chamber ladder was part of a reasonably foreseeable 

route to where the task needed to be performed.

9

 Because a platform surrounded each chamber

and they were connected via a catwalk, the east chamber was accessible via the west chamber 

ladder. Three employees testified that, given that the spark rod and work order had been placed in 

the control room to the west of CT-6, the most likely route an employee performing the task would 

take after retrieving the replacement part would be to enter the building through the southwest 

access door closest to the west chamber ladder, just as Lewis had done. Indeed, Lewis explained 

that this was the “easiest” door to use because it provided ground-level access and avoided the 

need to use a vertical ladder while carrying tools or “hav[ing] to circle around and go into the . . . 

east side of the building” and “go down some stairs.” As Lutz described it, this route was the “path 

of least resistance.” 

Given that the west chamber ladder was closest to the southwest access door into the CT6 building, we find that it was likely an employee performing the replacement task would use that

ladder to reach the platform around the west chamber and use the catwalk to cross over to the east 

chamber platform. We also find that because the west chamber ladder was immediately adjacent 

to the cited platform opening, it was reasonably predictable that any employee carrying out the 

assigned task would enter the zone of danger posed by the unguarded opening. Nuprecon, 23 BNA 

 

8 There is no measurement of this distance in the record. 

9 The record shows that some employees either knew or thought that the replacement spark rod 

was for the east chamber, but at least one did not. LMO William Varga stated that he knew the 

spark rod had been taken from the east chamber, but he did not know which burner. LMO 

Raymond Lutz testified that he was “pretty certain,” based on a conversation he had with the 

decedent, that it was the decedent who had removed the spark rod. Lutz identified the approximate 

location of where the spark rod was to be installed in the east chamber, but it is not clear how or 

when he learned of the location. Lewis testified, however, that he did not know where the spark 

rod needed to be installed; so, he would have had to walk around and look at each burner until he 

located the one with a spark rod missing. 
7

OSHC at 1818-19 (finding exposure where it was reasonably predictable employee would come 

within six feet of edge); Phoenix Roofing, 17 BNA OSHC at 1079 (“about 12 feet” from unguarded 

skylights); Dic-Underhill, 8 BNA OSHC 2223, 2229-30 (No. 10798, 1980) (twenty-five or more 

feet from an unguarded edge, working towards that edge); Cornell & Co., 5 BNA OSHC 1736, 

1738 (No. 8721, 1977) (ten feet from an elevator shaft).10 

In sum, we find that Calpine assigned its employees to complete a task that would bring 

them into the “zone of danger” posed by the unguarded platform opening. Accordingly, we 

conclude the judge erred in determining that the Secretary failed to establish exposure as the record 

shows it was reasonably predictable that Calpine employees would have access to the hazard. 

B. Knowledge

To establish knowledge, the Secretary must show that the employer knew or with the 

exercise of reasonable diligence could have known of a hazardous condition. Kerns Bros. Tree 

Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). A supervisor’s knowledge of the violative 

condition is imputable to the employer. Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1539 (No. 

86-360 & 86-469, 1992) (consolidated). Here, the Secretary sought to establish both actual and 

constructive knowledge of the unguarded platform opening. As to actual knowledge, the Secretary 

claims that five Calpine supervisors knew the platform opening was unguarded on December 21, 

 

10 We disagree with the judge’s conclusion that this case is distinguishable from Nuprecon and

Lancaster Enters. d/b/a Orbit Roofing, 19 BNA OSHC 1033, 1037 (No. 97-0771, 2000). He read 

those cases as involving employees who had actually entered the zone of danger, but in fact the 

Commission found only that it was reasonably foreseeable the employees in both cases would 

enter the zone of danger; not that they actually did. See Nuprecon, 23 BNA OSHC at 1820 (finding 

it reasonably predictable that an employee on a lift would dismount the lift and work in the zone 

of danger); Lancaster, 19 BNA OSHC at 1037 (“The use of the hatchway to get to and from the 

roof made it reasonably predictable that an employee would enter the zone of danger presented by 

the unguarded glass skylight.”). Similarly, Calpine assigned a task to its employees that would 

have brought any one of them immediately adjacent to an unguarded opening. That a Calpine 

employee was not shown to have actually entered the zone of danger does not alter the fact that it 

was reasonably predictable, by virtue of the assigned task, that an employee would have entered 

the zone of danger to complete the task. See Pete Miller, Inc., 19 BNA OSHC 1257, 1258 (No. 

99-947, 2000) (even if employee “never [got] closer than eight feet from the edge” of a roof, it 

was reasonably foreseeable that he would enter danger zone due to nature of work). 
8

the day before the accident. The judge agreed, finding that all five supervisors had actual 

knowledge of the violative condition and that their knowledge was imputable to Calpine. 

We agree with the judge. Five Calpine supervisors knew of the opening on December 21—

Roy Killgore, Raymond Rice, Lewis, Lutz, and Narkin.11 Killgore and Rice oversaw Siemens’ 

work during the overhaul and were in the CT-6 building on a daily basis. They both reviewed a 

report from Siemens on December 21 that indicated that Siemens had not finished replacing the 

platform grates as of 5:00 p.m. that day. After Lewis saw the unguarded platform opening when 

he entered the CT-6 building on the morning of December 21 to install the spark rod, he 

communicated his observation to Lutz, who acknowledged in his testimony knowing about the 

opening.

In addition, Lewis testified that he informed Narkin about the unguarded opening and 

Lutz’s testimony corroborates this: “I think [Narkin] was there when [Lewis] told me, because I 

kind of remember having a long conversation—a longer conversation than just a two second blurb 

about it.” Narkin, however, testified that he was not told about the opening. The judge credited 

Lewis and Lutz on this issue—specifically, he found that Narkin’s denial was a “convenient 

explanation for his inaction in not removing the spark rod replacement task from the night order 

or warning the deceased” of the opening, citing Narkin’s “defensive and unpersuasive” demeanor 

in testifying about this issue. We defer to the judge’s demeanor-based credibility finding and 

conclude that Narkin was also aware of the opening. See E.R. Zeiler Excavating Inc., 24 BNA 

OSHC 2050, 2057 (No. 10-0610, 2014) (appropriate for Commission to defer to judge’s 

demeanor-based credibility finding).

Calpine does not dispute that it had actual knowledge on December 21, but it argues that 

its supervisors lacked knowledge of the violative condition during what it asserts is the two-hour 

time period relevant to the citation—between approximately 3:30 a.m. and 5:30 a.m. on December 

22. According to Calpine, (1) the supervisors who knew of the condition on December 21 were 

 

11 Calpine does not challenge the judge’s finding that these five individuals were supervisors. See 

Diamond Installations, Inc., 21 BNA OSHC 1688, 1690 (No. 02-2080, 2006) (supervisory status 

turns on the delegation of authority, not the title of the employee); Jersey Steel Erectors, 16 BNA 

OSHC 1162, 1164 (No. 90-1307, 1993) (knowledge of a foreman or supervisor can be imputed), 

aff’d, 19 F.3d 643 (3d Cir. 1994). Nor does Calpine dispute the judge’s decision to treat Killgore 

and Rice—engineers employed by a Calpine affiliate that the judge found operated as a single 

entity with Calpine—as Calpine employees. 
9

no longer present at the BEC on December 22; (2) conditions in the CT-6 building were constantly 

changing; (3) it was entitled to rely on Siemens’ representation that it expected to reinstall the 

grates to cover the platform openings during its own night shift, which ran from 5:00 p.m. to 3:30 

a.m.; and (4) it could not have determined the condition of the platform until after Siemens’ night 

shift concluded because “[t]here were no non-Siemens’ employees present between the time they 

ended their shift and the time that [the decedent] entered the CT-6 building shortly thereafter.” 

Contrary to Calpine’s claim, the parties tried the case on the conditions that existed during 

the Calpine night shift that began on December 21 and continued through the morning of 

December 22. This is consistent with the citation, which asserts that the violative condition existed 

“on or about December 22, 2010.” Moreover, even if the period of the alleged violation was 

limited to the two-hour period as Calpine alleges, the Secretary has nonetheless established the 

company’s actual knowledge of the violation. Calpine’s five supervisors knew of the opening on 

December 21, and their absence in the early morning hours of December 22, when the cited 

opening still existed, does not magically erase that knowledge. See Caterpillar, Inc., 17 BNA 

OSHC 1731, 1732 (No. 93-373, 1996) (termination of a supervisory employee’s employment prior 

to the time of the cited condition did not vitiate the departed supervisor’s knowledge of a previous 

occurrence of the same condition) (citing cases and Restatement (Second) of Agency), aff’d, 122 

F.3d 437 (7th Cir. 1997). 

Calpine’s other arguments—that it lacked knowledge because conditions were changing, 

that Siemens had represented that it expected to reinstall the missing grates, and that there were no 

“non-Siemens’ employees” (i.e., supervisors under Calpine’s control) in the CT-6 building during 

the two-hour window—are misplaced. Each of these assertions address whether Calpine, “with 

the exercise of reasonable diligence, could have known of the presence of the violative 

condition”—in other words, whether in light of these alleged facts it was unreasonable to expect 

Calpine to have learned of the opening. Pride Oil Well Serv., 15 BNA OSHC 1809, 1814 (No. 87-

692, 1992); see also Astra Pharm. Prods., Inc., 9 BNA OSHC at 2129. Defending against a finding 

of actual knowledge by making arguments relevant to constructive knowledge is inconsistent with 

Commission precedent: the Secretary meets his knowledge burden when he shows actual or

constructive knowledge—he need not establish both. See, e.g., Tampa Shipyards, Inc., 15 BNA 

OSHC at 1537-39 (Secretary established knowledge by showing actual knowledge of supervisors). 
10

Therefore, we find that Calpine had actual knowledge of the unguarded platform opening on 

December 21. 

Calpine’s arguments are not even meritorious when construed as a challenge to 

constructive knowledge. Regardless of whether conditions in the BEC were “constantly 

changing,” Calpine had an obligation to “inspect the [work] area to determine what hazards exist 

or may arise during the work before permitting employees to work in an area, and the employer 

must then give specific and appropriate instructions to prevent exposure to unsafe conditions.” 

Automatic Sprinkler Corp. of Am., 8 BNA OSHC 1384, 1387 (No. 76-5089, 1980) (emphasis 

added). See also Pride Oil Well Serv., 15 BNA OSHC at 1814 (employer required to “inspect the 

work area, to anticipate hazards to which employees may be exposed, and to take measures to 

prevent the occurrence”) (internal citations omitted). Despite knowing of the unguarded opening 

on December 21, none of the Calpine supervisors handed off that information, such as through 

written instructions in the work orders. See Wiley Organics, Inc. d/b/a Organic Tech., 17 BNA 

OSHC 1586, 1597 (No. 91-3275, 1996), aff’d, 124 F.3d 201 (6th Cir. 1997) (“An employer has a 

general obligation to inform itself of the hazards present at the worksite and cannot claim lack of 

knowledge resulting from its own failure to make use of the sources of information readily 

available to it.”) (citations omitted). 

As to Siemens’ representation that it expected to reinstall the missing platform grates

during its day shift on December 21, the record shows that this work was in fact not completed 

during that shift and was instead carried over to the next Siemens shift, as reflected on the turnover 

report. Rice explained that Siemens’ turnover reports were “general reports, I mean we throw a 

bunch of stuff out there and you get what you can. And then you roll it over to the next shift.” As 

such, Calpine knew that on prior occasions, not all planned work was completed during a 

designated Siemens shift. In addition, Rice and Killgore testified that there was a significant 

amount of work Siemens needed to do during the overhaul, noting that “[i]t’s pretty hectic” and 

various things, including an approaching storm on December 21, could affect the progress of 

Siemens’ work schedule. Indeed, when Rice left the building around 2:00 a.m. on December 22, 

it was readily apparent that not all of the platform grates had been put back. As the Siemens crew 

was cleaning up rather than continuing to work at that point, he would have had no reason to think 

that they would complete that work before the end of their shift. 
11

For all of these reasons, we find that the Secretary established that Calpine had both actual 

and constructive knowledge of the violative condition.

C. Unpreventable Employee Misconduct (UEM) Defense 

To establish that a violation was the result of UEM, an employer is required to show that 

it: “(1) established work rules designed to prevent the violative conditions from occurring; (2) 

adequately communicated those rules to its employees; (3) took steps to discover violations of 

those rules; and (4) effectively enforced the rules when violations were discovered.” Manganas 

Painting Co., 21 BNA OSHC 1964, 1997 (No. 94-0588, 2007). Calpine’s allegation of this 

defense is conditional—the company claims that if the decedent had gone on the CT-6 platform 

without using personal fall protection (a point Calpine does not concede), such action would have 

constituted UEM.12 

It should be obvious that misconduct is a prerequisite element of the UEM defense. Indeed, 

the defense is predicated on the notion that an employer should not be held responsible when the 

cited violative condition was caused by an employee’s misconduct if that misconduct was not 

reasonably foreseeable:

An isolated brief violation of a standard by an employee which is unknown to the 

employer and is contrary to both the employer’s instructions and a company work 

rule which the employer has uniformly enforced does not necessarily constitute a 

violation of section 5 (a)(2) of the Act by the employer. 

Standard Glass Co., Inc., 1 BNA OSHC 1045, 1046 (No. 259, 1972) (emphasis added). Here, the 

violative condition was the absence of either railings or an attendant at a temporary floor opening 

on the platform. 29 C.F.R. § 1910.23(a)(7). Calpine does not assert that its failure to install 

 

12 We note that Calpine also raised the affirmative defense of infeasibility in its answer but did not 

argue the defense before the judge and did not raise it on review. As a result, the Secretary claims 

that Calpine has abandoned the defense. Regardless of whether Calpine has preserved this claim, 

we find that the defense fails. To prove infeasibility, an employer must show that: (1) literal 

compliance with the terms of the cited standard was infeasible; and (2) an alternative protective 

measure was used or there was no feasible alternative measure. Otis Elevator Co., 24 BNA OSHC 

1081, 1087 (No. 09-1278, 2013), aff’d, 762 F.3d 116 (D.C. Cir. 2014). Here, Calpine claims that 

“there is no evidence in the record that there existed a method to install guardrails” and that a 

“constant attendant would not protect the person reaching through the floor opening to perform 

tasks involved in rebuilding the combustion unit and catwalk.” As Calpine has the burden of 

proving infeasibility, the absence of evidence regarding these claims means Calpine has failed to 

establish the defense’s first element—that literal compliance with the cited requirement could not 

be achieved. 
12

railings or assign an attendant was the result of misconduct. In addition, personal fall protection 

was not a compliance option; so Calpine’s rule requiring employees to use personal fall protection 

at heights greater than four feet “is not equivalent to the cited standard” and thus fails to satisfy 

the first prong of the UEM defense. Daniel Int’l Corp., 9 BNA OSHC 2027, 2031 (No. 76-181, 

1981) (rejecting UEM defense based on employees’ failure to tie-off where construction fall 

protection standard required openings to be protected by guardrails or covers, stating that the 

employer’s tie-off rule “is not equivalent to the cited standard”); see also Boh Bros. Constr. Co., 

LLC, 24 BNA OSHC 1067, 1075 (No. 09-1072, 2013) (employer’s monitoring and enforcement 

of work rule that did not meet cited provision’s requirements could not be used to establish UEM 

defense). In short, Calpine has not even alleged conduct that would be relevant to the defense.

Even if the failure to use personal fall protection could constitute misconduct and Calpine 

had shown that the decedent had gone on the platform without using it, the defense would still fail 

because Calpine has not shown misconduct by the other employees on the crew, any one of whom 

was expected to complete the task and for whom exposure to the violative condition has been

established—a predicate evidentiary burden here that rests with Calpine, since UEM is an 

affirmative defense. Daniel Int’l Corp., 9 BNA OSHC at 2031. In fact, Calpine has not even 

shown that the decedent went on the platform. Therefore, we reject Calpine’s UEM defense.13

D. Multi-Employer Worksite (MEW) Defense

To establish the MEW defense, an employer must show that it neither created nor 

controlled a hazardous condition to which its own employees were exposed and that it took 

reasonable alternative steps to protect its employees from the hazard. Rockwell Int’l Corp., 17 

BNA OSHC 1801, 1808 (No. 93-45, 1996); Atl. Battery Co., 16 BNA OSHC 2131, 2166 (No. 90-

1747, 1994) (multi-employer worksite defense failed when employer had control over the cited 

condition); Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1190 (No. 12775, 1976) 

(employer bears the burden of establishing multi-employer worksite defense).

Calpine claims that Siemens had primary operational control over CT-6, including the 

platform openingsthat Siemens created during the overhaul. As the judge found, however, Calpine 

 

13 Calpine requests that if the Commission reverses the judge on the issue of exposure, its UEM 

defense be remanded to the judge for consideration. We decline to remand, as Calpine’s defense 

raises a legal issue that is appropriate for the Commission to resolve. See Power Sys. Div. United 

Techs. Corp., 9 BNA OSHC 1813, 1813 n.5 (No. 79-1552, 1981) (question of law does not require 

remand). 
13

retained ownership and control of the entire BEC and never ceded any portion of that control to 

Siemens. Calpine supervised Siemens’ overhaul work and regularly had its own supervisor in the 

CT-6 building to oversee their work. In addition, Calpine performed contractor safety audits 

during which it pointed out safety issues for Siemens to correct and stopped work when Siemens 

employees were found to be working in an unsafe manner. There is also no evidence that Calpine

either lacked the authority or ability to comply with the standard or to order Siemens to comply. 

See Union Boiler Co., 11 BNA OSHC 1241, 1246 (No. 79-232, 1983) (MEW defense requires 

showing that the employer did not possess the expertise, personnel, or means to correct the hazard). 

Therefore, Calpine has not shown it lacked “operational control” while Siemens performed the 

overhaul work. Cf. Otis Elevator Co., 4 BNA OSHC 1219, 1223 (No. 8468, 1976) (finding that 

cited employer’s joint control of the location of the hazard was sufficient to affirm the citation). 

Accordingly, Calpine was a controlling employer whose own employees were exposed to the cited 

condition, which makes it fully responsible for complying with the cited standard as an exposing 

employer. See, e.g. McDevitt Street Bovis, Inc., 19 BNA OSHC 1108, 1109 (No. 97-1918, 2000) 

(recognizing that a controlling employer’s duties include protecting its own employees). We 

therefore find that Calpine has not established the MEW defense. 

Accordingly, we affirm the citation as serious and assess the $7,000 proposed penalty.14

SO ORDERED.

/s/

Heather L. MacDougall

Chairman

/s/

Cynthia L. Attwood

Commissioner

/s/

James J. Sullivan, Jr.

Dated: April 6, 2018 Commissioner

 

14 On review, the parties do not challenge the characterization or proposed penalty, and we find no 

reason to depart from the characterization alleged and the penalty proposed in the citation. E.g., 

KS Energy Servs., Inc., 22 BNA OSHC 1261, 1268 n.11 (No. 06-1416, 2008) (affirming alleged 

characterization and assessing proposed penalty when characterization and penalty are not in 

dispute).
United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

 Complainant,

 v. OSHRC Docket No. 11-1734

CALPINE CORPORATION, and its 

successors,

 Respondent.

APPEARANCES: 

Jessica R. Brown, Esquire, U.S. Department of Labor, Office of the Solicitor, Region III, 

Philadelphia, Pennsylvania

For the Secretary

James G. Seaman, Esquire, Eckert Seaman Cherin & Mellott, LLC, Pittsburg, 

Pennsylvania

Frank C. Botta, Esquire, Eckert Seaman Cherin & Mellott, LLC, Pittsburg, Pennsylvania

Jeremy L. Samek, Esquire, Eckert Seaman Cherin & Mellott, LLC, Pittsburg, 

Pennsylvania

Willis A. Siegfried, Esquire, Eckert Seaman Cherin & Mellott, LLC, Pittsburg, 

Pennsylvania

Christopher Jones, Esquire, Calpine Corporation, Houston, Texas

For the Respondent

BEFORE: Dennis L. Phillips

 Administrative Law Judge

DECISION AND ORDER

This proceeding is before the Occupational Health and Safety Review Commission (“the 

Commission” or “OSHRC”) pursuant to § 10(c) of the Occupational Safety and Health Act of 

1970, 29 U.S.C. § 659(c) (“the Act”). On Wednesday, December 22, 2010, upon being notified
- 2 -

of an accident, the Occupational Safety and Health Administration (“OSHA”) initiated an 

inspection of Calpine Corporation’s (“Respondent” or “Calpine”) Bethlehem Energy Center 

(“BEC”) facility in Bethlehem, Pennsylvania. (SF-5).

In June 2011, OSHA issued a “serious” citation, alleging a violation of 29 C.F.R. § 

1910.23(a)(8), unguarded floor hole, and proposing a penalty of $7,000.00.1 Calpine filed a 

timely notice of contest, bringing this matter before the Commission. In her complaint, the 

Secretary of Labor amended the citation to allege a violation of 29 C.F.R. § 1910.23(a)(7), 

unguarded temporary floor opening. In its answer, Calpine set out 19 affirmative defenses.2 An 

eight-day hearing was held in Philadelphia, Pennsylvania in May and June, 2012. The parties 

submitted a joint pre-hearing statement, post-hearing briefs, and reply briefs. (SF-2 through 4, 

15).

Jurisdiction

Based upon the record, the Court finds that Calpine, at all relevant times, was engaged in 

a business affecting commerce and was an employer within the meaning of §§ 3(3) and 3(5) of 

 

1 A recommended draft citation for an alleged violation of 29 C.F.R. § 1926.501(b)(4)(i) for exposing the deceased 

to an un-guarding temporary floor opening that Siemens created at CT-6 on December 22, 2010 was not approved 

for issuance to Siemens by OSHA. (Tr. 427-29, 1219-22; RX-J). Area Director (“AD”) Jean Kulp testified that to 

her knowledge Siemens’ employees wore fall protection when working at elevated levels when openings in the 

catwalk existed. She also testified that Siemens’ employees not working at elevated levels while catwalk openings 

existed did not wear any fall protection. She further testified that Siemens’ employees at CT-6’s ground level had 

ladder access to the upper [catwalk] levels when there were openings that did not have any physical barriers or 

attendants guarding them. OSHA did not issue a citation to Siemens relating to its activities at BEC. AD Kulp also 

testified that OSHA did not cite Calpine for any activity that occurred at CT-6 during the overhaul before December 

22, 2010, including when Mr. Lewis entered the ground floor of CT-6 on December 21, 2010 at a time when there 

were openings in the catwalk that were not guarded by guardrails or attendants. (Tr. 1222-23, 1227-34).

2 Calpine’s 19 affirmative defenses are summarized as follows: (1) another entity had control over and caused the 

hazardous condition; (2) it was neither feasible nor was it required for Calpine to implement the requirements of the 

cited standard; (3) OSHA’s forms, information, exhibits and complaint contain false, inaccurate, and misleading 

information; (4) Calpine follows all reasonable and acceptable workplace standards and guidelines including OSHA 

standards; (5) Calpine took reasonable steps to ensure that Siemens was aware of its obligation to follow safety 

standards; (6) Calpine took all reasonable steps to keep its employees away from CT-6 while it was under Siemens’

direction and control; and (7) the alleged violation was the result of unpreventable employee misconduct.
- 3 -

the Act, 29 U.S.C. §§ 652(3) and (5). See pleadings. The Court concludes that the Commission 

has jurisdiction over the parties and subject matter in this case. (SF-1).

Stipulated Facts

The parties stipulated the following facts in their joint pre-hearing statement.

3

1. Respondent is an employer engaged in a business affecting commerce within the 

meaning of 29 U.S.C. § 652(5), and Respondent utilizes tools, equipment, machinery, 

materials, goods and supplies which have originated in whole or in part from 

locations outside the state of Pennsylvania.

2. Calpine timely filed a Notice of Contest to the Citation.

3. On September 16, 2011, the Secretary of Labor (“Secretary” or the “DOL”) filed a 

Complaint with the Occupational Safety and Health Review Commission 

(“OSHRC”). In her Complaint, the Secretary amended the Citation to read as 

follows, replacing the original language.

Citation 1 Item 1a Type of Violation: Serious

29 CFR [§] 1910.23(a)(7): Temporary floor opening(s) were not guarded by 

standard railings or constantly attended by someone:

(a) CT6, adjacent to the ladder access way – On or about December 22, 2010, 

a temporary floor opening in the steel grated platform, which surrounded the 

turbine chamber was not guarded by standard railings or constantly attended 

to prevent employees from falling a distance of no less than 16 feet through 

the unguarded opening.

4. Calpine filed a timely Answer to the DOL Complaint, denying the material 

allegations thereof and asserting various affirmative defenses.

5. Bethlehem Energy Center is located at 2254 Applebutter Road, Bethlehem, 

Pennsylvania 18015.

6. Joseph Miller is an employee of Calpine Corporation.

7. Joseph Miller was the Plant Manager of Bethlehem Energy Center at the time of the 

accident.

8. Thomas Narkin is an employee of Calpine Corporation.

 

3 The stipulated facts (“SF”) were read into the hearing record and at that time minor changes were made to 

Stipulated Facts 10, 11, and 13; both parties agreed to these changes. (Tr. 16-23).
- 4 -

9. Thomas Narkin was the Operations Manager of Bethlehem Energy Center at the time 

of the accident.

10. During the week of December 20, 2010, Siemens Energy (“Siemens”) was in the

process of re-assembling the CT-6 turbine. As part of that process, Siemens 

scheduled its 12/21/10 Day Shift (i.e., 7:00 a.m. to 5:00 p.m.) crew to re-assemble the 

platforms and catwalks, which surround and connect CT-6 combustor silos BK-1 and 

BK-2. The Day Shift crew did not complete that task, however.

11. Completion of the CT-6 platforms/catwalks configuration, which includes the BK-2 

Platform, was left for Siemens’ 12/21/10 Night Shift crew (i.e., 5:00 p.m. to 3:30 

a.m.). Siemens’ 12/21/10 Night Shift crew did not complete said platforms/catwalks 

configuration.

12. When Siemens’ 12/21/10 Night Shift crew left the BEC at 3:30 a.m. on December 22, 

2010, the BK-2 Platform was not completely re-assembled.

13. Using a laser measuring device, the coroner determined the BK-2 platform to be 17’ 1

31/32” above ground level.

14. Photographs of the BK-2 Platform, which were taken by both OSHA and the Police, 

as well as OSHA’s own admission reflect that “the tarps were still on the BEC Unit 6 

turbines at the time of the Incident.” (DOL-000632.)

15. Respondent has the burden of establishing the affirmative defense of unpreventable 

employee misconduct on the part of its employee [the decedent].4

Relevant Testimony

The BEC facility is a power-generating facility spread over 52 acres with two river water 

cooling towers, two steam turbine buildings, six combustion turbine buildings, two heat recovery 

steam generator buildings, two gas pressure buildings and a chemical addition building. An 

administrative office, maintenance shop and main control room are also at the BEC facility. 

Several combustion turbines are located at six combustion turbine buildings. The accident 

prompting the inspection took place in the combustion turbine building referred to as CT-6.

5

 

 

4

In the interest of privacy, the name of the deceased employee has been omitted from the decision.

5 CT-6 [also sometimes referred to as “Unit 6”] refers to the building housing Combustion Turbine 6. (Tr. 493-94, 

696; RX-MM). CT-6’s walls are depicted in a rectangular shape highlighted in yellow on exhibit RX-MM-E by Mr. 

Timothy Lewis. (Tr. 641; RX-MM). 
- 5 -

CT-6’s gas combustion turbine is a Siemens model V84.2. (Tr. 444-45, 505, 948, 1360, 1384, 

1422-23, 1439; RX-P, at p. 5, RX-MM-I).

The BEC facility was commissioned in 2002 and transferred to Calpine’s ownership in 

July 2010.6 Joseph M. Miller III became the plant manager at the BEC facility at that time.7 

Previously, Mr. Miller was the operations and maintenance manager at a power plant in 

Wilmington, Delaware for about ten years. (Tr. 1447, 1531-32; SF 6-7, 9). 

Thomas Narkin became the Operations Manager at the BEC facility in the spring of 

2009. Mr. Narkin is responsible for managing 17 operator maintenance technicians (“OMT”), 

four of which are lead maintenance operators (“LMO”).8 He graduated from Widener University 

and is an electrical engineer. LMOs operate the BEC facility, perform maintenance work, and 

help coordinate what gets done each day. In December 2010, there were four LMOs – Raymond

Lutz, William Varga, Timothy Lewis, and the decedent.9 (Tr. 439-40, 566-67, 606, 693-95, 988-

89, 992, 1435-39, 1440; SF-8 through 9). 

Calpine’s operations staff worked in 12-hour shifts starting at 6:00 a.m. and 6:00 p.m. 

There were four operations staff members per shift – three OMTs and one LMO.10 Each LMO is 

responsible for the oversight of three OMTs per shift. An OMT’s routine duties include 

checking meter readings, plant chemistry, starting and stopping equipment, observing equipment 

 

6 Conectiv was the previous owner of the BEC facility. (Tr. 1532).

7 Mr. Miller has a Bachelor of Science degree in mechanical engineering from Virginia Polytechnic Institute and 

State University (“Virginia Tech”). (Tr. 1532). 

8 Mr. Narkin described the 17 OMTs/LMOs as being a very skilled workforce, all with a least two year technical 

degrees, and almost all with experience working at BEC for about eight years. (Tr. 1447).

9 This was an “acting” position for the LMOs from July 2010 to February 2011; at that time it was changed to an 

official position. (Tr. 439-40, 512). In May, 2012, Mr. Lutz testified that about 28 Calpine employees worked at the 

BEC facility. CO Weisenberger testified that she was told that Messrs. Lutz and Roy Killgore monitored Siemens’ 

work at the BEC facility. (Tr. 420-21, 443).

10 Mr. Lutz, an LMO who started working at BEC in 2002, testified that prior to Calpine’s purchase of the BEC 

facility in July 2010, there was a shift supervisor for each shift; however, that position was eliminated with the 

Calpine purchase. (Tr. 441-42). Mr. Lewis testified that one member of the crew runs the control room, two 

members are each assigned to power block 1 or 2, and the fourth crew member is the floating operator who assists 

the other operators. (Tr. 681-82, 1440-41).
- 6 -

for potential problems, controlling megawatt-levels, maintaining offsite auxiliary equipment, and 

general light maintenance. Mr. Narkin stated that OMTs are required to inform him of any 

unusual condition and either stop or not start a job when they discover a safety issue. He 

testified that an LMO is responsible for his own safety, the safety of his crew, and delegating

work tasks.11 In addition, Mr. Narkin testified that one of the LMO’s duties including attempting

to resolve safety issues, and, if unable to do so, to then contacting the on-call supervisor. 12 (Tr. 

441-42, 694, 999, 1440-47; RX-X). 

The Overhaul Project

In 2010, Calpine hired an outside contractor, Siemens, to perform a maintenance 

overhaul of several turbines at the BEC facility. The overhaul effort included CT-6’s gas 

turbine’s disassembly and reassembly.13 At the time of the accident, Siemens was overhauling 

the CT-6 turbine and it was in outage mode (not generating energy).

14

 Mr. Narkin testified that 

during the overhaul Siemens directed and controlled the end of CT-6 where the turbine was 

located.

15 Calpine employees were occasionally borrowed to perform tasks at Siemens’ request. 

(Tr. 453, 1365, 1384, 1474-80; RX-N, RX-P, at p. 40).

 

11 LMO Varga testified that he was responsible for the day-to-day operations during his shift. (Tr. 694). LMO

Lewis testified that he considered himself to be the OMTs’ supervisor because there was no other management on

site during the night shift. (Tr. 603). 

12 Mr. Narkin testified that the night shift’s LMO has greater responsibility because management is not on site during 

the night shift. (Tr. 1446-47). 

13 The Master Agreement that governed the overhaul effort called for Siemens to direct its employees and comply 

with the Act. (Tr. 1362-68; RX-N).

14 As part of the overhaul, Siemens removed CT-6’s roof panels, moved the two combustion chambers out three 

inches, removed at least part of the catwalks thereon, and lifted the turbine rotor identified at RX-MM-H at “A”

from the building to be worked on elsewhere. Mr. Killgore testified that when the center case and rotor were 

removed, Siemens placed caution tape on top of the combustion chambers’ platform indicating that those areas were 

open. During that time, some of the platforms were in place and some were removed, including those over the 

center line of the turbine unit. Siemens barricaded off the platform ends that led to the center line. After finishing 

its work on the turbine rotor, Siemens had replaced the rotor, roof panels, and most of the catwalk by the time of the 

accident. The missing platform grates were to be reinstalled by Siemens during the December 22, 2010’s day shift, 

after 6:00 a.m. (Tr. 337, 357-61, 955-59, 1401; JX-III, at p. 2, JX-XIV, at p. 11, GX-7, at p. 2, RX-J, at p. 2, RXMM-H, at “A”). 

15 Mr. Narkin testified that CT-6’s combustion turbine was undergoing a modified, major overhaul that did not 

require the two combustion chambers to be removed from the building. The modified, major overhaul did require 
- 7 -

Raymond Rice and Roy Killgore were turbine engineers for Turbine Maintenance Group 

(“TMG”) and worked at the BEC facility during the overhaul project.

16

 TMG, a division of 

Calpine Operating Services Company, Inc. (“COSCI”), is based in Pasadena, Texas. TMG 

oversees the Master Agreement between Siemens and Calpine and the Operating Plant Service 

Agreement (“OPSA”) between COSCI and Siemens and provides technical oversight during 

overhauls at approximately 97 Calpine-owned facilities in the United States. Mr. Narkin 

explained that the TMG engineers served as an intermediary between Siemens and BEC’s plant 

management.17 Mr. Miller testified that “the TMG group is kind of like an internal 

subcontractor, ....” He also stated that Mr. Killgore was “kind of the company administrator” for 

the OPSA between Siemens and Calpine. (Tr. 932-33, 942-45, 1068-70, 1080. 1333-34, 1476, 

1569-70; RX-N, RX-P).

Messrs. Killgore and Rice were on site to ensure that Siemens followed the technical 

specifications for the overhaul project. They worked hours to correspond with the Siemens 

crews’ shifts. Mr. Rice had oversight for the night shift; Mr. Killgore was on the day shift. Mr. 

Killgore estimated that during the overhaul he spent 60% to 90% of his time in the area where 

Siemens was working. (Tr. 937-38, 1375-78, 1385; JX-VII at p. 5).

 

the removal of at least a portion of the platforms that surrounded the two combustion chambers. Mr. Varga also 

testified that Siemens controlled that area during the overhaul outage. He further stated that although he generally 

stayed away from the area, it “wasn’t unheard of to stand at a safe distance and observe for a little while - - ....” He 

agreed that he told his crew to stay away from the area because of the inherent dangers there. He testified that he 

told his crew that if they did not need to be in the area they should not be there. He also agreed that he would not 

have sent either himself or any members of his crew to the CT-6 catwalk when there were platform openings to 

install a spark rod. (Tr. 733-34, 742-43, 1000-01, 1376). 

16 Mr. Killgore testified that he has a Bachelor of Science degree in engineering and that he worked at BEC from 

October 18, 2010 through December, 2010. He testified that he considered himself “management,” but not really a 

supervisor. He was the Plant Manager at the Hay Road facility in Wilmington, Delaware from 2000 through July 1, 

2010 that had the same Siemens’ model number turbines that existed at BEC. Mr. Rice testified that he worked at 

BEC from December 10 through 2:00 a.m., December 22, 2010. (Tr. 940, 945, 1069, 1075, 1360-61, 1375, 1391; 

RX-P, at p. 5).

17 The OPSA indicated that a major inspection of a Siemens’ model V84.2 combustion turbine extended through 33 

calendar days. Siemens started its turbine overhaul effort at BEC on October 18, 2010. Siemens began overhauling 

CT-6’s turbine right after Thanksgiving, 2010; i.e. after November 25, 2010. (Tr. 1391, RX-P, at p. 40).
- 8 -

Mr. Killgore testified that Siemens personnel conducted a daily turnover meeting to 

“basically recap the day’s work for their night shift people coming in, and the night shift was 

gathering that information so they could go to work.” Messrs. Killgore and Rice attended the 

meeting to review the technical issues and determine whether BEC staff would be needed to 

perform a task. Siemens also prepared a Shift Turnover Report that showed work that had been 

accomplished and identified work to be scheduled. Mr. Rice testified that a completed copy of 

the Siemens Shift Turnover Report for the December 21, 2010 dayshift was not sent to Calpine’s 

Control Room on the evening of December 21, 2010.18 That report indicated that the platforms 

and catwalks had been hot bolted by about 5:00 p.m., December 21, 2010, but further work 

needed to be scheduled to torque the platforms and double nut them as necessary for looseness.19 

The Shift Turnover Report completed for the 5:00 p.m. through 3:30 a.m., December 21-22, 

2010 night shift continued to indicate that work needed to be scheduled to finish torqueing the 

platform sections.20 (Tr. 366-67, 424-25, 964-77, 981-82, 1288-90, 1376-79; JX-III, at p. 2, JXVII, at p. 10, JX-XV, GX-7).

Mr. Killgore prepared the “Calpine TMG Daily Shift Turnover Report” each morning,

which was then sent to Mr. Rice, Mr. Miller, TMG’s management, and Calpine’s regional vice 

president, Bill Ferguson. 21 The report was also a summary of what Siemens had accomplished 

 

18 Mr. Rice testified that it was customary for Siemens to not send a copy of its shift turnover reports to Calpine’s 

control room. (Tr. 981-82). Mr. Rice testified that he saw Siemens’ day to night shift Shift Turnover Report for 

December 21, 2010 at about 5:00 p.m., December 21, 2010. That report stated that Siemens had “Hot bolted 

platforms and catwalks” earlier that day and indicated that additional work was scheduled to “Torque platforms –

double nut as necessary for looseness”. (GX-7 at p. 1). Mr. Killgore testified that he received a paper copy of 

Siemens day shift Shift Turnover Report at 5:00 p.m. each day. (Tr. 1379; GX-7).

19 Mr. Killgore testified that “hot bolt platforms and catwalks” meant the bolts were not fully tightened to torque 

specifications after the platform grates had been lowered into place. (Tr. 1081-82; GX-7, GX-9).

20 Mr. Rice testified that the Siemens’ night shift personnel did not work on the upper catwalks during that time 

frame. (Tr. 978, 983-84; GX-7).

21 AD Kulp testified that she imputed knowledge of the unguarded catwalk openings to Calpine based upon 

information contained in Siemens’ reports. Using the sender address roy.killgore@calpine.com, Mr. Killgore sent 

TMG’s daily status report for December 21, 2010 that reported that Siemens’ December 20, 2010 day shift had “Hot 

bolted platforms and catwalks” to Mr. Miller and others by email at December 22, 2010, 7:48 a.m., a few hours after 
- 9 -

in the prior 24 hours.22 Mr. Killgore received the information for this report from the Siemens 

daily turnover meeting he attended and a report that Siemens sent to him between 6:00 a.m. and 

8:30 a.m. each morning which listed the work done overnight.

23

 Mr. Killgore also testified that 

one of his duties was to show Siemens’ employees a safety video as part of Calpine’s safety 

training of Siemens’ personnel working at BEC. (Tr. 1020, 1076-80, 1379-82, 1424-25, 1572; 

GX-8, GX-9, GX-13).

Siemens controlled the priority of the work tasks related to the overhaul. Mr. Killgore 

explained that the project’s status could change quickly because Siemens had to deal with 

various factors, such as the weather, while trying to meet its schedule. For example, Mr. Rice 

testified that on December 21, there was a blizzard predicted so the early part of that night’s shift 

was dedicated to getting a roof panel replaced. (Tr. 900-01, 961-62, 965, 1377, 1395, 1538-39; 

RX-D). Mr. Rice testified that work by a BEC employee in the overhaul work area was limited 

to those tasks necessary to assist Siemens during the outage.

24 Siemens was not allowed to 

perform certain tasks at the BEC facility. For example, if Siemens needed a piece of 

instrumentation moved, it would request a BEC technician to perform the work. (Tr. 1385-86). 

Messrs. Lewis, Lutz, Miller and Rice confirmed that BEC staff was only in CT-6 during the 

 

the accident. Mr. Rice, however, had seen Siemens’ Shift Turnover Report for December 21, 2010, at 5:00 p.m., 

December 21, 2010, many hours before the accident and Mr. Killgore had firsthand knowledge of the platform 

openings by 5:00 p.m., December 21, 2010. (Tr. 1284; GX-6, at p. 1, GX-9). 

22 The Calpine TMG Daily Shift Turnover Report reported that eleven Siemens personnel worked during the 

December 20, 2010 night shift at CT-6. (Tr. 1021; GX-8). 

23 AD Kulp confirmed that the report showing the work Siemens completed on its 12/21 night shift would not have 

been distributed until later in the morning on 12/22, after the fatality accident occurred. (Tr. 1283-84, 1290; GX-7,

at p.1). 

24 Mr. Killgore testified that Calpine BEC employees could enter and work in CT-6’s northern half, where a heat 

exchanger, generator, exciter and oil tank were located. This area was beyond the area in CT-6’s southern half 

where Siemens was performing work related to the turbine overhaul. (Tr. 1385; RX-MM-I). He further testified 

that Siemens posted at CT-6’s doors or around the turbine a Foreign Material Exclusion (“FME”) sign that required 

personnel entering the turbine’s centerline area to record material, such as tools, including wrenches and sockets, 

and pens, that entered and exited the designated area. Mr. Killgore agreed that the FME sign did not restrict access 

to the entire CT-6 building. (Tr. 1387-88, 1426). 
- 10 -

overhaul to perform certain limited tasks.

25

 Mr. Killgore’s duties included coordinating tasks, 

such as to remove wiring, electrical hookups, or conduct crane operations, that Calpine BEC 

employees needed to perform in the southern half of CT-6 while Siemens was engaged in its 

overhaul work in that area. (Tr. 454, 529, 644-45, 959-60, 1018-19, 1385-87). 

Mr. Killgore testified that Siemens could begin to reassemble the catwalk platforms after 

completing the re-installation of the rotor, compressor blade and turbine vane carriers, center and 

exhaust cases, and blow off line in CT-6’s turbine. (Tr. 1393). Siemens installed the center case 

during the December 20, 2010 night shift. (GX-6, at p. 2). Siemens hot-bolted the platforms and 

catwalks around the two combustion chambers during the December 21, 2010 day shift. 

Siemens’ December 21, 2010 night shift did not perform any work on the upper platforms in CT6. Siemens’ December 21, 2010 night shift Shift Turnover Report indicated that “Finish 

torquing platform sections” was scheduled work that needed to be done. (Tr. 1394-96; GX-7). 

During the overhaul project, Thomas McClelland26 performed tasks in CT-6 in 

December, 2010. Mr. McClelland testified that in order to remove a pipe in CT-6, “I went into 

the enclosure to assess the job. Looked up to see where I had to work and made sure it was safe 

or if it wasn't, which at that time it was not. So I went back and got my fall protection, came 

back, did the job.” He testified that he used fall protection because the catwalk platform was not 

complete.27 A few days before the accident, Mr. McClelland went back to replace the same pipe

in CT-6. Again, he “walked over to the unit, looked around where I needed to work, made sure 

it was safe, and if not went back and got my safety equipment and then went and did my job.” 

 

25 Mr. Miller testified that he considered igniter installation to be a task that allowed a Calpine employee to enter a 

building, such as CT-2, at a time when Siemens was performing a major overhaul. (Tr. 1019). 

26 Mr. McClelland has been an instrumentation and electrical technician at the BEC facility for approximately ten

years. (Tr. 1795). 

27 Mr. Narkin testified that neither he nor Calpine employees needed to wear any fall protection equipment when 

walking on the catwalks when all the grates were in place because the engineered fall protection, including railings, 

was in place. (Tr. 1014, 1513). 
- 11 -

He testified that he assessed the situation before he did any work because that was a “personal 

way I work”, safety training he had, and Calpine’s safety policies. (Tr. 1798-1804). 

Mr. Narkin prepared a night order for each upcoming BEC night shift. The night order 

was a list of tasks to be done, generally listed in the order of priority. Mr. Narkin testified that he 

did not expect all the listed tasks to be done on a particular night. If a task was critical he would 

note it as such with a desired completion date. Further, Mr. Narkin testified that he put some 

tasks on the list in advance of the needed completion date as a way to encourage communication 

between him and the operations staff about a planned future task. (Tr. 447, 1462-71). 

Mr. Lutz described a night order as the way management relayed tasks to the night shift. 

Night orders were placed on the Control Room’s counter by the operations manager, Mr. Narkin. 

These tasks were in addition to the routine duties of the operations staff. The night order was 

primarily for the LMO’s use, but it was available to any employee. Mr. Lutz explained that the 

expectation was to complete as many tasks as possible from the night order. Mr. Lutz further 

explained that there was some pressure to get priority tasks that were critical done for the next 

day’s shift. He also testified that in December 2010 it was common for LMOs to enter into CT-6 

to assist Siemens by turning on or off one of Calpine’s pumps, as well as to perform minor 

“quickie” jobs that did not require much time to complete.28 One such job included performing 

 

28 Mr. Lutz testified that Calpine provided a crane operator to Siemens to work in CT-6 during the overhaul. Mr. 

Lutz further testified that he was never given any task that required him to go onto the platform surrounding CT-6’s 

combustion chamber. The Court finds that Mr. Lutz was referring to the time frame while Siemens’ personnel were

working in CT-6. He was instructed by Calpine management not to work in areas where Siemens was working. (Tr. 

451, 454-55, 530, 1478). He further testified that he had been on the [17-foot] platform at other times. When up on 

the platform, Mr. Lutz believed that there was no need for fall protection because there were railings, kick boards, 

and cages around the ladders. He also testified that before the accident he was never trained to wear fall protection 

when going onto the platforms. (Tr. 451-52). LMO Lewis denied that he had been directed not to work in the area 

where Siemens’ personnel were working; but he acknowledged that he stayed away from the area of CT-6’s two

combustion chambers when Siemen’s was performing work there. He also did not allow his crew to be there, unless 

they had a purpose for being there. He testified that he and two other employees, Messrs. Greg Kulanko and Bill 

Vargas, had been instructed by Mr. Narkin to enter CT-5 to hook up an oil filtration system while Siemens’ 

personnel were working in the area sometime after 2010. (Tr. 589-91, 635, 641-46; RX-MM-E). LMO Varga 

testified that he was unaware before the accident of any instructions to Calpine employees to not work in areas 
- 12 -

plastic sheeting repair work to protect electrical components when the roof was removed. (Tr. 

447-51, 455-56, 530-31, 644, 991, 1478; JX-XIII, GX-10).

Mr. Narkin testified that employees have discretion as to which tasks will be done each 

night and that employees can skip tasks, “which happens a lot.” Mr. Narkin testified that besides

being able to skip items on the night orders when there was not time to complete the task by the 

end of a shift, employees were expected to skip a task when it could not be performed safely. 

Mr. Lewis confirmed that safety issues, potential hazards, physical capabilities of the person

performing the task, weather conditions, and operational conditions were all reasons to skip over 

a task on a night order.29 Mr. Varga testified that he did not believe anyone had ever been 

disciplined for not completing a task on a night order. He also agreed that it was appropriate to 

assess environmental conditions before performing any task. (Tr. 649-50, 741-42, 1462-64).

Mr. Lutz testified that he told Mr. Narkin that the men were feeling stressed about 

finishing all the tasks on the list each night. Mr. Narkin then sent out three emails clarifying the 

priority of tasks on a night order. Mr. Narkin sent these emails on August 20, November 18 and 

November 24, 2010. The emails were written to remind the employees that the jobs on the night 

orders were to be completed only if time and conditions allowed, that the listed tasks were 

secondary to their routine duties and safety training, and that Mr. Narkin did not expect them to 

complete all the tasks listed during that shift. The decedent was one of the recipients of these 

emails. (Tr. 539-40, 548-50, 651-52, 1465-71; RX-DD).

 

where Siemens’ personnel were working. He recalled entering such an area to cover up auxiliary equipment with 

plastic since the roof was removed and a Calpine operator regularly operated a crane there. (Tr. 704-05, 733). Mr. 

Rice identified the crane operator as Lee. (Tr. 937-38). Mr. Narkin testified that if Siemens wanted to get a Calpine 

employee to perform a task in CT-6 during the overhaul effort, Siemens would seek to do so through Messrs. 

Killgore, Rice, Miller, or himself. (Tr. 1477-79). 

29 Mr. Lewis holds Bachelor of Arts degrees in mechanical sciences, political science, and sociology. (Tr. 671). 
- 13 -

On the December 20 night order, Mr. Narkin included an assignment to re-install a spark 

rod30 where one had been removed a few days before from CT-6’s east combustion chamber

burner by the deceased.

31

 Mr. Narkin testified that he knew that installing the spark rod in CT-6 

required the use of the upper platform that surrounded the combustion chambers. He also

testified that he did not take any steps at that time to determine the condition of CT-6’s catwalk 

platform. (Tr. 1003-4; GX-5).

Mr. Lewis attempted to complete the spark plug replacement assignment at 

approximately 4:30 a.m. on December 21. He did not know into which of the two combustion 

 

30 A spark rod is an igniter used to ignite a combustion chamber. The spark rod is also referred to as a spark rod cap, 

spark plug, igniter tip, igniter, or an igniter rod in the record. Mr. Lutz further testified that the deceased had 

removed a spark rod cap from CT-6 and installed it in Building CT-2 as directed by the December 17, 2010 Weekend 

Order. On about February 17, 2011, a Calpine employee told Compliance Officer (“CO”) Weisenberger that “Bob” 

[Itterly] had worked on igniters with the deceased a week before the accident and that they had taken parts from CT-6 

to use in CT-2. (Tr. 172, 458-59, 701-02, 997-98; JX-XIV, at p. 6, GX-10; RX-MM-B, D and F). Mr. Miller 

testified that the deceased was involved in replacing an igniter at CT-2 on about December 15, 2010. (Tr. 1560-61; 

GX-15). 

31 Mr. Lutz testified that installing a spark rod was “a matter of screwing a little tip onto a threaded piece.” He 

further testified that you could “flop it [the tarp] up” to access the place for the spark plug on top of the east 

combustion chamber in CT-6 since the place was close to the edge. (Tr. 468, 496-97; RX-MM). Mr. Lutz also 

testified that the deceased removed the spark plug from the south eastern side of the east combustion chamber. (Tr. 

497; RX-MM-B, at “D”). Mr. Varga also testified that although he believed a spark plug needed to be replaced at 

the east combustion chamber, he did not know precisely which spark plug needed to be replaced. He also testified 

that he did not know if there were missing grates where the spark plug needed replacement. He also stated that there 

was “no sense of urgency” on December 22, 2010 to replace the missing spark plug because the CT-6 turbine was

not going to be placed back in operation until after the Christmas holidays. Calpine’s December 20, 2010 night 

order stated that CT-6 “will probably be test run on 12/30.” (Tr. 712-13, 738-40, 1403; GX-5). Mr. Lewis also 

testified the tarps would not have prevented him from replacing the missing spark plug because the tarp was bungeecorded to the chamber’s top. He stated that he could have pulled up on the bungee cord, peeled back the tarp and 

gained access to the combustor burners where spark plugs were used. He also testified that he would have worn fall 

protection if he had replaced the spark plug located at the south east side of the east combustion chamber on 

December 21, 2010. Mr. Lewis also testified that he observed Siemens’ personnel wearing fall protection when he 

occasionally entered CT-6. (Tr. 580-81, 678-80, 689-90). A Contractor Job Safety Audit performed by Mr. Ed 

Rodichok, an employee of TekSolv, at 10:30 a.m., December 21, 2010, rated Siemens’ use of fall protection as 

satisfactory while performing an assembling task at CT-6. (Tr. 1022-25, 1555, 1575-77; RX-LL, at pp. 

CALPINE002031-2). Mr. Killgore testified that he watched the crane lower the platforms in place in CT-6 on 

December 21, 2010 and saw Siemens’ workers wearing fall protection harnesses on the platforms. He further 

testified that some Siemens personnel did not tie off properly, some Siemens workers hooked onto guardrails or 

handrails, while others did not. He did not know whether the Siemens safety representative, who was also present, 

said anything to the improperly tied off Siemens employees, although Mr. Killgore stated the safety representative 

should have. (Tr. 1396-97). Mr. Killgore stated that he did not see any Calpine workers on the platform area 

during the December 21, 2010 day shift. He further testified that while in CT-6 during the December 21, 2010 day 

shift, he could see from ground level that tarps were still covering both combustion chambers, including igniter 

locations. He also testified that he saw from the ground level that the combustion chamber platforms had been hot 

bolted and there were platform openings where grates were left up against the handrail or on top of other grates 

where Siemens had to later formally tighten the platforms to torque specifications. (Tr. 1397-99, 1401-02).
- 14 -

chambers the spark plug was to be installed.32 (Tr. 460-63, 566, 569-74, 998, 1003-06, 1483-85; 

GX-5, RX-MM). Mr. Lewis further testified that he entered CT-6’s southern door after exiting 

the Heat Recovery Steam Generator (“HRSG”) building. The farthest point he reached was 

directly south of the west combustion chamber. From there, he could see that “[t]he tops of the 

combustion chambers were covered with tarps over the top of the burners where this spark rod

assembly would go . . . . in addition to the tarps covering the combustors there was decking 

missing from these catwalks.”

33

 He also testified that he observed the opening in the platform 

from floor level and that it was so obvious that it took him only a minute to assess the condition 

of the platform.34 Mr. Lewis did not climb up to the 17- foot platform to install the spark rod 

 

32 Mr. Lewis had replaced combustion chamber spark plugs before. Mr. Lewis testified that there were six 

combustors that used spark plugs in each of the two combustion chambers and he would have needed to check each 

one to determine which of the twelve combustor sites was missing a spark plug. The spark plugs were located in all 

directions around the combustion chamber’s circumference. Mr. Varga testified that the spark plugs were about 

three feet apart. (Tr. 578, 666, 743). Mr. Narkin testified that replacing the spark plug at CT-6 was “a very fast job. 

It should only take a couple of minutes to do it.” (Tr. 1485).

33 Mr. Lewis testified that he started his trip to CT-6 from either the control room or maintenance shop, both located 

west of CT-6. He then headed to the HRSG Building because it was very cold, near zero degrees, outside and 

entered CT-6 through its southern doorway, less than 50 feet from the HRSG building, which put him at the ground 

floor where there was an access ladder leading to the catwalks. The roof was still off CT-6. Mr. Lewis also testified 

that during the early morning of December 21, 2010 it was harder to see inside CT-6 because the roof was not 

installed and not all of the lights were on. He was, however, able to see the grate opening and tarps surrounding the 

combustion chambers. He did not know whether or not there were any grate openings at the northern side of the two 

combustion chambers. He also did not know how far the tarps draped down, or how difficult it would be to install 

the spark plug, on the combustion chambers’ northern side. Mr. Lewis testified that he thought it would be 

impractical to carry tools and the spark rod and enter CT-6’s west door because to then get to the combustion 

chamber one needed to either go down a vertical ladder or circle around to CT-6’s east side. When he returned from 

CT-6, he returned the tools to the maintenance shop and put the uninstalled spark plug on the control room’s 

counter. (Tr. 571, 573-74, 581-82, 654-55, 657-70; RX-MM-E). LMO Varga also testified that coming from the 

control room he would have entered CT-6’s southern door to access its combustion chambers from the ground level. 

(Tr. 702-03, 745). AD Kulp admitted that OSHA was unable to determine the actual path the deceased took within 

CT-6, or through which door he entered the building. She also agreed that the she had information that there was a 

possibility that the deceased had entered CT-6 to merely assess the job area. On February 17, 2011, a Calpine 

employee told CO Weisenberger that the deceased “didn’t have tool belt – Think was accessing job area.” AD Kulp 

also testified that OSHA did not know what activity the deceased actually did within CT-6 during the morning of 

December 22, 2010. She testified “Whether or not he [the deceased] went there [into CT-6] to assess or perform 

work we don’t know for sure.” (Tr. 1293-94, 1297, 1303, 1305-06; JX-XIV, at p. 3). 

34 Mr. Lewis testified that the catwalk’s deck plates were “a few feet wide” and anywhere from a foot to several feet 

long. He identified where he saw catwalk deck plates missing in the southeast quadrant of the west combustion 

chamber opposite the caged access ladder, as well as the area connecting the two combustion chambers. Mr. Lewis 

also testified that on December 21, 2010 he saw a grate plate missing from combustion chamber six [the west 

combustion chamber of CT-6] that he identified at photograph GX-1, at “B” [shown with yellow tape hanging 
- 15 -

because he felt the floor opening made it unsafe and Calpine policies forbid working in an area 

where there was an uncovered opening unless the opening was covered or barricaded. (Tr. 571-

73, 578-81, 654, 661-62, 666, 670, 679-80; RX-MM-E).

At the end of his shift on the morning of December 21, Mr. Lewis informed the next 

shift’s LMO, Mr. Lutz, that the platform surrounding the combustion chambers was unsafe for 

travel because it had unguarded floor openings.35 Mr. Lewis did not work on December 22, 

2010. Mr. Lewis testified that, “to the best of [his] memory,” Mr. Narkin was present when he 

told Mr. Lutz about the openings in the platform.36 (Tr. 533, 581, 587, 671-75). Mr. Lutz 

confirmed that Mr. Lewis told him about the missing grates in the catwalk platform that 

morning. Mr. Lutz believed Mr. Narkin was in the room at the time, but he was not “100% 

sure.” 37 (Tr. 461-63, 541-42, 533-38, 550). However, Mr. Narkin testified he was not advised 

of the platform’s condition by Messrs. Lewis or Lutz on the morning of December 21. (Tr. 

1488-89).

 

down]. Mr. Lewis did not see any yellow, safety “barricade” tape hanging down from the catwalk’s railing at that 

location on December 21, 2010. (Tr. 575-80, 584-85; RX-MM-C and D).

35 Mr. Lutz testified that he was “pretty certain” that during the morning of December 21, 2010 he discussed Mr. 

Lewis’ safety concerns with the three other members of his crew, including perhaps Ronnie Frank and Greg Sinsky. 

Mr. Lutz did not instruct his second, possibly Mr. Frank, to advise the deceased of Mr. Lewis’ safety concerns. (Tr. 

536-37, 541-43, 546-47, 673).

36 Mr. Lewis testified:

Q. Who if anyone did you inform – about your decision not to replace the spark rod?

A. I told the oncoming LMO Ray Lutz

Q. Anyone else?

A. Tom Narkin was in the room and I told him.

Q. Okay. Did you tell Mr. Narkin why you did not replace the spark rod?

A. I said – I told Ray that during the turnover and Tom it wasn’t safe to do.

Q. Did you explain why it wasn’t safe?

A. Because the decking was missing.

(Tr. 581).

37 Mr. Lutz testified that Mr. Lewis told him that he was unable to replace the spark plug because there was a lot of 

missing equipment, grading and other things, and he did not feel safe going up onto the platform. (Tr. 462-63). 
- 16 -

On the December 21 night order, Mr. Narkin again included the task to install a spark rod

in CT-6’s east combustion chamber.

38

 The December 21 night order carried over this task from 

the previous night, with the added phrase: “[i]f tarps and Siemens are not in the way.”39 Mr. 

Narkin was told to add this phrase, but he could not recall who told him to do so. Mr. Narkin 

testified he did not question the meaning of the phrase because it seemed very clear. To him it 

meant that the tarps covering the turbine were off and that Siemens’ “people” and “stuff” were 

gone.40 He testified that the “tarps were gigantic. And for them to not be in the way, they would 

have to be off. They were huge.” (Tr. 166, 1006-08, 1485-88, 1517-18; JX-XIII)).

Mr. Lutz testified that when BEC operations staff changed shifts there was usually a 

discussion between the shift LMOs to pass along operational and safety information to the next 

shift.

41

 If Mr. Lutz could not attend he would generally have someone fill in for him. Mr. Lutz 

also testified that for his December 21 day shift, he left a few hours early and was not there to 

 

38 CO Weisenberger testified that Mr. Narkin told her on December 22, 2010 that a work order instructed the 

deceased to replace a big spark plug. (Tr. 331-32; JX-XIV, at p. 9). CO Burgei testified that the Calpine officials he 

and CO Weisenberger spoke with on the morning of December 22, 2010 “did not know what he [deceased] was 

doing in the area. They told us they weren’t sure of what he was supposed to be doing or why he was there.” CO 

Burgei’s December 22, 2010, 12:59 p.m. email to CO Weisenberger stated that “Allegedly no one knew why he 

[deceased] was up there, or if he was supposed to be up there or why he didn[]t (sic) replace the flooring.” (Tr. 907-

08, RX-D). Police Officer Christopher Kopp’s Incident Report stated that Mr. Narkin told him on December 22, 

2010 that the deceased “had email (sic) Narkin at 0215 hours and then was to complete a work order to replace the 

spark rod in the combustion chamber.” Mr. Narkin also reportedly told Officer Kopp that “If the grates were 

removed, by company policy there should have been yellow tape and/or a plywood barricade across the danger area 

denying access.” Chief Deputy Coroner Coy Smith stated in the Coroner’s Investigation Report that Mr. Narkin told 

him on December 22, 2010 that the decedent “had sent an email to another employee at 2:15 a.m.” Officer Kopp 

stated in his Incident Report that he [Officer Kopp] believed that the deceased “fell headfirst through the open 

grate.” In early 2011, a Siemens’ employee told CO Weisenberger that a “spot light was shining where [the] ‘spark 

plug’ goes [sic].” CO Weisenberger testified that she was told that the deceased had a spark plug in his pocket 

when found on the floor. (Tr. 384, 1293; JX-XV, at p. 4, RX-L, at p. 5, RX-M).

39 This limiting instruction was not included in the night order given to Mr. Lewis on December 20, 2010. (Tr. 588).

40 Mr. Lutz testified that he had seen the 12/21 night order earlier that day. Its last listed task was, “If tarps and 

Siemens are not in the way install new spark rods in the control room counter in CT-6, where one was borrowed 

from C[T]-2 this past weekend.” (Tr. 464; JX-XIII). Mr. Lutz interpreted that to mean that if “the tarps were not 

preventing the job from being done and Siemens left that evening that would be when they weren’t under their feet 

trying to work around them.” He also testified that no one in management had instructed him how to interpret the 

phrase, “if tarps and Siemens are not in the way.” (Tr. 467).

41 This discussion generally occurred in the control room, which is in a building just to the west of CT-6. (Tr. 498, 

536).
- 17 -

tell the next shift’s LMO about the condition of the platform.42 The decedent was the LMO for 

the December 21 night shift. (Tr. 544-47). 

Mr. Rice’s last shift at the BEC plant was the night of the accident. He left before the 

end of the shift, at approximately 2:00 a.m. He left earlier than normal because Siemens had 

finished the technical aspects of the job and was performing clean-up work for the remainder of 

the shift, which ended at 3:30 a.m.43 Only Siemens’ employees were in CT-6 between 2:00 a.m. 

and 3:30 a.m. on December 22. (Tr. 937, 940, 971, 980-81).

The Accident

Raymond Lutz arrived at the BEC facility at about 5:15 a.m. on Wednesday, December 

22. When he arrived, he was told by other Calpine employees that they were looking for the 

decedent.

44

 The decedent’s body was discovered in CT-6 a few minutes later.

45

 Mr. Lutz then 

went to CT-6 and saw the decedent lying on the concrete floor near an access ladder leading up 

to the northwest part of CT-6’s west combustion chamber.

46 He testified that the area was “kind 

 

42 At the hearing, Messrs. Lewis, Lutz and Narkin all testified that they had not told the decedent about the openings 

in the platform. (Tr. 1007, 1011).

43 LMO Varga testified that Siemens’ personnel worked two 10 hour shifts and were offsite between 3:30 a.m. and 

7:30 a.m. (Tr. 706).

44 The December 21-22, 2010 night shift crew included the deceased and Messrs. Joe Brey, Greg Boardman, Bob 

Itterly and John Horvath. (Tr. 484-85). 

45 The Coroner’s Investigation report stated that the body was about 25 feet inside from CT-6’s main entrance. (RXL, at p. 4).

46 There was also a separate ladder leading up to the northeast part of CT-6’s east combustion chamber. Both ladders 

leading to the 17-foot platforms of the west and east combustion chambers were cage protected. There was a swing 

metal gate at the top of the 17-foot ladder that reached the west combustion chamber’s catwalk. CO Burgei testified 

that when looking at the gate, the gate swung to the left. (Tr. 774, 779-80, 850; GX-1, at p. 11, GX-16, at 1, GX17B, RX-MM). Mr. Lutz testified that he thought it was quicker, with no flight of stairs involved, to proceed from 

CT-6’s southern entrance to the east combustion chamber by using the access ladder to the west combustion 

chamber. He also acknowledged that there were two doors on CT-6’s north and west side that were closer to the 

maintenance shop. (Tr. 497, 501-03; RX-MM). He also testified that one could walk a couple of strides from the 

CT-6 west side entry way door and reach a “little ladder” with a swing gate at the top that led to the Inlet Guide

Vane (“IGV”) platform, which was surrounded by a waist-high railing. (Tr. 552-53, 556; RX-MM, at “G”). Mr. 

Lutz also testified that one could enter either the north or west door to CT-6, hop a railing, and climb atop a particle 

board and then gain access to the IGV platform, as an alternative to climbing the five or six-foot ladder. (Tr. 558-

60; JX-XXXIV, at p. 6). Mr. Lewis also testified that CT-6’s north door was close to the parking lot west of CT-6. 

(Tr. 659-60; RX-MM-E). 
- 18 -

of shadowy.”47 Using a flashlight and not wanting to move the deceased, Mr. Lutz concluded 

that the deceased had perished. (Tr. 483-91, 496; RX-MM).

On December 22, 2010, Mr. Varga reported to work at about 5:30 a.m. and went directly 

to CT-6 when he learned of the accident and saw the deceased lying on his belly. Mr. Varga 

testified that it was “rather dark” inside CT-6 and he used a flashlight to see better. He testified 

that the deceased’s legs were on either side of the access ladder that led to a combustion chamber

with his crotch pressing very tightly at an elevated level against the access ladder’s left upright. 

Mr. Varga agreed that it was “very apparent” that there were holes in the catwalk platform. He 

further agreed that he would have worn a harness for safety reasons if he were to have ascended 

to the catwalk platform.48 He also testified that the deceased’s head was a couple of inches from 

the right upright of the shorter ladder that led to the IGV platform. Mr. Varga testified that one 

of the openings in the platform surrounding the combustion chamber was “pretty much right 

above” where the decedent’s body was discovered.49 He testified that he did not recall seeing 

any tarps covering the combustion chambers. He was at the north side of the west combustion 

chamber for less than five minutes. (Tr. 695-97, 708-09, 725-26, 731-32, 737-38; RX-MM-F).

Coroner Lysek50 arrived at the BEC facility between 6:00 a.m. and 7:00 a.m. to 

investigate the reported death of an employee.51 Upon arrival he was directed to CT-6. Mr.

 

47 Mr. Lutz testified although CT-6 was typically well lit, at about 5:30 a.m., December 22, 2010, it was kind of 

shadowy and “kind of dark” in the area where the deceased was because Siemens had re-installed the roof several 

hours before and the lights nearest the deceased had not yet been reconnected. He stated that it was “Not dark like 

oh, I can’t see nothing, but shadowy.” (Tr. 491-92, 742). CO Burgei also testified that he could see the catwalk’s 

condition before climbing the access ladder. (Tr. 843).

48 Mr. Varga testified that neither he nor any of the other operators had been up on the catwalk platform when there 

were holes in the platform. (Tr. 731-32).

49 Mr. Varga testified that he saw a grate opening slightly east of the access ladder leading to the west combustion 

chamber. (Tr. 699-700; RX-MM-F, at “A”, RX-MM-G, at “A”). Mr. Varga identified the approximate locations of 

four holes in each of the upper platforms surrounding the two combustion chambers in CT-6. Mr. Lutz also testified 

that a platform opening was above where he found the deceased. (Tr. 492, 710-11, 1014; RX-MM-G).

50 Zachary R. Lysek has been the Northhampton County coroner since 1992. Since then he has been involved in or 

supervised the investigation of 21,000 deaths. This includes about 620 cases attributed to accidental death, as 

opposed to suicide, homicide, or natural death. Of the accidental deaths, 36 were workplace related. Prior to being 
- 19 -

Lysek ascertained that the lighting was the same as it would have been when the decedent 

entered CT-6 a few hours prior. He testified the lighting in CT-6 was “adequate enough that I 

could look up and see the grating and make out everything” and that he could clearly see the 

missing grates which were “leaning against the railing” on the catwalk; he could see this without 

a flashlight or other type of lighting device. (Tr. 1588-92, 1607, 1651-54, 1718-19).

Coroner Lysek explained that on the day of the accident he observed the body and the 

area surrounding it.52 He testified that the decedent’s gloves were not misplaced and were on 

each hand properly.53 There were no tears in his jacket and it “appeared perfectly fine.” He 

further testified that decedent's head was lying face down on the concrete floor positioned about 

an inch or two from the short access ladder (identified with the letter “D” on RX-MM-I) with 

seven steps leading to the lower platform (also referred to by Coroner Lysek as a catwalk) to the 

east (identified with the letter “E” on RX-MM-I). There was a wet area on the concrete floor 

that extended from the west wall over to the west side of the combustion chamber. Coroner 

Lysek described the lower platform as a metal grate walkway about three to four feet wide, about 

 

coroner, he investigated accidents and all types of crime scenes as a policeman for about 8 years. He has worked in 

the trauma room and pathology department as a forensic pathology assistant at the Lehigh Valley Hospital. He also 

worked full-time as a forensic pathology assistant involved in autopsy and forensic investigations with a group of 

forensic pathologists. He was a medical investigator in Warren County, New Jersey and served as Northhampton 

County’s deputy coroner for about four or five years before being appointed coroner. Since 1992, he has continued 

his training, which has included classes in accident reconstruction, crime scene investigation, and blood pattern 

analysis. He has two bachelor degrees in management and administration and safety management from DeSales 

University. He testified that his job is to “investigate death to determine the cause and the manner of death, to 

determine what happened to an individual, how it could have happened and whether or not this could potentially –

the death could have occurred as a result of someone’s else’s action.” (Tr. 1580-86, 1708).

51 Coroner Lysek testified that the Bethlehem Police 911 center was contacted at about 5:42 a.m., December 22, 

2010. Once the police determined at the scene that the individual was dead, police officer Kopp contacted the 

coroner’s office at 6:07 a.m. (Tr. 1633-34, 1674; RX-L, at p. 3).

52 Coroner Lysek testified that he assumed that the decedent entered CT-6 through its west door as was commonly 

done. (Tr. 1594).

53 Coroner Lysek testified: “Your Honor, the gloves that [the decedent] was wearing was a pair of brown bronze 

colored cotton work gloves. They were on his hands properly, his fingers were in each of the finger holes properly. 

I paid close attention to that because at the scene, one of the questions I had was could he have grabbed a hold of 

anything in an attempt to stop his fall or prevent his fall. And the gloves were loose fitting, they would have - if he 

would have grabbed hold of something they would have moved off his hand, and the hand - they were not off his 

hands, but they were properly on each of his hands, both and his right and his left hand, sir.” (Tr. 1650, 1671; JXXVI at CALPINE000077).
- 20 -

seven feet off the ground.54 Two bars, a lower bar and an upper bar, protected and confined the 

lower catwalk’s space. There was a gate atop the short access ladder that had to be opened to 

stand on the catwalk. He testified that the catwalk extended to the combustion chamber’s south 

side. Immediately north of the short access ladder, he described an area where there were two 

six-inch I-beams, one north and one south, that extended from left to right from the lower 

catwalk, and a catwalk to the left and west side. He testified that there was a small section of 

particle board (also referred to as composite plywood) over the southern I-beam. He testified 

that there was another steel grated platform area that he identified at “H” on RX-MM-I, to the 

left of the particle board (looking north), where there was another ladder that extended from the 

floor where the deceased was found up to a platform that was about the same elevation as the

lower catwalk at RX-MM-I at “E”. The distance from the particle board to the lower platform 

ladder at “D” was very short. (Tr. 383, 1597-1610, 1623-26, 1647-49, 1671-72, 1731; JXXXXIV, RX-L, RX-MM-I). 

Coroner Lysek testified that the west combustion chamber was “obviously under 

construction” with various light stands and tools set about the walls. Upon entering, he saw that 

“the top of that whole chamber was tarped with a very heavy green tarp.” He saw two sections 

of grate missing from the upper platform (also referred to herein as the “upper catwalk”) that 

surrounded the west combustion chamber, one on the south side that he identified as “I” on RXMM-I and another on the north side that he identified as “J” on RX-MM-I.55

 He also saw areas 

of yellow caution tape hanging downward from the upper platform walkway. (Tr. 1605-07, 

1654, 1718; RX-MM-I).

 

54 He identified the lower platform at RX-MM-I at “E”. (Tr. 1601-02). 

55 Coroner Lysek testified that from the concrete floor he could clearly see the holes in the upper platform catwalk 

and they were obvious when he entered CT-6. (Tr. 1607). 
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Coroner Lysek took photographs of the area surrounding and above the location of the 

body. He examined the nearby lower platform which was about seven feet above the floor, the 

higher, upper platform (where the grated floor sections were missing) which was 17 feet,1 and

31/32 inches, above the floor (hereinafter any reference to “17 feet” or “17-foot” is referring to 

an actual height of 17 feet, 1 and 31/32 inches above the floor), and the corresponding access 

ladders for potential evidence. In an effort to identify any evidence that might suggest the origin 

of where the deceased fell from, he climbed over a three to four foot high railing that partitioned 

the lower platform at “H” from the lower platform at “E” identified on RX-MM-I,56 and another 

railing on the east, right side of the lower platform. He then carefully walked across the two Ibeams using his left foot on the northern I-beam and right foot on the southern I-beam and 

climbed over another railing in order to reach the lower platform at “E” identified on RX-MMI.57 Using the caged access ladder at “B”, he then climbed to the upper platform and looked 

down through the hole on the catwalk and saw two pieces of grating that fit the two openings 

leaning up against the railing at the west side of the west combustion chamber. (Tr. 161, 333-

34, 1597-1613, 1622, 1630-31, 1715; JX-XIV, at p. 10, JX-XVI, at p. Calpine000089, JTXXXIV, RX-MM-I). 

During his testimony Coroner Lysek described the opening in the upper catwalk platform 

that was closest to, and when climbing up to the left of, the caged access ladder.

58

 He testified 

 

56 He testified that he had to step on the lower of two railings and then put his leg over the top railing and then put it 

back on the lower railing to get down. (Tr. 1714).

57 Coroner Lysek testified that he chose to walk using the I-beams that were below the particle board to avoid 

walking across only the particle board because he was not very light. He testified that “it probably wasn’t the 

smartest or the safest way to move” between the lower platforms at “H” and “E”. He found the particle board area 

to be “a dangerous area to walk.” (Tr. 1610-11, 1632-33; JX-XXXIV, at p. 6, RX-MM-I). He further testified that 

the upper platform opening at “I” could not have played any role in the accident because it was on the opposite, 

south side of the west combustion chamber in CT-6. (Tr. 1616; RX-MM-I).

58 Coroner Lysek described the opening as a slice of pizza pie with the tip of it being cut off. He estimated both 

opening sides to be about 32 inches, decreased by a 1.5 to 2 inch lip that the missing grate would sit on, with a beam 

about 1.5 to 2 inches beneath the opening’s east side. He also estimated the opening’s outside radius to be 22 inches 
- 22 -

that he would expect there to have been contact between the body and the opening’s metal 

surfaces if someone of the decedent’s size had fallen through. He found no physical evidence to 

indicate the deceased had fallen through or near the platform opening.59 Also, the body’s 

location was not directly below the opening, which made it improbable he fell from the upper 

catwalk platform.60 He testified that the lower seven foot high platform at “E” was “directly 

above the body.” Coroner Lysek said that he used a very accurate Leica DISTO meter, D-8, to 

measure that the distance from the concrete floor to the bottom of the upper catwalk was 17 feet, 

1 and 31/32s inches. (Tr. 1617-19, 1622-23, 1633, 1642, 1652, 1683-85, 1710-11; JX-XVI, JTXXXIV, RX-MM-I).

Coroner Lysek stated that the deceased’s body was removed and that his office personnel 

cleaned up blood beneath the deceased’s head before the OSHA COs arrived at CT-6. He also 

testified that the deceased’s cell phone located near the decedent’s head and hard hat may have 

removed before the COs arrived at the accident scene. He further testified that a small silver 

colored ignition fixture was found in the decedent’s coat or shirt pocket,61 as well as papers in his 

pocket of work that was done or checked off. Coroner Lysek rendered his initial investigative 

 

and the inner radius to be about 15 inches. He saw “a lot of sharp edges or angles of metal” there, including two 

bolts. The north side of the opening was wider because it was the outer curve of the upper platform. He estimated 

that the height of the railings at the upper and lower platforms to be about three to four feet above the platform 

floors. (Tr. 1615-18, 1629-32, 1716-17; JX-XXXIV).

59

 Coroner Lysek testified that he looked for tissue, blood, and clothing fibers to indicate where the decedent could 

have been standing when he fell; he looked carefully at the opening in the 17-foot-high catwalk for any tissue, 

blood, material, fiber from the decedent's clothing, or a swipe in the dust. He found no physical evidence on the 

opening. He paid close attention to this area because the law enforcement officers initially focused on the upper 

platform floor holes as a potential area where the decedent could have fallen through. (Tr. 915-16, 1612-15, 1645-

47; RX-L. at p. 4). 

60 “[B]ecause of the size of the opening in the upper catwalk, which ultimately was not really that big, [the 

deceased] was 5 foot 11, about 200 pounds, you - if a person were to trip on that upper catwalk they would have had 

to have gone through that hole on the upper catwalk at an angle. The only way to do that is to impact with the metal 

surfaces, which would have caused some form of injury. . . . where the body was with respect to where the opening 

was it was a distance over - I would estimate approximately four feet north of the opening in the floor, and I don't 

think that he could have - where he fell - when people fall they don't fall at angles, they fall straight down . . . . and 

with that fact and where he fell he did not move.” (Tr. 1683-85; RX-L, at p.2). The autopsy reported the decedent’s 

height at 70 inches and weight at 219.5 pounds. (Tr. 1747; RX-L, at p. 9).

61 Coroner Lysek testified that the fixture that his office initially retained as evidence could also be described as the 

silver tip that unscrews from the top of a spark plug. (Tr. 1722).
- 23 -

findings and completed the deceased’s death certificate on December 23, 2010. He reported the 

cause of death as “Blunt Force Head Trauma” and the manner of death as an “Accident.” His 

initial investigative findings did not include rendering an assessment as to the origin of where the 

deceased fell from because of a lack of evidence.62 Coroner Lysek testified that he could not tell 

if the decedent fell while on the ladder leading to the 17-foot platform (at “B”, RX-MM-I) or the 

ladder leading to the lower level platform (at “D”, RX-MM-I). He further testified that the 

decedent’s body was about four feet north of the 17-foot platform opening and since he fell 

straight down and his body did not move he fell from above where he was and not through the 

opening in the 17-foot platform. He testified that “it’s unlikely that he could have fell through 

the opening.” He also testified that the Decedent “very likely” fell from the ladder identified as 

“D” leading to the lower platform at “E”, RX-MM-I.63 (Tr. 1637-39, 1648-49, 1664-65, 1668-

70, 1681, 1684-85, 1722-33; JX-XVI at CALPINE000074, RX-L, RX-MM-I).

Detective Iatorola took many photographs while at the accident site on December 22, 

2010 at about 7:00 a.m. Several of these photographs have been sealed by Court order due to 

their graphic nature. Photograph JX-XVI, at p. Calpine000083, shows the platform opening that 

was nearest the caged ladder that led to the 17-foot platform, as well as the caged ladder and a 

piece of dangling tape, at the north side of the west combustion chamber of CT-6.64 (Tr. 1636; 

JX-XVI).

OSHA COs Tricia Weisenberger and Nicholas (“Nate”) Burgei arrived at the BEC 

facility at about 9:30 a.m. on December 22.65 Before arriving at the accident site, it was CO 

 

62 The Coroner’s Investigation Report stated how the injury occurred as “Fell from catwalk.” (RX-L, at p. 2).

63 Coroner Lysek testified that the ladder at “D” was within inches of the decedent’s head. (Tr. 1732). 

64 Coroner Lysek testified that there were about seven steps before the safety cage surrounded the ladder leading to 

the upper platform. (Tr. 1612-13).

65 CO Weisenberger, a safety specialist, was the lead investigator; she became a CO at OSHA’s Allentown office in

2004. Before that, she served as an OSHA system administrator subsequent to 1991. By December 2010, she had 

conducted about five inspections that involved falls, including one that involved a fatality in 2006 where an 
- 24 -

Weisenberger’s understanding that an employee had fallen through an opening. They spent from 

about an hour and a half to two hours at the BEC facility. CO Weisenberger testified that it was 

fairly dark when they entered CT-6.66 Mr. Killgore escorted the COs to CT-6, where the coroner 

and Mr. Narkin were at that time.

67

 The coroner showed the COs the location of the body 

because, by the time they arrived, it had been moved and the blood was washed away.

68 CO 

Weisenberger made no detailed notes of what the coroner told her.69 CO Burgei did not make 

any handwritten notes or sketches during, of after, the inspection. He sent CO Weisenberger an 

email on December 22, 2010, at 12:59 p.m., that stated that, from what he could remember, a 

worker fell from about 17-feet through an open hole in the catwalk.70 He also stated in the email 

 

employee fell from a roof. Mr. Burgei, an industrial hygienist, became a CO in the same office in April 2010. CO 

Burgei was there to “mostly just kind of observe”, assist in the inspection, and for training purposes. He testified 

that he had no involvement with the inspection after December 22, 2010 until he was alerted that he was going to be 

deposed. He was deposed on February 21, 2012. He did, however, discuss the case with OSHA personnel on and 

after December 22, 2010 through June 14, 2011, and he obtained the coroner’s report on February 17, 2012, which 

he delivered to the OSHA area office on February 22, 2012. (Tr. 124-25, 181-82, 193, 205, 224, 432-33, 766-69, 

801-03, 808, 811-14, 837-39, 846-47, 890-93, 1049, 1185-86).

66 CO Burgei testified that CT-6’s lighting was sufficient for him to conduct his investigation. (Tr. 894).

67 CO Weisenberger testified that Mr. Narkin told her that the decedent had fallen through the opening in the 

platform. (Tr. 157-58, 639; RX-MM-1 also marked as RX-MM-A).

68 CO Weisenberger testified that the coroner told her that blood by the drain had been cleaned up at the accident site 

before her arrival. She also stated that the coroner told her that the deceased’s legs was found lying underneath the 

platform hole with his legs wrapped around the ladder and his head close to the drain. Coroner Lysek testified that 

he did not tell CO Weisenberger on December 22, 2010 where the decedent fell from because he could not identify 

that location. CO Burgei testified that the coroner did not describe the deceased’s orientation, but the coroner did 

indicate that his body was found about three and a half to four feet away from underneath the 17’ foot platform 

opening in the floor area between the drain and the ladder that led to the 17-foot platform. (Tr. 284-86, 334, 371, 

373, 504, 832-33, 1687; JX-II, at p. 2, JX-XIV, D, at p. 10). The Court finds that CO Weisenberger was mistaken 

when she testified that the deceased was found lying on the floor below the catwalk surrounding the “east” 

combustion chamber. The deceased was found lying below the catwalk surrounding the west combustion chamber. 

(Tr. 317, 496, 505-06; RX-RR, RX-MM).

69 A note made by CO Weisenberger on December 22, 2010 states: 

Zach lysic [sic] Cornor [sic] 

 Thinks hit head on sharp object. 

She added during her testimony that the coroner told her that the deceased hit his head on a sharp object on the way 

down, and that the coroner never identified any object that the deceased might have hit his head on. By letter dated 

November 14, 2011, Coroner Lysek informed CO Weisenberger that the deceased’s “cause of death was determined 

to be Blunt Force Head Trauma, and the manner of death was Accidental.” (Tr. 329-30, 332-33, 1107-11, 1688-89; 

JX-XIV, at p. 12, RX-C).

70 He testified that the assertion was not supported by facts and was “an assumption based on the remarks of the 

coroner and personal opinion.” He admitted that he based the guesstimates and assumptions contained in his 

December 22, 2010 email to CO Weisenberger upon what he heard from the coroner earlier that day that were not in 

final form. (Tr. 896, 909-10, 927; RX-D). AD Kulp testified that CO Burgei’s assertion in his email that the 
- 25 -

that “Yellow caution tape was tied to the guard railing around all four open holes, but the tape 

had been cut or ripped. It was still tied to the railing, but dangling.”71 CO Burgei testified that 

he did not know of any facts that supported the assertion that the deceased was ever up on the 

catwalk, or that he fell.

72 AD Kulp testified that CO Burgei’s assertion in the email that Siemens 

had replaced the catwalk and installed grates during the December 21, 2010 night shift was 

“found not to be true.” She agreed that Siemens had replaced the catwalk during the December 

21, 2010 day shift. (Tr. 128-32, 157-59, 162, 223, 284-86, 309, 326, 421, 434-35, 775, 829-32, 

860, 895, 905-09, 1167-69, 1637, 1704; GX-7, RX-D). 

CO Weisenberger could see that the catwalk platform surrounding the combustion 

chambers had missing floor grates.73 CO Burgei took 19 photographs during the inspection.74 

Photograph GX-1-8 taken by CO Burgei shows the floor opening to the left of the gate on the 

upper platform. It also shows a tarp that reached nearly down to the walkway at the west

 

deceased fell 17-feet through an open hole in the catwalk was later found to be inconclusive because OSHA did not 

know if the deceased fell from the 17-foot catwalk. (Tr. 1168). 

71 CO Burgei testified that it appeared to him that the tapes had been connected because there was partial tape tied to 

the left side and partial tape tied to the right side. He also testified that he could not determine who cut or ripped the 

yellow tape, or when it was put up, ripped or cut. (Tr. 906; RX-D).

72 CO Burgei testified:

Q ... You don’t have any facts when you drafted this [December 22, 2010 email to CO Weisenberger] that 

he was up on the catwalk. Do you?

A. No.

Q ‘The direction that he fell was undetermined.’ You have no information to determine whether or not he 

fell. Do you?

A. No.

(Tr. 908; RX-D).

73 CO Weisenberger testified that Mr. Narkin told her that Siemens had created the openings on the platform while 

performing the overhaul of the combustion chambers in CT-6. She also testified that Siemens’ District Manager 

Rich Gautille told her that Siemens had previously removed all of the walkways (also referred to sometimes as 

platforms or catwalks) around the combustion chambers. She testified that Siemens was responsible for 

reconstructing the walkways, creating the openings in the platform on December 21, 2010, and not covering the 

openings by the end of its night shift [3:30 a.m.] during the morning of December 22, 2010. She also stated that 

Siemens’ safety representative, Daniel Cunnard, indicated to her that the deceased may have fallen off the ladder, or 

a 10 foot high platform that was adjacent to the 17-foot high platform. (Tr. 174-75, 242-47, 252-57, 263-64, 335, 

338, 343-44, 360, 378, 416, 842, 1295-96; JX-XIV, at pp. 10, 13, JX-XV, at p. 6, GX-7, RX-J; SF-11, SF-12).

74 Neither CO Weisenberger nor CO Burgei took any video at the accident site on December 22, 2010. (Tr. 277, 

421).
- 26 -

combustion chamber in the area of the platform opening.75 Photographs GX-1-11 and GX-1-12 

also show the floor opening at the upper platform to the left of the gate. Photograph GX-1, at p. 

1 (first exhibit photograph), showed yellow caution tape hanging down near, but not going 

across, one of the 17-foot platform openings on the south side of the west combustion chamber.

76

 

CO Burgei, along with Calpine’s Environmental Health and Safety person, Al Fisher (also 

referred to as Fischer), used the taller access ladder to climb to the 17-foot platform surrounding 

the combustion chambers.

77

 He testified that neither he nor CO Weisenberger measured the 

platform height, the opening in the platform, the ladder, the distance from the swing gate’s right 

post to the opening, or the deceased’s distance from the area below the opening.

78

 CO Burgei

did not project a perimeter of the upper platform opening straight down to the floor to see what 

was directly beneath the opening on the north side of the west combustion chamber. He did not 

look for or find any physical evidence to show that the decedent could have fallen through the 

platform opening. CO Weisenberger did not check the ladders for signs of blood, body tissue, 

 

75 The tarps were used to protect the combustion chambers when the roof was removed from CT-6. (Tr. 337-38; JXXIV, at p. 11). A photograph taken by Detective Lalatola also shows a tarp hanging down near, but not going 

across, one of the 17-foot platform openings. (JX-XXXIII, at p. 13).

76 In about early 2011, Mr. Cunnard told CO Weisenberger that caution tape was used as a physical barrier for the

crane as a fall protection warning in CT-6. (JX-XV, at p.3). Another Siemens employee told CO Weisenberger on 

March 4, 2011 that the Siemens’ December 21, 2010 night shift crew worked on the ground within CT-6. (JX-V, at 

p. 2). At about the same time, a Siemens’ employee told CO Weisenberger that Siemens’ “didn’t complete catwalk 

– 2 openings on each chamber” on December 21, 2010 and that the later December 21, 2010 night shift crew 

performed bottom [ground floor] work and did not work on the catwalks. (Tr. 1287; JX –XV, at p. 8).

77 CO Weisenberger testified that CO Burgei did not wear any fall protection when he went up the ladder onto the 

platform because Mr. Fisher assured him that he would be safe up there and Mr. Fisher would keep him away from 

the hole while acting as the hole’s attendant. (Tr. 163-64, 310, 777, 843-45). 

78 CO Weisenberger testified that neither she nor CO Burgei took any measurements of anything at the accident 

scene on December 22, 2010. She was present when the coroner measured the distance from the floor to the 

platform at 17-feet, one and 31/32s of an inch. She made a simple sketch of the accident site that showed two small 

circles connected with two horizontal lines that were crossed by an oblong shape with “Turbine” written on it. She 

further testified that she did not know the deceased’s height or weight or whether he could fit through the platform 

opening. CO Burgei also testified that he did not take any measurements to determine whether or not the deceased

could fit through the opening. OSHA never asked Calpine to provide it with the opening’s measurements. (Tr. 277, 

283, 288, 298-99, 330-31, 387, 777, 849, 853-54, 1177, 1652; JX-XIV, at p. 9, JX-XVI, at CALPINE000089).
- 27 -

clothing material, fiber, or scuff marks.79 (Tr. 132, 152, 160-63, 283-84, 301, 777-83, 813, 849-

51, 857, 876-77, 915-18, 1149; GX-1, at pp. 1-19, RX-M).

CO Weisenberger identified two combustion chamber areas [BK-1 and BK-2, also 

sometimes referred to as the east (BK-1) and west (BK-2) combustion chambers] in CT-6 that 

were covered by tarps on December 22, 2010. The OSHA-1B Worksheet indicated that the tarps 

did not cover the catwalk area or the ladder leading to it. OSHA contends that the deceased was 

exposed to an opening in the elevated walkway surrounding a Unit 6 combustion chamber. CO 

Weisenberger testified that she believed that the deceased died from a fall, but OSHA is not sure 

if he fell through the platform opening.80 CO Weisenberger testified that the standard at issue 

called for either a guardrail or someone to constantly attend to the 17-foot platform opening. (Tr. 

155-56, 241, 277-78, 299-300, 304, 317, 396-99, 1012, 1151, 1409; JX-III, at p. 2, GX-1-8, GX17B, RX-E, RX-RR).

The COs left CT-6 and continued their discussions with Mr. Narkin in the control room. 

CO Weisenberger testified that Mr. Narkin told her a surveillance video showed the decedent 

walking in the direction of CT-6 from the maintenance shop at 3:32 a.m. that morning. She 

believes that he also told her that OMT John Horvath found the deceased sometime after 5:15 

a.m. (Tr. 164, 335-36, 381-82, 483-84, 495, 1669; JX-XIV, at p. 10, RX-L, at pp. 1-2).

During interviews of Siemens’ employees conducted by CO Weisenberger in early 2011, 

she was told that Siemens’ employees were working on the lower area of the combustion 

 

79 AD Kulp testified that OSHA did not find any blood or tissue evidence related to the deceased along any fall path 

from the 17-foot high platform to the floor. (Tr. 1145-46). In her responses to Respondent’s First Set of Requests 

for Admissions, Complainant denied that she did not know with a reasonable degree of certainty from where the 

deceased fell. (Tr. 1158-59; JX-XI, at p. 5). At the trial, AD Kulp testified that it was “inconclusive that he actually 

fell from that location [the walkway surrounding the BK-2, west combustion chamber at CT-6]. (Tr. 1159, 1170-

72). 

80 At one point in her testimony, AD Kulp agreed that OSHA had asserted that the deceased fell to his death through 

an opening left by Siemens in an overhead walkway. Later on, she testified that she did not know that OSHA has 

contended that the deceased fell to his death through the opening left by Siemens in the overhead walkway. (Tr. 

1144-45, 1151-52).
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chamber, not on the 17-foot platform, during the December 21-22, 2010 night shift. On about 

January 11, 2011, Mr. Gautille told CO Weisenberger that Siemens’ employees had removed 

forty percent of the catwalk and forty percent of the walk around platform so that they could use 

a crane.81 He told her that Siemens personnel left CT-6 at 3:30 a.m., December 22, 2010, and 

that they had been working on the “bottom part of [the] combustor – not on [the] platform.” He 

also told her that Siemens’ December 22, 2010 day shift was to replace the missing portions of 

the 17-foot catwalk comprising two openings at each combustion chamber. (Tr. 343, 375, 412; 

JX-II, at p. 3, JX-XV, at pp. 4, 6-7). 

Mr. Killgore also took several photographs of the combustion chambers and the upper 

platforms that surrounded the combustion chambers in CT-6 after the coroner departed and while 

the OSHA compliance officers were on site on December 22, 2010. (Tr. 1405; JX-XXXIII). 

Photograph JX-XXXIII, at p. 3, shows the upper platform opening that was nearest the caged 

ladder that led to the 17-foot platform, as well as the caged ladder and a piece of dangling tape, 

at the north side of the west combustion chamber of CT-6.

82

 Photograph JX-XXXIII, at p. 9, 

shows yellowing cautionary tape hanging down where there is an upper platform opening and a 

piece of green tarp over the combustion chamber. The photograph at JX-XXXIII-A shows a 

piece of grating leaning up against an outside railing and the photograph at JX-XXXIII-B shows 

the upper catwalk leading from the west combustion chamber to the east combustion chamber, 

and yellow cautionary tape and a piece of green tarp near an upper platform opening at the south 

 

81 CO Weisenberger testified that she was not sure if the forty percent referred to a day’s work performed on 

December 21-22, 2010, or from the beginning to the end of the project. (Tr. 379). 

82 Although he never measured the opening, Mr. Killgore estimated the platform opening’s dimensions at “a foot 

and a half, or maybe two foot by maybe a foot in the inside, pie shaped.” He testified that he thought fall protection 

was needed going up to the platform, but not in the platform area where there were handrails. (Tr. 1429-30; JXXXXIII, at p. 3).
- 29 -

side of the east combustion chamber.83 Other photographs at JX-XXXIII, at pp. 7-9, 12-13, 

taken by Mr. Killgore show yellow caution tape tied to fixtures at various places on the 17-foot 

platform. Mr. Killgore testified that he said to the OSHA compliance officers that they were not 

wearing any fall protection. He then went up first to the west combustion chamber’s 17-foot 

platform and put a piece of grating down at the opening to the left of the top of the ladder.84 He 

further testified that the opening was visible from the ground level. (Tr. 1405-17; JX-XXXIII, 

GX-1, at p. 13).

AD Kulp testified that she made the final decision to issue the citation to Calpine.85 (Tr. 

1049-50, 1128-34; JX-1). She stated that the basis for the citation was the assignment “to go into 

an area that involved being exposed to a temporary floor opening. That that potential existed 

without the employee receiving any type of special instructions, being provided any type of fall 

protection and training specific to the work environment.” (Tr. 1314). AD Kulp agreed that 

OSHA had no evidence that the decedent was on the upper catwalk platform on December 22

and that the evidence was inconclusive as to where he was when he fell.86 (Tr. 1170-72, 1293). 

AD Kulp conceded that she received information during the course of the investigation that it 

 

83 Mr. Killgore estimated that the leaning grate was probably two and a half to three feet at the upper, largest part, 

and maybe three feet high and a foot and a half to two feet at the bottom. (Tr. 1430).

84 The Court finds that CO Burgei took photographs of the opening to the left of the gate on the upper platform 

before Mr. Killgore installed the grate at the opening. (Tr. 778-79; GX-1, at pp. 8, 11, 12).

85 AD Kulp testified that she was responsible for directing and managing enforcement, community program and 

office administrative activities. (Tr. 1038). CO Weisenberger testified that the OSHA 1-B Worksheet in the file 

indicated that the decedent was the only employee listed as being exposed to the floor opening for an estimated five

minutes because he was given a written work order to go into the area to perform the task, and fell 17-feet to his 

death. The Worksheet further identified Respondent as the “controlling and exposing employer.” She testified that 

the coroner told her that the deceased fell 17-feet to his death. (Tr. 350-51; JX-III). The Court credits the testimony 

by the coroner that he did not tell CO Weisenberger on December 22, 2010 where the decedent fell from.

86 AD Kulp testified:

Q. Is there any evidence to this day that [the deceased] was even up on the [upper] walkway of BK2 unit 

six?

A. No, and that’s why it’s inconclusive.

(Tr. 1172).
- 30 -

was a “possibility” the decedent may have entered CT-6 to merely assess the work area.87 She 

testified that the coroner told her in March, 2012, that the deceased’s injuries could have been 

consistent with falling from any location within CT-6’s work area. (Tr. 1111-13, 1294).

Coroner Lysek testified that the reference in the coroner’s report that the body was 

beneath the upper catwalk platform could be misunderstood.88 He clarified that it referred to his 

observation that the upper catwalk was generally above the body; it did not mean the body was 

directly below the area of missing grates in the upper catwalk platform. He stated that the body 

was about four feet away from the area directly below the upper platform opening.

89

 (Tr. 1732-

33). 

Coroner Lysek returned to the BEC facility with Dr. Edward Chmara in February 2012 to 

walk through the area of the accident to see if he could determine where the decedent was when 

he fell. (Tr. 1118, 1695-97). Coroner Lysek, after both his initial and follow-up visits to CT-6, 

concluded that:

[T]he evidence that is there: where the blood impact spatters were, where the 

body was and the position of it is, I can say he did not move. It's not as if he fell, 

was in pain and rolled or anything of that nature. Where he hit the ground he 

stayed, he did not move. And – it’s – to me logical he couldn't have fell from the 

turbine because of the distance away. He would have had to somehow swung or 

moved his body a distance north to get in the position he was. It’s not a direct fall 

down and if fitting through that hole he would have had to have had also some 

 

87 AD Kulp further testified: “We assumed and knew from the facts that he was given an assignment to go into that 

area. Whether he was there to assess or actually perform the work, because we didn't witness how he needed to do 

that, to make an assessment, whether that would require you to go up to the top we don’t know, but we did 

obviously have a fatality as a result.” (Tr. 1305-06). She also testified that she had learned that the deceased had 

reportedly been awake for at least 24 hours before the accident. (Tr. 1125).

88 Coroner Lysek testified that the statement was based upon Deputy Coroner Smith’s observation and wording and 

that only he [Coroner Lysek] climbed to the top of the 17-foot platform. He further testified that the reference was 

“misleading” because “when you’re standing on the bottom looking up it’s a total different appearance then when

you’re standing on the top catwalk looking down.... The body wasn’t directly under it. It’s just a generalization in 

what he’s [Deputy Coroner Smith] saying that the body was beneath it. Well, the catwalk is above it so it is beneath 

it. It doesn’t mean it’s directly under it, because the ladder, which is ladder “B”, the tall access ladder to up to the 

17-foot catwalk, is not under it, it’s away from it, as is ladder “D” where [the decedent’s] head is. So it’s the 

terminology and the phrasing I think is not accurately [sic] – if you’re reading that I think it could be misleading –

you –[.]” (Tr. 1724-25, 1732-33). 

 

89 This clarification was provided during Respondent’s redirect examination of the witness. (Tr. 1730-33).
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other evidence, whether it would have been on the metal surrounding that, or the 

bottom . . . I don't specifically know where he fell from, but I could say with – he

reasonably he could not have fell from one area because of where his body was, 

that I think it would have had to have come from [another] area.90

(Tr. 1705-1706). Coroner Lysek testified that it was “very likely” that the decedent actually fell 

from the access ladder that went up to the shorter platform [also referred to sometimes as the 

“Turbine” deck].

91 He also testified that “I also think that the area precludes a high elevation fall, 

and I didn’t feel that he could have gotten very high, he would have had to have fallen from a 

distance of approximately seven (7) feet or less, just based on the limitations of the area.” 

Coroner Lysek further testified that the injuries to the decedent “could be consistent with him 

falling from a standing position and striking something, or from a lower level.” (Tr. 1682, 1707, 

1730-31).

Dr. Chmara was the forensic pathologist who performed the autopsy on the decedent on 

December 23, 2010.

92

 One of his tasks includes determining the cause of a death.93 He testified 

 

90 Coroner Lysek testified that the blood spatters near the body show that the decedent did not move after his impact 

with the floor. (Tr. 1645, 1655-1657; JX-XVI, at CALPINE000099-100). Coroner Lysek has attended courses in 

blood pattern analysis and has been through basic and advanced level courses at the Blood Institute in Coming, New 

York. (Tr. 1586).

91 There was a “turbine deck” (also referred to as “the IGV platform”) with a five or six-foot ladder next to the 

combustion chamber with a 17-foot platform. (Tr. 343; JX-XV, at p. 4, RX-RR at “K”). Mr. Lutz testified that this 

five or six-foot ladder was used to get to the IGVs in order to make adjustments. Mr. Varga testified that he went 

on the IGV platform to perform maintenance and lubrication on the IGVs. (Tr. 507-08, 551, 744; RX-MM, at letter 

“G”). Mr. Lutz testified that he guessed that someone could get up to the combustion chambers from the IGV 

platform “if you wanted to monkey it up a little bit.” There is no ladder from the IGV platform to the combustion 

chambers. (Tr. 551; RX-MM).

92 He is a board certified forensic and anatomic clinical pathologist. He has a bachelor’s of science degree in 

Biology, with a minor in chemistry from Rider College. He attended medical school at the University of Medicine 

and Dentistry, Robert Hood Johnson Medical School, and performed clinical years at Cooper Hospital. Thereafter, 

he completed his anatomic and clinical residency at the University of Pennsylvania, and a one-year fellowship at the 

medical examiner’s office. He then finished his residency at Drexel University, College of Medicine. After that he 

completed fellowship training in forensic pathology at the Philadelphia’s medical examiner’s office. He testified that 

he has performed about 2,500 autopsies. (Tr. 1670, 1739-41). Chief Deputy Coroner Smith also attended the 

autopsy. (RX-L, at p. 13).

93 Dr. Chmara testified as follows regarding his job:

Q. Right. But your job, when you were asked to do this autopsy was simple to determine the cause of 

death and the manner of death?

A. And to convey how the injury occurred, sure.
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that at the time of the autopsy, it had been conveyed to him that the decedent “might have fallen 

through a part of a catwalk.”94 He determined that the death was accidental and from multiple 

blunt force injuries.95 He testified that the broad area of the decedent’s abrasion at the top of his 

head was “absolutely classic for a head impacting a large flat surface, i.e. a concrete floor.” Dr. 

Chmara further testified that the decedent “fell virtually straight downward and that’s why this is 

right at the top of his head.” He elaborated that as the decedent’s head hit the ground, his legs 

spilled over as if trying to do a somersault forward, but your head stops everything and your legs 

continue to go. He clarified that he had not visited the scene of the accident when he wrote the 

initial autopsy report. The coroner’s office received the autopsy report in July, 2011. (Tr. 1670, 

1680, 1719, 1738-46, 1750-54, 1770; RX-L).

Dr. Chmara’s first visit to BEC’s facility was in in February 2012 when he and Coroner 

Lysek walked through CT-6 at the request of Calpine’s attorneys.96 Prior to this visit, Dr. 

Chmara and Coroner Lysek reviewed simulations of possible accidental fall scenarios that had 

been prepared by Calpine’s expert C. Brian Tanner. They spent about an hour and a half at the 

accident scene. After the visit, Dr. Chmara reviewed the photographs taken the day of the 

 

Q. Right. Your job was not to determine where the decedent fell from?

A. Part of how the injury occurred it would fall under the realm, I would think. That’s my job, to tell

somebody in a courtroom what happened. So --. 

(Tr. 1773).

94 The autopsy report stated that “[T]he decedent had been walking on a cat walk where reportedly there was [sic] 

missing grates on the floor. He reportedly fell through one of these areas where the grate was missing. He is found 

below after workers had not seen him for some time. Approximate height of the fall is 17-feet.” He testified that 

this part of the Circumstances section of the Autopsy Report is “not at all” factual based upon what he knew at the 

time of his testimony. (Tr. 1746-47; RX-L, at p. 9). 

95 CO Weisenberger testified that the coroner told her that the deceased suffered broken ribs, a broken neck, and a 

head laceration, and that he died from a fall. (Tr. 363). The Final Pathologic Diagnoses in the Autopsy Report 

identified multiple blunt force injuries including neck fracture, skull fractures right frontal, and right rib fractures. 

Dr. Chmara testified that there was a large abrasion on the top of the decedent’s head, which he described as the 

point of impact where the decedent came in contact with the ground. He further testified that the skull fracture was 

“one of the injuries that probably would have rendered him incapacitated at that moment, the concussive effect from 

a fall and blow like that is significant.” (Tr. 1749-50; RX-L, at p. 7).

96 Coroner Lysek testified that he “went back out to the scene to look at the scene again to determine if I could come 

to a conclusion as to where [the decedent] fell from.” (Tr. 1695-96).
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accident and the autopsy photographs. After visiting the scene, Dr. Chmara testified that “it 

didn’t make sense that the body would fall through those catwalks and land where it was 

positioned” as shown in the photographs. He further testified that he “couldn’t make sense of 

how the body would get five to six feet over further if the body fell straight through from there 

[17-foot catwalk opening where grate missing identified at “A”, RX-MM-J] and hit nothing on 

the way.” Dr. Chmara testified that he “did not think it was possible in any way, shape or form 

that that [decedent’s] body, ..., fell through the opening in the catwalk and then – an 

unobstructed fall to the ground below from what was a height of 17 feet to the bottom of the 

platform. It just – it didn’t happen that way.” 97 Dr. Chmara testified that, instead, he concluded 

that the deceased:

[w]as climbing up the ladder going to the 17-foot walk, I mean this is my medical 

opinion to a high degree of medical certainty, for the record. He was climbing up the 

ladder, the backside of the ladder, and tried to step over to the platform on the other side. 

The only way that he could be in the compromised position, in my opinion, to have the 

legs literally straddling that – the uprights of that other ladder, is that he somehow at 

some point was holding the ladder, climbing up the backside, tried to step over to the 

other platform by putting his left leg across in front of his right and at some point lost his 

balance, lost his grip, and at that point fell straight down. (Tr. 1771).

Dr. Chmara testified that he discussed amending the autopsy report with Coroner Lysek, but 

since he was no longer with Forensic Pathology Associates, he did not have the opportunity to 

amend any report that came from there.98 In late March, 2012, Coroner Lysek met with AD 

Kulp in his office for between one to two hours during which he reviewed about two hundred

photographs of the accident scene on a large screen display. The focus was on photographs of 

where the body was with respect to the ladders, catwalks, including the two lower catwalks. 

Coroner Lysek testified that during this meeting he explained that his initial report did not 

 

97 Dr. Chmara testified that he had been to hundreds of scenes where the body was pressed back with the crotch that 

close to the ladder. (Tr. 1770).

98 Dr. Chmara testified that forensic pathology evolves and that he’ll receive information today on a case that he did 

five years ago and may come up to another determination. (Tr. 1773).
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identify where the decedent fell from and that the wording “fell from catwalk” did not mean fell 

from the 17-foot higher catwalk, the low catwalk, or the beams. He made it clear, that he did not 

“think that the [decedent] fell from the upper 17-foot catwalk” because of the body’s location, 

blood impact spatters, and the body’s distance from the turbine; as well as the lack of material 

evidence showing he fell through the catwalk opening. Instead, he explained to AD Kulp that 

the decedent fell in the area between “B” [tall 17-foot access ladder at RX-MM-I] and “D” 

[ladder leading to lower level platform at RX-MM-I]. (Tr. 1689-91, 1696-1707, 1753, 1756, 

1760-66, 1770-74; RX-MM-I, RX-MM-J). 

Safety Program

CO Weisenberger testified that she conducted an audit of Calpine’s safety programs and 

she did not recall finding any deficiencies in Calpine’s fall protection program.99 (Tr. 367, 372, 

389, 392-404, 416-18, 1254 ; JX-II, at p. 5, RX-J, at pp. 4-5, RX-Q, RX-PP). Calpine’s 

Contractor/Visitor Safety Orientation policy called for BEC on-site contractors, such as Siemens, 

to “provide and keep in good repair, fences, temporary sidewalks, guard rails, barricades, 

warning lights, signs and other safeguards necessary to protect all personnel and the public from 

injury.”100 AD Kulp agreed the CO’s file notes indicate that Calpine “has an extensive safety 

and health program and training on hazards.” (Tr. 395-96, 399-400, 1307-08; RX-Q, at p. 4, JXII).

 

99 CO Weisenberger found that Calpine trained all of its maintenance employees on both general industry and 

construction fall protection methods. She further found that Calpine’s training went “into substantial detail 

regarding the methods and means of fall protection across both vertical and horizontal unguarded edges.” (Tr. 368-

69, 408-09, 1504-05; JX-III, at p. 2),

100 The purpose of Calpine’s policy on “Barricading Requirements”, SPM-39, is to educate employees [it also 

applied to contractors performing work at BEC] regarding safe work practices when working on or around areas or 

equipment where barricades, warning tape or signs are being utilized. SPM-39 defined “Barricade” as “a rigid 

device used to warn individuals of a danger and prevent them from exposure to the danger.” It defined “Warning 

Tape” as a “semi-rigid device that may be utilized to “rope-off” an area or piece of equipment that poses a danger to 

individuals.” It defined “Signs/Placards” as devices “that give written/visual indication of hazards or directions (i.e. 

“Do Not Enter,” “Overhead Work,” etc.)[.] ” SPM-39 stated that Yellow Tape “denoted a possible hazard to 

personal health and safety. Areas roped off by yellow (Caution) tape may be entered, but the use of caution and 

heightened awareness should be exercised.” (Tr. 404; RX-J, RX-PP). 
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In her OSHA-1B Worksheet for Siemens, CO Weisenberger stated: 

Siemens employees did not implement the directed administrative control of placing 

warning signage and tape across the ladder access points. This control measure would 

have provided definitive, easily identifable (sic) warning to all employees accessing the 

upper catwalk. This would have indicated the need to use conventional fall protection 

when working near the unguarded edges. A combination of signage and warning tape, as 

described in SPM-39 instruction under sections 5.2 and 5.3 would have been a sufficient 

warning for Calpine employees. 

(Tr. 405-06; R-J, at pp. 2, 4).

Mr. Narkin testified that his staff, including the deceased, was required to complete 

formal safety training modules every month.101 They were also required to do a pre-job safety 

checklist before each job commonly done in the plant. Mr. Narkin testified that employees were 

trained to first assess jobs for safety and that he put a system in place to ensure all jobs were 

done safely. He also acknowledged that Respondent’s Fall Protection policy called for 

supervisors to “[p]erform a fall hazard assessment for each job and determine the proper 

equipment and procedure for that specific task.” He described Calpine’s safety program as 

“extremely good” with a very strong safety culture. (Tr. 998, 1442, 1449-53, 1474, 1500; RXPP).

Mr. Miller testified that Calpine had monthly safety training and a monthly safety 

committee meeting, and that each employee received a copy of an employee safety policy

handbook. Mr. Miller stated specifically that BEC’s safety policy would require an employee 

working near a floor opening to wear fall protection or barricade the opening.102 (Tr. 1533-35, 

1541-42, 1565). 

 

101 Mr. Narkin testified that there were between 25 to 35 required safety training modules covering topics that 

included fall protection, ladders and staircases, walkways and walk surfaces, and scaffold safety. (Tr. 1450-53, 

1455,1458-59; RX-II (admitted portion only), RX-JJ (admitted portion only)).

102 Mr. Miller testified that during the Fall, 2010, he observed a Siemen’s millwright standing on the top railing of 

one of the lower platforms along a combustion chamber reaching up to tighten a fastener. He told the Siemen’s 

worker to get down from the railing, or get his harness on and tie off to do that job. (Tr. 1554-55, 1559).
- 36 -

Mr. Miller also testified that, as BEC’s plant manager, he reviewed the monthly safety 

training records to determine which hourly employees qualified for the bonus training incentive 

payments. He estimated that the required training for an employee adds up to about 60 to 80 

hours annually. In addition, there was a peer-to-peer safety evaluation program in which an 

employee observed a co-worker and noted safety compliance issues on the evaluation form. The 

purpose of this evaluation was to promote a general sense of responsibility for safety among the 

employees. An employee was required to complete at least one observation each month to 

qualify for the monthly bonus. Further, Calpine retained an outside safety consultant, TekSolv,

to conduct safety audits and training at BEC in about July 2010. (Tr. 1533-35, 1548-51, 1555-6; 

RX-EE, RX-LL).

 Mr. Lewis testified that every year he was employed at BEC, every employee at the 

plant was trained annually on safety policies and procedures for an estimated annual total of 40 

hours. The training topics included ladder safety, fall protection, walking-working surfaces, 

hazard identification, personal protection, barricading, and incident protection training.103 Mr. 

Lewis noted that every employee received a copy of the employee safety handbook. He testified 

that as a LMO, he considered himself a supervisor of his crew, responsible for enforcing all of 

Calpine’s safety policies and procedures. He also noted that employees who had the risk of 

falling four feet or more were trained on fall protection procedures.104 Mr. Lewis stated that 

 

103 Mr. Varga testified that he agreed that he was required to receive training in these topics at Calpine. (Tr. 716-

22).

104 Respondent’s Fall Protection policy stated (in part):

4.0 Responsibilities

...

4.3 Supervisors 

...

4.3.2 Perform a fall hazard assessment for each job and determine the proper equipment and 

procedure for that specific task.

...
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Calpine employees’ bonus compensation was tied to their adherence to the safety requirements, 

safety programs and safety training.105 (Tr. 603-25, 1525-26; RX-JJ, RX-PP). 

Mr. Narkin testified that “every employee knows that they're empowered to either stop or 

not start a job, when they discovery a safety issue, and that happens frequently.” He testified 

Calpine employees regularly complete a job safety audit (“JSA”) or job safety briefing (“JSB”)

checklist before starting a job identified on a night order and the job is “scrubbed” if the 

employee sees “something that he can’t do.”106 He said that employees were disciplined with 

coaching sessions, written reprimands, and, eventually, termination when they did not comply 

with safety policies. (Tr. 999, 1443, 1459-62, 1490-91, 1518; JX-XIII).

Mr. Narkin further testified that he prepared a pre-outage list of approximately 16 safety 

items, which were descriptions of situations that had caused problems at power plants during 

outages. He stated that he went over this pre-outage list before the overhaul project began and 

 

4.4 Employees – are responsible to ensure that they are trained and maintain compliance with this 

procedure.

5.0 Hazard Identification

The Supervisor will evaluate each situation or work procedure when employees may be exposed to a fall of 

4 feet or more. The supervisor will be responsible for developing a plan to eliminate the exposures, if 

possible, or to select the appropriate fall protection systems and/or equipment.

...

7.0 Fall Prevention/Protection Required

The following are examples of situations where fall prevention/protection would be needed. There are 

other situations where a fall of 4 feet or more (6 feet for construction related activities) could be possible.

...

7.2 Holes- Personal fall arrest systems, covers, or guardrail systems shall be erected around holes 

(including sky lights) that are more than 4 feet above lower levels.

...

8.1.11 At holes, guardrail systems must be set up on all unprotected sides or edges. When holes are used 

for the passage of materials, the hole shall have not more than two sides with removable guardrail sections. 

When the hole is not in use, it must be covered or provided with guardrails along all unprotected sides or 

edges.

(Tr. 599-600; RX-PP).

105

 Mr. Varga testified that he learned through training and experience to assess the work area before performing a 

task. Mr. McClelland testified that he is required to participate in safety training every month. (Tr. 742, 1796).

106 Mr. Narkin testified that the JSA or JSB called for each worker to write down, at or near the task site, each task 

that he is doing and each hazard that he might encounter, as well as how he intends to overcome any identified 

hazard. The JSB usually remains with the worker until the end of the day, when it is then submitted to Mr. Fischer. 

He testified that he did not think that a JSA/JSB form was ever found that related to completing the December 21, 

2010 task to install a new spark rod in CT-6. (Tr. 1518-23, 1529; JX-XIII).
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that he emailed it to his employees twice before the overhaul started. He also stated that one of 

the items on the pre-outage list was that fall protection was required at heights greater than four

feet. (Tr. 990, 1451-52. 1480-82, 1509; GX-11).

The Decedent

Messrs. Lewis, Lutz, and Varga began working at BEC the same year as the decedent –

2002. (Tr. 441, 483, 567, 601, 706). Mr. Lutz testified that it was the decedent’s habit to 

always wear his gloves while climbing a ladder, and that he did not usually wear them while 

performing a task. (Tr. 508). CO Weisenberger was told during her employee interviews that 

the decedent's routine was to wear his gloves while climbing the ladder. He would remove his 

gloves after closing the gate behind him and then “do what he had to do.” (Tr. 341, 383, 386, 

388, 508-10; JX-IV, at p. 3).

Mr. Varga testified that the decedent had a “great attitude about safety” and always wore 

his personal protective equipment; he was not aware of him working unsafely. (Tr. 706-07). 

Messrs. Lewis and Lutz also testified that the decedent was very safety-conscious. (Tr. 483, 510, 

601-02, 671).107 Mr. Lewis further testified that he did not believe the decedent would 

knowingly expose himself to danger by climbing up to the combustion chamber when there was 

an opening in the platform. (Tr. 670-71).

Mr. Miller testified that the decedent’s 2003 performance evaluation included a rating of 

“exceeds expectations” for safety. He further testified that his observations of the decedent’s 

performance were consistent with that evaluation. Mr. Miller explained that the decedent “tried 

his hardest to complete the tasks he was given. He wanted to make sure he followed all the 

 

107 Mr. Lewis testified that “[the decedent] was very meticulous about his safety," “always made sure he had the 

proper PPE [personal protection equipment],” and “always followed the rules. He didn't do it begrudgingly. He just 

did it. So that tells me he followed it, he believed in it.” (Tr. 601-02). Mr. Lutz testified that the decedent “took 

care of things when it came to safety” and “tried to follow the rules the best he could, I never really seen him ever do 

anything that was other than what was expected of him.” (Tr. 483).
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policies and procedures when doing so. Very conscientious, a very good work ethic, which lines 

up with the ratings on this particular performance evaluation.” He testified that the deceased 

appeared “a little more distracted” and “a little flustered” at about 6:30 p.m., December 21, 2010, 

at a time when some fire alarms were “going off.”108 (Tr. 1539-41, 1563-64, 1677-78; RX-S).

Cited Standard

The Secretary cited Calpine for violating 29 C.F.R. § 1910.23(a)(7)109, which states that:

(7) Every temporary floor opening shall have standard railings, or shall be 

constantly attended by someone.

Secretary’s Burden of Proof

To establish a violation of an OSHA standard, the Secretary must show by a 

preponderance of the evidence that: (1) the cited standard applies; (2) the terms of the standard 

were violated; (3) the employer knew, or with the exercise of reasonable diligence could have 

known, of the violative condition; and (4) one or more employees had access to the cited 

condition. Astra Pharm. Prods., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in 

relevant part, 681 F.2d 69 (1st Cir. 1982).

 

108 Coroner Lysek estimated that the decedent had been up without sleep for about 20 hours before the accident. 

(Tr. 1679-80; RX-L, at p. 5). The decedent was 49 years of age. (RX-L. at p. 7). 

109 The citation was amended as follows:

Citation 1, Item 1a Type of Violation Serious

29 CFR 1910.23(a)(7): Temporary floor opening(s) were not guarded by standard railings or constantly attended by 

someone:

(a) CT6, adjacent to the ladder access way – On or about December 22, 2010, a temporary floor opening in the steel 

grated platform, which surrounded the turbine chamber, was not guarded by standard railings or constantly attended 

to prevent employees from falling a distance of no less than 16 feet through the unguarded opening.

(Complaint, p. 3).
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Discussion

Whether Calpine was prejudiced by OSHA’s Inspection

Calpine asserts that it was “severely prejudiced” because OSHA did not follow its own 

procedures for an inspection. In particular, Calpine states that because the COs did not take 

measurements at the accident scene or interview the first responders the investigation was 

inadequate.110 (R. Br. 81-82). This argument fails for two reasons. First, Calpine has not 

provided information to show how it was prejudiced. Most importantly, Commission precedent 

has long held that OSHA’s internal guidance documents do not provide rights or defenses to an 

employer. Mautz & Oren, Inc., 16 BNA OSCH 1006, 1009-10 (No. 89-1366, 1993) (finding 

primary purpose of OSHA Field Operations Manual “is not to give employers particular rights or 

defenses in adjudicatory proceedings.”). Although the Court agrees with Calpine that OSHA’s 

pre-citation accident investigation was not thorough in all respects, the Court finds there is no 

evidence of prejudice to Calpine from OSHA’s investigation. 

Whether the Secretary Has Established the Alleged Violation

Based on the record, the Court finds the cited standard applies. The evidence shows there 

was an opening in the 17-foot, 1 and 31/32 inches platform to the left of the caged ladder 

measuring about 32 inches on both its right and left side and 12 inches or more at its smallest 

dimension. The Court finds that the opening for which Calpine was cited meets the applicable 

definition of a “floor opening.”111 (S. Br. 13-14; Tr. 575, 776, 778-79, 1615; 1717; JX-XVI, at 

 

110 The COs did not interview the first responders who arrived at the accident site before the COs, including Deputy 

Coroner Suzanne Dannenhower, Deputy Coroner Coy Smith, Bethlehem Police Officer Christopher Kopp, Detective 

Sergeant Alleshouse, Detective Iatorola, Officer J. Hoffman, and Officer Phelps. CO Burgei testified that it was 

important, and he was trained, to interview first responders as soon as possible. (Tr. 326, 338-39, 793-99, 1590; 

RX-M). .

111 A floor opening is defined in 29 C.F.R. § 1910.21(a)(2) as: “An opening measuring 12 inches or more in its least

dimension, in any floor, platform, pavement, or yard through which persons may fall; such as a hatchway, stair or 

ladder opening, pit, or large manhole. Floor openings occupied by elevators, dumb waiters, conveyors, machinery,

or containers are excluded from this subpart.”
- 41 -

Calpine000083, at “A”, JX-XXXIII, at p. 3, GX-1, at pp. 8, 11, 12). The evidence also

establishes that the upper platform opening was temporary in nature. (Tr. 18-19; 1013-14).

Calpine asserts the standard does not apply because it had no control over CT-6’s upper 

catwalk platform during the outage; instead, its contractor, Siemens, had exclusive control. 

Therefore, Calpine asserts that Calpine was not responsible for the upper platform’s condition. 

(R. Br. 65-66). When an employer neither creates nor controls the hazardous condition at a 

multi-employer worksite, it may defend against a citation by showing that it protected its 

employees by taking reasonable alternative measures or that it could not reasonably have known 

of the hazardous condition.112 Capform, Inc., 16 BNA OSHC 2040, 2041-42 (No. 91-1613, 

1994) (citations omitted). The Commission has held that the employer’s conduct is viewed in its 

totality and “whether a reasonable employer would have done more.” Id. at 2041-42. 

Calpine’s multi-employer worksite defense and argument fails, as the Court finds that it

did continue to have sufficient control in CT-6.113 Calpine owned the CT-6 building. Calpine, 

through TMG, had staff present in CT-6 dedicated to the oversight of Siemens’ work. Calpine’s 

employees still accessed the building during the Siemens’ overhaul. Mr. Narkin acknowledged 

that employees had to often go to elevated platforms to perform maintenance during overhaul 

outages. BEC employees had to perform certain tasks that Siemens was prohibited from doing. 

Calpine also performed safety audits of Siemens’ work in the CT-6 building. The Court finds

that Calpine had sufficient control of its own CT-6 facility to the extent that the standard applies. 

(Tr. 643-44, 1022-23, 1807-08; GX-11).

 

112 The Court finds that Siemens created the floor opening in the upper catwalk on the north side of the west 

combustion chamber prior to the accident.

113 See Atl. Battery Co., 16 BNA OSHC 2131, 2166 n.56 (No. 90-1747, 1994) (multi-employer worksite defense 

rejected when employer had “control” over the cited conditions). 
- 42 -

Under the Act, an employer has a duty to protect its own employees from workplace 

hazards. See 29 U.S.C. § 654(a); Baker Tank Co., 17 BNA OSHC 1177, 1180 (No. 90-1786, 

1990) (Respondent had legal responsibility for the safety of its own employees). That duty may 

not be contracted away to third parties. See Bianchi Trison Corp. v. Chao, 409 F.3d 196, 209 & 

n.21 (3d Cir. 2005); Summit Contractors, Inc., 23 BNA OSHC 1196, 1207 (No. 05-0839, 2010)

(finding employer may not contract out of its duties under the Act), Baker Tank Co., 17 BNA 

OSHC at 1180 (finding Respondent could not contract away its legal duties to its employees or 

its ultimate responsibility under the Act by requiring another party to perform them). When an 

employer denies liability on the ground that it lacked control over hazardous conditions to which 

its own employees were exposed, it must show, first, that it had no ability or authority to abate 

the hazard as required under the cited standard; and second, that it took reasonable alternative 

steps to protect its employees from the hazard. See Rockwell Int’l Corp., 17 BNA OSHC 1801, 

1808 & n.11 (No. 93-45, 1996) (consolidated) (establishing the multi-employer worksite 

defense, an employer must prove three elements, including it did not control the violative 

condition, so that it could not itself have performed the action necessary to abate the condition, 

and it took all reasonable alternative measures to protect its employees from the violative 

condition). The employer bears the burden of establishing this multi-employer worksite defense. 

See Grossman Steel & Alum. Corp., 4 BNA OSHC 1185, 1190 (No. 12775, 1976).

Calpine has not met its burden of establishing this multi-employer worksite defense in 

this case. There is no evidence that Calpine lacked the authority or ability to prevent its 

employees from accessing the southern portion of CT-6, or to assign someone to constantly 

attend to the 17-foot high platform when it contained unguarded openings, during those periods 

of time when Siemens’ work crews were absent from the worksite, or otherwise. As the owner 
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of the CT-6 building, Calpine could have taken whatever steps it deemed necessary to protect its 

employees when they entered CT-6 to potentially perform work there. See Cent. of Ga. R.R. Co. 

v. OSHRC, 576 F.2d 620, 624 (5th Cir. 1978) (“If an employer does contract with a third party to 

maintain safe conditions, it is to be presumed that the employer can enforce the contract.”). 

Calpine had the authority and responsibility to insist that Siemens comply with the requirements 

of § 1910.23(a)(7) during those periods when Calpine employees would be performing tasks in 

the CT-6 building. Calpine had the ability to abate the hazard. There is also no evidence to

show that Calpine implemented any reasonable alternative abatement measures. Calpine neither 

asked Siemens to abate the hazard, nor attempted to abate the hazardous condition itself. 

Calpine could have elected to wait until Siemens had totally completed its [Siemens] overhaulrelated work in CT-6 before assigning any task, potential or otherwise, to any of Calpine’s 

employees.114 Calpine could have prevented its employees from accessing the southern portion 

of CT-6 during those periods of time when Siemens’ work crews were absent from the worksite. 

The Court finds that Calpine does not qualify for the exception set out in Capform; therefore, the 

standard applies.

The Court further finds the requirements of the standard were violated. The standard 

specifies that a temporary floor opening must be either constantly attended by someone or have 

“standard railings.” Both parties agree there was an opening in the floor of the upper catwalk 

platform. And, there is no dispute that there was no one was attending the floor opening and that 

there was no railing around the opening at the time of the accident. 

Calpine argues, however, that it did not know of the hazardous condition and that there 

was no actual or potential employee exposure. The Secretary must prove the employer either 

 

114 Mr. Killgore testified that he could provide information about the progress of Siemens’ work if someone from the 

BEC plant operations staff needed to know. (Tr. 1419-20).
- 44 -

knew, or with the exercise of reasonable diligence could have known, of the violative condition. 

Dun-Par Engineered Form Co., 12 BNA OSHC 1962, 1965 (No. 82-928, 1986). The 

employer’s knowledge is directed to the physical conditions that constitute a violation. Phoenix 

Roofing, Inc., 17 BNA OSHC 1076, 1079-1080 (No. 90-2148, 1995), aff’d without published 

opinion, 79 F.3d 1146 (5th Cir. 1996).

The Secretary asserts that Calpine had constructive and actual knowledge of the violative 

condition. She states that Calpine could have known if it had made a reasonable, diligent effort 

to find the hazard since the openings were readily apparent. She further states that Calpine had 

actual knowledge through its LMOs -- Mr. Lewis and the decedent. (S. Br. 20-21). The Court

finds the Secretary has met her burden for this element for the reasons that follow. 

As the Commission stated in Automatic Sprinkler Corp. of Am., 8 BNA OSHC 1384, 

1387 (No. 76-5089, 1980), an employer “must make a reasonable effort to anticipate the 

particular hazards to which its employees may be exposed in the course of their scheduled 

work.” Further, the Commission has stated that “the conspicuous location, the readily 

observable nature of the violative condition, and the presence of [the employer’s] crews in the 

area warrant a finding of constructive knowledge.” KS Energy Servs., Inc., 22 BNA OSHC

1261, 1265 (No. 06-1416, 2008) petition denied, 703 F.3d 367 (7th Cir. 2012) (citations omitted).

The actual or constructive knowledge of an employer’s supervisory personnel can be 

imputed to an employer, unless the employer establishes substantial grounds for not doing so. 

Ormet Corp., 14 BNA OSHC 2134, 2137 (No. 85-531, 1991), citing Donovan v. Capital City 

Excavating Co., 712 F.2d 1008, 1010 (6th Cir. 1983). The criteria to determine who can be 

considered supervisory personnel is set out in the Commission’s decision in Tampa Shipyards, 

Inc., 15 BNA OSHC 1533, 1537 (No. 86-360, 1992) (consolidated) (citations omitted).
- 45 -

An employee who has been delegated authority over other employees, even if 

temporarily, is considered to be a supervisor for the purposes of imputing 

knowledge to an employer.

The knowledge of crew leaders and foremen has been imputed in prior Commission decisions.

Id.; Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2069 (No. 96-1719, 2000); Jersey Steel 

Erectors, 16 BNA OSHC 1162, 1164 (No. 90-1307, 1993), aff’d, 19 F.3d 643 (3rd Cir. 1994) 

(“[t]he actual or constructive knowledge of an employer’s foreman or supervisor can be imputed 

to the employer.”). 

The Court finds an LMO is a supervisor for the purpose of imputing knowledge. The 

evidence shows that an LMO operated in much the same way as a foreman. The LMO’s duties 

include delegating tasks to the team and ensuring that safety training was completed. Further, 

Mr. Lutz testified that when the facility transitioned to Calpine ownership, shift supervisors were 

eliminated and replaced with LMOs.

Mr. Lewis testified that he knew of the platform openings approximately 24 hours before 

the accident. He chose not to complete the task on the night order because of the missing 

catwalk platform grates. Further, Mr. Lewis testified that he notified both Messrs. Narkin and 

Lutz of the catwalk’s condition. As the night shift LMO, his knowledge is imputed to 

Calpine.115 Mr. Killgore testified that he worked the December 21, 2010 day shift and described 

 

115 There is a conflict in the testimony as to whether Mr. Narkin was in the room when Mr. Lewis stated he had not 

changed the spark rod due to the hazard presented by the floor openings. Messrs. Lewis and Lutz thought he was 

present at the time, but were not completely sure. Mr. Narkin was sure he was not told about the floor openings. On 

this discrepancy, the Court credits the testimony of Messrs. Lewis and Lutz over that of Mr. Narkin. Mr. Narkin 

testified that he likes to attend the morning shift turnover meetings to insure “that the turnover is getting done 

formally and with care. ... So I like being there to make sure it’s being done in the control room in a controlled 

manner and that people are taking their time with it.” He further testified that by attending the turnover meetings, “It 

also gives me a chance to get information firsthand from the shift that’s leaving, while they’re giving it to the guy 

that’s relieving them I can get information that way too.” Mr. Narkin's purpose for attending the morning shift 

turnover meetings was to be attentive and gather information from the outgoing crew. The Court found his denial of 

Mr. Lewis’ report of a hazard to be a convenient explanation for his inaction in not removing the spark plug 

replacement task from the night order or warning the deceased of safety concerns with regard to the 17-foot platform 
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the activities accomplished by Siemens during that shift.116 Also, Mr. Rice had seen Siemens’ 

Shift Turner Report for December 21, 2010, at 5:00 p.m., December 21, 2010, many hours 

before the accident and Mr. Killgore had firsthand knowledge of the platform openings by 5:00 

p.m., December 21, 2010. The Court finds that the knowledge of the unguarded upper platform 

floor openings of Messrs. Narkin, Lewis, Lutz, Killgore and Rice as of December 21, 2010 and 

carried forward through to the early morning hours of December 22, 2010 is imputed to 

Calpine.

117

 

The Court also finds that Calpine had constructive knowledge of the hazardous condition. 

Multiple witnesses testified that the openings in the upper platform present from December 20 

through the time of the accident were clearly visible after entering CT-6. Mr. Narkin was aware 

 

a day before the accident. The Court also observed the demeanor of Messrs. Lewis, Lutz and Narkin when testifying

and found Mr. Narkin’s demeanor to be defensive and unpersuasive as to this discrepancy. Some of his testimony 

was fast and not deliberative; evasive and not to the point. By contrast, he testified that he could “[a]bsolutely not” 

recall any conversations with either Messrs. or Lewis about the unsafe condition at CT-6’s 17-foot platform, and sure 

that he “didn’t know the condition.” Mr. Narkin was also impeached when he inaccurately testified at trial that he 

did not know in December 2010 that the catwalks in CT-6 had to be at least partially removed from the combustion 

chambers. At his deposition, he answered a similar question affirmatively and without equivocation. As knowledge 

can be imputed through others, resolving this testimonial conflict is somewhat redundant. (Tr. 1002-03, 1471-73, 

1488-92).

116 Mr. Killgore testified:

Q. Describe for us what activity took place on that shift.

A. All the activities?

Q. As it relates to the platforms.

A. They hot bolted them, which means they basically just kind of tightened them up snug, but didn’t 

torque them properly. Both the platforms and the catwalks. And they set the big roof....

(Tr. 1395-96).

117 The Court find that for the purposes of imputed knowledge of the hazard condition, TMG, including its 

representatives Messrs. Killgore and Rice, are regarded as a single entity with Calpine. Messrs. Killgore and Rice

were the eyes and ears of Calpine for the overhaul project at the BEC facility. At his deposition, Mr. Rice stated that 

he worked for Calpine because TMG was a division of Calpine Corporation. Messrs. Killgore and Rice coordinated 

the tasks that Calpine employees performed within CT-6 on a regular basis. Mr. Miller testified that Mr. Killgore 

signed as a representative of Calpine on a plant visitor and contractor sign-in sheet. Both TMG and Calpine BEC 

received the daily turnover reports prepared by Mr. Killgore. TMG and Calpine shared a common worksite, had 

interrelated operations, and shared supervision on site within CT-6. See Loretto-Oswego Residential Health Care 

Facility, 23 BNA OSHC 1357, 1358 (No. 02-1164, 2011) (consolidated) petition denied, 692 F.3d 651 (2d Cir. 

2012); C.T. Taylor Co., 20 BNA OSHC 1083, 1086-87 (No. 94-3241, 2003) (consolidated) (purposes of Act best 

effectuated by two entities being treated as one.); Kulfa Constr. Mgmt. Corp., 15 BNA OSHC 1870, 1872-73 (No. 

88-1167, 1992) (finding construction standards applicable to entity that was the “eyes and ears” of the building 

owner for on-site safety matters even when the building owner maintained overall safety responsibility.). See also 

Nantahala Power and Light Co. v. Thornburg, 476 U.S. 953, 957-58 (1986) (finding it appropriate to ignore 

corporate form and treat separate entities as one to avoid frustration of a statute’s purpose). 
- 47 -

that Siemens’ work in the CT-6 was in progress. TMG representatives were present in CT-6

with Siemens’ staff and attended daily status meetings. Mr. Narkin could have personally gone 

to CT-6 on December 21, 2010, or requested a status of the catwalk platform’s condition through 

a TMG representative. Because the condition was easily seen and TMG staff was in the vicinity, 

the Secretary has shown that Calpine could have known of the condition with the exercise of 

reasonable diligence. See Revoli Constr. Co., 19 BNA OSHC 1682, 1684 (No. 00-0315, 2001) 

(“The test for knowledge is whether an employer knew, or with the exercise of reasonable 

diligence could have known, of the violative condition.” ); see also Sec’y of Labor v. 

ConocoPhillips Bayway Refinery, 654 F.3d 472, 479-80 (3rd Cir. 2011). A hazardous condition 

that is “readily apparent” due to its location in a conspicuous area will support a finding of 

constructive knowledge, especially where employees are present in the area where the hazard is 

located. See KS Energy Servs., Inc., 22 BNA OSHC at 1267-68; Kokosing Constr. Co., 17 BNA 

OSHC 1869, 1871 (No. 92-2596, 1996). 

Finally, the Secretary must show that an employee was either actually exposed to the

zone of danger or that exposure was reasonably predictable. Consol. Grain & Barge Co., 23 

BNA OSHC 2055, 2065 (No. 10-0756, 2011) (citations omitted). Had the Secretary presented 

sufficient evidence to prove that the decedent had fallen through the upper platform opening, 

then actual exposure would have been shown. There is insufficient evidence to show that the 

decedent fell through the upper platform opening on the north side of the west combustion 

chamber. The Court finds that the decedent did not fall through the opening at that location. 

Instead, fully crediting the testimony of the coroner and forensic pathologist, the Court finds that 

the decedent fell from the area between the ladder leading to the lower platform that was 

between five to seven feet in height at “D”, RX-MM-I, and the lower, un-caged portion of the 
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ladder at “E”, RX-MM-I, comprising not more than seven steps that led to the 17-foot platform. 

The Secretary has not shown the decedent was actually exposed to the hazard.

118

 To the 

contrary, AD Kulp admitted that the evidence was inconclusive regarding where the decedent 

was when he fell. The Court finds the coroner’s conclusion, that it was more likely the decedent 

did not fall from the area of the hazard, is persuasive. The coroner has extensive experience in 

accident investigation. He found no physical evidence to show the decedent fell through the 

floor opening. The Court further finds that the forensic pathologist, Dr. Chmara, also concluded 

that the decedent did not fall through the floor opening at the 17-foot platform.119 The Secretary 

did not present evidence to rebut the findings of the coroner or the forensic pathologist. The 

Secretary has not proven any Calpine employee exposure to the upper platform floor opening 

hazard, actual or otherwise. 

The predictability of exposure can be determined through “evidence that employees 

while in the course of assigned work duties, personal comfort activities and normal means of 

ingress/egress would have access to the zone of danger.” Phoenix, 17 BNA OSHC at 1079 n.6.

Further, “[r]easonable predictability requires more than a hypothetical possibility of exposure, 

though less than a certainty.” Consol. Grain, 23 BNA OSHC at 2066. There are several factors 

to consider in determining what was reasonably predictable in this case. Calpine’s overall safety 

program, the nature of the assigned task, the purpose of the night order, employee practices, and 

the decedent’s work history are all relevant.

 

118 AD Kulp testified that the citation to Calpine was based upon a “potential exposure.” (Tr. 1233).

119 The conclusion reached by both Coroner Lysek and Forensic Pathologist Chmara that the decedent did not fall 

through the upper platform opening is corroborated by the fact that the decedent was found on the floor with gloves 

on his hands and he had a routine of wearing gloves while climbing ladders, and removing them after reaching the 

top of a ladder. (JX-XI, at p. 4 – Complainant’s Responses to Respondent’s First Set of Requests for Admissions, 

No. 11). 
- 49 -

The Secretary asserts that exposure is predictable based on the task to replace the spark 

rod in CT-6. (S. Br. 16). Calpine asserts that because the task was not listed as a priority and was 

conditional, it cannot be used to show that it was likely an employee would be exposed to the 

hazard. (R. Br. 26-28). As stated in Respondent’s brief, the test for determining access to a 

violative condition includes a requirement that such access be “reasonably predictable.” Consol. 

Grain, 23 BNA OSHC at 2065. “This requirement entails a demonstration that employees will 

be, are, or have been in a ‘zone of danger.’” Id., citing Fabricated Metal Prods., Inc., 18 BNA 

OSHC 1072, 1074 (No. 93-1853, 1997). The Commission has held that it requires more than a 

hypothetical possibility that an employee could come in contact with the hazard. The 

Commission in Fabricated Metal Products “emphasize[d] that ... the inquiry is not simply into 

whether exposure is theoretically possible.” Id. In Consolidated Grain, the Secretary failed to 

show that it was reasonably predictable that employees would be in the zone of danger, which 

the court found to be in front of a rotating auger where employees could be exposed to the inrunning nip points of the auger. Pursuant to the company’s policy, employees were required to 

stay behind the rotating auger. The court noted that while it was “not impossible that an 

employee could come in contact with the in-running nip points of the auger, however, that is not 

the standard.” Consol. Grain, 23 BNA OSHC at 2066. (R. Br. at pp. 20-21).

The Court finds that the evidence shows that the task to replace the igniter was a low 

priority on the night order and that there was no pressure on the decedent to complete this 

particular task during his shift. Further, the record shows that the lighting conditions in CT-6 the 

morning of the accident were adequate to see the holes in the upper platform from the building’s 

floor; an employee did not need to climb a ladder to determine there was an opening in the upper 

catwalk’s platform. Mr. Narkin’s December 21, 2010 night order had two expressed conditions 
- 50 -

that had to be met before the task to replace the igniter was to be accomplished by any Calpine 

employee, including the decedent. Additionally, it was expected by Calpine management, that 

anyone, including the decedent, who may decide to tackle the igniter replacement task, would 

first have to do a safety assessment of the task, and in so doing, would have to readily see that 

the two preconditions were not yet fully met as of the pre-dawn hours of December 22, 2010, 

and that it would be unsafe to access the upper platform, or its surrounding zone of danger, due 

to the floor openings that were there.120 Tarps were clearly still on top of the combustion 

chambers and covered the place where the missing igniter was located. (SF-14). The Court 

finds that the tarps on the combustion chamber were readily visible from the ground level. The 

facts of this case make it unlikely that the decedent would have found occasion to pass within ten 

feet of the floor opening on the upper platform on December 22, 2010.121 Here, there is no 

evidence that any Calpine employee actually entered the zone of danger, the space within ten feet 

of the floor opening at the north side of the west combustion chamber’s upper platform.

122

 Nor 

was it predictable, or reasonably expected, that any Calpine employee would have access to the 

floor opening on the 17-foot upper platform, or the zone of danger, at the time of the accident.123 

 

120 The evidence supports the Court’s finding that a task listed on a Calpine night order was not to be performed if 

plant conditions did not allow the task to be performed safely. (Tr. 649-50, 1463-71; RX-DD).

121 The Court finds that it was not reasonably predictable that the decedent would ignore the obvious condition of the 

missing grate in the upper platform which was visible from the ground to virtually all others who viewed the 

combustion unit, disregard the fact that the tarps were completely covering the areas where the igniter tip would be 

installed even though the tarp was clearly visible from the ground, and disregard Calpine safety requirements after 

viewing the hazard and fail to go back and get his fall protection assigned to him by Calpine, or pass on performing 

the task as Mr. Lewis had done the day before.

122 The Court finds that employees standing on the ground floor in the area north of the west combustion chamber 

were not exposed to the upper platform opening hazard that was more than 17-feet above them.

123 The Court notes that Respondent was not cited for exposing Messrs. Lewis or McClelland to any upper platform 

opening hazards when they entered CT-6 a day, or so, before the accident to perform tasks therein. Also, eleven 

Siemens employees worked in the southern part of CT-6 during the night shift that ended at 3:30 a.m., December 21, 

2010, and Siemens was not cited for exposing any employee to opening hazards on the upper platform. Similarly, 

Siemens employees worked on the ground floor of CT-6 during the night shift that ended at 3:30 a.m., December 22, 

2010; just an hour or so before the accident and Siemens was not cited for exposing any employee to opening 

hazards on the upper platform.
- 51 -

The Court finds that the decedent never got within ten feet of the floor opening at the 

north side of the west combustion chamber’s upper platform and that there was no actual 

exposure to the hazard.

124

 CO Weisenberger testified that she did not know the location from 

which the decedent fell. CO Burgei acknowledged that his preliminary conclusion that the 

decedent fell through an opening in the upper platform was not supported by facts. AD Kulp 

also agreed that OSHA had no evidence that the decedent was ever up on the upper platform on 

December 22, 2010, and admitted that OSHA had no information proving that the decedent

actually fell from the upper platform. AD Kulp also testified that it was OSHA’s position that 

the location from which the decedent fell to his death was “inconclusive.” (Tr. 277-78, 895-96, 

907-09, 1159, 1172). The Court finds that the uncontroverted and un-rebutted testimony of 

Coroner Lysek and Forensic Pathologist Dr. Chmara established that the decedent did not fall 

through the upper platform’s floor opening. The Court finds their testimony to be very 

creditable. Their professional experience and credentials regarding their duties to determine a 

decedent’s cause of death are impressive, even more so when weighed against that of the two 

COs.

125

 The Court observed the demeanor of Coroner Lysek and Dr. Chmara during their 

 

124 See Special Metals Corp., 9 BNA OSHC 1132, 1134 (No. 76-4940, 1980) (finding climbing a 30 foot ladder to 

an unguarded platform is beyond normal employee random movement contemplated by the access test leading to the 

conclusion that the unguarded grating was too remote to pose a threat to the safety of employees); Zwicker Elec.

Co., 5 BNA OSHC 1329, 1332 (No. 11771, 1977) (Commissioner Barnako concurring) (finding no violation where 

employees not within 30 feet of floor opening); Garden Ridge, Store # 46, No. 10-1082, 2010 WL 5600075 

(O.S.H.R.C. A.L.J. November 19, 2010) (Secretary failed to prove that employee(s) were within 10 feet zone of 

danger of an hydraulic ram); EMCO Mech. Contractors, No. 89-0773, 1989 WL 223452 (O.S.H.R.C. A.L.J. October 

20, 1989) (showing exposure where Secretary proved employees had access to a zone of danger that was within 10 

feet of an escalator opening in the course of their duties); Shank-Ohbayashi, No. 88-0497, 1989 WL 223342 

(O.S.H.R.C. A.L.J. March 31, 1989) (upholding citation where there was ample evidence that employees going 

about assigned duties would pass within 10 feet of an insufficiently unguarded “skip pit”); Rudolph & Sletten, Inc., 

No. 87-1983, 1988 WL 212672 (O.S.H.R.C. A.L.J. November 21, 1988) (finding no access where employee’s 

assigned duties make it unlikely that employee would have occasion to pass near the floor opening); MerrittMeridian Constr. Corp., No. 84-760, 1985 WL 44736, at *3 (O.S.H.R.C. A.L.J. September 13, 1985) (finding that 

violation was unproven where no evidence that employees were ever closer than 10 or 15 feet from the zone of 

danger – “too remote”).

125 The Court finds that the initial conclusions reached by Officer Kopp and CO Burgei on December 22, 2010 that 

the decedent fell through the floor opening in the upper platform to have been premature and superficial. What was 
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courtroom testimony and found them both to be honest, knowledgeable, impartial, professional, 

thorough, confident, direct, and persuasive. 

The Commission has frequently found exposure through access where employees had 

occasion to pass within 10 feet of an unguarded opening. See e.g. A. Munder & Son, Inc. and 

Robert Catino, Inc., 4 BNA OSHC 1593, 1595 (No. 1858, 1976); Public Improvements, Inc., 4 

BNA OSHC 1864 (No. 1955, 1976). The Court finds that the access ladder at “D”, RX-MM-I,

that led to the lower platform at “E”, RX-MM-I, was not more than five to seven feet in height 

from the floor. The Court further finds that the top of the un-caged portion of the ladder leading 

to the 17-foot platform was not more than seven feet in height. The Court finds that there was 

more than ten feet of distance from the point where the decedent fell in the area between the 

ladders at “B” and “D”, RX-MM-I, to the floor opening in the upper platform, which was 17 

feet, 1 and 31/32 inches in height.126 The Court further finds that the unguarded upper platform 

opening was beyond the normal employee random movement contemplated by the access test

and that the unguarded floor opening was too remote to pose a threat to the safety of the decedent 

on December 22, 2010. See Special Metals Corp., 9 BNA OSHC at 1134.

The record shows that BEC had a multi-faceted safety program which included training, 

audits, and discipline. Several employees testified that safety training was required for all 

employees on a monthly basis. Calpine provided incentives, through monetary awards, to its 

employees for complying with its safety training requirements. A third party was hired in July of 

2010 to conduct a safety audit and provide additional safety training. Calpine had an ongoing 

program in which employees evaluated each other for safety compliance. The testimony of two 

 

quickly presumed to be an obvious conclusion, turned out to be an error when all of the facts were carefully 

developed and considered.

126 The Court finds since the violation concerns a floor opening hazard that it is appropriate to measure from the 

floor level of the 17-foot upper platform to the decedent’s feet at the time of his fall, and that distance exceeds ten 

feet.
- 53 -

employees demonstrated that assessing the safety requirements of a particular work activity was 

a part of the work culture at the BEC facility.

127

 Respondent’s Fall Protection policy called for 

supervisors, such as the deceased, to “[p]erform a fall hazard assessment for each job and 

determine the proper equipment and procedure for that specific task.” The Court finds that the 

evidence shows that it is more probable than not that the decedent entered CT-6 with an igniter 

in his pocket to perform an assessment of the job conditions related to the task of installing the 

igniter into the east combustion chamber. 128 Whereas Mr. Lewis carried tools and an igniter 

when he performed his safety assessment relating to the identical task the day before, no tools 

were found with the decedent when his body was discovered after the accident.129 The Court 

finds that it was readily possible and reasonably predictable for Calpine employees, including the 

decedent, to enter CT-6 and perform a safety and readiness assessment of the igniter replacement 

task without being exposed to the opening hazard at the upper platform more than 17 feet above 

the floor. 

Finally, the record shows the decedent had a good reputation for safety, and there was no 

evidence of his noncompliance in regard to safety. There is also no evidence in the record that 

there was a general pattern of lax safety compliance by the BEC employees. No evidence was 

presented to show that the decedent would be likely to engage in unsafe behavior.130 The Court 

finds that, as a whole, Calpine had a strong safety program and that the decedent’s general

 

127 Testimony from two employees, Messrs. McClelland and Lewis, established that each of them did, in fact, make 

an assessment of the safety issues related to an assigned task. Mr. McClelland utilized personal fall arrest equipment 

to work in the area where the upper platform floor was incomplete. Mr. Lewis, when assigned the same task as the 

decedent, chose not to perform this task after observing the holes in the upper catwalk platform the previous day. 

(Tr. 578-81; 1799-1804).

128 These job conditions including making an assessment as to whether or not the task could be performed safely and 

whether or not the two expressed conditions relating to the igniter replacement task had been met; i.e. that “[i]f tarps 

and Siemens are not in the way.” 

129 AD Kulp testified that OSHA knew as a result of its investigation that the decedent did not have his tool belt 

when found and may have entered CT-6 to assess the job conditions. (Tr. 1294, 1303-05). 

130 In Kerns Bros., the Commission found the Secretary had not presented evidence to rebut the employer’s evidence 

that its employees took the work rule seriously and that it had a “formal, well-conceived program . . . and exercised 

reasonable diligence in in carrying out that program.” Kerns Bros., 18 BNA OSHC at 2071. 
- 54 -

conduct was to follow safety procedures. Calpine employees were trained to assess their 

environments for safety prior to performing any work, to perform tasks only in safe conditions, 

to use appropriate personal protective equipment (e.g. fall protection in any condition such as 

that which existed at the time of the cited violation) when confronted with an unsafe condition, 

or to not perform the assigned task. (Tr. 742, 998, 1800-04; GX-11). 

The information available to Calpine, when considered in its totality, shows that Calpine

would not have reasonably expected the decedent to be on the upper catwalk platform when the 

opening was easily seen upon entering CT-6. No witnesses saw the deceased fall.131 The Court

finds the Secretary has not shown it was reasonably predictable for the decedent to be in the zone 

of danger.132 The Court concludes, therefore, that the Secretary has not proven either actual or 

reasonably predictable exposure to the cited hazard.

The Secretary cites to two Commission decisions to support her argument that the task on 

the night order made it reasonably predictable that the decedent would be in the zone of danger. 

Nuprecon LP, 23 BNA OSHC 1817, 1819 (No. 08-1307, 2012) petition denied, Order at 1, No. 

12-71026 (9th Cir. Jan. 17, 2013); Lancaster Enters., Inc., 19 BNA OSHC 1033, 1037 (No. 97-

0771, 2000). The facts in both of these cases, however, are distinguishable from the case at 

hand. In Lancaster, employees actually used an access ladder that was “closely adjacent’ to an 

unguarded skylight to gain access to their work area. In Nuprecon, the evidence showed that an 

employee doing pipe removal work was “closely adjacent” to an unprotected edge. Both of these 

cases rely on evidence of actual exposure to the zone of danger and do not aptly compare to the 

case at hand. 

 

131 Tr. 836, 1145.

132 The Secretary offered no evidence or argument that employees other than the decedent could have been exposed 

to the zone of danger during the December 21 night shift when the same floor openings existed on the upper platform 

as existed at the time of the accident. (Tr. 127).
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The Secretary relies on two further Commission decisions to support her position that it 

was reasonably predictable for the employee to be in the zone of danger. Pete Miller, Inc., 19 

BNA OSHC 1257, 1258 (No. 99-0947, 2000); Fabricated Metal Prods., Inc., 18 BNA OSHC at 

1074. In Fabricated Metal, the Commission stated that “[I]n order for the Secretary to establish 

employee exposure to a hazard she must show that it is reasonably predictable either by 

operational necessity or otherwise (including inadvertence), that employees have been, are, or 

will be in the zone of danger.”133 Fabricated Metal Prods., Inc., 18 BNA OSHC at 1074; see 

also Nuprecon LP, 23 BNA OSHC at 1817. The zone of danger “is determined by the hazard 

presented by the violative condition, and is normally that area surrounding the violative 

condition that presents the danger to employees which the standard is intended to prevent.” 

RGM Constr. Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995); Seyforth Roofing Co., 16 

BNA OSHC 2031, 2033 (No. 90-0086, 1994). The Secretary need only show employee access 

to the zone of danger, and need not show that employees were actually exposed. Donovan v. 

Adams Steel Erection, 766 F.2d 804, 812 (3rd Cir. 1985). In addition, “[i]t is well settled that 

brief exposures involved in passing or standing near an open edge constitute access.” Walker 

Towing Corp., 14 BNA OSHC 2072, 2074 (No. 87-1359, 1991). Neither Fabricated Metal nor 

Pete Miller assist the Secretary in her position in this case. In Pete Miller, the CO observed an 

 

133 The Secretary makes no argument that a Calpine employee would come in contact with the zone of danger by 

inadvertence. The undisputed evidence shows that the opening in the upper platform was clearly visible from the 

ground. Testimony from Messrs. Lewis and McClelland affirms that, in actual practice, it was unlikely that Calpine 

employees would inadvertently expose themselves to the zone of danger and get within ten feet of the upper platform 

opening. Calpine employees, including the decedent, were aware that Siemens was performing work on the 

combustion chambers and it was unlikely that a Calpine employee would inadvertently expose himself to a condition 

on the upper platform which was obvious from the floor. The decedent’s safety history and past practices support that 

he would not inadvertently expose himself to the zone of danger, which was clearly visible from the ground. The 

Court finds that it was reasonably predictable that the decedent would go into CT-6 to assess the safety of the job site 

prior to performing any work, and he would either decide not to do the work as Mr. Lewis had done, or leave and 

return with all needed safety equipment and tools as Mr. McClelland had done. The Court finds that the Secretary’s 

theory that the decedent would have exposed himself to the zone of danger based on the December 21, 2010 Night 

Order is a speculative hypothetical which fails to meet her burden of proof with regard to showing employee exposure 

to the hazard. 
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employee handling materials close to the roof’s edge. Here, there is no evidence that any 

Calpine employee walked on, passed near or stood on the upper platform where the opening 

hazard was, or was within ten feet of the opening at or before the accident. In Fabricated Metal, 

the Commission found that the Secretary had not shown it was reasonably predictable for an 

employee to be in the zone of danger, just as the Court has done here.

The Court finds that the Secretary has shown that the cited standard applies, that the 

terms of the standard were violated, and that Calpine knew or could have known of the 

hazardous condition. However, as the Secretary did not prove the required element of actual or 

reasonably predictable employee exposure, the citation is vacated.134

Findings of Fact and Conclusions of Law

All findings of fact and conclusions of law relevant and necessary to a determination of 

the contested issues have been made above. See Fed. R. Civ. P. 52(a). All proposed findings of 

fact and conclusions of law inconsistent with this decision are denied.

ORDER

 Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

 

134 Because the Secretary failed to prove her prima facie case, the Court has not addressed Calpine’s asserted defense

of unpreventable employee misconduct. To establish this defense, the Respondent must prove that it: (a) established 

work rules designed to prevent the violation, (b) adequately communicated those rules to its employees, (c) took steps 

to discover violations, and (d) effectively enforced the rules when violations were discovered. Capform, Inc., 19 BNA 

OSHC 1374, 1377 (No. 99-0322, 2001) (citation omitted). (Tr. 430-31; JX-III, at p. 2).
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Item 1 of Citation 1, alleging a serious violation of 29 C.F.R. § 1910.23(a)(7), is 

VACATED.

/s/

 The Honorable Dennis L. Phillips

 U.S. OSHRC Judge

Dated: May 22, 2013

 Washington, D.C.