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THIS CASE IS NOT A FINAL ORDER OF THE REVIEWCOMMISSION AS IT IS PENDING COMMISSION REVIEW

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. 20-0653 |
| EASTERN GAS TRANSMISSION AND STORAGE, INC., |                          |
| Respondent.                                 |                          |

Appearances:

Oscar L. Hampton III, Regional Solicitor

Matthew R. Epstein, Trial Attorney

           U.S. Department of Labor, Philadelphia, PA

For the Complainant

 

John R. Callcott, Esq. 

Steptoe & Johnson, PLLC, Morgantown, WV

For the Respondent

 

Before: CarolA. Baumerich, Administrative Law Judge    

**DECISIONAND****ORDER**

Eastern Gas Transmission and Storage, formerly known as DominionEnergy Transmission1(Respondent), is a company engaged in the business of owning,operating, and transporting natural gas via storage wells andpipelines in western Pennsylvania.  (Tr. 274, 339).  On January 2,2020, at Respondent’s worksite, located at Ridge Road,Jeannette, Pennsylvania (the worksite), employees Chris Troup and RF2were assigned to remove dead ash trees along a well service road. (Tr. 36; Stips. 1, 8).  During this tree removal work, a sectionbroke and struck RF, severely injuring him.  (Stip. 11).  Respondentnotified the Occupational Safety and Health Administration (OSHA). OSHA’s Pittsburgh, Pennsylvania Area Office initiated aninvestigation after the notification.  (Tr. 33-36).

At the close of OSHA’s investigation, on April 9, 2020, theSecretary issued a one-item serious citation, with two subparts, andnotification of penalty (the Citation) to Respondent.  The Citationalleges violations of section 5(a)(1) of the Occupational Safety andHealth Act of 1970 U.S.C. §§ 651-678 (the Act), theprovision commonly referred to as the general duty clause. Specifically, item 1(a) of the Citation alleges a general duty clauseviolation “in that employees were exposed to danger treesfalling and crushing employees, . . . including but not limited todead ash trees that  . . . [are] intertwined with trees to befelled.”  The Citation indicates that feasible and effectivemeans existed to eliminate or materially reduce the hazard. Specifically, “[b]efore beginning any tree removal operation,the chain saw operator, equipment operator, and/or crew leader shallcarefully consider relevant factors pertaining to the tree and siteand shall take appropriate actions to ensure a safe removaloperation.  ... .”

Citation item 1(b)alleges a general duty clause violation in that Respondent exposedemployees “to crush by hazards from falling trees.”  TheCitation violation description states, “employees were exposedto danger trees including but not limited [to] dead ash trees fallingand crushing employees operating the Bobcat E35 Excavator.” The Citation alleges that Respondent could feasibly and effectivelymaterially reduce this hazard by having the Employer furnishprotection to the equipment operator, the employee exposed to thecrush by hazard of falling dead ash trees, by ensuring “protectionfrom falling objects entering the front of the excavator” andby installing “Falling Object Protective Structure (FOPS)”on the equipment used in tree removal operations. 

The Citationproposes $13,494.00 as a total penalty for Citation items 1(a) and(b).

On April 23, 2020,Respondent timely filed a notice of contest, thereby bringing thematter before the Occupational Safety and Health Review Commission(Commission) pursuant to section 10(c) of the Act.  29 U.S.C. §659(c).  A two-day hearing was held on April 27 and 28, 2021, usingCisco WebEx videoconferencing technology.3 The Complainant, the Secretary of Labor (Secretary), presented twowitnesses: 1) the Compliance Safety and Health Officer (CO) whoinvestigated the accident, Courtney Frost4;and 2) an expert witness, Donald Blair.5Respondent also called two witnesses: 1) an expert witness,Paul Cyr,6and 2) Respondent’s senior safety specialist, Robert Vince.7 Both parties filed post-hearing briefs.8

For the reasonsthat follow, the Citation items are affirmed as serious violations ofsection 5(a)(1) of the Act, and a penalty of $13,494 is assessed.

# 1.Jurisdiction

The partiesstipulated that at all relevant times, Respondent engaged in abusiness affecting interstate commerce within the meaning of sections3(3) and 3(5) of the Act, 29 U.S.C. §§ 652(3) & (5),and that jurisdiction of this action is conferred upon the Commissionby section 10(c) of the Act.  (Tr. 11-12; Stips. 1, 2).  Based on thestipulations and the record evidence, the undersigned finds theCommission has jurisdiction over this proceeding under § 10(c)of the Act, and Respondent is a covered employer under § 3(5) ofthe Act. 

# 2.Background and Fact Findings 

Respondent owns,operates, and transports natural gas via storage wells and pipelinesin western Pennsylvania.  (Tr. 274, 339).  Its regular businessactivities include maintaining access roads to its transmission andother equipment.  (Stip. 2).  Maintenance of these access roadsperiodically requires the removal of trees.  (Tr. 356; Stips. 2-3).Respondent’s employees often remove small trees and hire thirdparties to handle larger trees.  (Tr. 351-352; Stips. 2-3).  

Anemployee who worked as a well tender notified Respondent that deadash trees were present along a well access road and needed to beremoved.  (Exs. J-5 p. 1; J-7 p. 1; J-9, J-31).  Respondent assignedRF and Mr. Troup to remove these dead ash trees on January 2, 2020. (Tr. 36; Stip. 1).  At that point, RF had worked for Respondent as afieldman for approximately two years.  (Ex. J-7 p. 1).  As part ofhis routine work assignments, RF cut trees and performed the taskover two dozen times.  *Id.*at 3.  Mr. Troup had worked forRespondent as an equipment operator for approximately 11 years.  (Ex.J-9).  Like RF, his regular work tasks included felling trees nearequipment or access roads.  (Ex. J-9*;* Tr. 40-43).  Respondentpreviously trained RF and Mr. Troup on tree felling procedures, treeevaluation prior to tree removal, and manual tree felling.9 (Tr. 297-299, 336-338; Exs. J-7 p. 3; J-11, J-12, J-33, J-34; Stip.4).  RF and Mr. Troup received annual chainsaw training from a thirdparty.  (Tr. 337; Exs. J-9, J-31 pp. 4-5; J-32, pp. 23-24; J-33,J-34).  Their training covered the advice set out in AmericanNational Standards Institute (ANSI) Standard for ArboriculturalOperations, Z-133 (ANSI Z-133), which was developed under ANSI’sprocedures by the Accredited Standards Committee on Safety in TreeTrimming.  (Ex. J-12).  ANSI Z-133 addresses tree trimmingoperations, including the safe removal of trees.  (Tr. 297-299; Exs.J-11, J-12, J-33, J-34).  

Before leaving forthe worksite, on January 2, 2020, RF and Mr. Troup discussed theequipment to be used for the task.  (Ex. J-7 p.2).  It was determined that RF and Mr. Troup would use achainsaw and the Bobcat E35 Excavator (Excavator) to fell the treesthat presented a danger.  (Exs. J-7 pp. 2-3; Stip. 8).  Mr. Troup hadbeen using the Excavator for approximately 1 to 2 years.  Mr. Trouptook the Excavator with him from job to job.  (Ex. J-9).  Once at theworksite, the employees performed an initial job safety brief.  (Tr.64; Ex. J-13).  This job safety brief included a description of thetask to be performed, the tools needed for the job, potentialhazards, and steps to assure proper safety.  (Ex. J-13).  “Entangledtrees” were not identified as a safety hazard.  (Tr. 352-354;Exs. J-7 p. 3; J-13; Stip. 5).  The Job Safety Brief was signed byMr. Troup as JSB Leader.  (Ex. J-13).  RF also signed the Job SafetyBrief.  *Id**.*

After completingthe job safety brief, but “before beginning to fell trees atthe worksite [RF] and Mr. Troup walked down the service road,evaluating the trees, determining which were dangerous and needed tobe removed.”  (Tr. 351-352; Exs. J-7 pp. 2-3; J-9; Stips. 6,7).  Vines entwined several of the trees.  (Ex. J-9).  Also, treepieces would break off and become stuck in other parts of the trees. *Id*.  Trees identified as dangerous (*i.e.*, “dangertrees”) were either cut down with a chainsaw RF operated orpushed over by Mr. Troup using the compact Excavator.  (Tr. 43; Exs.J-7 p. 2; J-9; Stip. 8).  “Once a tree was down, it was cut upand pushed off the road.” (Exs. J-6, J-7, J-8; Stip. 9).  

RF and Mr. Trouprealized that the last tree they intended to remove was entangledwith other trees.  (Tr. 177-178, 285; Exs. J-7, p 2; J-9; Stip. 10). Mr. Troup said he would push over the tree using the Excavator.  (Tr.117, 177; Ex. J-7, p. 2; Stip. 11).  The Excavator weighed 3,417kilograms.10 (Tr. 103, 293-295; Ex. J-29).  It had a Level 1 falling objectprotection structure (FOPS) on its roof.  (Tr. 293-295).  The Level 1FOPS on the Excavator was designed to protect against a 46 kg weightdropped from a height of 3 meters.  (Tr. 74; Ex. S-2 p. 6).  It didnot have a similar system on the front window, which was facing thetrees Mr. Troup was pushing over.  (Tr. 72; Exs. J-4 p. 4; J-10 p.11; J-17, J-28, J-30).  There are FOPSs that provide greater levelsof protection.  However, the Excavator could not be modified toincorporate Level 2 protection because it was too small.  (Exs. J-4,J-5).  

RF was not involvedin removing the final tree.  (Tr. 117, 200, 228, 326).  He had walkeduphill away from the dead ash tree Mr. Troup would push over with theExcavator.  (Tr. 177).  As RF proceeded uphill and Mr. Troup workedwith the Excavator, they could not see one another. (Tr. 177, 236,249).  When Mr. Troup began pushing the tree with the Excavator, RFwas wearing a hard hat, ear-muffs, chaps, a full face shield, andgloves, but was not otherwise protected from falling objects.  (Tr.178; Exs. J-7 p. 3l; J-9, J-13, R-2 p. 2; R-3).

When Mr. Troup pushed the standing dead ash tree using the Excavator,vines entwined the tree being pushed with other trees.  The entwinedtrees moved in conjunction with the tree being pushed.  When theforces acting upon the second entwined tree became great enough, alarge section of the trunk snapped off.  (Tr. 43, 177-178, 281-282;Exs. J-25; R-2).    

Although he had moved uphill a bit, RF was struck by the tree trunkand seriously injured.  (Tr. 45-46, 68, 85, 281-282, 348-350; Exs.J-17, J-18, J-20, J-23, J-24, J-26, R-2, R-3; Stip. 11).  Whenstruck, RF was approximately 42 feet away from where Mr. Troup waspushing the base of the tree with the Excavator.  (Tr. 44-46; Exs.J-23, J-24, J-26, R-2; Stip. 11).  The tree trunk that stuck RF wasover 50 feet in length.  (Tr. 195-96, 304; Exs. R-2, R-3).

RF suffered abroken back, with the injury extending from the T2 vertebra down tothe T11 vertebra.  (Tr. 68; Exs. J-2 p.3; J-7 p. 3).  Thus, nearlyevery vertebra in the middle of his back broke when the tree hit him. The injury required hospitalization and surgery.  (Ex. J-2).  Healso suffered a head laceration, contusions, and a sprained ankle. (Tr. 68; Exs. J-2 p.3; J-7 p.3; R-2, R-3).  As a result of hisinjuries, RF was out of work for more than four and a half months. (Tr. 65, 340, 371; Exs. J-2 p. 3; J-7 p. 3; R-2).  

Respondent notifiedOSHA on the same day the incident occurred as part of the RapidResponse Inquiry (RRI) program.  (Tr. 34-35).  OSHA assigned CO Frostto investigate the matter, and she headed to Respondent’soffice the following day.11 (Tr. 34-36).  

Upon arriving, theCO held an opening conference with Respondent’srepresentatives, Bill Ruffner and Area Director William Murphy, andthe union representative Bill Kyper.  (Tr. 35-36, 340; Ex. J-5, p.3). Respondent’s representatives gave the CO a brief overviewof the incident.  (Tr. 36).  The CO also interviewed Mr. Troup, theExcavator operator.  (Tr. 36-43; Ex. J-8).  The CO then traveled tothe worksite to continue the investigation.  She took severalphotographs of the access road, the Excavator, and the fallen tree. (Tr. 43-50; Exs. J-26, J-27, J-28, J-30).  At that time, the fallentree had been cut up and moved from its prior location. (Tr. 46-48;Ex. J-27).**However, both experts estimated that the tree,part of which broke off and struck RF, was in the range of 50 feettall.  (Tr. 194-196, 303-305; Ex. J-24).  Mr. Cyr estimated that thepart that hit RF weighed at least 390 pounds.  (Tr. 305-306).  Duringthe investigation, the CO interviewed RF when he returned home fromthe hospital.  (Tr. 65; Ex. J-6).  The CO also reviewed documents,including the Bobcat E35 Operator’s Handbook (Bobcat Manual),the International Standard ISO 10262, and ANSI Standard Z133-2012.12 (Tr. 68-85, 81, 87, 105; Exs. J-10, J-11, S-2). 

As a result ofOSHA’s inspection, the Secretary issued Respondent the Citationfor violations of the general duty clause.  The Citation refers totwo distinct but interrelated hazards.  The first, Item 1(a), isfocused on falling objects and crush injuries employees wereallegedly exposed to when working removing dead trees.  The second,Item 1(b), is focused on falling object and crush injuries employeeswere allegedly exposed to when using an excavator for tree removalwork.  (Exs. J-1 through J-5).

# 3.Analysis

The general duty clause requires each employer to “furnish toeach of his employees employment and a place of employment which arefree from recognized hazards that are causing or are likely to causedeath or serious physical harm to his employees...”  29U.S.C. § 654(a)(1).  To prove a violation of the general dutyclause, the Secretary must show that: (1) a condition or activity inthe workplace presented a hazard; (2) the employer or its industryrecognized the hazard; (3) the hazard was likely to cause death orserious physical harm; and (4) that a feasible means existed toeliminate or materially reduce the hazard.  *Arcadian Corp*., 20BNA OSHC 2001, 2007 (No. 93-0628, 2004) citing*Pelron Corp*.,12 BNA OSHC 1833, 1835 (No. 82-388, 1986); *K.E.R. Enters.*, 23BNA OSHC 2241, 2242 (No. 08-1225, 2013); *see also W. World, Inc. vSec’y of Labor*, 604 F. App’x 188, 192-93 (3d Cir.2015) (unpublished); *Babcock & Wilcox Co. v OSHRC*, 622F.2d 1160, 1164 (3d Cir. 1980); *N. Y. State Elec. & Gas Corp.*,No. 91-2897, 2000 WL 35301892 (O.S.H.R.C., Oct. 17, 2000).

The Secretary mustalso prove that the employer knew or, with the exercise of reasonablediligence, could have known of the hazardous condition.  *CranesvilleBlock Co., Inc.*, 23 BNA OSHC 1977, 1985 (No. 08-0316, 2012)(consolidated); *Burford’s Tree, Inc.*, 22 BNA OSHC 1948,1950 (No. 07-1899, 2010).  The Secretary bears the burden of proof oneach element of the violation by a preponderance of the evidence. *Trinity Indus., Inc.*, 15 BNA OSHC 1788, 1790 (No. 89-1791,1992).  

## 4.CITATION 1, ITEM 1(a)

The Secretaryalleges that Respondent violated the general duty clause by exposingemployees “to danger trees including but not limited to deadash trees that were intertwined with trees to be felled.” These danger trees could fall and “crush employees.”13 The Secretary contends that this hazard can be feasibly abated byrequiring employees to “carefully consider” variousfactors related to tree removal operations and “takeappropriate actions to ensure a safe removal.”  

For the reasons setout, the undersigned finds that the Secretary met his burden andestablished Respondent’s violation of the general duty clause.

### 5.Existence of a Hazard

To establish a violation of the general duty clause, the Secretarymust first define the hazard at issue.  *K.E.R. Enters.*, 23 BNAOSHC at 2242.  “A safety hazard at the worksite is a conditionthat creates or contributes to an increased risk that an eventcausing death or serious bodily harm to employees will occur.” *Baroid Div. of NL Indus., Inc. v. OSHRC*, 660 F.2d 439, 444(10th Cir. 1981).  When the Secretary proceeds under the general dutyclause, he must define the hazard “in a way that apprises theemployer of its obligations and identifies conditions or practicesover which the employer can reasonably be expected to exercisecontrol.”  *Arcadian*, 20 BNA OSHC at 2007 (No. 93-0628,2004); *see also Waldon**Health Care Ctr.*, 16 BNA OSHC1060 (No. 89-2804, 1993) (“[W]hen the Secretary proceeds underthe general duty clause, he must meet the same minimal criterionregarding the nature of the alleged hazard as he does whenpromulgating a section 5(a)(2) standard.”).  There is norequirement that there be a significant risk of the hazard coming tofruition.  *Waldon*, 16 BNA OSHC at 1060.  Instead, the test iswhether, if the hazardous event occurs, would it create a significantrisk of harm to employees.  *Id.*While employers cannot becited for unpreventable conditions, “the existence of a hazardis established if the hazardous incident can occur under other than afreakish or utterly implausible concurrence of circumstances.” *Waldon*, 16 BNA OSHC at 1060, citing *Nat’l Realty &Constr. Co. v. OSHRC*, 489 F.2d 1257, 1265 n.33 (D.C. Cir. 1973);*Pelron*, 12 BNA OSHC at 1835.

Respondent arguesthat, for both items, the Secretary defined the hazard too broadly. (Resp’t Br. 9-14).  Essentially, it argues that trees fallingis a condition in nature and because it cannot be eliminated, theCitation must be vacated.  *Id.*at 14.  In so doing, itmischaracterizes the hazard at issue here and the Secretary’sburden.  

The Secretary doesnot rely on the general principle that trees can fall as support forthe Citation.  He does not contend that Respondent needed to removeevery dead tree from its access roads and well sites or prevent treesfrom falling.  His allegation is limited to “danger trees”falling or crushing employees during removal operations.  Whileacknowledging that this hazard cannot be eliminated, the Secretaryargues that it can be materially reduced by adopting its proposedabatement.  *See Arcadian*, 20 BNA OSHC at 2011 (finding thatthe Secretary’s burden is limited to showing how the abatementmethod would materially reduce the hazard, not that it wouldeliminate the hazard); *Morrison-Knudson Co./Yonkers ContractingCo., A Joint Venture*, 16 BNA OSHC 1105, 1122 (No. 88-572, 1993)(same).

While alleging that the hazard was improperly defined, Respondentdoes not dispute that trees fell at its worksites.  It was aware ofvarious dead tree limbs in the area where it sent RF and Mr. Troup. (Exs. J-6, J-8; Stip. 6).  It wanted them to remove the trees becauseof their dangerous nature.  (Tr. 356-357; Exs. J-8, J-9; Stip. 6). Removing trees at risk of falling onto access roads or equipment wasa routine practice.  (Tr. 38-39, 42-43,274-275, 355-357; Exs. J-6, J-8; Stips. 2-4).

Respondent’sexpert, like the Secretary’s, explained that the dead ash treesthe employees routinely removed are danger trees.  (Tr. 179-182,308-309).  Dead ash trees become particularly brittle and weak thelonger they are dead.  (Tr. 179-82).  If left upright (*i.e.*,standing), when and how they fall is unpredictable, with the risk offalling unexpectedly increasing the longer they stay standing dead. (Tr. 179-182, 308-309).  Such trees could fall and crush workers.  

The Secretary alleges that danger trees present a hazard during suchremoval operations because they fall on or otherwise crush employees. There is no dispute that felling danger trees, such as dead ashtrees, could lead to trees falling and crushing employees.  (Tr.176-182).  Nor is there a credible dispute that RF and Mr. Troup wereexposed to a hazard of danger trees falling and crushing them whenthey were assigned to fell those trees.  The Secretary establishedthe presence of a hazard (danger trees falling and crushing people)at the worksite to which employees were exposed.  *See Davey TreeExpert Co.*, 11 BNA OSHC 1898 (No. 77-2350, 1984) (to establish anemployer violated the general duty clause, the Secretary must provethat a hazard was present and was recognized by the employer oremployer’s industry).  

### 6.HazardRecognition 

The Secretary can establish hazard recognition either “by proofthat a hazard is recognized as such by the employer or by generalunderstanding in the employer’s industry.”  *IntegraHealth Mgmt., Inc.*, No. 13-1124, 2019 WL 1142920, at *7(O.S.H.R.C., Mar. 4, 2019).  The Secretary argues that Respondent wasaware of the hazard presented by dead trees at its worksites and thatits employees were exposed to this hazard.  (Sec’y Br. 8-9). Besides Respondent’s own recognition, the Secretary argues thatthe industry also recognized the hazard of danger trees falling andcrushing employees.  *Id.*

- *Respondent’s recognition of the hazard*   In support of itscontention that Respondent recognized the hazard, the Secretaryrelies primarily on the obvious nature of the hazard and Respondent’straining regarding it.  (Sec’y Br. 9-11).    Respondentdisputes the Secretary’s framing of the hazard as open andobvious.  It argues that it could not have recognized the hazardbecause it was freakish in nature and could not have been foreseen. (Resp’t Br. 27-30).    Despite this contention, both parties’ experts agreed that deadash trees are dangerous.  They agreed, and the facts of the caseshowed, they may cause severe injury because of their unstable andunpredictable nature.  (Tr. 179-182, 308-309, 313).  Supervisorypersonnel also recognized the hazard from danger trees.  Respondentroutinely directed employees to assess and fell danger trees as partof its work maintaining service roads.  (Tr. 38-39, 42-43, 274-275,355-357; Exs. J-6, J-8; Stip. 6).  It assigned RF and Mr. Troup tofell danger trees at the worksite precisely because they posed ahazard to employees.  (Exs. J-6, J-8; Stip. 6).  Mr. Vince,Respondent’s senior safety specialist, recognized the hazardand identified the training to address it.  (Tr. 355-356, 368). Respondent provided training on the hazard and discussed danger treehazards at regular safety meetings.  (Tr. 355-356, 366-368).  Itswritten training materials define the hazard danger trees pose toemployees and include information designed to address the hazarddanger trees present.14 (Tr. 297-299, 336-338, 355-357; Exs. J-6, J-12, J-11, J-31 pp.23-24; J-33, J-34; Stip. 4).  Respondent’s training materialsreference ANSI Z-133.  (Exs. J-31, J-32, J-33, J-34).  *SewardMotor Freight, Inc.*, 13 BNA OSHC 2230, 2232 n.5 (No. 86-1691,1989) (“An ANSI standard is relevant evidence that a hazard is‘recognized’ within the meaning of section 5(a)(1).”). The tree felling safety requirements of ANSI Z-133 specificallyinstruct workers to stay 1.5 to 2 times the height of a tree beingfelled away unless they are actively involved in the felling of thetree.  (Ex. J-12 pp. 46-47).  Respondent trained its employees on thesafety measures set out in the written materials.  (Exs. J-31, J-32,J-33, J-34).   Citing *H-30, Inc., v.**Marshall*, 597 F.2d 234 (10th Cir.1979), and *Magma Copper Co. v.**Marshall*, 608 F.2d 373(9th Cir. 1979), Respondent argues that ANSI Z-133 should not beconsidered as evidence of hazard recognition because it is not in thearborist industry.  (Resp’t Br. 16-19).  However, Respondentwas well aware of arborist industry guidelines, particularly ANSIZ-133.  (Tr. 297-299, 336-338, 355-357; Exs. J-6, J-12, J-11, J-31,pp. 4-5, J-32, pp. 23-24, J-33, J-34; Stip. 4).  Unlike thesituations in *H-30*and *Magma Copper*, there issubstantial evidence in the record that Respondent recognized thehazard of danger trees and the applicability of ANSI Z-133 to itsbusiness.  (Tr. 297-299, 336-338, 355-357; Exs. J-6, J-12, J-11,J-31, pp. 4-5, J-32, pp. 23-24, J-33, J-34; Stip. 4). Respondent’straining specifically included ANSI Z-133 tree felling safetyrequirements and using chainsaws to fell trees.  (Exs. J-31, J-32,J-33, J-34).    Respondent’s argument that industry safety standards,referenced in its own training and not followed resulting in severeinjuries, are inapplicable is unpersuasive.  Employees routinelyengaged in felling trees.  (Tr. 42-43, 356-357; Exs. J-6, J-7, p. 3;J-8; Stip. 6).  Such work tasks were not an anomaly or rare.  (Tr.356; Exs. J-6, J-8).  Felling trees was routine, and routinely hasunpredictable outcomes.  (Tr. 179-182, 308-309, 313; Exs. J-6, J-8,J-12, pp. 46-47; J-33).  The Secretary does not dispute thatRespondent’s primary business is gas transmission.  (Sec’yBr. 2).  His contention is that such work requires, as Respondentitself recognizes, tree felling and consideration of how toappropriately complete such necessary tasks.    Respondent’straining on how to address the hazard from danger trees issignificant evidence it recognized the hazard.  *See Integra*,2019 WL 1142920, at *8; *Waldon*, 16 BNA OSHC at 1062(employer’s safety manual that defined and set forth“precautionary steps” to prevent the hazard was evidenceof employer’s recognition of the hazard); *Gen. Dynamics**Land Sys. Div. Inc.*, 15 BNA OSHC 1275, 1285 (No. 83-1293, 1991)(safety bulletins issued by employer to employees was evidence ofemployer’s recognition of the hazard), *aff’d*, 985F.2d 560 (6th Cir. 1993) (unpublished).  Respondent provided specifictraining on hazards related to danger trees, and supervisors directedemployees to remove such trees because of the risks they posed toemployees.  Although the precise nature of the January incident maynot have been foreseen, the fact that dead trees fall over is neitherfreakish nor unforeseeable.  (Tr. 179-182, 308-309, 313; Exs. J-12 p.46-47; J-33).     The Secretary sufficiently established hazard recognition.  *SeeIntegra*, 2019 WL 1142920, at *8; *Beverly**Enters., Inc.*,19 BNA OSHC 1161, 1186 (No. 91-3144, 2000) (consolidated) (findingemployer had actual recognition where “managers at the highestlevel of the corporation recognized the hazard posed”); *Waldon*,16 BNA OSHC at 1061-62 (precautions taken by an employer can be usedto establish recognition in conjunction with other evidence).      - *Industry recognition*   The Secretary also argues the relevant industry recognized the citedhazard.  (Sec’y Br. 11-14).  Industry recognition may be shownthrough the general understanding in the employer’s industry. *See Integra*, 2019 WL 1142920, at *8.  ANSI standards aredeveloped in an attempt to provide safety standards for a variety ofworkers engaged in various industries.  (*See* Ex. J-12, p 11). Combined with expert testimony, they can provide evidence of industryhazard recognition.  *See Beverly*, 19 BNA OSHC at 1181;*Bethlehem Steel Corp. v. OSHRC*, 607 F.2d 871, 874 (3d Cir.1979); *ACME Energy Servs.*, 23 BNA OSHC 2121, 2124 (No.08-0088, 2012) (industry recognition may be shown through theknowledge or understanding of industry safety experts) *aff’d*,542 F. App’x 356 (5th Cir. 2013) (unpublished).    Both experts agree that ANSI Z-133 applies to danger trees like thoseat Respondent’s worksite.  (Tr. 196-201, 311-313; Ex. J-12). The arborist industry and Respondent’s industry both recognizethe same dangers of being struck by or caught beneath danger treeswhen they are being felled.  If an employer is engaged in treefelling, the danger posed and the hazard remains the same “regardlessof why the tree is being felled.”  *Nelson Tree Servs., Inc.v. OSHRC*, 60 F.3d 1207, 1210 (6th Cir. 1995).  “Falling atree is falling a tree” whether it is Respondent’sindustry or the arborist industry, the danger posed remains the same. *Id.*  Respondent adopted ANSI Z-133 and trained employees,including RF and Mr. Troup, on it.  (Tr. 182; Exs. J-31, J-32, J-33,J-34).  There is sufficient similarity between Respondent’sindustry and the arborist industry to find ANSI Z-133 supportsfinding industry recognition of the danger tree hazard.  (Tr.185-186); *see**Pride Oil Well Serv.*, 15 BNA OSHC 1809,1813 (No. 87-692, 1992) (ANSI standard provides evidence of industryrecognition of a hazard).   Beyond ANSI Z-133, the testimony of both the Secretary’s andRespondent’s experts bolsters the evidence of industryrecognition.  (Ex. J-12 p. 4).  Both experts agree that individualsnot involved in felling a tree should be a safe distance away.  (Tr.196-201, 311-13).  They agreed it is well-known that when fellingdanger trees, individuals need to be aware of a variety of factors,including tree decay, tree lean, and wind.  (Tr. 189-192, 309; Ex.J-12).  This testimony, combined with the other record evidence,presents strong evidence of industry recognition of the cited hazard. *See Beverly*, 19 BNA OSHC at 1181 (recognizing that “voluntaryindustry codes and guidelines are evidence of industry recognition”but also relying on expert testimony to establish industryrecognition); *ACME Energy*, 23 BNA OSHC at 2124 (holdingindustry recognition may be shown through the knowledge orunderstanding of safety experts familiar with the hazard inquestion).        The Secretary canestablish hazard recognition by showing either the employer’srecognition or industry recognition.  *Integra*, 2019 WL1142920, at *8.  Here, the Secretary has shown both employer andindustry recognition of the hazard.  Therefore, he carried thiselement of his burden of proof.  7.Deathor Serious Physical Harm   To determinewhether a hazard is “causing or likely to cause death orserious physical harm,” the Commission does not look to thelikelihood of an accident or injury occurring, but, instead, looks towhether, if an accident occurs, the results are likely to cause deathor serious harm.  *See Babcock*, 622 F.2d at 1164; *Beverly*,19 BNA OSHC at 1188; *Waldon*, 16 BNA OSHC at 1060; *R.L.Sanders Roofing Co.*, 7 BNA OSHC 1566, 1569 (No. 76–2690,1979), *rev’d on other grounds*, 620 F.2d 97 (5th Cir.1980).   The portion of thetree which struck RF weighed at least 390 pounds.  (Tr. 305).  Thepossibility of death or serious physical harm resulting from anemployee being struck by a 390-pound object is “supplied bycommon sense [and] understanding of physical law.”  *Ill.Power Co. v. OSHRC*, 632 F.2d 25, 28 (7th Cir. 1980).  The recordsupports this commonsense conclusion.  The Secretary’s expertdescribed the tree as a “widowmaker.”  (Tr. 233). Further, even after the incident there were still multiple dangerous“widowmakers” visible at the worksite, any one of whichcould have caused a fatal injury.15 (Tr. 180-182; Ex. J-25).    Further, the injured employee sustained severe injuries.  While notdispositive, the existence of an actual injury to employees from thecited hazard is evidence that the hazard presented a risk of death orserious physical harm.  *See, e.g., Beverly*, 19 BNA OSHC at1188-90 (citing actual back injuries suffered by the employer’sworkers as evidence that the hazard posed a risk of serious harm). As a result of being struck by a tree trunk as Mr. Troup used theExcavator to fell a tree, RF was hospitalized.  (Tr. 65; Ex. R-3). He suffered a broken back, a laceration to his head that requiredsutures, and a left ankle sprain.  (Tr. 149, 371; Exs. J-2, pp. 2-3;J-7, p. 3; R-2, R-3).  The CO explained that trees or limbs fallingcould result in multiple fractures or death.  (Tr. 142).  Brokenbones constitute serious physical harm even if a worker recovers withno permanent side effects.  *Waldon*, 16 BNA OSHC at 1060 n.6.    The Secretaryestablished that the danger tree hazard presented by felling dangertrees, including standing dead ash trees, was likely to cause deathor serious physical harm.  8.FeasibleMeans of Abatement   As a preliminarymatter, when an employer has taken some action to address a hazard,the Secretary must show that it was inadequate.  *See U.S. PostalServ., Nat’l Ass’n of Letter Carriers,* 21 BNA OSHC1767, 1773 (No. 04-0316, 2006).  Respondent’s trainingmaterials refer to ANSI Z-133.  (Tr. 297-299, 336-338, 355-357; Exs.J-31 pp. 4-5; J-32 pp. 23-24; J-33, J-34; Stip. 4).  However, despitethe references, RF explained that there were no work procedures forremoving trees, and no one identified which were the hazardoustrees.16 Respondent lacked a work rule requiring employees to remain incommunication, evaluate tree lean carefully, and remain out of thearea in which tree felling operations are taking place.17 (Tr. 213-214, 216; 353; Exs. J-6 p. 3; J-7 p. 3, J-13).    Respondent’ssafety manager, Mr. Vince, acknowledged there were trainingdeficiencies.  (Tr. 360).  For example, because he did not“conceptualize” using the Excavator as a mechanical meansof tree felling, training on this topic was not provided.  (Tr.337-38).  Following RF’s injury, his recommended actions andsolutions states, in part, “[e]nhance chainsaw safety trainingto include specific items that address establishing and expandingupon the safe work zone for ground workers.” (Ex. R-2 p. 2). Mr. Vince essentially recognized that Respondent did not follow thelanguage in ANSI Z-133 that is the source of the Secretary’sproposed feasible abatement.  (Tr. 359-360).  Further, he did notdispute that Respondent could implement the proposed abatement andadhere to ANSI Z-133.    Respondent’straining was inadequate for the assigned tasks and the equipmentprovided to the employees.  *See SeaWorld of Fla., LLC v. Perez*,748 F.3d 1202, 1206, 1215 (D.C. Cir. 2014) (finding existing safetyprocedures inadequate); *BHC Nw. Psychiatric Hosp., LLC v. Sec’yof Labor*, 951 F.3d 558, 565 (D.C. Cir. 2020) (finding incompleteand inconsistently implemented safety protocols were inadequate toaddress the cited hazard).    Given thatRespondent’s approach was inadequate, we turn to whether theSecretary’s proposed abatement is feasible and would materiallyreduce the hazard.  To demonstrate a “feasible” means ofabatement, the Secretary “must specify the proposed abatementmeasures and demonstrate that the measures are capable of being putinto effect and that they would be effective in materially reducingthe incidence of the hazard*.*” *Beverly*, 19 BNAOSHC at 1191.  The Secretary must also show that the proposedabatement measures are economically feasible.  *Waldon*, 16 BNAOSHC at 1063.   The Secretaryargues that the violation could feasibly be abated by improvingemployee communication, keeping noninvolved employees away fromfelling operations in accordance with ANSI Z-133, and recognizing andbeing cognizant of the likely direction that a tree will fall. (Sec’y Br. 17).  Specifically, the Secretary proposes thatRespondent alter operations related to tree removal by followingthese steps:   Before beginning any tree removal operation,the chain saw operator, equipment operator, and/or crew leader shallcarefully consider relevant factors pertaining to the tree and siteand shall take appropriate actions to ensure a safe removaloperation.  Factors to include may be, but not limited to, treedecay, tree lean, and wind.   This recommendation aligns with section 8.6.1 of ANSI Z-133.18 (Ex. J-12) . “Valid ANSI standards are evidence offeasibility.”  *Fluor**Constructors, Int’l Inc.*,17 BNA OSHC 1947, 1949 at n. 8 (No. 94-1662, 1995).  The Secretary’sexpert explained that adopting the practices set out in the Citationis a feasible means of abatement that would materially reduce thehazard associated with the removal of danger trees.19 (Tr. 214-216).  Respondent’s expert agreed that theSecretary’s stated abatement factors are assessments necessarybefore beginning a tree removal operation.  (Tr. 309).  *SeeArcadian*, 20 BNA OSHC at 2011 (“Feasible means of abatementare established if ‘conscientious experts, familiar with theindustry’ would prescribe those means and methods to eliminateor materially reduce the recognized hazard.”); *Nelson TreeServs., Inc.*, 60 F.3d 1207, 1211 (6th Cir. 1995) (“[S]ubstantialevidence supports the administrative law judge’s finding thatthere existed feasible means, which [the employer] could and shouldhave taken, to eliminate or substantially reduce the hazard of beingstruck by a prematurely felled tree.”).    Respondent agreesthat enhanced safety training is technically and economicallyfeasible.  (Tr. 358-360).  Thus, while Respondent recognized thehazard and understood how to address it, it failed to fully implementthe appropriate measures to substantially reduce the hazard.  *SeeSci. Applications Int'l Corp.*,**No. 14-1668, 2020 WL1941193, at *8 (O.S.H.R.C., Apr. 16, 2020) (proposed abatementmeasures feasible where cited employer could have and didsubsequently implement procedures to reduce hazard); *SeaWorld*,748 F.3d at 1215 (concluding that “abatement is feasible whenit is economically and technically capable of being done); *ACMEEnergy Servs v. OSHRC*, 542 F. App’x 356, 367 (5th Cir.2013) (Secretary only needs to show the abatement is feasible orcapable of being done).    The Secretary has sufficiently established a feasible means ofabatement that will materially reduce the hazard.  Therefore, theSecretary met his burden of showing the existence of a hazard towhich employees were exposed, Respondent and its industry recognizedthis hazard, the hazard was likely to cause death or serious physicalharm, and the hazard could be materially reduced through feasiblemeans of abatement identified by the Secretary.  In addition, asdiscussed in more detail in Part IV, the Secretary establishedRespondent’s knowledge of the cited hazards.  9.CITATION 1, ITEM 1(b)  Citation 1, Item 1b, alleges that, in violation of the Act section5(a)(1), “employees were exposed to crush by hazards fromfalling trees.”  (Ex. J-3).  This included exposure to dead ashtrees falling on them when operating the Excavator.  *Id.*TheSecretary argues that there are feasible means to materially reducethis hazard.  Specifically, “[b]efore beginning any treeremoval operation,” the Employer shall furnish protection tothe equipment operator, the employee exposed to the crush by hazardof falling dead ash trees, by ensuring “protection from fallingobjects entering the front of the excavator.”        - Existence of a Hazard   As discussed above,to establish a violation of the general duty clause, the Secretarymust define the hazard at issue “in a way that apprises theemployer of its obligations and identifies conditions or practicesover which the employer can reasonably be expected to exercisecontrol.”  *Arcadian*, 20 BNA OSHC at 2007; *K.E.R.Enters.*, 23 BNA OSHC at 2242.  “A safety hazard at theworksite is a condition that creates or contributes to an increasedrisk that an event causing death or serious bodily harm to employeeswill occur.”  *Baroid*, 660 F.2d at 444.    Item 1(b)identified the hazard as exposure to “danger trees includingbut not limited to dead ash trees falling and crushing employeesoperating the Bobcat E35 Excavator.”  The record evidenceestablishes that operating the Excavator exposed employees to thehazard of danger trees falling and causing crush injuries.  Bothexperts agreed that dead ash trees are danger trees because of theirunstable and unpredictable nature.  (Tr. 179-182, 308-309).    The compact Excavator Mr. Troup used was only rated for protectionagainst objects up to 101.4 pounds falling from around 9 feet.20 (Ex. S-2 p. 6).  The portion of the tree that struck RF far exceededthis height and weight limitation.  (Tr. 194-196, 303-305; Ex. J-24). Despite this lack of protection, employees routinely used theExcavator to fell trees.  (Tr. 204-207, 217-218; Exs. J-9; Stip. 8).   The Secretary’sexpert explained that the type of excavator used would never beappropriate for tree removal work, let alone the situation RF and Mr.Troup faced on January 2, 2020.  (Tr. 204-207, 216-218; *See*Exs. J-4 p.3; J-5 p. 2).  The trees at the worksite were dead,brittle, and entwined.  (Tr. 179-182, 191, 281-282, 308-309, 348-350;Ex. J-9).  They were unstable.  (Tr. 177, 181-182).**Duringthe tree removal, the trunk of one of the trees struck theExcavator’s bucket.  (Tr. 208, 321-322; Exs. J-17, J-18, J-21,J-23, J-24, J-25).  The same trunk also struck RF, severely injuringhim.  (Tr. 68, 281-282, 321-322, 348-350; Exs. J-2 p. 3; J-7 p. 3;Stip. 11).  Mr. Blair explained that it was “common” fora tree to fall towards a machine like the Excavator when that type ofequipment was used to push over a dead tree.  (Tr. 191).  It was“just a matter of luck” that the tree trunk that brokeoff did not squarely hit the Excavator.  (Tr. 208; Ex. J-24).    There was no wayfor the employees to ensure that a portion of, or the entire tree,would not break off and strike the operator of the Excavator.  (Tr.179-182, 191, 308-309).  Neither the top nor front of the vehicleoffered adequate protection to the employee from the trees.  (Tr.204-209, 217).  Respondent assigned RF and Mr. Troup to remove dangertrees from the service road because the dead and entwined trees couldcause harm.  (Tr. 186, 356-357; Exs. J-8; Stips. 6, 8).    The Secretary hasestablished the presence of the hazard of felling danger trees, suchas dead ash trees, falling and crushing employees operating a BobcatE35 Excavator.  2.Hazard Recognition   As discussed, theSecretary can establish hazard recognition either “by proofthat a hazard is recognized as such by the employer or by generalunderstanding in the employer’s industry.” *Integra*,2019 WL 1142920, at *7.          - *Respondent’s recognition of the hazard*   There is no dispute that Respondent was aware that dead ash treesposed a hazard because they could fall and injure employees.  (Tr.355-356, 368).  It assigned Mr. Troup to fell danger trees at theworksite with the Excavator because the trees posed a hazard toemployees.  (Exs. J-6, J-8; Stips. 1, 6, 8).    As discussed above,Respondent’s training materials contained information designedto address the danger tree hazard, including by referencing ANSIZ-133.  (Tr. 297-299, 336-338, 355-357; Exs. J-6, J-12, J-11, J-31pp. 4-5; J-32 pp. 23-24; J-33, J-34; Stip. 4).  Training onaddressing the danger tree hazard is significant evidence ofRespondent’s recognition of the cited hazard.  *See Integra*,2019 WL 1142920, at *8; *Waldon*, 16 BNA OSHC at 1062(employer’s safety manual which defined and set forth“precautionary steps” to prevent the hazard was evidenceof employer’s recognition of the hazard); *Gen. Dynamics*,15 BNA OSHC at 1285 (safety bulletins issued by employer to employeeswas evidence of employer’s recognition of hazard).  Besides thetraining materials, hazard recognition can also be “inferredfrom the obvious nature of the hazard.”  *Litton Sys., Inc.*,10 BNA OSHC 1179 (No. 76-900, 1981).  It does not require anyspecialized knowledge to realize that using a chainsaw or “pushing”into a dead ash tree with the Excavator could lead to falling treesand that workers in the area could be subject to crush by hazards. (Tr. 43, 177, 191).  Respondent knew the trees were dangerous andassigned RF and Mr. Troup to remove them.21  Considering the nature of the hazard, why Respondent assigned thetask (*i.e.*, because it knew the trees were dangerous), and itstraining on danger tree hazards, the Secretary establishedRespondent’s hazard recognition.  *See Integra*, 2019 WL1142920, at *8; *Beverly*, 19 BNA OSHC at 1186 (finding employerhad actual recognition where “managers at the highest level ofthe corporation recognized the hazard posed”); *Waldon*,16 BNA OSHC at 1061-62 (precautions taken by an employer can be usedto establish recognition in conjunction with other evidence).            - *Industry rec**ognition*   The Secretary also argues for a finding of industry recognition ofthe danger tree hazard in felling trees with the Bobcat E35Excavator.  (Sec’y Br. 18-20).  For support, the Secretaryrelies on industry standards articulated in the Bobcat Manual and theANSI Z-133 standard.  *Id*.  As stated above, industryrecognition may be shown through the general understanding in theemployer’s industry.  ANSI standards can support a finding ofthat understanding.  *See Integra*, 2019 WL 1142920, at *8;*Bethlehem Steel*, 607 F.2d at 874.    Here, the record demonstrates industry recognition of the danger treehazard.  The Bobcat Manual states that it is not rated to protectagainst large falling objects such as the trees that Respondenttasked Mr. Troup with removing.  (Ex. J-10 p. 11).  Manufacturers’manuals or brochures can warn employers about the proper use of theequipment in question.  *See Young Sales Corp.*, 7 BNA OSHC1297, 1298-99 (No. 8184, 1979).  The Bobcat Manual expressly warns ofthe danger of falling objects and explains that the equipment israted only for small falling objects covered by ISO Standard 10262Level 1 (Level 1).  (Exs. J-10 p 11; S-2 p 6).  Level 1 onlyencompasses “small objects, e.g. small rocks, small debris andother small objects.”  (Ex. S-2 p. 4, ¶ 4.4(a)).  The390-pound tree trunk that struck RF far exceeds this level ofprotection.  (Tr. 305).  Further, the Secretary’s experttestified that the Excavator used by Respondent simply could notprovide adequate protection from danger trees.  (Tr. 204-207).  Mr.Blair explained that the Excavator’s cab was not properlyequipped to provide protection against falling objects such asfalling tree limbs or trunks.  (Tr. 204-207, 216-218).  Thus, it wasnever appropriate equipment for the task the employees were assigned,*i.e*., the Excavator should not have been used to removestanding dead ash trees.  Respondent’sexpert’s testimony that the full weight of danger trees wouldhave “probably only [caused] cosmetic damage to the excavator”is inconsistent with the evidence and his own testimony.  (Tr. 68,179-182, 294-295, 305, 308-309, 313-316; Exs. J-2 p. 3; J-7 p. 3). Mr. Cyr testified, in agreement with the CO, that the Excavator hadno front glass protection against a 390-pound tree trunk nor theproper FOPS for large objects.  (Tr. 68, 73-74, 305, 313-316).  TheExcavator was only rated for protection against falling objects up to101.4 pounds.  (Ex. S-2 p. 6).  To say that a 390-pound tree wouldonly cause cosmetic damage is disingenuous at best when the equipmentwas rated for less than one-third of that amount.  *Id.*Inparticular, what is important in assessing a violation of the Act isthe risk of physical harm to the worker, not the risk to equipment. The undersigned places little weight on Respondent’s expert’stestimony on this point.  The Secretary’s expert opined bluntlythat he would not put himself in the Excavator’s cab as itlacked heavy screening, metal mesh, or any protection from fallingtree limbs.  (Tr. 204-208).     As discussed above,the record demonstrates that the arborist industry and Respondent’sindustry recognize the same dangers of being struck by or caughtbeneath danger trees.  “Falling a tree is falling a tree”whether it is Respondent’s industry or the arborist industry,the danger posed remains the same.  *Nelson*, 60 F.3d at 1210.     Because the Secretary can establish hazard recognition by showingeither the employer’s recognition or industry recognition, hehas sufficiently established this element of the violation.  *SeeIntegra*, 2019 WL 1142920, at *7 (hazard recognition establishedthrough employer’s recognition or industry recognition).   3.Death or Serious Physical Harm   As discussed withItem 1(a), to determine whether a hazard is “causing or likelyto cause death or serious physical harm,” the Commissionassesses whether, if an incident occurs, are the results likely tocause death or serious harm.  *Babcock*, 622 F.2d at 1164;*Beverly*, 19 BNA OSHC at 1188; *Waldon*, 16 BNA OSHC at1060; *R.L. Sanders Roofing Co.*, 7 BNA OSHC 1566, 1569 (No.76–2690, 1979), *rev’d on other grounds*, 620 F.2d97 (5th Cir. 1980).   The portion of thetree which struck RF weighed at least 390 pounds.  (Tr. 305). Although this falling trunk did not injure Mr. Troup, he was exposedto the very real possibility of death or serious physical harmresulting from being struck by it.  (Tr. 142, 149; Ex. J-4).  TheSecretary’s expert noted that a photograph taken immediatelyfollowing the incident reveals how close the tree that struck RF cameto hitting the roof of the Excavator’s cab.  (Tr. 208; Ex.J-24).  The Excavator was not equipped to protect against fallingtree limbs.  (Tr. 204-207, 216-218; Exs. J-10 p 11; S-2 p 6).  Evenafter the work done on January 2, 2020, dangerous “widowmakers”capable of causing fatal injury remained.  (Tr. 180-182; Ex. J-25).    The Secretary hassufficiently established that the danger tree hazard presented byfelling danger trees was likely to cause death or serious physicalharm to employees operating equipment like the Excavator.  4.Feasible Means of Abatement   As discussed above,Respondent’s abatement to the hazard of dead ash trees fallingon employees was inadequate.  Equipment operators, such as Mr. Troup,were not adequately protected when using the Excavator.  (Tr.207-208).  The Secretary showed that the steps Respondent took wereinadequate to address the hazard.    As discussed withItem 1(a), to meet his burden, the Secretary “must specify theproposed abatement measures and demonstrate that the measures arecapable of being put into effect and that they would be effective inmaterially reducing the incidence of the hazard*.*” *Beverly*, 19 BNA OSHC at 1191.   The Secretaryargues that the violation could feasibly be abated by using adifferent model excavator with an upgraded protection system ordiscontinuing the use of the Excavator in favor of more appropriateequipment.  (Sec’y Br. 19-20, 22).  The Secretary’sexpert explained that such equipment was available, and Respondentdoes not refute this.  (Tr. 207-208, 217-18).  *See Beverly,* 19BNA OSHC at 1191 (feasibility burden can be met if experts haverecognized the proposed actions as feasible).  **  By the time of the hearing, Respondent had implemented a policyprohibiting its employees from using an E35 Bobcat Excavator, likethe one used on January 2, 2020, to fell trees.  (Tr. 338, 357). Respondent continues to be able to remove danger trees and ensuresafe passage on access roads since ceasing to use the Excavator. (Tr. 338, 357-358).  This post-accident implementation demonstratesthat the proposed abatement measure is technologically andeconomically feasible.  *See Sci. Applications*, 2020 WL 1941193at, *8 (post-accident implementation of proposed abatement methodsdemonstrated feasibility); *SeaWorld*, 748 F.3d at 1215 (findingthat evidence of post-citation actions supports finding that theproposed means of abatement were feasible).    Nor does Respondent contest that this proposed abatement materiallyreduced the hazard.  The Excavator did not have adequate FOPS forfelling trees.  (Tr. 204-207, 216-218).  As the Secretary’sexpert explained, the Excavator’s protection was inadequate forsuch a task, and the machine could not be modified to be sufficientlyprotective.  *Id.*However, there is equipment with appropriatecab protection to protect operators from the hazard of trees or limbsfalling on the equipment.  (Tr. 217-218).    Respondent does notchallenge the technical or economic feasibility of the Secretary’sproposed abatement.  Nor did it refute the Secretary’s evidencethat the proposed abatement would materially reduce the hazard.22 Therefore, the Secretary met his burden of showing the existence ofa hazard to which employees were exposed, Respondent and itsindustry-recognized this hazard, and the hazard could be materiallyreduced through feasible means of abatement.    In addition, asdiscussed in more detail in the next section, Part IV, the Secretaryestablished Respondent’s knowledge of the cited hazard.  5.Knowledge  The Secretary can establish Respondent’s knowledge of a generalduty clause violation by establishing either its actual knowledge ofthe hazard or its constructive knowledge such that it could havelearned of the hazard with the exercise of reasonable diligence. *Otis Elevator Co.*, 21 BNA OSHC 2204, 2207 (No. 03-1344, 2007);*Tampa Shipyards Inc.*, 15 BNA OSHC 1533, 1537 (No. 86–360,1992) (consolidated).  As discussed, the Secretary showed thatRespondent recognized the hazard of danger trees.  Both parties’experts testified that dead ash trees are dangerous and can causesevere injury because of their unstable and unpredictable nature. (Tr. 179-182, 308-309, 313).  Respondent, aware that dead ash treesposed a hazard to its employees, provided training on, and discusseddanger tree hazards at regular safety meetings.  (Tr. 355-356, 368). Respondent knew that the worksite where RF and Mr. Troup wereassigned to work had danger trees that needed to be removed.  Respondent routinely directed employees to assess and fell dangertrees precisely because Respondent knew they posed a hazard to itsemployees.  (Tr. 38-39, 42-43, 274-275, 355-357; Exs. J-6, J-8; Stip.6).  Further, the Bobcat Manual, which was in Respondent’spossession, expressly warned against using the equipment in thescenario for which Respondent had elected to use it.  (Exs. J-10 p11; S-2 p 6).  Respondent’s argument that the Bobcat Manualfailed to put it on notice of the need for additional operatorprotection is unpersuasive.  (Resp’t Br. 31-40).  The BobcatManual warned Respondent that the Excavator simply was not equippedto protect its operator against large falling objects, such as piecesand limbs of standing dead ash trees.  (Tr. 204-207, 305; Exs. J-10,p 11; S-2, p 6).  It clearly states that the Excavator’s FOPSwas designed to only meet ISO Standard 10262 Level 1.  (Exs. J-10, p.11; S-2, p. 6).  This Level 1 protection was inherently inadequatefor the assigned task.  It simply could not protect an employee froma large tree or portion of one, such as the 390-pound trunk that fellon January 2, 2020, striking RF, striking the Excavator’sbucket, and nearly striking the roof of the Excavator’s cab. (Tr. 208, 305; Exs. J-7, p. 2; J-9, J-24, S-2, p. 4, ¶ 4.4(a)).   Respondent cites to*K.E.R. Enterprises* arguing the Bobcat Manual does not provide,as was the case in the cited precedent, a safety warning or linkbetween noncompliance and a safety hazard.  (Resp’t Br. 32,35).  This fails to persuade.  In this matter, the Bobcat Manualexpressly cites to ISO Standard 10262, which warns of the danger offalling objects, such as falling trees, and explains that theequipment only provides operator protection for small fallingobjects.  (Exs. J-10 p. 11; S-2 pp. 4, 6).  The statements in theBobcat Manual here were undoubtedly intended to provide safetywarnings to Respondent about the Excavator’s protectionlimitations.  To permit Respondent to ignore the Bobcat Manual’swarning that the Excavator is only rated for small falling objectscovered by ISO Standard 10262 Level 1 protection would undermine thegeneral duty clause.  (Exs. J-10, p 11; S-2, pp. 4, 6); *See Young*,7 BNA OSHC at 1298-99 (holding to allow employers to ignore safetynotices on a manufacturers’ brochure “of the potentialdangers inherent in the use of a product would undermine the generalduty clause...”)     In addition, the Secretary asserts that Respondent had constructiveknowledge of the violations.  (Sec’y Br. 16-17).  The Secretarycan establish constructive knowledge of a violative condition bydemonstrating that the employer failed to exercise reasonablediligence to uncover the condition.  *Ragnar Benson, Inc.*, 18BNA OSHC 1937, 1939 (No. 97-1676, 1999).  “Reasonable diligenceinvolves the consideration of several factors, including theemployer’s obligation to have adequate work rules and trainingprograms, to adequately supervise employees, to anticipate hazards,and to take measures to prevent the occurrence of violations.” *Danis Shook Joint Venture XXV*, 19 BNA OSHC 1497, 1501 (No.98-1192, 2001), *aff’d*, 319 F.3d 805 (6th Cir. 2003);*Burford’s Tree*, 22 BNA OSHC at 1950 (involved generalduty clause violation).  Removing danger trees was a routine part of employee tasks.Respondent’s training materials acknowledged the hazardassociated with felling danger trees.  (Tr. 297-299, 336-338; Exs.J-6, J-12, J-11, J-31 pp. 4-5; J-32 pp. 23-24; J-33, J-34; Stip. 4);*See Gen. Dynamics*, 15 BNA OSHC at 1285 (employer’ssafety bulletins were evidence of its recognition of an existinghazard).  However, Respondent did not have any work rules related tothis hazard.  It did not, as ANSI Z-133 directs, require employees toremain in communication, to carefully evaluate tree lean, or to standa safe distance away while a tree was pushed over.  (Tr. 353; Exs.J-6, J-13, J-12 pp. 45-47; Stip. 6).  Further, Respondent lacked workrules regarding ensuring equipment was appropriate for the job and ofsuitable size.  (Exs. J-7 p. 3;**J-12, pp. 45-47).  Itpermitted the use of the Excavator even though it lacked properprotection against large falling objects such as falling tree limbs. (Tr. 204-207, 216-218; Exs. J-9, J-10 p. 11; Ex. S-2 pp. 4, 6; Stip.8).  Respondent’scomplete failure to have adequate work rules to enforce its safetytraining programs is sufficient to find that it had constructiveknowledge of the violation.  *See Gen. Motors Corp.*, 22 BNAOSHC 1019, 1037 (No. 91-2834E, 2007); *see also Atl. Battery Co.,Inc.*, 16 BNA OSHC 2131, 2160 (No. 90-1747, 1994).      The Secretary established Respondent’s actual and constructiveknowledge of the violative conditions.  6.Serious Classification   The Secretaryclassified Respondent’s general duty clause citation 1, item1(a), and citation 1, item 1(b) violations as serious.  Respondentdoes not challenge the serious classification of general duty clausecitation 1, item 1(a), but does contend that citation 1, item 1(b)should not be characterized as serious.  (Resp’t Br. 41-42).    A violation isclassified as serious under the Act if “there is substantialprobability that death or serious physical harm could result.” 29 U.S.C. § 666(k).  The Secretary need not show there was asubstantial probability an accident would occur, only that if anaccident did occur, death or serious physical harm could result. *Mosser Constr., Inc.*, 23 BNA OSHC 1044, 1046 (No. 08-0631,2010); *Wal-Mart Stores, Inc.,**v. Sec’y of Labor*,406 F.3d 731, 735 (D.C. Cir. 2005);*Brock v. L.R. Willson &Sons, Inc.*, 773 F.2d 1377, 1388 (D.C. Cir. 1985).   The Commission’stest for determining whether a violation is likely to cause death orserious harm for purposes of a violation of the general duty clauseis nearly identical to the test for determining whether a violationis serious for purposes of section 17(k) of the Act.  *CompareWaldon*, 16 BNA OSHC at 1060, *with Mosser*, 23 BNA OSHC at1046.  Thus, a finding that a violation is “likely to causedeath or serious harm [under the general duty clause] is equivalentto a finding under section 17(k) that the violation gives rise to asubstantial probability of death or serious harm.” *Gearhart-Owen Indus., Inc.*, 10 BNA OSHC 2193, 2199 (No. 4263,1982).    As discussed above,these violations were capable of causing serious injury or death. (Tr. 142, 149, 371).  The violations were appropriatelycharacterized.  *See*10 BNA OSHC at 2199; *Acme Energy*,23 BNA OSHC at 2129 (finding a general duty clause violation wasserious based on the same factors considered in finding the generalduty clause violation).    7.Penalty  Under section 17(j)of the Act, the Commission has the authority to assess civilpenalties for the violation of citations.  29 U.S.C. § 666(j). In assessing penalties, the Commission is instructed to give dueconsideration to the size of the employer’s business, thegravity of the violation, the employer’s good faith, and itshistory of previous violations.  *Compass Envtl., Inc.*, 23 BNAOSHC 1132, 1137 (No. 06-1036, 2010), *aff’d*, 663 F.3d1164 (10th Cir. 2011).  The gravity of the violation is generallyafforded greater weight in assessing an appropriate penalty.  *TrinityIndus.*, 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992).  Aviolation’s gravity is determined by weighing the number ofemployees exposed, the duration of their hazard exposure,preventative measures taken against injury, and the possibility thatan injury would occur.  *J. A. Jones Constr. Co.*, 15 BNA OSHC2201, 2214 (No. 87-2059, 1993);*Kus-Tum Builders, Inc.*, 10 BNAOSHC 1128, 1132 (No. 76-2644, 1981).    The Secretarygrouped the penalty for Items 1(a) and (b), proposing a penalty of$13,494.23 (Tr. 148).  While Respondent challenged the likelihood of injuryconcerning citation 1, item 1(b), it did not rebut the Secretary’sevidence that any accident could, and did, result in serious injuriesregarding citation 1, item 1(a).  (Resp’t Br. 41-42).    Looking first atgravity, the CO explained that OSHA believed the violation’sgravity was high because of the high likelihood of multiple bonefractures and the actual serious physical harm suffered byRespondent’s injured employee.  (Tr. 68, 141-142, 147; Exs. J-2p. 3; J-7 p. 3).  Multiple vertebra in RF’s back were broken,he suffered a head laceration and other injuries.  (Tr. 68, 371; Exs.J-2 p. 3; J-7 p. 3).  The Secretary’s expert viewed several ofthe trees as “widowmakers,” any one of which could haveseriously injured an employee.  (Tr. 180-182; Ex. J-25).  The recordsupports finding that the gravity of the violations warrants a highpenalty.  *See**Nelson Tree Servs., Inc.*, 1994 WL 184445,at *3 (gravity of similar general duty clause violation found to behigh).  The CO noted that two employees were exposed to the violativeconditions on the day of the accident.  (Tr. 142-143).  Additionally,Mr. Troup felled trees approximately once a month, and RF typicallycuts trees a couple times a month.  (Tr. 42-43; Exs. J-6,  J-7 p. 3;J-9).  RF had performed the task over two dozen times.  (Ex. J-6).    The Secretaryproposes that the penalty should not be reduced for good faithbecause of the severe nature of the violation.  (Tr. 145-147; Sec’yBr. 8, 22).  Respondent had a safety and training program.  (Exs.J-31 pp. 4-5; J-32 pp. 23-24; J-33, J-34; Stip. 4).  However, asdiscussed, it lacked adequate work rules regarding known hazardsrelated to felling trees.    Turning to history,although Respondent did not have any recent citations, it had notbeen inspected by OSHA within the previous five years of this currentinspection.  (Tr. 147-148).  Therefore, the Secretary proposed noincrease or decrease for history.  *Id*.  As for size, at the time of OSHA’s investigation, Respondentemployed between 1,100 and 1,300 workers.  (Tr. 370).  Given this,the Secretary proposes that Respondent is a sufficiently largeemployer that there should be no reduction for size.  *See S&GPackaging Co., LLC*, 19 BNA OSHC 1503, 1508 (No. 98-1107, 2001)(no reduction given for large employer with 279 employees).    Respondent made nocontrary arguments as to the appropriate penalty.  Upon dueconsideration of section 17(j) of the Act, with regard given to thepenalty calculation factors, the undersigned finds that a groupedpenalty for serious citation 1, item 1(a) and serious citation 1,item 1(b) of $13,494 is appropriate.   **ORDER**  The foregoingDecisionconstitutes the Findings of Fact and Conclusions of Law in accordancewith Rule 52(a) of the Federal Rules of Civil Procedure.    Basedupon the foregoing Findings of Fact and Conclusions ofLaw, it is Ordered that:            - 	Citation 1, Item 1(a) and Citation 1, Item 1(b) alleging serious	violations of section 5(a)(1) of the Act, are AFFIRMED and a grouped	penalty of $13,494 is ASSESSED.     SO ORDERED.     */s/ Carol A.Baumerich*  Dated:	September 27, 2021					Carol A. Baumerich  Washington, D.C.				  	Judge, OSHRC                
1On April 9, 2020, when the citation issued Respondent’s	name was Dominion Energy Transmission, Inc.  On March 30, 2021,	Respondent moved to amend the complaint, to conform the style of the	case to reflect Respondent’s current name Eastern Gas	Transmission and Storage, Inc.  By Order dated March 31, 2021,	Respondent’s motion was granted.  	
  
2The injured employee’s name is not used to protect the	employee’s privacy. 	
  
3	The parties agreed to participate in a virtual hearing using WebEx	video conference technology. WebEx technology permitted the	undersigned judge, counsel, party representatives, and witnesses, to	contemporaneously participate in the hearing, from separate	locations.  Both parties had the opportunity to fully participate in	the hearing and effectively present their case.  The undersigned	judge was able to hear and observe all hearing participants, witness	testimony, and evidentiary objections raised by counsel.  The	undersigned judge was able to effectively assess witness demeanor	and review exhibits offered in evidence.   	
  
4	Ms. Frost has been a CO with OSHA for over 10 years.  (Tr. 28). 	Before working for OSHA, she was a safety officer for Giant Eagle. 	(Tr. 28-29).  Ms. Frost has a Bachelor of Science in safety	management from Slippery Rock University and a Master’s degree	from Columbia Southern University in safety and environment health. 	(Tr. 29).  She has conducted over 600 OSHA investigations.  (Tr.	31).  She conducted two dozen investigations specifically within the	arborist industry.  *Id.*
  
5	At the hearing, Mr. Blair was qualified as an expert in safe tree	removal practices, the safe use of equipment in tree removal, and	the ANSI Z133 standards. (Tr. 171-172; Ex. S-3).  He has been an	arborist for over 50 years.  (Tr. 155-156; Ex. S-3).  He founded and	led various businesses relating to arborist work, consulting, and	education, including the M.F. Blair Institute of Arboriculture,	Sierra Moreno Mercantile, and Blair’s Arborist Equipment. 	(Tr. 157-160; Ex. S-3).  He is a certified tree safety professional	and helped design the certification for tree safety professionals. 	(Tr. 161-162).  Mr. Blair also assisted in authoring various	industry standards, publications, and books relating to the arborist	industry.  (Tr. 162-167; Ex. S-3).  He specifically helped draft the	ANSI Z-133 standards.  (Tr. 162-167).  	
  
6	Mr. Cyr worked for OSHA for 23 years beginning as a compliance	officer, and progressing to various supervisory, and technical	expert positions.  (Tr. 259, 261-262; Ex. R-4).  Relevant to this	proceeding, he served as an OSHA technical expert in the areas of	forest products, including logging and arborists issues.  *Id.*He	was a representative for federal OSHA on the ANSI Z-133 committee,	for a period predating the ANSI Z133-2012, and ANSI Z133-2017	standards relevant in this proceeding.  (Tr. 266-267).  In 2002, Mr.	Cyr started Paul Cyr’s Safety Services, which provided	consulting on safety and health issues.  (Tr. 262-263).  Mr. Cyr has	testified many times as a technical expert for OSHA.  (Tr. 263-264;	Ex. R-4).  Mr. Cyr’s testimony was helpful.  	

At the hearing, Mr. Cyr was qualified	as an expert regarding arboricultural issues, the ANSI Z311	standard, safe tree removal and related work practices, including	the level of protection required by the Bobcat E35 Excavator.  (Tr.	270; Ex. R-4).  Following review of Mr. Cyr’s hearing	testimony, he is not regarded in this decision as an expert in the	International Standard ISO 10262.  (Tr. 270; Ex. S-2).  His	familiarity with the ISO standard was limited and his testimony	regarding the standard was unhelpful.  (Tr. 267-270, 293-294,	316-318, 320; Ex. S-2).  Likewise, as discussed below, his testimony	regarding the E35 Bobcat Excavator conflicted with undisputed facts	regarding the size and weight of the tree that fell, and therefore	is accorded little weight.  (Tr. 293-295, 313-315). 	

In many respects, both hearing experts	agreed regarding the hazard posed to employees working to fell dead	ash trees and safe work practices.  Where the experts offered	different opinions, I accord Mr. Blair’s opinions greater	weight, as it was consistent with the undisputed record facts, the	photographs of the worksite, his long experience in the	arboriculture industry, and deeper understanding of ANSI Z-133.   	
  
7	Mr. Vince worked for Respondent for approximately 27 years.  (Tr.	329).  He has been Respondent’s senior safety specialist for	the past 23 years.  *Id*.  	
  
8	In its Answer, Respondent raised several affirmative defenses,	including employee misconduct, that Respondent did not pursue at the	hearing or in its post hearing briefing.  The undersigned deems	these affirmative defenses abandoned.  *Corbesco, Inc. v. Dole,*	926 F.2d 422, 428–29 (5th Cir. 1991); *Ga.-Pac. Corp.,*	15 BNA OSHC 1127, 1130 (No. 89-2713, 1991).
  
9	RF and Mr. Troup had not been trained in mechanical tree felling. 	Respondent did not view using the Excavator involved in the January	2, 2020 incident as a mechanical means of tree felling.  (Tr.	337-338). 	
  
10	Mr. Vince prepared an “injury alert” of the incident. 	(Tr. 343-344).  This document describes the Excavator as a	“mini-excavator.”  (Ex. R-3).  	
  
11	The RRI form submitted did not have a specific address for the	worksite where the incident happened so the CO went to Respondent’s	main office first.  (Tr. 35).  	
  
12	The CO recalled reviewing ANSI Standard Z133-2012, Section 8.5.1	which states:

Before	beginning any tree removal operation, the chain saw operator,	equipment operator, and/or crew leader shall carefully consider	relevant factors pertaining to the tree and site and shall take	appropriate actions to ensure a safe removal operation.  Factors to	include may be, but are not limited to, tree decay, tree lean, and	wind (see Annex C.3, Manual Tree Felling Procedure, for a more	inclusive list). 

(Tr. 81; Ex. J-11, p. 41). 	
  
13	Hereafter collectively referred to as the “danger tree	hazard.”
  
14	The training materials include “Chain Saw Safety Awareness,	Tree Felling Procedures, Approved tree felling procedures, ANSI	Z-133 tree felling safety requirements,” and “Tree	evaluation prior to removal.”  (Exs. J-31, pp. 4-5, J-32, pp.	23-24, J-33, J-34; Stip. 4).  	
  
15	Both experts agreed on several key points.  The undersigned finds	Mr. Blair’s testimony highly credible.  (Tr. 204-207,	216-218).  He helped draft ANSI Z-133 and worked on the related	committee for thirty years.  (Tr. 164-66, 222; Exs. J-11, J-12,	S-3).  He has worked as an arborist and published in the industry. 	(Tr. 155, 159, 162-63; Ex. S-3).**In contrast, Mr. Cyr’s	work experience was more focused on the forest products and logging	industries.  (Tr. 260-263; Ex. R-4).  It was less focused on	arboriculture and the record does not indicate any publications in	the relevant field.  *Id.*Although Mr. Cyr also served for a	time as a representative to the ANSI Z-133 committee, he was not	involved with either the 2012 or 2017 revisions at issue in this	matter.  (Tr. 263, 266-267).  In contrast, Mr. Blair repeatedly	served as the Committee’s Vice Chairman, including for the	2012 and 2017 revisions.  (Tr. 165-166, 212, 222; Exs. J-11, J-12).
  
16	As noted above, there was a general job safety brief form that the	employees completed.  (Ex. J-13).  This was a “broad”	checklist for all jobs.  (Ex. J-6).  It did not identify any	specific procedures for the tree removal work, including the	consideration of relevant factors.  (Exs. J-6, J-13).  	
  
17	Mr. Blair explained that in his opinion, Mr. Troup was focused only	on one tree and did not take into consideration the entanglements or	the condition of the trees.  (Tr. 209-210).  	
  
18	In particular, ANSI Z-133 directs: 	

Before	beginning any tree removal operation, the chain saw operator and/or	crew leader shall carefully consider relevant factors pertaining to	the tree and site and shall take appropriate actions to ensure a	safe removal operation.  Factors to include may be, but are not	limited to, tree decay, tree lean, and wind...

(Ex. J-12).  	
  
19	Both parties’ experts agree that RF was standing within the	danger zone, contrary to the requirements of ANSI Z-133.  (Tr.	196-200, 311-313).  	
  
20	Respondent knew its employees would use the Excavator to perform the	assigned task.  (Tr. 356-357; Ex. J-9).  The Bobcat Manual makes	plain that the equipment’s level of FOPS protection was	inadequate to fell the standing dead ash trees.  (Ex. J-10 p. 11). 	The top guard did not meet the requirements to protect the equipment	operator from large objects that might fall, such as pieces and	limbs from standing dead ash trees.  (Exs. J-10 p. 11; S-2, pp. 4,	6).  Further, there was no FOPS protection on the front of the	Excavator.  (Ex. J-30).  	
  
21	As discussed above, the manual for the equipment Mr. Troup used	states it does not provide sufficient protection from anything other	than small objects.  (Exs. J-10 p. 11; J-30; S-2, pp. 4, 6). 	
  
22	The Secretary does not have to show that his proposed method is the	only way to address the hazard.  Employer’s can adopt equally	effective alternative methods.  *See e.g.*, *Chevron Oil Co*.,	11 BNA OSHC 1329, 1334 n. 16 (No. 10799, 1983).  The Secretary does	not dispute that Respondent’s ceseation of the Excavator’s	use sufficiently abated Item 1(b).  (Sec’y Br. 22).  	
  
23	The Bipartisan Budget Act of 2015 incorporated the Inflation	Adjustments Act of the same year and required the Secretary to	increase OSHA’s statutory penalty annually.  Bipartisan Budget	Act of 2015, Pub. L. 114-74, § 701; 28 U.S.C. §§ 1	note and 2461 note.  The Secretary assessed his penalty for these	alleged violations by issuing the Citation on April 9, 2020.  The	maximum penalty amount was therefore governed by the Secretary’s	adjustment rule effective January 15, 2020.  *See*Federal	Civil Penalties Inflation Adjustment Act Annual Adjustments for	2020, 85 Fed. Reg. 2292, 2298-99 (Jan. 15, 2020) (to be codified at	29 C.F.R. pt. 1903).
  
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