Superior attempts to rebut this showing by contending that the prior citation, where it was cited for a guardrail that lacked a midrail, was not substantially similar to the present citation, where there was no guardrail at all. We find that both citations involve the same standard and the same hazard of falling from an elevated surface and therefore are substantially similar. Because Superior has failed to rebut the Secretary's evidence of substantial similarity, we affirm the violation as repeated. Penalty Superior is a large company, employing about 300 people. The gravity of the violation falls in the moderate range, involving the exposure of two employees who were briefly on the unguarded catwalk on numerous occasions and who could have been seriously injured by a 10-foot fall off the catwalk.
Good faith is also a factor to be considered in the determination of the level of penalty.
Superior does not argue in its brief that the Secretary's proposed penalty should be lowered if a repeated violation is found. As noted above, we do not rely on Stansberry's fall under the particular circumstances of this case. The Secretary has asserted that the fact of employee Stansberry's accident supports his conclusion that this guardrail violation presented a high probability of an accident. However, as the majority acknowledges, Stansberry fell when his pant leg became hooked on a ladder as he was exiting the catwalk. It seems to me, then, that Stansberry's fall was entirely unrelated to the failure of Superior, or any other contractor, to provide the guardrail protection required by the standard.