International Diving Services
Five diving safety citations affirmed by default
Apply this to your situation
This order from 2009 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
OSHA cited International Diving Services after a commercial diving inspection inside a 500,000-gallon water tank. The citations alleged failures involving confined-space entry certification, permit verification, hazardous-energy controls, assessment of underwater hazards, and briefing the dive team about energized pump impellers. The Secretary alleged that a diver was killed when his oxygen line became entangled in an energized pump. The company stopped communicating with its counsel, did not answer discovery, and violated an order compelling discovery. The judge entered default, dismissed the notice of contest, affirmed all five items as alleged, and assessed the proposed penalties totaling $64,400.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1910.146(c)(5)(ii)(H); 29 C.F.R. § 1910.146(j)(2); 29 C.F.R. § 1910.147(c)(4)(i); 29 C.F.R. § 1910.421(d)(2); 29 C.F.R. § 1910.421(f)(1)(iii)
- Outcome: Three serious and two willful items were affirmed by default, with total penalties of $64,400.
- Key point: An employer's failure to obey discovery orders can result in default, dismissal of its contest, and affirmance of the citation allegations.
Full text (OSHRC public release)
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. 08-1886
:
INTERNATIONAL DIVING SERVICES, :
:
Respondent. :
Appearances:
Lindsay A. Wofford, Esquire McCord Wilson, Esquire
Office of the Solicitor Rader & Campbell
U.S. Department of Labor Stemmons Place, Ste 1125
525 Griffin Street, Ste 501 Dallas, Texas 75207
Dallas, Texas 75202 For the Respondent.
For the Secretary.
Before: Dennis L. Phillips
Administrative Law Judge
DECISION AND ORDER
Background
This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 651 et seq. (“the Act”). Between May 13, 2008 and May 15, 2008, the Occupational Safety
and Health Administration (“OSHA”) inspected the work site(s) of Respondent, International
Diving Services (“Respondent” or “IDS”).1 As a result of the inspection, on November 10, 2008
1
Respondent is a privately held corporation. See D eclaration o f Corpora te Respondent, dated December
29, 2008.
OSHA issued to IDS one serious citation containing three items and one willful citation
containing two items. The total proposed penalty for the citation items is $64,400. On Novem-
ber 25, 2008, Respondent contested the citations and the penalties proposed therefor pursuant to
§ 10 (c) of the Act.
Citation 1, Item 1 alleged that on or about May 12, 2008, at the Water Treatment Facility
located in Paris, Texas (“WTF”), an employee entered a permit-required confined space to
inspect a 500,000 gallon in-ground water tank without a written confined space entry permit
being conducted in advance. The employer allegedly did not verify that a Team Leader had
certified that the confined space was safe for entry and that measures had been taken to ensure
water extrusion pumps inside the tank did not engage during the diving operation. The proposed
penalty for Citation 1, Item 1, is $2,800.
Citation 1, Item 2, alleged that on or about May 12, 2008, at the WTF, the employer did
not ensure that the diving Team Leader had verified and checked the appropriate entries on the
confined space permit. The proposed penalty for Citation 1, Item 2, is $2,800.
Citation 1, Item 3, alleged that on or about May 12, 2008, at the 500,000 gallon in-
ground water tank located at the WTF a procedure was not developed, documented and utilized
that employee(s) were protected by the use and application of energy control devices while
engaged in a diving operation inside the tank. The proposed penalty for Citation 1, Item 3, is
$2,800.
Citation 2, Item 1, alleged that on or about May 12, 2008, at the WTF, the employer did
not plan a diving operation to include the hazard assessment of unsafe conditions created by the
automatically engaging of three (3) water extrusion pump impellers (rotating vertical shafts).
2
Employees were allegedly exposed to contact with rotating equipment during a commercial
diving operation. The proposed penalty for Citation 2, Item 1, is $28,000.
Citation 2, Item 2, alleged that on or about May 12, 2008, at the 500,000 gallon in-
ground water tank located at the WTF dive team members were not briefed on the existence of
three (3) water extrusion pumps’ intake impellers which were not de-energized and exposed the
diver to rotating equipment during the diving operation. The proposed penalty for Citation 2,
Item 2, is $28,000.
Together Citation 1, Items 1 through 3, and Citation 2, Items 1 though 2, described herein
are together referred to as the “Citation Items at issue.”
On December 15, 2008, the Complainant filed her Complaint. The Complaint alleged that
Respondent violated § 5(a) of the Act in the manner contained in the citations which were
adopted by reference pursuant to 29 C.F.R. § 2200.30(d). The Complaint further alleged that
the willful violations alleged in Citation 2 were also serious violations within the meaning of §
17(k) of the Act. The Complaint also alleged that in determining the amount of the proposed
penalty, $64,400, due consideration was given to the size of the Respondent’s business, the
gravity of the violation, the good faith of the employer and the history of previous violations, as
required under § 17(j) of the Act. See Complaint, at pp. 1-3.
On December 29, 2008, Respondent filed its Answer.2 On December 29, 2008,
Respondent also served upon the Secretary its Request for Production of Documents.3
2
In its answer, in addition to denying the alleged violations, Respondent asserted affirmative defenses that
asserted that the violations were “isolated instances of employee misconduct of which Respondent had no
knowledge and which Respondent could not have reasonably foreseen.” See Answer at p. 2.
3
During a conference call with the parties, the Secretary’s counsel advised the Court that she had
responded to Respond ent’s Request for Production of Documents.
3
On about March 11, 2009, the Secretary’s served her First Set of Interrogatories,4
Requests for Admissions5 and [First] Requests for Production of Documents.6 On March 27,
2009, she served her Second Request for Production of Documents7 upon Respondent [together
her First Set of Interrogatories, Requests for Admissions, [First] Requests for Production of
4
Complainant propounded twenty-five interrogatories seeking, among other things, the identity of persons
with knowledge of the alleged violations, facts relating to Respondent’s defenses; Respondent’s work rules,
procedures and/or policies in effect at the worksite, including monitoring and comp liance with such matters;
Responden t’s disciplinary record for the pa st years, dive team procedu res in the in-ground tank, Resp onden t’s
assessment of un derw ater conditions and hazards of the in-gro und water tanks, Respon dent’s com mun ications with
the dive team, the identification of dive team members who participated in the 2005 and 2006 inspections of the
W TF, the basis for any denials of Com plainant’s requests for admissions; the identification of instances w here
Respondent took in-ground tanks out-of-service, along with the identification of dive team members involved in any
such instance; the dive teams review of any blueprints, schematics, drawings and specifications for the in-ground
tanks at the WTF, and the identification of the person(s) providing information relating to interrogatory responses .
5
Complainant so ught to have Re spon dent admit that on May 12, 2008: 1) Respondent’s diving crew at the
worksite did not bring with them lockout and/or tagout devices, 2) Othel D. Smith III’s (“Mr. Smith”) equipment
became entangled in a water extrusion pump’s impeller while he was working in an in-ground tank, and 3) the in-
ground tan k was not de-energized at the last in-gro und tank that M r. Smith entered. See Comp lainant’s First
Interrogatories, Requests for Admissions and Request for Production of Documents to Respondent, at pp. 11-12.
6
Comp lainant propounded twenty-six request for production of documents seeking, among other things,
statements of persons with knowledge of the facts of the case, documents supporting Respondent’s responses
relating to Comp lainant’s First Set of Interrogatories, documents relating to Respond ent’s defenses; photographs,
docume nts, reco rds and writings relating to the alleged violation s, videotape s of the worksite, do cum ents relating to
work rules or policies violated by Respondent’s employees, records of disciplinary action beyond January, 2005,
documents relating to steps taken by Respon dent to ensure compliance with its procedures, policies, or work rules,
the contract relating to work at the jobsite, documents relating to the dive teams assessment of underwater conditions
and hazards of the in-ground water tanks, including communications and instructions to Respondent’s employees
relating to hazards; documents Respondent reviewed and/or provided to the dive team, documents relating too
Respondent’s assessment of the underwater conditions and hazards of the in-ground water tanks, including
conversations with employees at the WTF; the blueprints, schematics, drawings, and specifications for the in-ground
tanks at the W TF, documen ts relating to the strength o f the pumps in the in-g round tank s at the W TF, documen ts
relating to dive team mem bers not getting ensnared/entang led in pump s within in-gro und tanks, and documen ts
relating to Respon dent’s 2005 and 2006 inspections of the W TF.
7
Complainant propounded eleven additional document requests seeking blueprints, schematics, drawings
and specifications for the pumps on the in-ground tanks and the size of the openings on pumps at the WTF,
documents reflecting the gallons per minute for the normal operation of the pumps on the in-ground tanks at the
W TF, documents relating to the calculations and/or testing of the entrance velocity for the pumps on the in-ground
tanks and for the in-ground tanks at the WT F, documents reflecting the vicinity of the intake pump to the floor of the
in-ground tanks, the production of a list reflecting all diving and safety-related equipment present at the jobsite,
including the records and logs pertaining to any such equipment; documentation reflecting the person designated as
the dive team supervisor, the dive plan for the jobsite, and documentation relating to the pre-dive briefing.
4
Documents, and Second Request for Production of Documents are hereinafter referred to
collectively as “discovery requests”]. Respondent’s answers to the Secretary’s discovery
requests were originally due in April, 2009. Respondent’s counsel has advised the Secretary that
he was unable to respond to her discovery requests because he has been unsuccessful in
contacting his client about the matter.
A telephone conference call was held with the parties on July 15, 2009. 8
On July 15, 2009, the Complainant served the Secretary’s Motion to Compel and
Memorandum in Support (“Motion to Compel”) upon Respondent by facsimile and email. The
Secretary sought an order from the Court directing Respondent to serve its answers to the
discovery requests within five days of the date of any Court order, as well as deeming all her
requests for admissions admitted.
By the Court’s Scheduling Order dated January 29, 2009 and May 12, 2009, the parties
were required to prepare and file by July 17, 2009 a Joint Pre-hearing Statement (“JPHS”). In
the JPHS Respondent was required to, among other things, provide a list of all lay witnesses who
may be called at hearing, including a brief summary of their testimony to be elicited. Respon-
dent was also required to set forth the factual basis of each affirmative defense as it relates to
each specific item. All discovery was also required to be completed and answered by July 17,
2009.
On July 17, 2009, the parties filed their JPHS. Instead of identifying its list of lay
witnesses and providing a brief summary of their testimony, Respondent stated in the JPHS that
“Respondent’s counsel has not been able to make contact with his client and has no authority to
8
During the July 15, 2009 conference call with the Court, Respondent’s counsel indicated that he believed
that Respo ndent’s representatives had m oved to an undisclosed location in B razil.
5
designate witnesses at this time.” Instead of providing a factual basis of each affirmative
defense as it relates to each specific item, Respondent stated in the JPHS that “Respondent’s
counsel has not been able to make contact with client and has no authority to present affirmative
defenses.”
On July 17, 2009, Complainant separately filed her [First] Motion to Dismiss with the
Court. The Secretary asserted that her [First] Motion to Dismiss was prospectively filed in
anticipation of Respondent’s inability to comply with any order compelling discovery. She
asserted that she was prejudiced by Respondent’s failure to respond to her discovery requests.
She alleged that this was a complex case involving lockout/tagout and commercial diving
standards. She further alleged that an employee of Respondent was killed when his oxygen line
became entangled in an energized pump in the 500,000 gallon inground water tank that he was
inspecting. The Secretary alleged that:
Because [of] Respondent’s position on the citations, it was vital for the prosecu-
tion of her case that Complainant obtain information and documents that
Respondent alleged supported its position. Without the information requested in
her discovery requests, Respondent stymied Complainant’s preparation of her
case in chief and her ability to defend the issued citations. As such, Respondent’s
refusal to respond to Complainant’s discovery requests has prejudiced her to such
an extent that dismissal of Respondent’s Notice of Contest is warranted. See
[First] Motion to Dismiss, at p. 3.
On July 21, 2009, Respondent filed its response to Motion to Compel and [First] Motion
to Dismiss. Respondent’s counsel confirmed that he had been unable to contact his client to
discuss discovery and thus was not able, and had no authority, to respond to the discovery
requests. Respondent “does not dispute the basic facts as set forth in the Motion to Compel or
Motion to Dismiss, or that Complainant has been prejudiced.” Respondent’s counsel further
asserted “that any contumacious conduct in this matter was not the fault of counsel.” Respon-
6
dent agreed that the Secretary’s Motion to Compel and [First] Motion to Dismiss were “ripe for
ruling by this Court.”
On July 23, 2009, the Court granted the Secretary’s Motion to Compel9 and directed that
Respondent serve upon the Secretary complete and detailed answers (verified where required)10
to the Secretary’s First Set of Interrogatories; [First] Requests for Production of Documents,
dated March 11, 2009; and Second Request for Production of Documents, by July 28, 2009.11
The Court also ordered that the Secretary’s Requests for Admissions were deemed admitted.12
The Order also stated:
If a Judge enters an order compelling discovery and there is a failure to comply
with the Court’s order, the Court may make such orders with regard to the failure
as are just. Such order may include any sanction stated in Commission Rule 52
and/or Fed. R. Civ. P., Rule 37, including dismissal of Respondent’s notice of
contest.
On July 31, 2009, Complainant filed her Second Motion to Dismiss Respondent’s Notice
of Contest (“Second Motion to Dismiss”). The Secretary asserted that she had not timely
received the compelled information. She argued that Commission Rule 52(f), 29 C.F.R.
§ 2200.52(f)(4) permitted the Court to render a default judgment against Respondent for failing
to comply with an order compelling discovery. Citing to St. Lawrence Food Corp. D/b/a/ (sic)
Primo Foods, 21 BNA OSHC 1467 (Nos. 04-1734 and 04-1735, 2006), she asserted that the
Court may dismiss a matter when “the record shows contumacious conduct by the noncomplying
9
The Court’s Order was served by facsimile upon Respondent’s counsel on July 23, 2009 and also received
at Respondent’s counsel’s office on July 27, 2009 by certified mail, return receipt requested.
10
See Rule 33(b)(3)(5), Fed. R. Civ. P.
11
The Court also authorized the Secretary to file a motion seeking sanctions, including dismissal of
Respon dent’s notice of con test, if Respon dent did not timely serve its d iscovery an swers upon the Complainant.
12
Pursu ant to R ule 36 (a)(3), Fe deral R ule of C ivil Procedure (Fed . R. Civ. P.), a req uest for adm ission is
deemed admitted unless within thirty days after being served the party to whom the request is directed serves on the
requesting party a written answ er or objection ad dressed to the m atter.
7
party or prejudice to the opposing party.” Id., at 1472. She asserted that she had been prejudiced
by Respondent’s failure to respond to her discovery requests and that a default judgment was
warranted.13 She asks that the Court dismiss Respondent’s Notice of Contest, and enter a final
order sustaining the citations and penalty amounts set forth in the citations attached to the
Complaint.
On July 31, 2009, Respondent filed its response to Second Motion to Dismiss Notice of
Contest. Respondent’s counsel once again confirmed that he had been unable to contact his
client to discuss discovery and thus was not able, and had no authority, to respond to the
discovery requests. Respondent again did not dispute the basic facts as set forth in the Second
Motion to Dismiss, or that Complainant has been prejudiced. Respondent’s counsel again
asserted “that any contumacious conduct in this matter was not the fault of counsel.” Respon-
dent requested that the Secretary’s Second Motion to Dismiss be “ruled on expeditiously by the
Court.”
The hearing in this matter is scheduled to be held at Dallas, Texas commencing on
August 12, 2009.
The Cited Standards
Citation 1, Item 1, alleges a serious violation of 29 C.F.R. § 1910.146(c)(5)(ii)(H),
which states that:
(H) The employer shall verify that the space is safe for entry and that the pre-
entry measures required by paragraph (c)(5)(ii) of this section have been taken,
through a written certification that contains the date, the location of the space and
the signature fo the person providing the certification. The certification shall be
made before entry and shall be made available to each employee entering the
space or that employee’s authorized representative.
13
She reiterated the basis of prejudice as previously described in her [First] Motion to Dismiss .
8
Citation 1, Item 2, alleges a serious violation of 29 C.F.R. § 1910.146(j)(2), which states
that:
(j) Duties of entry supervisors. The employer shall ensure that each entry
supervisor:
(2) Verifies, by checking that the appropriate entries have been made on the
permit, that all tests specified by the permit have been conducted and that all
procedures and equipment specified by the permit are in place before endorsing
the permit and allowing entry to begin;
Citation 1, Item 3, alleges a serious violation of 29 C.F.R. § 1910.147(c)(4)(i), which
states that:
(4) Energy Control Procedure. (i) Procedures shall be developed, documented
and utilized for the control of potentially hazardous energy when employees are
engaged in the activities covered by this section.
Citation 2, Item 1, alleges a willful violation of 29 C.F.R. § 1910.421(d)(2), which states
that:
(d) Planning and assessment. Planning of a diving operation shall include an assessment
of the safety and health aspects of the following:
(2) Surface and underwater conditions and hazards;
Citation 2, Item 2, alleges a willful violation of 29 C.F.R. § 1910.421(f)(1)(iii), which states
that:
(f) Employee briefing. (1) Dive team members shall be briefed on:
(iii) Any unusual hazards or environmental conditions likely to affect the safety
of the diving operation;
Jurisdiction
Respondent admitted that the Commission has jurisdiction of this matter. Respondent
also admitted that it was engaged in a business affecting commerce within the meaning of §
3(5) of the Act, and was an employer within the meaning of § 3(5) of the Act. See Answer of
9
IDS, dated December 29, 2008 at p. 1. I find, therefore, that the Commission has jurisdiction
of the parties and the subject matter in this case.
The Secretary’s Burden of Proof
To prove a violation of a specific standard, the Secretary must demonstrate by a
preponderance of the evidence that: 1) the cited standard applies, 2) the terms of the standard
were not met, 3) employees had access to the cited condition, and 4) the employer knew, or
could have known with the exercise of reasonable diligence, of the cited condition. Astra
Pharmaceutical Prod., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981).
Complainant’s Second Motion to Dismiss
Commission Rule of Procedure 52(f) allows a party to make a motion seeking
sanctions when a party fails to comply with a Court order compelling discovery. The Court
may make such orders with regard to such a failure that are just. The orders may include any
sanction stated in the Federal Rule of Civil Procedure 37, including an order dismissing the
action or proceeding, or rendering a judgment by default against the disobedient party. See
29 C.F.R. § 2200.52(f).14 Whether and to what extent discovery sanctions are warranted are
for the court to decide in its discretion. National Hockey League v. Metropolitan Hockey
Club, Inc., 427 U.S. 639, 642 (1976), NL Industries, Inc., 11 BNA OSHC 2156, 2168 (No.
78-5204, 1984)(when a party’s failure to comply with a discovery order is either
contumacious or acts to prejudice the opposing party, that party will profit from its own
14
Respon dent was duly w arned in the C ourt’s Ju ly 23, 2009 Order gran ting the Secre tary’s M otion to
Compel that any sanction stated in Commission Rule 52 and/or Fed. R. Civ. P., Rule 37, including dismissal of
Responden t’s notice of contest, may be imposed in the ev ent Resp onden t failed to timely comp ly with the C ourt’s
Order compelling discovery.
10
wrongdoing and gain an unfair advantage unrelated to the merits of their case).
The Commission and federal courts generally consider eight criteria when determin-
ing whether a Judge’s decision to sanction a party through dismissal is appropriate.
Duquesne Light Company, 8 BNA OSHC 1218, 1221 (No. 78-5303, 1980). Prejudice to the
party seeking discovery, whether there is a showing of willful default by a party, and
contumacious conduct by the noncomplying party are three of the more significant criteria to
take into account. Only one of these three criteria are needed to affirm the Judge’s decision
to render a judgment by default against a party. Ford Development Corp., 15 BNA OSHC
2003, 2005 (No. 90-1505, 1992), Circle T Drilling Company, Inc., 8 BNA OSHC 1681, 1682
(No. 79-2667, 1980).
A party is prejudiced if the failure to make discovery impairs the party’s ability to
determine the factual merits of the opponent’s defense. Avionic Co. v. General Dynamics
Corp., 957 F.2d 555 (8th Cir. 1992). In this instance, the Secretary has been clearly preju-
diced by Respondent’s obstruction of discovery. She has served comprehensive discovery
requests upon Respondent. The Court finds these discovery requests to be deserving of
complete responses. Often times, the Complainant or plaintiff in an action needs to consider
information that is solely within the purview of the opposing party when preparing its case
for trial. Here, Respondent has totaling frustrated Complainant’s discovery efforts with
Respondent’s counsel’s discovery responses that he is unable to contact his client to discuss
discovery and thus is not able, and has no authority, to respond to the discovery requests.
Had Respondent provided complete responses to the Secretary’s discovery requests, she
could have conducted more informed depositions and better prepared trial tactics and
11
strategies regarding the issues in dispute for the upcoming trial. Respondent concedes that
Complainant has been prejudiced by its responses to her discovery requests.
By making themselves totally unavailable to Respondent’s counsel for consultation
throughout the discovery process, Respondent’s representatives have essentially made a
showing of willful default. The Court also finds that Respondent has engaged in contuma-
cious conduct by not complying with the Court’s order compelling discovery.15 Here again,
Respondent’s counsel does not dispute the basic facts underlying the Secretary’s Second
Motion to Dismiss.16 Respondent has requested that the Secretary’s Second Motion to
Dismiss be “ruled on expeditiously by the Court.” This, the Court has done.
The Court finds Respondent to be in default. “A defaulting party ‘is taken to have
conceded the truth of the factual allegations in the complaint as establishing the grounds for
liability as to which damages will be calculated.’” Ortiz-Gonzalez v. Fonovia, 277 F.3d 59,
62-63 (1st Cir. 2002)(quoting Franco v. Selective Ins. Co., 184 F.3d 4, 9 n.3 (1st Cir. 1999)),
Tower Painting Co., 22 BNA OSHC 1368, 1375 (No. 07-0585, 2008). As a result of the
default, the factual allegations of the complaint relating to liability are taken as true. Dundee
Cement Co. v. Howard Pipe & Concrete Products, 722 F.2d 1319, 1323 (7th Cir. 1983).
15
The Court also finds that Respondent has failed to comply with the Court’s Scheduling Orders dated
January 29, 2009 and May 12, 2009, which required Respondent to prepare and file by July 17, 2009 a JPHS that
required Respondent to provide a list of all lay witnesses who may be called at hearing, including a brief summary of
their testim ony to be elicited and to set forth the factual basis of its affirmative defenses. Instead of identifying its
list of lay witnesses and providing a brief summary of their testimony, Respondent stated in the JPHS that
“Respondent’s counsel has not been able to make contact with his client and has no authority to designate witnesses
at this time.” Instead of providing a factual basis of its affirmative defenses, Respondent stated in the JPHS that
“Respondent’s counsel has not been able to make contact with client and has no authority to present affirmative
defen ses.” T he C ourt find s that theses responses do not comply with the Co urt’s orders.
16
Respondent’s counsel asserts “that any contumacious conduct in this matter was not the fault of counsel.”
The Court agrees w ith Respon dent’s counsel tha t the contum aciou s conduct in this matter is attributable to
Respon dent and not its legal coun sel.
12
When entering a default judgment, factual allegations set forth in a complaint are sufficient
to establish a defendant’s liability. Trustees of the Iron Workers District Council of Tennes-
see Valley and Vicinity Pension Fund et al. v. Charles Howell, No. 1:07-cv-5, 2008 WL
2645504, * 6 (E.D. Tenn. July 2, 2008); National Satellite Sports, Inc. v. Mosely Entertain-
ment, Inc., No. 01-CV-74510-DT, 2002 WL 1303039, * 3 (E.D. Mich. May 21, 2002).
The Secretary’s Complaint and underlying citations sufficiently state the description
of the alleged violations and a reference to the standards allegedly violated.17 The Complain-
ant has satisfied any burden of showing that she is entitled to an entry of judgment by default
against Respondent.
I find that the Secretary has adequately shown the applicability of the cited standards
for each of the alleged violations. I further find that the Secretary has sufficiently established
that the terms of the cited standards were not met by Respondent in each of the alleged
violations. I also find that Respondent’s employees had access to the cited conditions.
Lastly, the Secretary has adequately proved that Respondent either knew or should have
known of the cited conditions. The Citation Items at issue are all affirmed, in their entirety,
as alleged by the Secretary.
Penalties
The Secretary has proposed a total penalty of $64,400 for the Citation Items at issue.
In assessing penalties, the Commission must give due consideration to the gravity of the
violation and to the employer’s size, prior history of violations and good faith. 29 U.S.C. §
17
§ 9(a) of the Act (a citation must “describe with particularity the nature of the violation, including
reference to the provision of the A ct, standard, rule, regulation, or order alleged to have been violated .”).
13
666(j); J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2213-14 (No. 87-2059, 1993). These
factors are not necessarily accorded equal weight, and gravity is generally the principal
factor in penalty assessment. Trinity Indus., Inc., 15 BNA OSHC 1481, 1483 (No. 88-2691,
1992). The gravity of a violation depends upon such matters as the number of employees
exposed, duration of exposure, precautions taken against injury, and the likelihood that an
injury would result. J.A. Jones, 15 BNA OSHC at 2213-14. Based on the record of this case
and Respondent’s default, I find that the Secretary properly considered the statutory factors
in her penalty proposals. I find the total proposed penalty of $64,400, along with the
classification of the violations as alleged by the Secretary, for the Citation Items at issue to
be appropriate, and the proposed penalties are assessed.
Findings of Fact and Conclusions of Law
All finding of fact and conclusions of law relevant and necessary to a determination
of the contested issues have been found and appear in the decision above. See Fed. R. Civ. P.
52(a).
ORDER
After considering the Complainant’s Second Motion to Dismiss and Respondent’s
response thereto, the Court finds Complainant’s Second Motion to Dismiss to be with merit
and IT IS ORDERED THAT HER Second Motion to Dismiss is GRANTED in its entirety.18
IT IS FURTHER ORDERED THAT a default judgment against Respondent is
warranted and that Respondent be declared in DEFAULT.
IT IS FURTHER ORDERED THAT Respondent’s Notice of Contest is
18
The Cou rt’s ruling and order addressing the Complainant’s Second Mo tion to Dismiss renders her First
Motion to Dism iss mo ot.
14
DISMISSED.19
Based upon the foregoing findings of fact and conclusions of law, IT IS FURTHER
ORDERED that:
1. Item 1 of Citation 1 is affirmed as a serious violation of 29 C.F.R. §
1910.146(c)(5)(ii)(H) and a penalty of $2,800 is assessed.
2. Item 2 of Citation 1 is affirmed as a serious violation of 29 C.F.R. §
1910.146(j)(2) and a penalty of $2,800 is assessed.
3. Item 3 of Citation 1 is affirmed as a serious violation of 29 C.F.R. §
1910.147(c)(4)(i) and a penalty of $2,800 is assessed.
4. Item 1 of Citation 2 is affirmed as a willful violation of 29 C.F.R. §
1910.421(d)(2) and a penalty of $28,000 is assessed.
5. Item 2 of Citation 2 is affirmed as a willful violation of 29 C.F.R.
§1910.421(f)(1)(iii) and a penalty of $28,000 is assessed.
_/s/________________
Dennis L. Phillips
U.S. OSHRC Judge
Date: 15 August 2009
Washington, D.C.
19
The hearing scheduled for August 12, 2009 at Dallas, Texas is cancelled.
15
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