P.J. Spillane Company, Inc.

Read the official release (oshrc.gov)

Plain-English summary

P.J. Spillane employees performed masonry tuck-pointing from scaffolds at a Boston worksite. The judge affirmed a serious respirator-program item after OSHA found a dirty, deteriorated respirator and facial hair that interfered with face seals. A missing safety data sheet for a corrosive cleaner was affirmed as other-than-serious, but related chemical training, emergency flushing, and eye-protection items were vacated because OSHA did not prove the company's measures were inadequate. Scaffold items were affirmed for using a milk crate as access, failing to perform a daily inspection, placing a stepladder on the scaffold to increase working height, and leaving a guardrail gap covered only by debris netting. A second stepladder item was vacated as duplicative. The affirmed items carried $7,050 in total penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.134(c)(2)(ii); 29 C.F.R. § 1910.1200(g)(1); 29 C.F.R. § 1926.21(b)(3); 29 C.F.R. § 1910.1200(h)(2)(ii); 29 C.F.R. § 1926.50(g); 29 C.F.R. § 1926.102(a)(1); 29 C.F.R. § 1926.451(e)(1); 29 C.F.R. § 1926.451(f)(3); 29 C.F.R. § 1926.451(f)(15); 29 C.F.R. § 1926.1053(b)(4); 29 C.F.R. § 1926.451(g)(1)
• Outcome: Six items were affirmed or modified with $7,050 in penalties, while five items were vacated.
• Key point: OSHA must prove that provided safety measures are unsuitable, and debris netting does not substitute for a compliant scaffold fall-protection system.

Full text (OSHRC public release)

                   UNITED STATES OF AMERICA
       OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,
Complainant,
OSHRC DOCKET NO. 11-0380
v.
P.J. Spillane Company, Inc.,
Respondent.

Appearances:

    Kevin Sullivan, Esq., Office of the Solicitor, U.S. Department of Labor, Boston, Massachusetts
            For Complainant

    Barrett A. Metzler, Representative, Dallas, Texas
             For Respondent

Before: Administrative Law Judge John H. Schumacher

                                  DECISION AND ORDER

                                   PROCEDURAL HISTORY

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

Commission”) pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29

U.S.C. §651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”)

conducted an inspection of a P.J. Spillane Company, Inc. (“Respondent” or “Spillane”) worksite

at 126 High Street in Boston, Massachusetts on August 12, 2010. As a result of the inspection,

OSHA issued a Citation and Notification of Penalty to Respondent alleging eleven (11) serious

violations of the Act and proposed a total penalty of $12,500.00. Respondent filed a timely

notice of contest, bringing this matter before the Commission.

    The Secretary filed a Complaint on February 23, 2011. By a letter dated March 31, 2011,

Respondent timely filed a Motion to Dismiss,1 which was based upon an alleged error in the

Secretary’s description of the worksite location. On April 8, 2011, the Secretary filed its

Opposition to Respondent’s Motion to Dismiss, indicating that the error in the Secretary’s

description of the worksite location was a typographical error.2 The Motion to Dismiss was

denied by the Court on April 25, 2011. On May 26, 2011, the Secretary filed a Motion to

Amend Citation and Complaint, which was granted by the Court on June 6, 2011.

    This case was originally designated for Simplified Proceedings on February 25, 2011.

On June 17, 2011, the parties participated in a telephone conference call, during which

Respondent requested discontinuance of Simplified Proceedings. The Secretary did not object,

and the Court granted Respondent’s oral motion to discontinue Simplified Proceedings on June

21, 2011. A hearing was held on October 18, 2011, in Boston, Massachusetts. Both parties

timely submitted post-trial briefs.

                                          JURISDICTION

    Based upon the record, I find that Respondent was engaged in a business affecting

commerce and was an employer within the meaning of sections 3(3) and 3(5) of the Act.3

Therefore, I conclude that the Occupational Safety and Health Review Commission has

jurisdiction over the parties and subject matter in this case pursuant to Section 10(c) of the Act.4

                                        APPLICABLE LAW

    To establish a prima facie violation of the Act, the Secretary must prove: (1) the standard

applies to the cited condition; (2) the terms of the standard were violated; (3) one or more of the

1. In light of the fact that Respondent opted to be represented by a non-attorney representative, the Court treated
   Respondent’s Motion to Dismiss as its Answer to the Secretary’s Complaint.
2. The original Citation and Complaint identified the worksite as Bunker Hill Monument. The Secretary indicated
   her intent to file a Motion to Amend the Citation and Complaint that identified the worksite as the corner of High
   and Pearl Streets in Boston, MA.
3. The Commission has held that construction activity, even a small project, affects interstate commerce. Clarence
   M. Jones, 11 BNA OSHC 1529, 1531 (No. 77-3676, 1983).
4. In its “Answer”, Respondent did not dispute that it is an employer under the Act, nor did it dispute that the
   Commission has jurisdiction in this matter.

                                                   2
   

   employees had access to the cited condition; and (4) the employer knew, or with the exercise of

reasonable diligence could have known, of the violative condition. Ormet Corporation, 14 BNA

OSHC 2134, 1991 CCH OSHD ¶ 29,254 (No. 85-0531, 1991).

   The Secretary may show employee access through either actual employee exposure, or by

showing that “while in the course of their assigned working duties . . . [employees] will be, are,

or have been in a zone of danger.” Gilles & Cotting, Inc., 3 BNA OSHC 2002, 2003, (No. 504,

1976). To establish employer knowledge, an employer does not have to possess knowledge that

a condition violated the Act, just knowledge that the condition existed. Shaw Construction, Inc.,

6 BNA OSHC 1341, 1978 CCH OSHD ¶ 22,524 (No. 3324, 1978). Further, the Secretary need

not show that “an employer understood or acknowledged that the physical conditions were

actually hazardous.” Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079–80 (No. 90-2148,

1995), aff’d without published opinion, 79 F.3d 1146 (5th Cir. 1996).

   A violation is “serious” if there is a substantial probability that death or serious physical

harm could result from the violative condition. 29 U.S.C. 666(k). Complainant need not show

that there is a substantial probability that an accident will occur; she need only show that if an

accident occurred, serious physical harm could result. If the possible injury addressed by the

regulation is death or serious physical harm, a violation of the regulation is serious. Phelps

Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984); Dec-Tam Corp., 15 BNA OSHC

2072 (No. 88-0523, 1993).

                                     DISCUSSION

   In July of 2010, Compliance Safety and Health Officer (“CO”) Mark Heffron was

traveling between inspections when he observed an employee of Respondent working on a

stepladder on top of a scaffold at 126 High Street. (Tr. 14). Based upon that observation, CO

Heffron called the area office in Braintree and informed his supervisor what he had observed.

                                             3

(Id.). Heffron’s supervisor informed him that he could conduct an inspection of the worksite.

(Id.). Heffron attempted to conduct an inspection; however, he was informed by Respondent that

it was company policy to require a warrant to conduct an inspection. (Id.). Heffron obtained a

warrant and returned to the 126 High Street worksite to conduct an inspection on August 12,

2010. As a result of that inspection, Respondent was cited for eleven serious violations of the

Act.

   Six witnesses testified at the hearing: (1) the investigating OSHA CO, Mark Heffron; (2)

OSHA’s Braintree, Massachusetts area director, Brenda Gordon; (2) Respondent’s outside

foreman, superintendent, and safety person, Kenneth Canale; (3) Respondent’s General Manager

and CFO, Sarah Spillane; (4) Respondent’s site foreman, Richard Repici, Jr.; (5) Respondent

employee, Robert Bekerian; and (6) Respondent employee, Michael Lanier.

                                    Citation 1, Item 1

   In Citation 1, Item 1, the Secretary alleges a serious violation of 29 C.F.R. §

1910.134(c)(2)(ii), which provides:

   Where respirator use is not required . . . the employer must establish and
   implement those elements of a written respiratory protection program necessary to
   ensure that any employee using a respirator voluntarily is medically able to use
   that respirator, and that the respirator is cleaned, stored, and maintained so that its
   use does not present a health hazard to the user. Exception: Employers are not
   required to include in a written respiratory protection program those employees
   whose only use of respirators involves the voluntary use of filtering facepieces
   (dust masks).

   The citation specifically alleges that “the employees’ respirator [sic] were not clean and

maintained in a sanitary condition while worn during masonry tuck-pointing operations.”

(Citation and Notification of Penalty at 4). On the day of the inspection, Respondent was

performing tuck-pointing operations at the 126 High Street worksite. (Tr. 17, 207). Tuck-

pointing consists of removing mortar from in between joints that are damaged or deteriorated and

installing new product to repair or update the joints. (Tr. 152). During his interviews with

                                             4

Respondent’s employees, CO Heffron discovered that the employees were wearing respirators to

protect themselves from airborne contaminants. (Tr. 17).

   CO Heffron asked Respondent’s foreman, Richard Repici, Jr., to retrieve one of the

respirators that the employees were using that day. (Tr. 17, 112). While inspecting the

respirator, CO Heffron discovered dust that had collected inside the face piece and that the nose

piece had significantly deteriorated. (Tr. 18, C-4, C-5). CO Heffron also noticed that two of the

employees, Repici and Lanier, had facial hair, which can interfere with the proper operation of a

respirator. (Tr. 30, 117, C-6, C-7, C-36). CO Heffron also asked when the employees last

cleaned and inspected their respirators. (Tr. 23). At the time of the interview, the employees

could not recall when their respirators were last cleaned or inspected. (Tr. 23–24). Based on the

foregoing, CO Heffron concluded that Respondent failed to properly implement its respiratory

protection program.

    In order to establish a prima facie violation of the Act, the Secretary has the burden to

prove that the standard applies to the cited condition. See, e.g., Southwestern Bell Tel. Co., 19

BNA OSHC 1097 (No. 98-1748, 2000), aff’d without published opinion, 277 F.3d 1374 (5th Cir.

2001). The cited standard is prefaced by the phrase “[w]hen respirator use is not required . . . .”

29 C.F.R. § 1910.134(c)(2)(ii) (emphasis added). Subsection (c)(1) states, “In any workplace

where respirators are necessary to protect the health of the employee or whenever respirators are

required by the employer the employer shall establish and implement a written respiratory

program.” Id. § 1910.134(c)(1); see also Respiratory Protection, 63 Fed. Reg. 1152, 1189–90

(January 8, 1998) (indicating different protections for standard- or employer-required respirators

and voluntary respirator use under (c)(2)). In order to determine whether subsection (c)(2)(ii) is

applicable, the Court must determine whether either the standard or Respondent required the use

of respirators or whether the employees’ use of the respirators was voluntary.

                                            5

The Court finds that the standard applies. CO Heffron testified that the standard requires

the use of respirators when it is determined that an employee is exposed to harmful contaminants

in excess of specified limits. (Tr. 77–78); see also 29 C.F.R. § 1910.1000. That determination

would be made by either OSHA or the employer through the use of air monitoring. (Tr. 78).

There was no testimony from either side regarding the level of airborne contaminants resulting

from tuck-pointing operations at 126 High Street and, therefore, no evidence to suggest that

respirators were required by the standard or by the employer. The only testimony regarding the

required use of respirators came from Respondent’s foreman, Richard Repici, who responded in

the affirmative to the following question: “Now, are you required, at any time, to wear a

respirator?” (Tr. 204). It was not specified, however, as to what those times were.5 (Tr. 204).

Respondent’s own respiratory protection program specifies that “[r]espirators shall only be used

when effective engineering controls are not possible or practical . . . .” (C-36). The program

provides examples of engineering controls, which include “reducing dust particles with water

mist, spray or vacuum systems.” (Id.). Respondent’s employees testified that vacuum systems

were in place during tuck-pointing operations to reduce airborne contaminants. (Tr. 207, 241).

Finally, although not specifically testified to, CO Heffron’s notes indicate that Respondent had

not done site-specific monitoring, which lends further support to the Court’s conclusion that the

use of respirators was not required and that the standard applies. (C-2).

    The Court also finds that the standard was violated. The respirator observed by CO

Heffron clearly had accumulations of dust and showed signs of excessive wear, which should

have been discovered if Respondent’s respiratory protection program had been properly

implemented. As noted above, CO Heffron, with the assistance of his contemporaneously

recorded notes, recalled the conversations he had with employees regarding their respirator

5. Although Respondent’s brief argues that the use of respirators was required, no evidence was introduced to
   support that proposition.

                                                6
   

   maintenance, cleaning, and inspection routines, during which they admitted that they did not

recall the last time they had cleaned or inspected their respirator. On the other hand, Lanier and

Bekerian testified that they did not recall such a conversation; however, they were able to testify

that they regularly cleaned and inspected their respirators prior to each use, including each time

they returned from returned from a lunch or coffee break. (Tr. 226, 240–42). The Court finds

the testimony of CO Heffron more credible in that he was able to testify as to the specific

conversations he had with the employees, whereas Lanier and Bekerian were only able to testify

regarding typical procedures for respirator cleaning and maintenance. If these procedures were

so diligently followed, then surely Respondent’s employees could have recalled the last

inspection or cleaning, which would have taken place that morning. Furthermore, the

deteriorated condition of the respirator’s nosepiece, although not directly related to the filtering

efficiency of the respirator, lends support to the Court’s conclusion that Respondent failed to

properly implement its respiratory protection program.6

     All three employees were also exposed to the condition. Although there was some

dispute as to whom the respirator identified in exhibits C-4 and C-5 belonged, it was clearly

brought to CO Heffron in response to his request that he be able to look at one of the respirators

that had been used that day. (Tr. 112). Additionally, the failure to properly implement

Respondent’s respiratory protection program affects all individuals at a worksite equally. The

fact that a respirator was found in poor condition and two out of three employees were found to

have facial hair in violation of Respondent’s own policy strongly supports a finding of employee

exposure. Respondent also knew, or with the exercise of reasonable diligence, could have

6. With respect to the facial hair issue, the Court finds that this is merely additional evidence of the violation
   already established. Respondent’s respiratory protection program specifically provides: “The employee cannot
   have any facial hair or other condition that interferes with the face-to-respirator seal.” (C-36). Both Lanier and
   foreman Repici, who, according to the program is the “person [who] shall be responsible for implementing the . . .
   program,” had facial hair in violation of Respondent’s policy. (Tr. 209, C-6, C-7). Thus, not only did Repici fail to
   properly implement the program as to the employees, he also failed to lead by example.

                                                    7
   

   known of the condition. Respondent charged Repici with the responsibility to implement the

respiratory protection policy. See A.P. O’Horo Co., 14 BNA OSHC 2004 (No. 85-369, 1991)

(actual or constructive knowledge of a foreman is imputable to the employer). A cursory

examination of the respirators would have uncovered the deterioration of the nose piece, not to

mention the presence of facial hair, which Repici admits to having on the day of the inspection.

    The preamble to the cited standard, which governs the voluntary use of respirators, states

that “[p]aragraph (c)(2) is necessary because the use of respirators may itself present a health

hazard to employees who are not medically able to wear them, who do not have adequate

information to use and care for respirators properly, and who do not understand the limitations of

respirators.” 63 Fed. Reg. 1152, 1190. CO Heffron testified as to the expected injuries that

could result from a violation of this standard, including respiratory problems from breathing in

silica dust, which is a typical byproduct of tuck-pointing operations.7 (Tr. 76–77). Respondent

offered no evidence to the contrary. Accordingly, the Court finds this violation was serious.

Citation 1, Item 1 shall be AFFIRMED.

                                          Citation 1, Item 2

    In Citation 1, Item 2, the Secretary alleges a violation of 29 C.F.R. § 1910.1200(g)(1),

which provides:

    Chemical manufacturers and importers shall obtain or develop a material safety
    data sheet for each hazardous chemical they produce or import. Employers shall
    have a material safety data sheet in the workplace for each hazardous chemical
    which they use.

    The citation specifically alleges that “the (employer) did not have the MSDS available at

the worksite for employees using Sure Klean 600 detergent that contains HCl, a corrosive

ingredient that poses special health and safety hazards to the user.” (Citation and Notification of

7. The preamble to the standard also identifies other potential health hazards and injuries that may result from
   improper maintenance and care of respirators, such as dermatitis and ingestion of harmful substances. 63 Fed. Reg.
   at 1190.

                                                   8
   

   Penalty at 4). An MSDS (material safety data sheet) describes the hazards associated with the

use of a particular product, the potential for exposure, signs and symptoms of exposure,

recommended personal protective equipment, and the type of first-aid to be rendered in the event

of exposure. (Tr. 25, C-12). During his inspection, CO Heffron saw that Respondent had a

container of Sure Klean 600 detergent at the worksite. (Tr. 25). Sure Klean is a corrosive

cleaning agent that contains hydrochloric acid (HCl), which, depending on its use, can cause

damage to the eyes, skin, and respiratory tract. (Tr. 25, C-10, C-12). At the time of the

inspection, CO Heffron requested a copy of the MSDS for Sure Klean; however, Respondent

was unable to provide him with one until weeks later. (Tr. 32). Foreman Repici stated that they

had an MSDS booklet; however, he also indicated that it was not inclusive of all chemicals

located on the worksite and that some MSDSs were located in his briefcase, which he did not

have with him at the worksite. (Tr. 210, 214). Accordingly, the cited standard applies and was

violated.

   All three of Respondent’s employees were exposed to the condition.            CO Heffron

testified that Respondent’s employees told him that they used Sure Klean on a daily basis. (Tr.

25). At trial, however, foreman Repici stated that they had not used the Sure Klean for at least a

month and would probably not use it again for at least a couple of months. (Tr. 212–13).

Accordingly, Respondent contends that, because the product was not specifically “in use” at the

time of the inspection, there was no violation of the standard. This argument is contrary to the

plain language of the standard and to Commission case law. The standard merely requires that

the employer shall have an MSDS in the worksite for each hazardous chemical which they use.

See 29 C.F.R. § 1910.1200(g)(1). Although the Sure Klean may not have been in use on the day

of the inpsection, the Court finds that the chemical was available for use, had been used at the

worksite, and would be used again in the future. See Gilles & Cotting, Inc., 3 BNA OSHC 2002

                                            9

(The Secretary may show employee access through either actual employee exposure, or by

showing that “while in the course of their assigned working duties . . . [employees] will be, are,

or have been in a zone of danger.”).

    The Court also finds that Respondent had knowledge of the condition. To establish

employer knowledge, an employer does not have to possess knowledge that a condition violated

the Act, just knowledge that the condition existed. Shaw Construction, Inc., 6 BNA OSHC

1341. The Sure Klean was not in storage and was located in plain view. Furthermore,

Respondent’s foreman, Richard Repici, was responsible for maintaining the MSDSs for the

worksite, and he failed to have the proper MSDS for Sure Klean. (Tr. 210). See A.P. O’Horo

Co., 14 BNA OSHC 2004 (No. 85-369, 1991) (actual or constructive knowledge of a foreman is

imputable to the employer).

    The Court finds, however, that this violation was not serious. As will be explained

further in the following sections, Respondent’s employees were well-versed in the proper

handling and use of Sure Klean, as well as the required Personal Protective Equipment (“PPE”)

associated with its use. Further, to the extent that Sure Klean had not and would not be used for

a considerable period of time, there was a very low probability of death or serious physical harm

resulting from its presence on the worksite. Accordingly, Citation 1, Item 2 will be MODIFIED

to an other-than-serious violation, and the penalty will be reduced in kind.

                                   Citation 1, Item 3(a)

    In Citation 1, Item 3(a), the Secretary alleges a violation of 29 C.F.R. § 1926.21(b)(3),

which provides:

    Employees required to handle or use poisons, caustics, and other harmful
    substances shall be instructed regarding the safe handling and use, and be made
    aware of the potential hazards, personal hygiene, and personal protective
    measures required.

    The citation specifically alleges that “[e]mployees handling and using the Sure Klean 600


                                            10

detergent were not trained in its potential hazards and the appropriate handling procedures

needed for protection. This product contains HCl, an ingredient that is corrosive that poses

special health and safety hazards to the user.” (Citation and Notification of Penalty at 5).

During his inspection, CO Heffron inquired about the employees’ use of Sure Klean and whether

they were familiar with the hazards associated with its use. (Tr. 27, C-13). CO Heffron testified

that one of the employees told him that they did not think that the material was hazardous, while

the other employees stated that they were unsure whether the material was hazardous or not. (Tr.

28, 125).

   Respondent’s employees all testified that they had experience using the Sure Klean

product prior to working for Respondent. (Tr. 212, 224, 243). They also testified as to what

personal protective equipment (PPE) their previous employers and Respondent had them wear in

order to protect them from the hazard of exposure, i.e., full face protection, respirators with

chemical cartridges, rain gear, and rubber boots. (Tr. 212, 224, 243). Additionally, Repici,

Lanier, and Bekerian have all taken the OSHA-10 class, and Repici and Lanier have taken the

OSHA-30 class. These classes address issues such as hazardous chemicals and proper PPE. (Tr.

217–18, 228, 245). Finally, Canale testified that each new employee is provided information

with respect to MSDS sheets and proper PPE and signs a form indicating that they have received

information regarding Respondent’s hazardous communications program. (Tr. 195, R-2, R-3, R-

4, R-5). This information session is typically conducted at the office on the employees’ first day;

however, it can sometimes be provided at the worksite. (Tr. 195).

   With respect to training standards, the Commission has held that employers are required

to give instructions that are reasonable under the circumstances. Pratt & Whitney Aircraft Grp.,

12 BNA OSHC 1770 (No. 80-5830, 1986); see also Compass Environmental, Inc. v. OSHRC,

663 F.3d 1164 (10th Cir. 2011). In determining the reasonableness of the instructions, a court

                                            11

“must consider such factors as the obviousness of the hazard, the experience of the employees,

the likelihood that an accident would occur, and the degree of harm that would result from an

accident.” Pratt & Whitney, 12 BNA OSHC 1770.

   In addition to the testimony of CO Heffron, the Secretary points to the following as

evidence that Respondent failed to provide adequate training with respect to the use of harmful

substances: (1) Lanier testified that he could not remember “off the top of his head” whether he

had received hazardous communication training from Respondent; (2) Bekerian gave a rather

abbreviated response as to the nature of his hazardous communication training (“You know, just

what kind of protective equipment to wear.”) (Tr. 233, 239, 245–46). On the other hand,

Respondent asserts that, based upon their previous experience and training and the information

provided by Respondent, the employees were properly instructed according to the cited standard.

   The Court finds that the cited standard applies; however, the Court does not find that it

was violated. The weight of the evidence suggests that the information provided to the

employees was sufficient to constitute proper instruction under the standard. The hazard was

clearly obvious: the sealed, plastic bucket containing the Sure Klean had a clear warning label

indicating the nature of the hazard. (C-10). See Pratt & Whitney, 12 BNA OSHC 1770 (citing

Butler Lime & Cement Co. v. OSHRC, 658 F.2d 544, 551 (7th Cir. 1981)) (caution signs on acid

tanks sufficient to warn employees of hazard). Secondly, the employees were clearly

experienced in the use of the chemical as indicated by their testimony regarding their experience

using Sure Klean on previous jobs. In light of the previous two factors, although the degree of

harm resulting from an accident involving Sure Klean would be serious, the Court finds that such

an accident would be unlikely. Accordingly, Citation 1, Item 3(a) shall be VACATED.

                                 Citation 1, Item 3(b)

   In Citation 1, Item 3(b), the Secretary alleges a violation of 29 C.F.R. §



                                           12

1926.1200(h)(2)(ii), which provides:

     Employees shall be informed of any operations in their work area where
     hazardous chemicals are present.

     The citation specifically alleges that “[f]or employees exposed to Sure Klean 600

detergent, the employer did not train these employees in the physical and health hazards of HCl,

an ingredient that is corrosive that poses special health and safety hazards to the user.” (Citation

and Notification of Penalty at 5).

     Based on the discussion regarding the use of Sure Klean in Items 2 and 3(a), the Court

finds that the cited standard applies. The standard, however, was not violated. As noted above,

the use of a sign can be sufficient to communicate hazards to employees. See Butler Lime &

Cement Co., 658 F.2d at 551 (employer may communicate 10-foot clearance rule by sign). The

container of Sure Klean was clearly marked as a hazardous material, which, coupled with the

facts mentioned in Item 3(a), is more than adequate to inform employees that a hazardous

chemical was present. Accordingly, Citation 1, Item 3(b) shall be VACATED.

                                           Citation 1, Item 4

     In Citation 1, Item 4, the Secretary alleges a violation of 29 C.F.R. § 1926.50(g), 8 which

provides:

     Where the eyes or body of any person may be exposed to injurious corrosive
     materials, suitable facilities for quick drenching or flushing of the eyes and body
     shall be provided within the work area for immediate emergency use.

     The Citation specifically alleges that “[e]mployees had no eyewash station available for

those who are spraying and handling Sure Klean 600 Detergent, which contains HCl, a

corrosive.” (Citation and Notification of Penalty at 6). After discovering that Respondent’s

employees used Sure Klean at the worksite, CO Heffron asked if Respondent had an eyewash

8. The Citation and Notification Penalty contains a typo, indicating that the cited standard is 1925.50(g), which is a
   non-existent standard. After a colloquy at trial, the Court finds that this was a typographical error and that the
   proper standard was tried by consent. Furthermore, Respondent was placed on notice of the proper standard to the
   extent that the language of 1926.50(g) was listed in the Citation and Notification of Penalty.

                                                    13
   

   station available. (Tr. 41). Repici, Bekerian, and Lanier stated that the worksite did not have an

eyewash station. (Tr. 42). However, Respondent did have a hose and eyewash bottle available

at the location of the worksite where Sure Klean would be applied. (Tr. 43, 213–14, C-2).

Because Respondent had corrosive chemicals on the worksite available for use, the Court finds

that the standard applies.

     The Secretary argues that Respondent’s failure to have an eyewash station constitutes a

violation of the standard. Specifically, the Secretary contends that a hose and eyewash bottle

would be insufficient because it did not allow for hands-free washing and that the variable

pressure and temperature of the hose could cause additional damage to the eyes. (Tr. 43–44).

Respondent contends, as it has with respect to other violations, that Sure Klean was not in use at

the time and, thus, an eyewash station was not required. Respondent also contends that the hose

and eyewash bottle were “suitable” facilities for the purposes of the standard.

     According to the Commission:

     [W]hether an employee has complied with its obligations to provide ‘suitable facilities’ . . .
     depends on the ‘totality’ of the relevant ‘circumstances’, including the nature, strength, and
     amounts of the corrosive material or materials that its employees are exposed to; the configuration
     of the work area; and the distance between the area where the corrosive chemicals are used and the
     washing facilities.

Atlantic Battery Co., Inc., 16 BNA OSHC 2131 (No. 90-1747, 1994) (internal citations

omitted).9 “The Secretary bears the burden of proving that the facilities provided by the

employer are not ‘suitable’ within the meaning of the standard.” Id. This burden cannot be met

merely by showing that the flushing apparatus is not an eyewash fountain. Id. (citing E.I. duPont

de Nemours & Co., 10 OSHC BNA 1320, 1324–25) (No. 76-2400, 1982). In Atlantic Battery,

the Commission found that the Secretary failed to establish that an aerated hose located in close

proximity to the worksite unsuitable. Id. (also finding that the record did not establish that the

9. It should be noted that the standard at issue in Atlantic Battery and the other cases cited by the Court refer to 29
   C.F.R. § 1910.151(c). The language of the standard at issue in this case (29 C.F.R. § 1926.50(g)) is identical.

                                                     14
   

   strength and amount of the chemical used by the employer was such that only an eyewash

fountain could be considered suitable); see also E.I duPont, 10 OSHC BNA at 1325 (holding that

Secretary failed to meet her burden that a shower was unsuitable).

   As in the cases cited above, the Secretary has failed to carry her burden. CO Heffron

expressed his concern that a hose would not allow an exposed individual to hold his eyelids open

during the washing process and that the variable temperature and pressure of the water coming

from the hose may cause additional eye damage. (Tr. 43–44). These concerns were merely

speculative; there was no evidence to establish that the temperature or pressure of the hose was

such that it could be considered and unsuitable facility according to the standard. See E.I.

duPont, 10 OSHC BNA at 1325 (CO made no effort to determine the pressure at which the

shower flowed and Secretary failed to establish that the flow could not be moderated).

Furthermore, no evidence was proffered as to the strength and the amount of the chemicals that

were being used. What is known is that a hose, capable of providing a continuous stream of

water, was provided in close proximity to the location where Sure Klean would be applied.

Because the Secretary has failed to carry her burden, Citation 1, Item 4 shall be VACATED.

                                   Citation 1, Item 5

   In Citation 1, Item 5, the Secretary alleges a violation of 29 C.F.R. § 1926.102(a)(1),

which provides:

   Employees shall be provided with eye and face protection equipment when
   machines or operations present potential eye or face injury from physical,
   chemical, or radiation agents.

   The Citation specifically alleges, “Where employees sprayed and handled Sure Klean 600

Detergent, a masonry cleaning agent containing corrosive HCl, the employer did not require

employees to wear the appropriate eye (chemical goggles) and face protection.” After being told

that Sure Klean was being used on a daily basis at the worksite, CO Heffron asked whether the

                                            15

employees wore proper eye protection during its application. (Tr. 49). CO Heffron testified that

Respondent’s employees told him that they were using Sure Klean and other chemicals without

chemical-splash goggles. (Tr. 49). During his initial visit to the worksite, CO Heffron observed

Michael Lanier applying Conpro Lastic to the building without wearing any eye protection,

which is recommended by the MSDS for that material.10 (Tr. 49–50, C-20, C-21).

     None of Respondent’s employees specifically recall whether they discussed the use of

chemical-splash goggles with CO Heffron; however, each of them credibly testified regarding

what is required when applying Sure Klean detergent. (Tr. 212, 224, 243). Repici, Lanier, and

Bekerian all testified that they had prior experience and training regarding the proper application

of Sure Klean, which required acid-resistant rain gear and boots, goggles, full face masks, and

chemical respirators. (Id.). Lanier, who was photographed by CO Heffron while applying

Conpro Lastic without chemical-splash goggles, testified that the material was thick “like

pancake batter” and did not present a splashing hazard such that he believed goggles were

necessary to prevent eye injuries. (Tr. 232).

     Based on the foregoing, the cited standard clearly applies; however, the Court finds that

the standard was not violated. The hazard in this case is the possibility that Sure Klean or

Conpro Lastic would get in the eyes of the employees. It is clear that either of these materials,

which are corrosive and alkaline, respectively, could cause serious injuries if they came into

contact with an employee’s eyes. The question remains, however, as to whether there was a

potential for eye injury with respect to their use.

     There appears to be a measure of confusion regarding both the “when” and “what” of this

citation. With respect to the “when”, CO Heffron testified that Respondent’s employees told him

“that they were using [Sure Klean] previous days on a daily basis.” (Tr. 123). In response to

10. The initial visit took place in July 2010, which was prior to the official inspection that took place on August 12,
    2010.

                                                      16
    

    cross-examination, CO Heffron clarified that statement by saying, “Previous days, up until my

initial time that I had arrived on site where I was refused entry, they were using products, Sure

Klean, on a daily basis.” This characterization of the “when” was confirmed when Foreman

Repici testified that the Sure Klean had not been used for at least a month and would not likely

be used again for at least another month because it is not used during tuck-pointing operations.11

(Tr. 212–13). The only product that CO Heffron observed being used and that Respondent’s

employees testified to using during the period from the initial visit up to and including the

subsequent inspection was the Conpro Lastic coating. (Tr. 49). With respect to the Conpro

Lastic, the Court finds that, although it has alkaline properties that could cause eye injuries, the

testimony of Lanier clearly illustrated that there was little, if any, potential for those injuries to

occur. Furthermore, with respect to the Sure Klean, the Court finds that the testimony of CO

Heffron regarding the employee statements about their use of chemical-splash goggles to be

inconclusive. The only evidence introduced regarding the use of Sure Klean without chemical

goggles came during the first question of CO Heffron’s direct examination about this Item. (Tr.

49). The remainder of CO Heffron’s testimony on this topic involved the employee’s application

of the Conpro Lastic coating. (Tr. 49–52). On the other hand, Respondent’s witnesses testified

quite clearly as to what was required during the application of Sure Klean. (Tr. 212, 224, 243).

Based on the evidence presented, the Court finds that the Secretary did not sustain her burden to

prove a violation. Accordingly, Citation 1, Item 5 shall be VACATED.

                                         Citation 1, Item 6

    In Citation 1, Item 6, the Secretary alleges a violation of 29 C.F.R. § 1926.451(e)(1),

which provides:

    When scaffold platforms are more than 2 feet (0.6 m) above or below a point of
    access, portable ladders, hook-on ladders, attachable ladders, stair towers

11. CO Heffron agreed that Sure Klean is not likely to be used during tuck-pointing. (Tr. 121).

                                                    17
    

    (scaffold stairways/towers), stairway-type ladders (such as ladder stands), ramps,
    walkways, integral prefabricated scaffold access, or direct access from another
    scaffold, structure, personnel hoist, or similar surface shall be used. Crossbraces
    shall not be used as a means of access.

    The Citation specifically alleges that “employees were exposed to falls while ascending

and descending an elevated scaffold platform using a milk crate.” (Citation and Notification of

Penalty at 7). While traveling along the scaffolding, CO Heffron observed an unsecured milk

crate being used as a step to gain access to a higher level on the platform. (Tr. 52–53, C-24).

Using a tape measure, CO Heffron determined that there was a 27-inch difference in elevation

between the two platforms. (Tr. 52, C-25). In addition to the employees telling him that they

used the milk crate to access the upper platform, CO Heffron observed the employees using the

milk crate as they were climbing off of the mast climbing platform (upper level) to the lower

frame scaffold platform. (Tr. 56). One of the individuals that used the milk crate was foreman,

Richard Repici. (Tr. 216).

   Respondent contends that the list of acceptable means of access is not exhaustive and,

therefore, a milk crate is not eliminated as one of those means. Respondent is correct to the

extent that the standard does entertain the possibility of alternative means of access; however, the

operative phrase at the end of the list of possible alternative is “or similar surface.” 29 C.F.R. §

1926.451(e)(1). A milk crate, as its names implies, is designed to hold milk. As compared to the

other means of access listed in the standard, a milk crate is not rated to withstand repeated

loading from a human body, nor is it designed to remain in a static, stable condition while in use.

(Tr. 139). In that respect, the Court simply cannot conclude that a milk crate constitutes a

“similar surface” as understood in the cited standard. Based on the foregoing, the standard

applies and was violated.

   As noted above, all three of Respondent’s employees were exposed to the condition.

Respondent also knew of the condition in that Respondent’s foreman, Richard Repici, used the

                                            18

milk crate in order to ascend and descend from the mast-climbing platform. See A.P. O’Horo, 14

BNA OSHC 2004. Finally, this violation was properly classified as serious because employees

using an unstable and insufficiently rated, plastic milk crate as a means of access could be

seriously injured. (Tr. 54, 139–40). Accordingly, Citation 1, Item 6 will be AFFIRMED.

                                    Citation 1, Item 7

   In Citation 1, Item 7, the Secretary alleges a violation of 29 C.F.R. § 1926.451(f)(3),

which provides:

   Scaffolds and scaffold components shall be inspected for visible defects by a
   competent person before each work shift, and after any occurrence which could
   affect a scaffold's structural integrity.

   The Citation specifically alleges that “[t]he employer’s scaffold competent person did not

conduct inspections of the tubular welded frame scaffold prior to each shift’s use.” CO Heffron

interviewed Repici and asked whether he had performed an inspection of the scaffolds that day.

(Tr. 56). CO Heffron testified that Repici had told him that he had inspected the mast-climber

scaffold but that they did not perform daily inspections of the tubular welded frame scaffold.

(Tr. 57). Performing an inspection of the scaffolding is important to determine whether any

defects exist from regular wear and tear or, as in this case, from damage due to the proximity of

vehicular traffic. (Tr. 58). Repici claims that he misunderstood CO Heffron and thought that he

was inquiring only as to whether he had performed a formal, written inspection. (Tr. 214–15).

Repici, who is the worksite’s “competent person,” had forgotten his inspection checklist that day,

so he claims that he performed a visible, yet unwritten, inspection. (Tr. 214).

   The Court finds that Repici failed to perform the inspection as required by the standard.

Although Repici claims that he misunderstood the question, the testimony of CO Heffron and his

contemporaneously recorded notes undermine that claim. CO Heffron specifically testified and

documented that Repici told him that he had performed an inspection of the mast-climber

                                            19

scaffold but that he did not perform daily inspections of the tubular welded frame scaffold,

including the day of the inspection. (Tr. 57, 143, C-2 at 2). Accordingly, the Court finds that the

standard applies and was violated.

    The Court also finds that Respondent’s employees had access to the condition. All three

employees at the 126 High Street worksite access and work on the scaffolding on a daily basis.

Further, Respondent had knowledge of the condition in that the individual charged with the

responsibility of performing the inspection was the worksite foreman, Richard Repici. See A.P.

O’Horo, 14 BNA OSHC 2004. Finally, the violation was properly classified as serious.

Although no defects were found by CO Heffron during his inspection,12 the scaffolding’s

proximity to vehicular traffic requires heightened vigilance on behalf of Respondent. Should a

defect go unnoticed due to Respondent’s failure to properly inspect the scaffolding and its

components on a daily basis, serious injury or death could result. Accordingly, Citation 1, Item 7

will be AFFIRMED.

                                         Citation 1, Item 8(a)

    In Citation 1, Item 8(a), the Secretary alleges a violation of 29 C.F.R. § 1926.451(f)(15),

which provides:

    Ladders shall not be used on scaffolds to increase the working level height of
    employees, except on large area scaffolds where employers have satisfied the
    following criteria.

    The Citation specifically alleges that Respondent’s “employee was exposed to falls from

a wooden step ladder placed against the building in a folded closed position.” During his initial

visit to the 126 High Street worksite, CO Heffron observed Lanier standing on a folding

stepladder that was placed on top of the scaffolding in order to apply coating to the exterior of

the building. (Tr. 58, 233, C-20, C-21, C-29). The scaffolding in this location was not high

12. It should be noted that CO Heffron identified an area of the scaffolding that was missing a guardrail. (Tr. 57).
    That issue, however, will be dealt with more specifically in the Court’s discussion of Citation 1-9.

                                                    20
    

    enough for Lanier to be able to apply the coating to the exterior of the building, so the stepladder

was used to increase his working height. (Tr. 58–59). By using the stepladder on top of the

scaffolding, Lanier was positioned above the highest level of the guardrail, which exposed him to

a potential fall over the guardrail. (Tr. 59, 65).

    Respondent appears to contend that there was no evidence to suggest that the platform at

issue was not a “large area scaffold” as indicated in the exception to the standard. First of all,

“[T]he party claiming the benefit of an exception to the requirements of a standard has the

burden of proof of its claim.” Kaspar Elecroplating Corp., 16 BNA OSHC 1517, 1522 (No. 90-

2866, 1993). It is not incumbent upon the Secretary to prove that the exception did not apply;

rather, it is the responsibility of Respondent to prove that it did. Secondly, even if the Court

were to give Respondent the benefit of the doubt, the regulations clearly provide a definition for

a “large area scaffold,” which the structure at 126 High Street does not meet. See 29 C.F.R.

1926.450(b) (“Large area scaffold means a pole scaffold, tube and coupler scaffold, systems

scaffold or fabricated frame scaffold erected over substantially the entire work area. For

example: a scaffold erected over the entire floor area of a room.”) (emphasis added).

Notwithstanding Respondent’s arguments, the standard applies and was violated.

    Michael Lanier was clearly exposed to the condition; he was photographed applying a

coating to the building while standing on a stepladder that was placed on top of the scaffolding.

Given Lanier’s prominent position at the top of the scaffolding, the Court finds that Respondent

also knew or with the exercise of reasonable diligence, should have known, about the condition.

Finally, the Court finds that this violation was serious. By standing near the top of a 10-foot

ladder, which was located on top of scaffolding, Lanier was not protected by the guardrails that

run along the scaffolding. If an accident were to occur, it could reasonably be expected to cause

death or serious bodily injury. Accordingly, Citation 1, Item 8(a) shall be AFFIRMED.

                                                 21

Citation 1, Item 8(b)

   In Citation 1, Item 8(b), the Secretary alleges a violation of 29 C.F.R. § 1926.1053(b)(4),

which provides:

   Ladders shall be used only for the purpose for which they were designed.

   The Citation specifically alleges that Respondent’s “employee was exposed to falls from

a wooden step ladder placed against the building in a folded closed position.” At one point, CO

Heffron observed Lanier using a folding stepladder in the open position with the spreaders

locked in place; in other words, the ladder was self-supporting. With respect to this citation,

however, Lanier had folded the stepladder and placed it against the building. (Tr. 61). Thus, the

building, rather than the second set of ladder feet, was being used to support the ladder. (Tr. 62).

   CO Heffron testified that a folding stepladder is not intended to be used in the manner

illustrated in exhibits C-20 and C-21. (Tr. 62–64). Specifically, he stated that the feet of a

folding stepladder are cut at an angle such that they will be completely flush with a level surface

when the ladder is unfolded and locked in place. When the ladder is not unfolded and locked

into position, the feet are not in complete contact with the supporting surface, which reduces the

efficacy of the ladder feet and increases the possibility that the ladder will slip and cause an

employee to fall off of it. (Tr. 62–63). Lanier stated that he believed that using the ladder in the

manner described above was safer than using the ladder in the open and locked position because

he did not have to lean out over a two-foot gap in order to reach the building while applying the

Conpro Lastic coating. (Tr. 233).

   The Commission has held that proposed violations are duplicative if the same abatement

action would correct the violative conditions described in both citation items. E. Smalis Painting

Co., Inc., 22 BNA OSHC 1553, (No. 94-1979, 2009); Capform, Inc., 13 BNA OSHC 2219, 1989

CCH OSHD ¶ 28,503 (No. 84-556, 1989). The standard cited in item 8(a), 29 C.F.R. §

                                             22

1926.451(f)(15) prohibits Respondent from using a ladder to increase the working level height of

employees working on scaffolds. In both 8(a) and 8(b), Respondent was cited for using a

“wooden step ladder placed against the building in a folded closed position.” Ostensibly, there

are two separate violations involved here, which, in other circumstances, may require separate

abatement actions, i.e., not using a ladder on top of a scaffold and not using a folding stepladder

as a non-self-supporting ladder. The basic thrust of the Secretary’s argument, though, is that any

ladder, regardless of the manner in which it is used, shall not be used to increase the working

level height of an employee working on a scaffold. To the extent that the ladder referenced in

item 8(b) was being used as an adjunct piece of scaffolding to increase the working level height

of Lanier, such use would be contrary to the purpose for which it was designed.13 Thus, in this

case the same abatement action—not using a ladder on top of a scaffold—would cure both

violative conditions. Therefore, the items are duplicative. Accordingly, Citation 1, Item 8(b)

shall be VACATED.

                                           Citation 1, Item 9

     In Citation 1, Item 9, the Secretary alleges a violation of 29 C.F.R. § 1926.451(g)(1),

which provides:

     Each employee on a scaffold more than 10 feet (3.1 m) above a lower level shall
     be protected from falling to that lower level. Paragraphs (g)(1) (i) through (vii) of
     this section establish the types of fall protection to be provided to the employees
     on each type of scaffold.

     The Citation specifically alleges that “the employees were exposed to fall hazards of 11.5

feet to the ground below while traveling on a tubular welded frame scaffold to access a mast

13. The argument at trial and in the parties’ respective briefs addresses the issue of whether the manufacturer of the
    folding stepladder intended that it be used in the manner described in the narrative of this citation. Regardless, no
    evidence was proffered regarding the manufacturer of the ladder and its intended purpose. The Secretary introduced
    an exhibit regarding Werner ladders; however, no attempt was made to link that exhibit to the specific ladder being
    used. (C-31). The Court will not engage in speculation as to whether a folding stepladder cannot be used as a non-
    self-supporting stepladder merely based upon the fact that it folds. That said, the ladder was surely not designed to
    replace the proper use of scaffolding to increase the working level height of employees on a scaffold.

                                                     23
    

    climbing work platform without fall protection.” When CO Heffron arrived at the 126 High

Street worksite, he observed Respondent’s employees working on the mast climbing work

platform.14 In order to exit the scaffolding from that position, the employees had to travel along

an elevated walking/working surface located on the tubular welded frame scaffold. (Tr. 66, 68,

C-33). This elevated surface, which was covered in electrical cables, was 11.5 feet above the

ground below. (Tr. 71–72, C-35). At one point along this elevated surface, the scaffolding was

missing a section of guardrail and no alternative means of fall protection were provided. (Tr. 66,

68, C-34). This section of the surface was not completely open, however, because the gap was

covered by debris netting that was attached along the entire length of the walkway. (Tr. 70, 168–

69).

    The Secretary contends that Respondent’s failure to provide a guardrail or other means of

fall protection at this point along the walkway constitutes a serious violation of the cited

standard. Respondent argues that the debris netting was sufficient to protect employees from

falling to the ground below. Ken Canale, Respondent’s safety director, testified that the debris

netting is rated to hold 2500 pounds. (Tr. 168). Conversely, he pointed out that the flex rating

for a top rail is 200 pounds. (Tr. 170); see also 29 C.F.R. § 1926.451(g)(1)(v). Ultimately,

Respondent contends that the debris netting substantially complied with the requirement of 29

C.F.R. § 1926.451(g)(1).

    On the face of it, it would appear that the debris netting, rated to hold 2500 pounds of

debris, should be sufficient to protect an employee from falling to the ground below. The

resolution of this issue, however, is not quite so simple. First of all, none of the subsections

indicated in (g)(1) state that a debris net is sufficient; in fact, all of the subsections of (g)(1)

14. CO Heffron first observed this condition on July 15, 2010, when he was initially denied entry to inspect the 126
    High Street location. The photographs in exhibits C-34 and C-35 were taken during the official inspection of
    August 12, 2010.

                                                    24
    

    provide either that a guardrail or personal fall arrest system, or a combination of the two, shall

be provided. Id. § 1926.451(g)(i)–(vii). A debris net is neither a guardrail nor a personal fall

arrest system as those terms are defined in 29 C.F.R. § 1926.450(b). Secondly, even if the Court

were to consider the debris net as a system of fall protection, the Court cannot conclude that the

debris net provided by Respondent was sufficient as a guardrail substitute.15

    Presumably, Respondent is contending that the debris net is the equivalent of a safety net.

Section 1926.105 provides the minimum requirements for safety nets. Although Respondent

testified as to the capacity of the debris nets, this still falls short of what is required by the

standard. Specifically, safety nets “shall meet accepted performance standards of 17,500 foot-

pounds minimum impact resistance as determined by the manufacturers, and shall bear a label of

proof test.” Id. § 1926.105(d). Clearly the testimony provided by Canale is not sufficient to

establish this requirement. Accordingly, the standard applies and was violated.

    As depicted in exhibit C-33, and as testified to by CO Heffron, all three employees were

exposed to the condition. Furthermore, Respondent knew about the condition: Canale stated

that he had performed a very thorough inspection of the scaffolding and stated his belief that the

debris netting was sufficient as a method of fall protection. (Tr. 167–169). Finally, the violation

was properly characterized as serious. The debris netting was not tested or approved as a means

of preventing employees from falling from the scaffolding. If an employee were to trip on the

cables that were strewn about the walkway and fall through the area that was missing a handrail,

a serious injury or death could occur. Accordingly, Citation 1, Item 9 shall be AFFIRMED.

                                           PENALTIES

    In calculating the appropriate penalty for affirmed violations, Section 17(j) of the Act

requires the Commission to give “due consideration” to four criteria: (1) the size of the

15. Respondent’s Safety Director, Ken Canale, stated that debris netting is typically used in conjunction with a
    guardrail system. (Tr. 169).

                                                  25
    

    employer’s business, (2) the gravity of the violation, (3) the good faith of the employer, and (4)

the employer’s prior history of violations. 29 U.S.C. § 666(j). Gravity is the primary

consideration and is determined by the number of employees exposed, the duration of the

exposure, the precautions taken against injury, and the likelihood of an actual injury. J.A. Jones

Construction Co., 15 BNA OSHC 2201, 1993 CCH OSHD & 29,964 (No. 87-2059, 1993). The

Secretary reduced the proposed penalties by forty percent for each violation based on

Respondent’s small size. No penalty adjustments were made for history or good faith. (Tr. 92–

93) Considering these reductions, as well as the totality of the factual circumstances discussed

above in each instance, the Court assesses the following penalties for the affirmed violations as

set out below.

                                        ORDER

   Based upon the foregoing, it is ORDERED that:


   1. Citation 1, Item 1 is hereby AFFIRMED with an assessed penalty of $1200.00;

   2. Citation 1, Item 2 is hereby MODIFIED to an other-than-serious violation

       AFFIRMED as modified, and a penalty of $450.00 is assessed;

   3. Citation 1, Item 3(a) is hereby VACATED;

   4. Citation 1, Item 3(b) is hereby VACATED;

   5. Citation 1, Item 4 is hereby VACATED;

   6. Citation 1, Item 5 is hereby VACATED:

   7. Citation 1, Item 6 is hereby AFFIRMED with an assessed penalty of $900.00;

   8. Citation 1, Item 7 is hereby AFFIRMED with an assessed penalty of $1500.00;

   9. Citation 1, Item 8(a) is hereby AFFIRMED with an assessed penalty of $1500.00;

   10. Citation 1, Item 8(b) is hereby VACATED;


                                           26

11. Citation 1, Item 9 is hereby AFFIRMED with an assessed penalty of $1500.00;

                                             /s/ John H. Schumacher
                                             John H. Schumacher
                                             Judge, OSHRC

Date: May 8, 2012
Denver, Colorado

                                        27