Dukane Precast, Inc.

Plain-English summary

Dukane Precast manufactured concrete products using large aggregate bins that it had identified as permit-required confined spaces. An employee entered a sand bin, became engulfed up to his neck, and remained trapped while untrained co-workers entered the bin to attempt a rescue. The judge affirmed serious violations for an inadequate railing beside the bins, failure to prevent unauthorized entry, and failure to prepare required entry permits. A rescue-procedure item was affirmed as willful because the plant manager saw the engulfed employee and the unauthorized rescuers, did not remove them, and delayed calling 911 for about an hour and a half. Dukane's written confined-space program did not establish good faith because it was not adequately communicated, implemented, or enforced. The judge assessed the proposed penalties in full, totaling $70,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.23(c)(3); 29 C.F.R. § 1910.146(d)(1); 29 C.F.R. § 1910.146(e)(1); 29 C.F.R. § 1910.146(d)(9)
• Outcome: Three serious items and one willful rescue-procedure item affirmed; $70,000 total penalty assessed.
• Key point: A written confined-space policy is insufficient when employees are not prepared to follow it and management disregards its emergency procedures.

Full text (OSHRC public release)

     Some personal identifiers have been redacted for privacy purposes.


                        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. 12-1646

DUKANE PRECAST, INC.,
Respondent.

APPEARANCES:
David J. Tanury, Esquire
Mark H. Ishu, Esquire
U.S. Department of Labor, Chicago, Illinois
For the Secretary

   Paul J. Waters, Esquire
   Waters Law Group, Clearwater, Florida
     For the Respondent

BEFORE: Carol A. Baumerich
Administrative Law Judge

                              DECISION AND ORDER
   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). On February 7, 2012, the Occupational Safety and Health
Administration (OSHA) began an inspection of the 1807 High Grove Lane, Naperville, Illinois
(worksite or facility) location of Dukane Precast, Inc. (Respondent or Dukane), in response to a

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reported accident. An employee was engulfed and trapped in an aggregate sand bin or silo at
Dukane’s facility the prior day, February 6.
On July 25, 2012, OSHA issued to Respondent a three item serious citation and a one
item willful citation and notification of penalty (citation). 1 The serious citation items allege that,
on or about February 6, 2012, Respondent did not maintain a standard railing adjacent to batch
plant sand bins that are permit-required confined spaces, in violation of standard 1910.23(c)(3);
Respondent did not secure batch plant sand bins #1 and #2 from employee entry, in violation of
standard 1910.146(d)(1); and Respondent did not prepare entry permits for permit-required
confined spaces in the batch plant, known as sand bins #1 and #2, in violation of standard
1910.146(e)(1). The willful / serious citation item alleges that, on that date, Respondent did not
implement procedures for immediately summoning emergency services upon discovery of an
employee engulfed in sand within a permit-required confined space and Respondent did not
implement procedures for preventing unauthorized co-workers from entering a permit-required
confined space and attempting a rescue of an employee engulfed in sand, in violation of standard
1910.146(d)(9). The total penalty proposed is $70,000.00.
The Secretary filed a Complaint. Respondent filed an Answer that raised six affirmative
defenses: (1) unforeseeable isolated occurrence / employee misconduct, (2) infeasibility /
impossibility of compliance, (3) unconstitutional vagueness, (4) lack of knowledge, (5) good
faith, and (6) preemption / inapplicable standard. 2
A 4-day hearing was held in Chicago, Illinois, from June 11 through 14, 2013. Both
parties filed post hearing briefs. For the reasons set forth below, the citation items are affirmed
and a total penalty of $70,000.00 is assessed.
Jurisdiction
Based on the record, I find that at all relevant times Dukane was engaged in a business
affecting commerce and was an employer within the meaning of Sections 3(3) and 3(5) of the
Act. I also find that the Commission has jurisdiction over the parties and subject matter in this
case. (Tr. 14; JX-1, Stips. 1 and 2).

1
The Secretary’s Complaint amended Citation 2, Item 1 to allege that the willful violation, in the alternative,
constitutes a serious violation within the meaning of Section 17(k) of the Act. Complaint ¶ IV(b).
2
Defenses not pursued at the hearing or in post-hearing briefs are deemed abandoned. See Georgia-Pacific Corp.,
15 BNA OSHC 1127, 1130 (No. 89-2713, 1991).

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Background and Factual Findings 3

                                              The Company

     Dukane is a manufacturer of precast concrete products used in building construction.

(JX-1; CX-42 at 5). Dukane has three production locations in Illinois: Aurora, Plainfield, and
Naperville. (Tr. 23). Approximately 90 employees worked for Dukane; 50 of those worked at
the Naperville facility. (Tr. 44).
Dukane’s corporate structure includes several supervisory levels: corporate officers,
board members, managers, supervisors, and leadmen. In February 2012, Scott Wehrli was the
corporate secretary-treasurer of Dukane and a member of the board of directors. (Tr. 45-47,
109). Dukane’s president, Grant Ripper, reported to Dukane’s board of directors, including
Wehrli. (Tr. 47).
Dukane employed Tom Gorman as the safety director and Michelle Lenz as the human
resources manager, at the time of the inspection. (Tr. 105, 110, 513-14). Gorman and Lenz also
performed work for the other companies affiliated with Dukane. 4 (Tr. 441, 450, 513-514, 1034-
35). Gorman reported directly to Wehrli. (Tr. 516). Lenz testified that, while Dukane’s
organizational chart listed Ripper as her supervisor, she received her instructions from Wehrli.
(Tr. 440). Norma Trevino was a human resources specialist and reported to Lenz. 5 (Tr. 110).
At the time of the inspection, Naperville’s plant manager was Don MacKenzie.
MacKenzie had been the Naperville plant manager since October 2005; he started working for
Dukane in 2003 as a shipping supervisor. (Tr. 850). In 2009, MacKenzie became the plant
manager of both the Naperville and Plainfield production facilities. (Tr. 850). MacKenzie’s
direct supervisor was company president Ripper. (Tr. 1036).
Quality control supervisor Kevin McMillan and double-wall pouring operation supervisor
Rudy Huerta reported to MacKenzie. (Tr. 108-09, 902). Jamie Marin and [redacted] were both
leadmen at the Naperville facility. Leadmen were responsible for managing laborers, delegating
work, and enforcing and abiding by safety rules. (Tr. 694-96, 1036; CX-50). Michael Morrero

3
The factual findings are based on the credible record evidence, as discussed below, and consideration of the record
as a whole. Contrary evidence is not credited.
4
Dukane was in a family of companies which included Naperville Excavating, T&W Trucking, Diamond Ready-
Mix, and Mustang Construction. (Tr. 513-514).
5
Gorman, Lenz, and Trevino testified at the hearing. Gorman and Lenz were no longer employed by Dukane at the
time of the hearing. Trevino was the human resources manager at the time of the hearing. (Tr. 435, 513, 984-85).

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and Christopher Cerecedes were laborers hired through a temporary staffing company. (Tr. 114).
Morrero’s supervisor at Dukane was leadman [redacted]. 6 (Tr. 107-08).
The Batch Plant

     The batch plant was the area of the Naperville facility where the precast concrete

products were made. (Tr. 697). The concrete components, such as sand and aggregate, were
stored, dispensed, and mixed in the batch plant. (Tr. 742-43, 816). The batch plant consisted of
a row of 5 large bins or silos 7 with conveyor belts above and below. Each bin was
approximately 25 feet tall, 10 feet wide and 18 feet deep. (CX-3, CX-4). The 5 bins abutted
each other along their 18-foot sides, forming a 50-foot length of bins. 8 (CX-3, CX-4). Each bin
was rectangular in shape at the top and then tapered to a cone shape at the bottom where a
“clamshell gate” opened and closed. (Tr. 57-59; CX-2).
A conveyor belt running above the bins filled each bin with material or aggregate. (Tr.
914, CX-3). Gravity brought the aggregate in a bin down to a clamshell gate at its bottom, which
then opened to deposit the aggregate onto the conveyor belt that ran below the bins. (Tr. 59).
The conveyor belt moved the aggregate into a skip hoist, at the conveyor’s end near bin #1,
which then transferred the aggregate into the cement mixer. (Tr. 57; CX-2). After the concrete
was mixed, it was poured into forms to create precast concrete products in the work area known
as the “production floor” or “pouring floor.” (Tr. 957-58).
Near the top of the bins, 20 feet above the floor, a 50-foot long elevated work platform
extended parallel and immediately adjacent to the 5 bins. (CX-2). At the end of the platform,
next to bin #5, a 20-foot fixed, vertical, caged ladder created the entry point to the platform. (Tr.
64; CX-2, CX-11). The platform’s south side was adjacent to and ran east-to-west along the 50-
foot length of bins. The north side of the platform was open to the facility and had a standard
fixed guardrail running its entire length and around the end of the platform by bin #1. (CX-11,
CX-15). There was no fixed guardrail or other railing along the bin-side of the platform. 9 (CX-

6
Wehrli, MacKenzie, McMillan, Huerta, and Cerecedes testified at the hearing.
7
The credible evidence reveals that the employees, including those in supervisory positions, interchangeably
referred to the batch plant aggregate bins as either “bins” or “silos.” See footnote 28 below.
8
The bins are numbered sequentially starting with #1 at the end of the platform by the skip hoist through #5 at the
start of the platform next to the access ladder. (Tr. 55; CX-2).
9
The testimony of quality control supervisor McMillan that there was a guard rail next to bin #2 that he climbed
over to enter bin #2, during the rescue attempt, is given no weight. (Tr. 841-42). McMillan’s testimony, in this
regard, is inconsistent with the description given by the other witnesses.

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10). On the platform edge next to the bins, the side wall of the bin #2 extended about 27 inches
above the floor of the platform. (Tr. 80-82; CX-22, CX-23). Bin #1 had a job-made wooden
ladder clipped onto the side for access down into the bin from the work platform. Likewise, bin

2 had a removable fabricated metal ladder clipped onto the side for access down into the bin

from the work platform. (Tr. 83, 726-30; CX-17, CX-28).
[redacted] was the leadman for the batch plant area. (Tr. 695). He was trained to operate
the batch plant at each Dukane facility. (Tr. 698). Employees used the work platform to visually
check the level of sand and aggregate in the bins or silos, to scrape the bin sides with a long-
handled tool, and to enter the bins to level out the material. 10 (Tr. 64, 132, 155, 195, 199, 311-14,
407-08, 700-05, 727-30, 750-57, 867-68, 949; CX-11). Morrero and [redacted] entered the bins
to level out the sand and aggregate. (Tr. 132, 400). One would stand as the attendant and the
other would enter the bin. On the day of the engulfment, they were short-staffed so [redacted]
did not take anyone with him to serve as an attendant. (Tr. 132).
The ladder in the bin allowed an employee to enter the bin to scrape down the sand
crusted on the bin side. (Tr. 727). [redacted] stated that he built the wooden ladder for bin #1 in
Naperville’s carpentry shop. (Tr. 727-28). The metal ladder he had been using was too short; 11
he needed a longer ladder so he “had something to stand on” when he was working with the
material in the bin. (Tr. 727). Morrero helped him build the ladder, take it up to the work
platform, and put it in bin #1. (Tr. 728, 756-57). Plant manager MacKenzie observed [redacted]
build this ladder. 12 After it was attached, the bottom of the wooden ladder was near the point
where the bin started to slant toward the clamshell gate. (Tr. 727-28).
The Naperville facility produced a particular concrete product, so it was not always
operational. It had restarted not long before the day of the accident; it had been non-operational
for several weeks. (Tr. 386-87, 479-82, 701, 753). Because the Naperville facility had not been
used recently, [redacted] had to scrape the sand crusted on the bin side to the middle of the bin to
mix with new sand to prevent it from drying out completely. (Tr. 700-01). A long-handled tool
was used to scrape the sand from the bin wall. (Tr. 703, 866-67) The sand’s moisture content
10
MacKenzie acknowledged that he had stood on the platform to visually check the level of the material in the bins.
He also knew that [redacted] had used the platform to check the level of the bin material and to scrape sand off the
bin walls with the long-handled tool. (Tr. 867-68, 949). Further, I find that MacKenzie knew employees used the
platform and entered the bins or silos to level out the sand and aggregate. See footnotes 15 and 18 below and
accompanying text.
11
The metal ladder is shown in a photograph of bin #2 where [redacted] was engulfed. (Tr. 83; CX-17).
12
[redacted] testimony is credited: MacKenzie’s denial is not. (Tr. 728, 871-72).

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was critical to achieving the right mixture of components to create the precast concrete panels.
(Tr. 642, 746).
MacKenzie, the plant manager, was aware that the moisture content of the sand could
cause problems with the sand flow to the conveyor. (Tr. 863-64). MacKenzie knew employees
would scrape sand off the sides of a bin from the work platform with a 9-foot to 10-foot long
scraper. (Tr. 866-67, 949). There had been problems with sand flow in the bins. 13 A bin wall
vibrator was already attached to the external wall of at least one bin. 14 (Tr. 74; CX-7, CX-18).
Additionally, a photograph of bin #2 showed the marks made, near the bottom, by a tool striking
its sides to dislodge material. (Tr. 60-61, 120; CX-8).
The Engulfment & Rescue – February 6, 2012
On the day of the accident, [redacted] arrived for work at his usual time of 6:00 a.m. (Tr.
718). [redacted], a batch plant operator and leadman, had worked for Dukane since 2003 or
2004. (Tr. 694). At approximately 9:30 a.m., [redacted] finished his break and had a
conversation, in the batch plant area, with the plant manager, MacKenzie. (Tr. 118-19, 699; CX-
6). [redacted] discussed the issue of sand flow in the aggregate bins and told MacKenzie that he
was going up to level out the sand in the bins. (Tr. 699-701). [redacted] told MacKenzie that he
was going to enter the bins to level out the sand. 15 (Tr. 700-02). [redacted] wanted to move the

13
The morning of the engulfment [redacted] discussed with MacKenzie using vibrators to knock some of the
material from the bin walls, which would require placing brackets on the bins and attaching a portable vibrator. (Tr.
119-20, 699-700).
14
During the inspection, OSHA Compliance Officer (CO) Lake observed bin wall vibrators, used to enhance the bin
aggregate flow, attached to exterior bin walls. Bin #s 1, 2, and 3, did not have bin wall vibrators. (Tr. 74, 120; CX-
18).
15
MacKenzie’s recollection of their discussion differs. During the inspection, MacKenzie told the CO that he
understood that [redacted] was going to be cleaning around the bottom of the batch plant on the factory floor. (Tr.
118-19, 359-60, 385-86). At the hearing, MacKenzie recalled [redacted] stating that he would be working in the
general area of the batch plant where the spreader normally sits. (Tr. 659-62). At the hearing, when testifying under
oath, MacKenzie’s recollection of his conversation with [redacted] that morning was poor. (Tr. 856-58). In contrast,
[redacted] specifically remembered that he told MacKenzie that he was going up to level out sand in the bins. (Tr.
702).
MacKenzie’s denial that [redacted] told him that [redacted] would enter the sand bins that morning is not
credited. (Tr. 915, 940). Not only is MacKenzie’s denial contrary to [redacted]’ credited testimony, but
MacKenzie’s denial is markedly at odds with his matter-of-fact reaction upon seeing [redacted] in the sand bin that
day. MacKenzie’s nonchalant reaction upon seeing [redacted] in the sand bin is consistent with [redacted]’
recollection of their conversation and MacKenzie’s knowledge that [redacted] planned to work in the sand bins that
day. See footnote 18 below.
I observed the demeanor of both MacKenzie and [redacted] as they testified. [redacted]’ recollection of his
conversation with MacKenzie was certain and candidly stated. In contrast, MacKenzie’s recollection of this
conversation lacked detail. MacKenzie’s testimony was hesitant and revealed a poor recollection of the facts. I
found [redacted] to be a more credible witness whose clear recollection of the relevant events was more trustworthy.

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old material in the bin to the middle before receiving the shipment of new sand, to prevent a
problem with the batches. (Tr. 700-01). MacKenzie then left the area and [redacted] climbed
the access ladder, onto the work platform, and walked to bin #1. (Tr. 702-03, 859, 862).
[redacted] tied one end of a yellow rope around his waist and tied the other end to the
guardrail “just in case something happened.” 16 (Tr. 703-04). From the platform, [redacted] used
a long-handled tool to scrape material off the side of bin #1. (Tr. 703). He then climbed down
the wooden ladder into bin #1 to level out the sand. (Tr. 705). He was in bin #1 for 5 to 10
minutes. (Tr. 705). He then he climbed out and walked over to bin #2. (Tr. 706).
Again, [redacted] stood on the platform and used the long-handled tool to remove sand
from the side of bin #2. (Tr. 706). Using the metal ladder, [redacted] entered bin #2 at about
9:50 a.m. (Tr. 121, 706). Shortly after Mr. [redacted] entered bin #2, the sand inside the bin
began to collapse around him. (Tr. 706). As [redacted] held onto the yellow rope, the sand came
up to his armpits. (Tr. 706, 713). He started screaming for help and the sand collapsed further
burying him up to just below his neck. (Tr. 713). Production floor leadman Jaime Marin, who
was working in the carpenter shop area, heard [redacted]’ cries for help and immediately went to
help. (Tr. 121, 708). Marin came up to the platform and looked “spooked” when he saw
[redacted] trapped in the bin. (Tr. 121-22, 709). Immediately Marin descended the ladder into
bin #2 and started to dig sand away from [redacted]. (Tr. 121-22). Quality control supervisor
Kevin McMillan followed Marin to the platform and also entered the bin to assist in the rescue.
(Tr. 121-22). McMillan tied another thicker rope around [redacted]; he was concerned that the
yellow rope that [redacted] had around him would not be strong enough to keep [redacted] from
slipping further down into the silo. (Tr. 839-40, 842)
[redacted] testified that when the sand collapsed he had trouble breathing; with each
breath the sand felt tighter on his chest. (Tr. 710. See Tr. 378, 380). During the rescue attempt,
the employees knew that [redacted] was in pain; he told the employees in the bin to get away

Where there are conflicts between MacKenzie’s testimony and the testimony of other witnesses, including
[redacted], MacKenzie’s testimony is not credited.
16
[redacted] recalled, from Gorman’s safety meetings that he should use a safety harness and tie-off before entering
the bins. He didn’t have an attachment point for a safety harness, so instead he used the yellow rope. (Tr. 703-05,
755-56. See also Tr. 131-32).
I observed safety director Gorman testify and found him to be a generally credible witness. [redacted]’
testimony that he had received instruction from Gorman regarding safe entry into the aggregate bins is credited.
Therefore, Gorman’s testimony that he did not know any employees, other than maintenance employees, would
enter the sand bins is given no weight. (Tr. 332, 408, 529-30, 540, 556, 618, 641-43).

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from the sand at his back because the added pressure increased his pain. (Tr. 192, 201, 234-35,
274, 349-50, 711-12).
Other employees soon joined Marin and McMillan in attempting to dig [redacted] out --
first, using their hands, then shovels and buckets. (Tr. 122-23). A few minutes later, Rudy
Huerta, double-wall pouring supervisor, was told employees were trying to rescue [redacted].
(Tr. 123, 715). Supervisor Huerta immediately called his boss, plant manager MacKenzie. (Tr.
874, 967). Huerta and yard supervisor Roy Meacham then went up the access ladder onto the
work platform and saw [redacted] engulfed in the sand. (Tr. 123). Laborer Morrero brought
laborer Cerecedes to help with the rescue, at Huerta’s request. 17 (Tr. 183-84).
Using 5-gallon buckets, the rescuers formed a bucket brigade; a bucket would be partially
filled and then lifted up to Huerta who then dumped the sand into bin #1. (Tr. 714-15, 838-39).
The rescuers took turns in the bin; due to the physical strain of digging and lifting buckets of
sand, employees had to take rest breaks during the rescue attempt. (Tr. 128).
In an attempt to prevent the further collapse of sand, the employees placed wood shoring
next to [redacted]. (Tr. 716-17, 722). The employees were able to remove sand down to around
[redacted]’ waist. (Tr. 717). However, the employee rescuers made no further progress. (Tr.
716). The employee rescuers also attempted to extract [redacted] using the rope and a
mechanical winch (“come-along”). (Tr. 130). However, this was discontinued as it did not help
remove [redacted] from the sand and caused [redacted] additional pain. (Tr. 723).
Plant manager MacKenzie testified that when he learned about [redacted]’ engulfment
from Huerta, he went up to the platform; he saw [redacted] trapped in the sand and the other
employees in the bin attempting to rescue [redacted]. (Tr. 874-76). At that time, MacKenzie
saw that the sand had been removed to about the level of [redacted]’ waist. (Tr. 877). Notably,
MacKenzie did not express surprise to find [redacted] located in aggregate bin #2. MacKenzie’s
lack of surprise is consistent with [redacted]’ credible testimony that [redacted] had advised
MacKenzie, earlier that morning, that [redacted] planned to work that day leveling the sand in
the bins. 18 (Tr. 699-701)

17
Both Morrero and Cerecedes were employed at Dukane through temporary employment agencies. (Tr. 114, 122-
24, 278-79).
18
MacKenzie’s matter-of-fact, unsurprised, reaction to finding [redacted] located inside aggregate bin #2 is also
consistent with [redacted]’ credited testimony that [redacted] had previously entered the aggregate bins to level out
aggregate and sand. (Tr. 700-02, 704, 727-29, 750-57). MacKenzie’s unsurprised reaction is consistent with the
finding herein that MacKenzie knew [redacted] had entered the aggregate bins on previous occasions to level the

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MacKenzie believed the employees could free [redacted] from the sand. (Tr. 882). After
a few minutes, MacKenzie left the platform because he trusted Huerta to “handle the situation.”
(Tr. 882). He did not order the employees out of the bin. He did not call 911 as specified in
Dukane’s emergency policy. MacKenzie left the batch plant area and went to the facility’s
shipping area. (Tr. 917). At that time, MacKenzie did not report [redacted]’ engulfment to his
supervisor, company president Ripper. (Tr. 919-20). Despite seeing several employees quickly
working to move large amounts of heavy sand in an effort to free [redacted], plant manager
MacKenzie continued on with his normal routine. MacKenzie testified that he thought because
[redacted] was able to joke with him, that [redacted] was in no danger. 19 (Tr. 877-879).
MacKenzie was the only person who reacted to [redacted]’ engulfment with inaction and
nonchalance. The others all immediately took action to rescue [redacted], recognizing the
emergency unfolding and [redacted]’ dire need for assistance.
[redacted] testified that “[a]fter a while, you know, of digging, then I started wondering,
you know, if anybody had called the fire department.” (Tr. 710). [redacted] had initially asked
if anyone had called the fire department when some of the sand had been removed and he was
better able to breathe. (Tr. 712). Cerecedes confirmed that shortly after employee rescuers first
entered the bin, [redacted] asked if 911 had been called. 20 (Tr. 194, 274-75).
Later, when plant manager MacKenzie returned to the batch plant area, 21 Huerta shouted
down that [redacted] had requested a call to 911. (Tr. 887, 920, 977). MacKenzie then asked
Huerta, “Do you feel confident in getting [[redacted]] out of there?” 22 (Tr. 887). Because
Huerta did not seem confident about the employees’ ability to extract [redacted] from the sand,
MacKenzie called 911. (Tr. 887-889). The call was made at 11:23 a.m. – about 1 ½ hours after

material in the bins. [redacted] credibly testified that MacKenzie observed [redacted] build the wooded ladder for
bin #1. (Tr. 728). See footnote 12 above. [redacted] credibly testified that safety director Gorman taught him to use
fall protection before entering the sand bins. (Tr. 703-05, 755-56). See footnote 16 above. MacKenzie’s denial of
knowledge that any employee, other than maintenance employees, ever worked in the aggregate bins is not credited.
(Tr. 865).
19
MacKenzie’s testimony that he did not believe [redacted] was in danger is not credible. MacKenzie’s testimony is
inconsistent with the credible testimony of the other eyewitnesses that day, the urgency in the other employees’
behavior, and is not objectively plausible. (Tr. 200-05, 231-35, 239, 380, 397-98, 972, 980). See footnote15 above.
20
Cerecedes had worked at a Dukane facility, as a laborer, since June 2011. (Tr. 179-80, 197). As an eyewitness to
the events around the engulfment, his testimony is fully credited. I observed Cerecedes’ demeanor, as he testified on
direct and cross-examination. I found his testimony to be candid, unhesitant, consistent, and credible. (Tr. 178-279,
287-90).
21
The record does not provide an exact time; however, based on the evidence, the time span from when MacKenzie
left the area and then returned later, was between 45 minutes and 1 hour.
22
This is MacKenzie’s own testimony. (Tr. 887).

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[redacted] became trapped. (Tr. 49).
MacKenzie then called company president Ripper to tell him that [redacted] was engulfed
and that the fire department was on its way. (Tr. 889). At the time, Ripper was in a management
meeting with corporate secretary-treasurer Wehrli and human resources manager Lenz in the
building next door to the production facility. 23 (Tr. 443, 1013, 1035). Wehrli, Lenz, and Ripper
ran to the batch plant as the fire department arrived. (Tr. 1016).
The fire department arrived within a few minutes of the 911 call. (Tr. 977). Fire
department personnel immediately ordered the employee rescuers out of the bin. (Tr. 133-34,
204, 724). Paramedics administered an IV of morphine to treat [redacted] for his pain. (Tr.
724). The fire department used a vacuum truck to remove the sand from the bin. (Tr. 79).
[redacted] was finally freed at approximately 3:30 p.m. – 4 hours after the fire department
arrived and 5 ½ hours after he became trapped in the sand. (Tr. 724). [redacted] was transported
to the hospital and treated for compression injuries. (Tr. 468). [redacted] testified that his
injuries included a herniated disk and a torn meniscus. He continues to have pain in his feet and
ankles. (Tr. 724-725).
Dukane’s Post-Accident Response

       About 30 minutes after the fire department arrived on the scene, Wehrli called an

attorney, Mr. Risch, and a crisis management consultant, Ms. Chrisman. (Tr. 794, 801, 804).
Chrisman, arrived at the Naperville facility later that day and stayed late into the night with
Wehrli, Ripper, Lenz, MacKenzie, and others “trying to coordinate everybody’s statements of
exactly what happened.” (Tr. 475, 920, 926-27).
Gorman, the safety director, was out of the country on vacation at the time of the
accident. (Tr. 631). Both Wehrli and Lenz called Gorman several times the day of the incident
and over the next three days. (Tr. 474, 632). Lenz needed to know where he kept the company’s
training documents, as Gorman was the custodian of the company’s training documents. (Tr.
587, 633). Gorman recalled a general discussion with Lenz about labeling the bins. Even from
off-site, Gorman realized that the accident had occurred in a permit-required confined space.
(Tr. 633).
A general facility safety clean-up was conducted after [redacted] was rescued and before

23
The management meeting was at the corporate office at 1805 High Grove Lane, Naperville, IL. (Tr. 1033).

                                                     10

OSHA arrived the next day. (Tr. 212). Lenz recommended the posting of signs on the access
ladder to the work platform and on the aggregate bins to prevent future accidents and show due
diligence to OSHA. 24 (Tr. 456-57, 475-78). After speaking to Gorman, she created the
confined space signs, placed a sign on the access ladder, and then directed the project engineer to
place the signs on the aggregate bins in the batch plant area. (Tr. 55-56, 63, 97, 457, 475-78;
CX-5). The signs read: “DANGER – CONFINED SPACE – ENTER BY PERMIT ONLY”
(CX-17) and “CONFINED SPACE – DO NOT ENTER!” (CX-38)
The clean-up continued the next morning, February 7, when the employees at the
Naperville facility participated in a plant-wide “clean-up.” (Tr. 212-19, 447-48, 457-58, 922).
Anything that appeared to be a safety hazard was to be corrected. (Tr. 447-448). Cerecedes
described his clean-up responsibilities as follows: “We were to get rid of any unsafe – any
unsafe equipment that wouldn't pass an OSHA inspection, because I was told by [yard
supervisor] Roy Meacham that [OSHA was] coming, and we had to get rid of the stuff that day.”
(Tr. 212). Cerecedes moved chemical containers away from the facility. He placed broken
ladders in the kiln because he was told the OSHA compliance officer would not look there. (Tr.
212-16, 242-44). MacKenzie confirmed that all employees were assigned to cleaning duties that
morning, to move improperly stored chemicals and remove defective equipment. (Tr. 922-925).
The OSHA Inspection

    Wehrli notified OSHA that an accident had occurred at the Naperville facility. (Tr. 42-

43, 1020). OSHA Compliance Officer (CO) Lake arrived at the Naperville facility around noon
on February 7, 2012, the day after the accident. (Tr. 42-43). The CO requested documents from
human resources manager Lenz. (Tr. 43). The CO met with corporate secretary-treasurer
Wehrli to discuss the accident and Dukane’s corporate structure. (Tr. 47).
CO Lake photographed the facility on February 7 and February 10, 2012. (Tr. 49-50).
On February 8 and 9, CO Lake interviewed several Dukane management employees – Huerta,
Lenz, MacKenzie, McMillan, Meacham and Marin. (Tr. 105). CO Lake also interviewed
laborers Morrero, who reported to [redacted], and Cerecedes, who reported to Huerta. (Tr. 106-
08, 114-15). He interviewed safety director Gorman and leadman [redacted] on February 14,
2012. (Tr. 105-06).

24
Lenz had received confined space training at a prior employer. (Tr. 437, 459). Lenz recalled bringing safety
issues to the attention of her supervisors, including the “lack of signage.” (Tr. 442-43. See Tr. 634).

                                                    11

Dukane’s Permit Required Confined Space Safety Program
Dukane had a written confined space safety program. (CX-53). Dukane’s safety director,
Gorman, testified that he developed the confined space program for Dukane’s facilities soon
after he started working for Dukane in 2000. (Tr. 514-15). Gorman testified that he was
proficient with OSHA’s confined space standard and had been working with it since the 1990s.
(Tr. 511-12). Gorman developed Dukane’s permit forms for confined space entry. 25 (CX-62;
RX-14). He evaluated all three Dukane facilities, including the Naperville facility, to identify the
confined spaces that were present. 26 (Tr. 525; RX-15, RX-16, RX-17). Gorman stated that it
was standard procedure to share all new safety program information with his supervisor,
Wehrli. 27 (Tr. 516. See Tr. 1010).
Gorman confirmed that he identified the aggregate bins in Naperville’s batch plant as
permit-required confined spaces. (Tr. 517, 520, 527-28, 611, 669; CX-2, CX-54). Gorman
testified that the term silos on the Naperville confined space evaluation form included the
aggregate bins – the aggregate bin was one type of silo. (Tr. 517, 527; CX-54, CX-55, RX-17).
Further, Gorman acknowledged that the terms silos and bins were used interchangeably. 28 (Tr.
516, 527-28, 676, 685-86). Gorman did not recall ever placing confined space signage on the
aggregate bins. (Tr. 641). There was no confined space signage on the aggregate bins or on any
other identified confined space, at the Naperville facility or at any other Dukane facility, at the
time of the engulfment accident. (Tr. 230-31, 456-57, 480-81, 641, 910-11).

25
A completed entry form for a permit-required confined space entry, dated November 19, 2004, into the batch plant
mixer at the Plainfield facility, shows [redacted] as the authorized entrant and Gorman as the authorizing supervisor.
(CX-62).
26
Gorman testified that he evaluated the Naperville facility for its confined spaces right after it was built, which he
estimated was 2002. (Tr. 515).
27
In a memorandum dated May 29, 2002, Gorman states that the Dukane confined space program is ready and
training will begin soon thereafter. Both secretary-treasurer Wehrli and company president Ripper were copied on
this memo. (Tr. 520, 599-602; CX-54).
28
The credible record evidence reveals that Dukane employees and supervisors interchangeably used the terms bins
and silos to reference the aggregate bins (including the sand bins). CO Lake testified that throughout his inspection,
several people used the terms bin and silo interchangeably. (Tr. 49, 134, 316). Safety director Gorman
interchangeably used the terms silo and bin to refer to the aggregate bins throughout his testimony. (Tr. 509-691).
Human resources manager Lenz testified: “I asked Jay to go up to the catwalk and take pictures inside all of the silos
and to put up signs.” (Tr. 478). Notably, during the engulfment emergency employees referred to the aggregate bin
where [redacted] was trapped as a silo and this reference was readily understood. Laborer Cerecedes’s testified:
“Mike Morrero came running . . . and notified me that [redacted] was stuck in the silo.” (Tr. 181, 183-84, 226).
Quality control supervisor McMillan testified: “I grabbed the shovel, and I climbed down into the silo.” (Tr. 826;
See also Tr. 817-46). The ready reference by Dukane’s employees and managers to the aggregate bins,
interchangeably as bins or silos, is accorded great weight.

                                                      12

Gorman established Dukane’s procedure to call 911 to summon rescue and emergency
services for a confined space emergency. (Tr. 536-37, 593-94. See Tr. 328-31, 414). The
confined space evaluation forms reflected this procedure. (RX-17). A completed Dukane
confined space entry permit form from 2010 noted that 911 was the emergency number for
rescue. (RX-14). Additionally, Gorman consulted with the head of the local Naperville rescue
and fire team while developing the rescue policy. 29 (Tr. 537). Dukane’s confined space
emergency procedure to call 911 was communicated to employees through training. (Tr. 594).
Gorman, as safety director, was solely responsible for training employees on Dukane’s
confined space program. (Tr. 558). Early in his 12-year tenure at Dukane, he held monthly
training for supervisors and other designated employees on a variety of safety topics, including
confined spaces. (Tr. 586-87; RX-11). However, due to budget issues group training had not
been held since 2007. (Tr. 559-60). Since that time he trained employees when he was notified
they would be entering a confined space. 30 (Tr. 560, 586, 590). Quality control supervisor
Meacham and leadman Marin, who participated in the attempted rescue, had received confined
space training. 31 (Tr. 539-40; CX-56, 57, 59-61). The record reveals that [redacted] had
received confined space training. 32
The record also reveals that plant manager MacKenzie had received confined space
training. Safety director Gorman believed he had trained MacKenzie regarding confined spaces.
“I thought that Don MacKenzie had been trained in the confined space issues, as he’s been
trained in other safety issues throughout the plant.” (Tr. 664. See Tr. 540, 619, 652).
MacKenzie admitted that he could have learned about confined spaces during conversations he
had with safety director Gorman. (Tr. 910). Further, Lenz testified that when she reviewed the

29
A June 6, 2004 confined space training roster shows members of the Aurora and Moecherville fire departments
were given a tour of the Aurora facility. (Tr. 622-23; CX-58).
30
A confined space entry permit dated February 25, 2010 demonstrates this point. The training date for the entrants
is the same day as the entry of the confined space. (RX-14, p.1).
31
Meacham is on the July 9, 2002 training roster and Marin is on the 2005 roster. (CX-56, CX-59, CX-61; Tr. 144-
49).
32
While [redacted] did not recall the exact title of the training he received as permit-required “confined space”
training, the record reveals that he received this training. [redacted] acknowledged his signature on the 2007 training
roster. (Tr. 732-33; CX-57). In addition, the record reveals a 2004 entry permit for [redacted] to work in a confined
space. (Tr. 541-42; CX-62). Also his work practices reveal that [redacted] understood there was a potential danger
when he entered the aggregate bins. As discussed above, [redacted] learned from safety director Gorman to use fall
protection before entering the aggregate bins. See footnote 16 above. Therefore, he worked with an attendant when
entering the aggregate bins and, on February 6, 2012, the day of the engulfment, he used a yellow rope tied around
his waist and attached to the guardrail before entering the aggregate bins. (Tr. 132, 339, 348-49, 703-04).

                                                      13

confined space training forms after the accident, she saw signatures for both [redacted] and
MacKenzie among the documents in the file. (Tr. 490-91, 495). During his testimony,
MacKenzie demonstrated a basic understanding regarding confined spaces. His employment
prior to Dukane did not include work with confined spaces. (Tr. 909-10). When considered in
conjunction with Gorman’s and Lenz’s testimony and his safety responsibilities as the plant
manager, the record evidence reveals that MacKenzie did have confined spaces training prior to
the engulfment accident. 33
The record shows Dukane paid little attention to compliance with its confined space
program. The record shows that safety director Gorman conducted safety inspections and walk-
throughs at the three Dukane facilities from time-to-time. 34 (Tr. 240-41; RX-20). However,
there was no evidence of monitoring for compliance with the permit-required confined space
safety program. Most telling, Gorman did not detect the lack of warning signs for the permit-
required confined spaces at the Naperville facility. Finally, the only discipline documents in
evidence for non-compliance with Dukane’s safety program were the warnings issued to Huerta,
[redacted], and MacKenzie after OSHA issued the citations in this case to Dukane. 35 (CX-65,
CX-68, CX-70).
The Citations
The Secretary’s Burden of Proof

    To establish a violation of an OSHA standard, the Secretary has the burden of proving

that: (1) the cited standard applies; (2) the employer failed to comply with the terms of the cited
standard; (3) employees had access to the violative condition; and (4) the employer either knew
or could have known of the violative conduct with the exercise of reasonable diligence. Astra
Pharm. Prod., Inc., 9 BNA OSHC 2126, 2129-30 (No. 78-6247, 1981), aff’d in relevant part,
681 F.2d 69 (1st Cir. 1982).
Citation 1, Item 1

    Citation 1, Item 1 - This item alleges a serious violation of 29 C.F.R. § 1910.23(c)(3),

33
MacKenzie’s testimony that he had not received permit-required “confined space” training before the accident is
not credited. (Tr. 853-54, 909-10). See generally footnote 15 above.
34
Respondent introduced an exhibit consisting of 41 emails from Gorman to various Dukane management staff
regarding what he found during a walk-through inspection at a particular facility. However, 30 of the emails were
undated and only one referenced any issue related to confined spaces. (RX-20).
35
OSHA issued the citation July 25, 2012. The disciplinary forms were dated August 6, 2012. Lenz testified that
she recommended discipline before she left Dukane in April of 2012. (Tr. 455-56).

                                                    14

which states:
Regardless of height, open-sided floors, walkways, platforms, or runways above
or adjacent to dangerous equipment, pickling or galvanizing tanks, degreasing
units, and similar hazards shall be guarded with a standard railing and toe board. 36

    The Complaint alleges that, on or about February 6, 2012, Respondent did not maintain a

standard railing on the platform adjacent to batch plant sand bins which are permit-required
confined spaces. A standard railing is defined as “[a] vertical barrier erected along exposed
edges of a floor opening, wall opening, ramp, platform, or runway to prevent falls of persons.”
29 C.F.R. § 1910.21(a)(6). A standard railing “shall consist of top rail, intermediate rail, and
posts, and shall have a vertical height of 42 inches nominal from upper surface of top rail to
floor, platform, runway, or ramp level.” 29 C.F.R. § 1910.23(e)(1).
The Standard Applied and Was Violated
Dukane asserts that this standard is inapplicable because the platform was not “open-
sided” and because the bins were not “dangerous equipment.” Dukane asserts that the platform
was not “open-sided” because the bin wall extended for 27 inches above the platform creating an
obstruction, thus the platform was not open-sided. (R. Br. 28). This argument fails.
The photographic evidence shows the platform was open-sided. It was 20 feet above the
floor with an attached guardrail running along the side of the platform not adjacent to the bins.
The 27-inch extension of the bin wall, on the side of the platform immediately adjacent to the
bin, is far below the 42-inch height required for a standard railing. Further, the bin wall did not
close off or obstruct access into the bins. I find the platform was open-sided.
Further, Dukane asserts that the standard is inapplicable because the aggregate bins are
not dangerous equipment because they do not contain caustic materials. (R. Br. 29). The cited
standard addresses the hazard of an employee falling into an area where hazardous equipment is
located. Here, an employee could fall into the sand bin and be subjected to an engulfment
hazard, plus crushing and other injuries from the clamshell gate at the bottom of the bin. I find
the bins are dangerous equipment for the purposes of this standard and therefore the standard is
applicable.
Dukane also asserts that an aggregate bin is only dangerous when the batch plant is
operating, i.e., when the aggregate material is being drawn down into the clamshell gate at the

36
“(4) Platform. A working space for persons, elevated above the surrounding floor or ground; such as a balcony or
platform for the operation of machinery and equipment.” 29 C.F.R. § 1910.21(a)(4).

                                                    15

bottom of the bin. (R. Br. 29). This contention also fails. The batch plant was not operating
when Mr. [redacted] was buried up to his shoulders. This demonstrates an engulfment hazard
exists when the equipment is not operating.
Finally, Dukane points to a 1979 OSHA letter of interpretation to show that a standard
railing was not required on this platform. 37 (R. Br. 28). The letter states that “[t]he 31 inch
height from the working platform to the top of the galvanizing tank is less than that required for a
standard guardrail. However, the 30 inch ledge width combined with the 31 inch height creates a
situation where employees are effectively protected from the hazard covered by the standard.”
The facts set forth in the letter are very limited and are not analogous to the case at hand. In the
1979 interpretation letter, the working platform and ledge appear to be distinct, different,
structural elements – not synonyms. This letter is not relevant and the comparison inapt.
In the instant case, the standard was applicable and was violated. The platform was
open-sided and above (near the top) and adjacent to the aggregate bins. The aggregate bins were
dangerous equipment with the hazards of engulfment in the aggregate materials stored there and
injury from the mechanical clamshell gate at the bottom. Further, there was no standard railing
on the bin-side of the platform. The 27-inch extension of the bin wall above the platform floor
does not meet the minimum height requirement of 42 inches. See 29 C.F.R. § 1910.23(e)(1).
The open-sided platform did not comply with the requirements of the standard.
Employees Were Exposed and Knowledge Was Proven
The Secretary established employer knowledge and that employees were exposed to the
hazard. Here, Dukane employees were actually exposed to the hazard of falling into the bins
from the platform. On the day of the incident, [redacted] and several other employees were on
the platform next to the bins.
To establish knowledge the Secretary must prove the employer either knew, or with the
exercise of reasonable diligence could have known, of the violative condition. Dun-Par
Engineered Form Co., 12 BNA OSHC 1962, 1965 (No. 82-928, 1986). “The actual or
constructive knowledge of a foreman or supervisor can be imputed to the employer.” N&N
Contractors, Inc., 18 BNA OSHC 2121, 2123 (No. 96-0606, 2000) (citation omitted), petition
for review denied, 255 F.3d 122 (4th Cir. 2001). “An employee who has been delegated

37
The letter of interpretation to Mr. Demetriades, dated November 29, 1979, can be found at
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=18830.

                                             16

authority over other employees, even if only temporarily, is considered to be a supervisor” for
the purpose of establishing knowledge. Access Equip. Sys., 18 BNA OSHC 1718, 1726 (No. 95-
1449, 1999).
Here, Dukane knew that its employees used the platform and were exposed to falling into
the bins. MacKenzie knew employees would scrape sand off the bin sides from the platform
with the long-handled tool. He also knew that [redacted], as part of his regular job, previously
had accessed the platform to check aggregate levels. He knew employees previously accessed the
work platform to enter the aggregate bins to level out the bin material. Further, MacKenzie had
been on the platform to check on the bin material and the lack of a railing was clearly visible
from the platform. MacKenzie’s knowledge of the platform’s condition is imputed to Dukane.
The Secretary has established actual knowledge.
The Secretary characterized this violation as serious. A violation is classified as serious
if “there is substantial probability that death or serious physical harm could result” if an accident
occurs. See Compass Environmental, Inc., 23 BNA OSHC 1132, 1136 (No. 06-1036, 2010),
aff’d, 663 F.3d 1164 (10th Cir. 2011). An employee falling from the work platform into the
aggregate bin could experience fractures, contusions and possible engulfment. Here, an
employee suffered actual serious injury related to the violations and, therefore, the classification
of serious is appropriate.
Citation 1, Item 1 is affirmed as a serious violation.
Violations of the Confined Space Standard
Confined space and permit-required confined space are defined at 29 C.F.R.
§1910.146(b).
Confined space means a space that: (1) Is large enough and so configured that an
employee can bodily enter and perform assigned work; and (2) Has limited or
restricted means for entry or exit (for example, tanks, vessels, silos, storage bins,
hoppers, vaults, and pits are spaces that may have limited means of entry.); and
(3) Is not designed for continuous employee occupancy.

   Permit-required confined space (permit space) means a confined space that has
   one or more of the following characteristics: (1) Contains or has a potential to
   contain a hazardous atmosphere; (2) Contains a material that has the potential for
   engulfing an entrant; (3) Has an internal configuration such that an entrant could
   be trapped or asphyxiated by inwardly converging walls or by a floor which
   slopes downward and tapers to a smaller cross-section; or (4) Contains any other
   recognized serious safety or health hazard.

                                             17

Citation 1, Item 2
Citation 1, Item 2 - This item alleges a serious violation of 29 C.F.R. § 1910.146(d)(1),
which states:
(d) Permit-required confined space program (permit space program). Under the
permit space program required by (c)(4) of this section, the employer shall: (1)
Implement the measures necessary to prevent unauthorized entry; 38

    The Complaint alleges that, on or about February 6, 2012, Respondent did not secure

batch plant sand bins #1 and #2 from unauthorized employee entry.
The Standard Applied and Employees Were Exposed
The aggregate bins meet the definition of a permit-required confined space. The bins
contained materials that could engulf a person. The bins had inwardly converging walls and
floors that sloped downward to a smaller cross-section. The bins had a limited means of entry
or exit, were large enough and configured such that a person could enter to do work, and were
not designed for continuous occupancy. (Tr. 154-57). The standard is applicable. Further, there
is no dispute that unauthorized employees were actually in bin #2 during the rescue attempt.
The Standard Was Violated
Dukane did not implement measures to prevent unauthorized entry. It did not use a
physical barrier, such as a gate or lock to prevent access to the platform. (Tr. 159-60). There
were no work rules that prohibited entry onto the work platform or entry into the aggregate bins.
(Tr. 160-61, 207-08). There were no signs or labels to warn unauthorized personnel to not enter
a permit-required confined space. (Tr. 207, 230, 640-41). However, when Dukane anticipated
the OSHA inspection, warning signs were quickly and easily put in place on the access ladder to
the work platform and on the aggregate bins during the plant-wide safety clean-up. (Tr. 456-57,
475-78; CX-5, CX-17, CX-38).
The Respondent argues that the difficulty of climbing the 20-foot ladder and its “remote”
location in the facility prevented inadvertent access to a permit-required confined space. (R. Br.

38
“If the employer decides that its employees will enter permit spaces, the employer shall develop and implement a
written permit space program that complies with this section. The written program shall be available for inspection
by employees and their authorized representatives.” 29 C.F.R. § 1910.146(c)(4).

                                                    18

30). However, the photographs of the work area refute this. The ladder leading to the platform
was clearly visible from the area of the skip hoist, which was at least 50 feet away from the
ladder. (CX-6, CX-12). The ladder was not hidden from sight. Further, the standard requires
prevention of unauthorized entry, not inadvertent access.
Dukane also argues that training employees whose job duties involve working in a
permit-required confined space prevented unauthorized entry. (R. Br. 30). This argument is
disingenuous. A simple training rule without implementation does not prevent unauthorized
entry. Dukane’s permit-required confined space training was limited. Between July 2007 and
[redacted]’ engulfment incident, there was no general confined space training conducted at
Dukane. (Tr. 559-60). During that time, confined space training was limited to those employees
whose work duties specifically included working with permit-required confined spaces. (Tr.
589-90). Dukane’s confine space training was not provided to unauthorized employees working
in and around the general vicinity of permit-required confined spaces and thereby working in the
zone of danger. There was no training of unauthorized employees on which areas to avoid in the
facility. It was not reasonable to believe that an unauthorized employee would know to not enter
a permit-required confined space when there was no training, signage, or other indication that
access was prohibited – and hazardous. I find that Dukane did not take measures to prevent
unauthorized entry to sand bin #2, a permit-required confined space, and, therefore, violated the
standard.
Knowledge
With reasonable diligence, Dukane could have known there were no warning signs, gates,
barriers, or other means to prevent unauthorized entrance to the aggregate bins. Several factors
are considered to determine reasonable diligence, including, “the employer’s obligation to have
adequate work rules and training programs, to adequately supervise employees, to anticipate
hazards, and to take measures to prevent the occurrence of violations.” Danis-Shook Joint
Venture XXV, 19 BNA OSHC 1497, 1501 (No. 98-1192, 2001) (Danis), aff’d, 319 F.3d 805 (6th
Cir. 2003) (citations omitted).
The bins were obvious; they were large and the central feature in the batch plant area.
The ladder leading to the bins was also in plain view. Dukane’s safety director, Gorman, had
determined that the aggregate bins were permit-required confined spaces many years before. (Tr.
527, 611). Dukane’s work rule that only authorized employees could enter a permit-required

                                            19

confined space was not implemented. There was no training for unauthorized employees.
Further, Gorman conducted walk-through inspections of the facility but never noticed there was
no means of keeping unauthorized employees from entering the bins. Gorman never recalls
permit-required confined space signs being placed on the aggregate bins. (Tr. 641). The
Secretary has shown that, through its safety director, Dukane could have known it had no
measures in place to prevent unauthorized entry and, therefore, constructive knowledge is
established. Further, the evidence shows that Dukane’s plant manager, MacKenzie, had actually
been on the platform previously, so the lack of any warning signs or other means to prevent
unauthorized access may also be imputed through MacKenzie.
The Secretary characterized this violation as serious. As discussed above a serious injury
can result from the entry into the sand bin, a permit-required confined space. Citation 1, Item 2
is affirmed as a serious violation.
Citation 1, Item 3
Citation 1, Item 3 - This item alleges a serious violation of 29 C.F.R. § 1910.146(e)(1),
which states:
(e) Permit system. (1) Before entry is authorized, the employer shall document the
completion of measures required by paragraph (d)(3) of this section by preparing
an entry permit. 39

     The Complaint alleges that, on or about February 6, 2012, Respondent did not prepare

entry permits for permit-required confined spaces in the batch plant known as sand bins #1 and

2.

              The Standard Applied, Was Violated, and Employees Were Exposed
     As discussed above, the aggregate bin was a permit-required confined space so the

standard applied. There is no dispute that an entry permit was not completed when [redacted],
and others, entered bin #2 and were exposed.
Knowledge

39
An employer shall “(d)(3) Develop and implement the means, procedures, and practices necessary for safe permit
space entry operations, including, but not limited to, the following: (i) Specifying acceptable entry conditions; (ii)
Providing each authorized entrant or that employee's authorized representative with the opportunity to observe any
monitoring or testing of permit spaces; (iii) Isolating the permit space; (iv) Purging, inerting, flushing, or ventilating
the permit space as necessary to eliminate or control atmospheric hazards; (v) Providing pedestrian, vehicle, or other
barriers as necessary to protect entrants from external hazards; and (vi) Verifying that conditions in the permit space
are acceptable for entry throughout the duration of an authorized entry.” 29 C.F.R. § 1910.146 (d)(3).

                                                       20

Respondent argues that the Secretary cannot prove the element of knowledge because no
one, other than [redacted], expected an employee to enter a bin. However, the record establishes
that [redacted]’s knowledge, as leadman, is imputable to Dukane. And, as discussed above, I
find that plant manager MacKenzie knew that employees had entered the bin in the past to level
the sand, knew that [redacted] was going to level out the sand that day, and easily could have
known that no entry permit was completed. MacKenzie’s knowledge is imputable to Dukane.
Further, an employer must make a reasonably diligent effort to monitor compliance with
its safety rules, including monitoring its supervisor’s oversight of safety rules. See, e.g.,
Southwestern Bell Telephone Co. (SWBT), 19 BNA OSHC 1097, 1099 (No. 98-1748, 2000),
aff’d, 277 F.3d 1374 (5th Cir. 2001) (citations omitted). Dukane cannot avoid culpability for its
leadman’s knowledge when it made no effort to determine if he, or the plant manager, made an
effort to apply its safety policy. Here, there was no evidence that Dukane monitored its
supervisory staff for adherence to the safety policy. 40 [redacted] knew that he had not completed
an entry permit prior to entering bins #1 and #2. As the record establishes, leadman [redacted]
was in a supervisory position and, therefore, his knowledge is imputed to Dukane. The Secretary
has proven her prima facie case for Citation 1, Item 3.
Nonetheless, the Respondent asserts that if there was a violation of § 1910.146(e)(1) it
was the result of unpreventable employee misconduct. 41 To establish the affirmative defense of
unpreventable employee misconduct, “an employer must show that it had: (1) established work
rules designed to prevent the violative conditions from occurring; (2) adequately communicated
those rules to its employees; (3) took steps to discover violations of those rules; and (4)
effectively enforced the rules when violations were discovered.” Boh Brothers Constr. Co. Inc.,
24 BNA OSHC 1067, 1075 (No. 09-1072, 2013). A well-written work rule, alone, is not
sufficient. Even when a safety program is thorough and properly conceived, lax administration
renders it ineffective. See, e.g., Hamilton Fixture, 16 BNA OSHC 1073, 1090 (No. 88-1720,
1993) aff'd in unpublished opinion, 28 F.3d 1213 (6th Cir.1994).
Where, as here, the employee misconduct includes the actions of a supervisory employee,
the employer faces a higher standard of proof. “Where a supervisory employee is involved, the

40
The disciplinary action against [redacted] prior to the engulfment was not related to Dukane’s safety policy. (RX-
19).
41
Respondent only asserts the affirmative defense of unpreventable employee misconduct for Citation 1, Item 3. (R.
Br. 31).

                                                    21

proof of unpreventable employee misconduct is more rigorous and the defense is more difficult
to establish since it is the supervisor's duty to protect the safety of employees under his
supervision. . . . A supervisor's involvement in the misconduct is strong evidence that the
employer's safety program was lax.” Archer-Western Contractors Ltd., 15 BNA OSHC 1013,
1017 (No. 87-1067, 1991) (citations omitted).
Dukane had a permit-required confined space safety program which included the
completion of entry permits. (CX-53; CX-62). However, as discussed above, Dukane’s safety
program was poorly implemented. For the reasons that follow, I find that Dukane’s safety
program was insufficient to establish unpreventable employee misconduct.
Dukane alleges that its safety rules were communicated through its training and that its
training was effective. I disagree; it was inadequate. [redacted] could not specifically recall the
training he had many years before. Group training had not been conducted since 2007. 42 There
was no action taken to determine if its employees understood or remembered training. This lack
of follow-up was shown by the safety director’s walk-through inspections which had virtually no
mention of any confined space safety issues.
This was not an effective way to communicate its work rules, especially considering the
lack of signage, or other means to communicate its work rules, to untrained employees to ensure
their awareness of the permit-required confined spaces and to warn them of potential hazards.
An employer cannot simply give an employee training and then hope for the best; it must make a
serious effort to communicate its rules to its employees in a way that makes it likely the
employees will follow those rules. The Commission has held that a “reasonably prudent
employer would attempt to give instructions that can be understood and remembered by its
employees.” Pressure Concrete Constr. Co., 15 BNA OSHC 2011, 2017 (No. 90-2668, 1992).
Dukane did not take steps to discover violations of its permit-required confined spaces
safety program. An employer must do more than have “an exemplary safety program on paper.”
American Sterlizer Co., 18 BNA OSHC 1082, 1087 (No. 91-2494, 1997). An employer must also
monitor its employee’s compliance “in an effort to eliminate hazards.” Id. Dukane’s inability to
detect the lack of conspicuous warning signs on the bins and the safety director’s testimony that
he was unsure if signs had ever been posted, demonstrate there was almost no effort to determine

42
Safety manager Gorman testified that, due to economic conditions, group training had not been conducted in
several years; training was done with an individual just before each entry. (Tr. 560, 586, 590).

                                                   22

if the permit-required confined space rules were implemented or followed. Dukane did not
provide adequate supervision over its employees and took few measures to prevent the
occurrence of a violation. In particular, it neglected to oversee the behavior of its supervisory
employees who were tasked with upholding its safety policy. No permits related to the previous
bin entries of [redacted] and Morrero to level the sand, at the Naperville plant, were included in
the record evidence. This also illustrates a lax attitude toward implementation and enforcement
of the confined space safety program.
Dukane did not adequately enforce its safety policy. The Commission generally requires
an employer to show it had a progressive and consistent disciplinary policy to demonstrate
adequate enforcement of its safety program. Dukane asserts that it did discipline its employees
for violating its permit-required confined space program related to [redacted]’s engulfment. The
Commission does allow consideration of discipline that occurred both before and after the
inspection. See, e.g., American Eng’g & Development Corp., 23 BNA OSHC 2093, 2097 (No.
10-0359, 2012); Rawson Contractors, Inc., 20 BNA OSHC 1078, 1081 (No. 99-0018, 2003);
Valdak Corp., 17 BNA OSHC 1135, 1136 (No. 93-0239. 1995), aff’d, 73 F.3d 1466 (8th Cir.
1995).
However, there is no evidence of discipline for safety violations prior to the inspection.
The post-engulfment discipline consisted of written warnings issued to Huerta, [redacted], and
MacKenzie seven months after the accident -- just a few days after OSHA issued the citations in
this case. Dukane’s enforcement of its safety policy was inadequate. The affirmative defense of
unpreventable employee misconduct fails.
The Secretary characterized this violation as serious. As discussed above, entry into the
aggregate bin presented a risk of serious harm either from engulfment or the mechanical hazard
of the clamshell gate. Citation 1, Item 3 is affirmed as a serious violation.
Citation 2, Item 1
Citation 2, Item 1 - This item alleges a willful violation of 29 C.F.R. § 1910.146(d)(9),
which states:
Develop and implement procedures for summoning rescue and emergency
services, for rescuing entrants from permit spaces, for providing necessary
emergency services to rescued employees, and for preventing unauthorized
personnel from attempting a rescue;

                                              23

The Complaint alleges that, on or about February 6, 2012, Respondent did not implement
procedures for immediately summoning emergency services upon discovery of an employee
engulfed in sand within a permit-required confined space and did not implement procedures for
preventing unauthorized co-workers from entering a permit-required confined space and
attempting a rescue of an employee engulfed in sand.
The Standard Applied and Employees Were Exposed
As discussed above, the bins were permit-required confined spaces. Employees were
actually exposed to the hazards that are the subject of this standard – possible injury from
entering the permit-required confined space to attempt rescue and from delayed summoning of
emergency services. There is no dispute that several employees, not authorized to attempt rescue,
were in bin #2 attempting to rescue [redacted]. There is no dispute that emergency services were
delayed and only summoned for [redacted] about 1 ½ hours after he became trapped in the sand.
The Standard Was Violated and Knowledge Was Proven
Dukane asserts that it did comply with the standard because it established its 911 rescue
policy and it fully implemented its procedures when it provided training to its employees and
coordinated with the fire department technical rescue team. (R. Br. 24; CX-58). I disagree.
Dukane did not adequately implement its rescue procedures. Dukane developed a procedure,
contacted its local rescue service and provided minimal training; however, its implementation
was inadequate and incomplete. It was not designed to prevent unauthorized rescue attempts and
to have managers and co-workers call 911 when an employee can not get out of a permit-
required confined space.
The Commission has found that a standard cannot be read in such a way as to “vitiate the
very purpose of the standard’s requirement.” Elliot Constr. Corp., 23 BNA OSHC 2110, 2113
(No. 07-1578, 2012). Further, the cited provision must be considered in the context of the
permit-required confined spaces standard, 29 C.F.R. § 1910.146, as a whole. See Custom Built
Marine Constr., Inc., 23 BNA OSHC 2237, 2239 (No. 11-0977, 2012) (citation omitted). For
example, an employer must consider the timeliness of a rescue team’s response when designating
its permit-required confined spaces rescue service. 29 C.F.R. § 1910.146(k)(1). Further, one of
the duties of an entry attendant is to “[s]ummon rescue and other emergency services as soon as
the attendant determines that authorized entrants may need assistance to escape from permit
space hazards.” 29 C.F.R. § 1910.146(i)(7). Finally, OSHA explained in the standard’s

                                            24

preamble, that the rescue requirements are intended to summon rescue when an entrant cannot
get out of a confined space without assistance. 43 See 58 Fed. Reg. 4462 (Jan. 14, 1993).
The standard is clear – an employer must have devised and implemented its plan in such
a way that it was reasonable to believe its procedure will be followed when an employee needs
rescue from a permit-required confined space. 44 Training of employees can be a component of
adequate implementation, but that alone is insufficient. When read in the context of the permit-
required confined spaces standard as a whole, it is clear that summoning the designated rescue
service is an essential part of the implementation of a rescue procedure. To not require this as
part of implementation would vitiate the standard’s purpose to get an employee, who is unable to
self-rescue, out of the confined space. In this case, the record is clear: [redacted] was incapable
of self-rescue. (Tr. 758).
Further, the record is clear that several supervisory employees made no effort to follow
the company’s policy to call 911 upon finding [redacted] trapped. It was only after 1½ hours of
attempted rescue and a demand from [redacted] to call 911, that plant manager MacKenzie called

911. Finally, there is no evidence, beyond the program’s general reference to call 911 and the
     limited training discussed above, that Dukane informed its employees that they should not
     attempt a rescue.
     Respondent’s contention that the many supervisors who participated in the unauthorized
     rescue did not know that they were engaged in a permit-required confined space rescue does not
     insulate Respondent from a finding that it violated the standard. Rather, the claimed ignorance
     of Respondent’s supervisors, including plant manager MacKenzie, is graphic proof of
     Respondent failure to implement its permit-required confined space program.

43
In the preamble to the final rule, OSHA stated the following about the requirement of 29 C.F.R § 1910.146(i)(7):
“The Agency agrees that there may be times when authorized entrants can perform self-rescue from the permit space
in an emergency. On the other hand, OSHA is [sic] believes that help must be summoned if there is any doubt as to
whether it will be necessary. Therefore, paragraph (i)(7) of the final rule requires attendants to summon rescue and
emergency services if they determines [sic] that assistance may be necessary. As long as the attendant is certain that
self-rescue can be performed, no rescue summons would be necessary. However, if the attendant has any doubts as
to whether an authorized entrant can exit the space under his or her own power, then the attendant is required to
summon rescue and emergency services.” 58 Fed. Reg. 4462, 4521 (Jan. 14, 1993).
44
Dukane asserts that the Secretary is reading additional requirements into the standard by requiring Dukane to
guarantee that employees will immediately summon emergency services. It points to Usery v. Kennecott Copper
Corp., 577 F. 2d 1113, 1118 (10th Cir. 1977) to support this argument. In Kennecott the court found that a standard
requiring an employer to provide ladders for scaffold access did not require the employer to ensure the use of a
ladder. Id. The comparison to Kennecott is inapt. The requirement at issue in Kennecott was that a ladder “shall be
provided.” Here, the standard requires an employer to “develop and implement procedures for summoning rescue
and emergency services.”

                                                     25

Therefore, the requirements of the standard were violated and knowledge was
established. Further, as discussed above, entry into the aggregate bin presented a risk of serious
harm either from engulfment or the mechanical hazard of the clamshell gate, so this violation is
serious in nature.
Willful Characterization
The Secretary has characterized Citation 2, Item 1 as a willful violation. A willful
violation is done “with intentional, knowing or voluntary disregard for the requirements of the
Act or with plain indifference to employee safety.” Burkes Mech., Inc., 21 BNA OSHC 2136,
2140 (No. 04-0475, 2007) (citations omitted). A willful violation differs from a serious violation
by a heightened awareness and either conscious disregard or plain indifference. Williams
Enterp., Inc., 13 BNA OSHC 1249, 1256-57 (No. 85-355, 1987).
I find that Dukane’s actions support a willful characterization. The Commission has
recognized that an employer's failure to follow its own safety program and the recommendations
of a safety consultant can establish a willful violation. Morrison-Knudsen Co., Inc., 16 BNA
OSHC 1105 (No. 88-572, 1993). The Commission has held that a foreman who knowingly
allows employees to work without the necessary protective equipment has acted with intentional
disregard. Rawson Contractors, Inc., 20 BNA OSHC 1078, 1081-82 (No. 99-0018, 2003).
Here, Dukane’s safety director, Gorman, knew of the requirements for permit-required
confined space rescue and that Dukane’s implementation of its own policy was inadequate.
Gorman developed the confined space program which sets forth the requirement to call 911 for
rescue. 45 Gorman knew that training had not been done for several years. He knew that the
Naperville facility contained permit-required confined spaces but had done nothing to ensure
employees working in or near those spaces were properly trained or that the spaces themselves
were labelled. The fact that Gorman was not onsite the day of the engulfment is irrelevant. 46
This was not a lapse in implementation that occurred on a single day. It was a pattern of
conscious disregard that had been ongoing for many years.
Additionally, this evidence demonstrates Dukane’s heightened awareness. In addition to

45
Dukane’s general safety policy also included the rule to call 911 in the case of an emergency, which it defined as
“an unplanned event that can cause death or injury to employees.” (CX-42, p. 41).
46
The employer does not lose its “knowledge” because a supervisor is not present. Even after a supervisor is no
longer employed, the employer retains the knowledge. “Heightened awareness” remains with an organization
despite turnover in its personnel. Caterpillar, Inc. v. OSHRC, 122 F.3d 437, 440-41 (7th Cir. 1997) aff’g, 17 BNA
OSHC 1731, (No. 93-373, 1996).

                                                     26

documenting its program, Dukane then evaluated its three facilities to identify and document the
permit-required confined spaces in each. Dukane developed permit-required confined space
entry permit forms and conducted training sessions in 2002, 2005, and 2007. Dukane
coordinated with the local fire department for permit-required confined space rescue services.
This evidence shows that Dukane was aware of the requirements of this standard, but chose not
to fully implement its policy. Dukane made almost no effort to promote compliance with the
rescue policy. There was no signage in the facility. There was no evidence that any employee
was actually aware of the designated rescue procedure. Dukane’s own plant manager, upon
discovering that an employee was trapped, did not follow the rescue policy. This demonstrates
an inadequate effort to prevent unauthorized employees from entering a permit-required confined
space to rescue a trapped employee, instead of calling 911. An employer must do more than
document its policy; it must also administer it. See, e.g., Hamilton Fixture, 16 BNA OSHC at
1090.
Further, I find that through its plant manager, Dukane exhibited plain indifference. As
discussed above, MacKenzie’s knowledge is imputed to Dukane. The plant manager personally
witnessed [redacted] trapped in the sand bin and [redacted]’ co-workers quickly working in an
attempt to free him. MacKenzie did not exhibit any concern for [redacted] or for the safety of the
other employees in the bin. He did not order the employee rescuers out of the bin. He simply
left that area to go to the shipping yard. He then returned to the batch plant a significant time
later, and only then, after being told that [redacted] demanded a call to 911, did he make the call.
These actions are not objectively reasonable and demonstrate a plain indifference to employee
safety.
Plant manager MacKenzie’s claim that he did not consider [redacted]’ engulfment to be
an emergency is not credible. MacKenzie’s claim is not logical and is completely at odds with
the reaction of everyone else who observed [redacted] trapped in the sand that day. All others
immediately recognized the grave danger [redacted] faced and immediately jumped into action in
an effort to free [redacted] from the sand. A reasonable person responsible for the safety of the
facility employees would not have observed this obvious emergency situation and done nothing.
Dukane relies on AJP and Greenleaf to support its position that the Secretary cannot
establish a willful violation, because Dukane was not actually aware at the time the engulfment
that it was violating an OSHA standard. (R. Br. 19). AJP Constr., Inc. v. Sec’y of Labor, 357

                                              27

F.3d 70, 74-75 (D.C. Cir. 2004), aff’g 19 BNA OSHC 2204 (Nos. 01-0568 & 01-1474, 2003);
Greenleaf Motor Express, Inc., 21 BNA OSHC 1872, 1875-76 (No. 03-1305, 2007), aff’d
without published opinion, 262 Fed. Appx. 716 (6th Cir. 2008).
Respondent’s reliance on AJP is inapt. In AJP, the court found the employer’s efforts to
implement a fall protection plan were “incomplete, ineffective, and unenforced” and upheld the
willful characterization. AJP, 357 F.3d at 75. It also found that the foreman’s noncompliance
with the fall protection plan illustrated lax implementation. Id. at 75. Similarly here, Dukane’s
plant manager did not order the unauthorized employees out of the bin and did not call 911 until
[redacted] had been trapped for 1 ½ hours.
Respondent’s reliance on Greenleaf is also misplaced. In Greenleaf the Commission
found the employer had no previous knowledge that a tanker car was a permit-required confined
space, so a willful characterization could not be supported. Greenleaf, 21 BNA OSHC at 1875-

76. In contrast, Dukane’s aggregate bin had been identified by Dukane’s safety director many
    years before as a permit-required confined space.
    Dukane asserts that it made a good faith effort to comply with the standard when it
    developed its rescue policy and coordinated with the local fire department. (R. Br. 23-24). The
    Commission has held that an employer's conduct will not be found willful if it “made a good
    faith effort to comply with a standard or eliminate a hazard, even though [its] ... efforts were not
    entirely effective or complete.” Elliot Constr. Corp., 23 BNA OSHC 2110, 2117 (No. 07-1578,
    2012) (citations omitted). A good faith effort to comply must be objectively reasonable to negate
    willfulness. Caterpillar, Inc. v. OSHRC, 122 F.3d 437, 441 (7th Cir. 1997) aff’g, 17 BNA
    OSHC 1731, (No. 93-373, 1996). An employer’s good faith belief that a violation is not
    hazardous does not preclude a finding of willfulness. Secretary v. Capital City Excavating Co.,
    Inc., 712 F.2d 1008, 1010 (6th Cir. 1983).
    Dukane’s efforts were minimal and not a good faith effort to comply. The response of all
    the supervisory employees that day shows that Dukane had not made a reasonable effort to
    implement its rescue policy. It is not objectively reasonable to believe that an employee
    engulfed in a sand bin is not in danger and in need of emergency services. Nor is it reasonable to
    believe that uninformed employees will implement the company’s rescue policy. Dukane’s
    efforts were not a good faith effort to comply with the standard or eliminate the hazard.
    Dukane also relies on Dayton Tire to support its position that it was not plainly

                                             28
    

    indifferent because it did devise and implement a confined space program. Dayton Tire, 671
    F.3d 1249 (D.C. Cir. 2012). In Dayton Tire, the court found that attempts to comply with the
    OSHA standard mitigated against finding plain indifference. Id. The court relied on the
    Commission’s findings that “an employer is entitled to have a good faith opinion that his conduct
    conforms to regulatory requirements.” Id. at 1257 quoting C.N. Flagg & Co., Inc., 2 BNA
    OSHC 1539 (No. 1409, 1975). Further, the Circuit found that the measures taken by Dayton
    were done in good faith. Id. at 1257. No such finding is merited here.
    Dukane presented evidence that its safety director conducted safety walk-throughs of its 3
    facilities. Despite this alleged attention to safety, Dukane’s safety director did not observe or
    remedy the fact that 5 very large bins, that he had previously identified as permit-required
    confined spaces, had no signs to indicate that entry was limited to authorized employees.
    Further, for many years before the engulfment incident, there was no attempt made to train or
    inform unauthorized employees that they should not attempt rescue, but instead call 911. This
    lack of minimal attention to implementation of the confined space program demonstrates that
    Dukane did not have an objective good faith belief that it conformed to the OSHA standard. 47
    Finally, Dukane asserts that it made a good faith effort because it summoned rescue
    services upon [redacted]’s demand. This assertion is untenable. As discussed above, the
    evidence shows that [redacted] made several requests for a rescue call. Only 1 ½ hours later,
    when he made a demand, the 911 call was finally made. Even then, the plant manager only
    called because he no longer believed the other employees could rescue [redacted] from the bin.
    It is not reasonable to believe that waiting to respond to an injured employee’s request for
    emergency services was a good faith belief or effort. It was not reasonable to believe that
    untrained personnel were a substitute for a call to emergency services. Dukane cannot delegate
    to the employee experiencing the emergency situation responsibility for notifying his supervisor
    that rescue services should be summoned. The Commission addressed this attempt to shift

47
Respondent asserts that it was not cited for a training violation and that it had not been cited in prior OSHA
inspections for confined space program violations. The record does not reveal that prior OSHA inspections
concerned Dukane’s Naperville facility. The record does not disclose which work areas were the subject of the prior
inspections. (Tr. 382-83). The Commission has been clear that an employer cannot generally rely on its prior OSHA
inspection history. “[T]he mere fact of prior inspections does not give rise to an inference that OSHA made an
earlier decision that there was no hazard, and does not preclude the Secretary from pursuing a later citation.” Seibel
Modern Mfg. & Welding Corp., 15 BNA OSHC 1218, 1224-25 (No. 88-821, 1991).

                                                     29

responsibility to an employee in Pride Oil Well Svc., 15 BNA OSHC 1809, 1817 (No. 87-692,
1992).
The Act places final responsibility for compliance with its requirements on the
employer. E.g., [Brock v. City Oil Well Service Co., 795 F.2d 507, 511 (5th Cir.
1986)], quoting section 5(a)(2) of the Act . . . (“each employer ... shall comply”
with OSHA standards) (court's emphasis). An employer who has failed to address
a hazard by implementing and enforcing an effective work rule cannot shift to its
employees the responsibility for assuring safe working procedures. See, e.g.,
Stuttgart Machine Works, Inc., 9 BNA OSHC 1366, 1369 (No. 77–3021, 1981).
An employer “cannot fail to properly train and supervise its employees and then
hide behind its lack of knowledge of their dangerous working practices.” Danco
Constr. Co. v. OSHRC, 586 F.2d 1243, 1247 (8th Cir.1978).

     When viewed in its totality, the record evidence shows a laissez-faire attitude by the

Respondent about the implementation of its permit-required confined spaces safety program and
its emergency procedures in particular. The Secretary has established this violation as willful.
Citation 2, Item 1 is affirmed as a willful violation.
Penalty
Section 17(j) of the Act requires the Commission to give due consideration to four
criteria in assessing penalties: the size of the employer’s business, the gravity of the violation,
the employer’s good faith, and its prior history of violations. Gravity is generally the primary
factor in the penalty assessment. See J. A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No.
87-2059, 1993).
The Secretary has classified Citation 1, Items 1, 2, and 3 as serious violations and
proposed a penalty of $4,200.00 for Item 1 and $4,900.00 each for Items 2 and 3. As discussed
above, these items are all affirmed as serious violations. Item 1 was assessed as medium gravity:
the severity was assessed as medium, as an employee who fell into bin #2 from the walkway
access platform could suffer fractures, contusions, possibly lost consciousness, and engulfment
and the probability was assessed as greater. (Tr. 152, 158-59; CX-1). Items 2 and 3 were assessed
as high gravity: the severity was assessed as high due to the potential for serious harm or death
and the probability was assessed as greater. (Tr. 161-62, 164-65, 429-30). A reduction, of the
statutory maximum penalty of $7,000 for each serious citation item, was proposed due to the
company’s small size. See § 17(b) of the Act.
The Commission may provide a penalty reduction for good faith when considering the
employer’s safety and health program and its commitment to safety. Capform, Inc., 19 BNA

                                               30

OSHC 1374, 1378 (No. 99-0322, 2001). Dukane has a reasonable written safety program.
However, as discussed above, the program was not adequately communicated, implemented or
enforced. Therefore, I find a reduction for good faith is not appropriate.
The Secretary has classified Citation 2, Item 1 as a willful violation. As discussed above,
the Secretary has met his burden to show the violation is willful. Citation 2 was assessed as high
gravity: the severity was assessed as high due to the high potential for death and the probability
was assessed as greater. (Tr. 175). The Secretary proposed a penalty of $56,000.00 for this item
based on a reduction, of the statutory maximum penalty of $70,000.00 for willful citation items,
due to the company’s small size. See § 17(a) of the Act.
I find the Secretary’s penalty recommendations for both serious and willful violations are
appropriate and the penalties are assessed as proposed.
Findings of Fact and Conclusion of Law
All findings of fact and conclusions of law relevant and necessary to a determination of
the contested issues have been made above. See Fed. R. Civ. P. 52(a). All proposed findings of
fact and conclusions of law inconsistent with this decision are denied.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:
1. Citation 1, Item 1, for a violation of 29 C.F.R. § 1910.23(c)(3) is AFFIRMED as
Serious and a penalty of $4,200.00 is assessed.
2. Citation 1, Item 2, for a violation of 29 C.F.R. § 1910.146(d)(1) is AFFIRMED as
Serious and a penalty of $4,900.00 is assessed.
3. Citation 1, Item 3, for a violation of 29 C.F.R. § 1910.146(e)(1) is AFFIRMED as
Serious and a penalty of $4,900.00 is assessed.
4. Citation 2, Item 1, for a violation of 29 C.F.R. § 1910.146(d)(9) is AFFIRMED as
Willful and a penalty of $56,000.00 is assessed.

                                           _/s/_________________________
                                           Carol A. Baumerich
                                           Judge, OSHRC

Date: July 14, 2014
Washington, D.C.

                                              31