St. James Stevedoring Co., Inc.

Plain-English summary

St. James Stevedoring used crane-mounted barges for midriver cargo transfers on the Mississippi River and refused an on-site OSHA inspection because it believed the Coast Guard had exclusive authority. Judge Ken S. Welsch held that OSHA could regulate the cited conditions because the barges were uninspected vessels and Coast Guard rules did not cover crane certification, first-aid availability, or emergency planning. The crane-certification item was vacated because the cited rule applied to cranes brought aboard a vessel, while St. James's cranes were permanently mounted equipment. The company did not prove that a person with a valid first-aid certificate was available during work, which was especially important because the crews operated midriver. Its emergency plan covered only ammonium-nitrate fires and was not shown to address other cargo fires, collisions, or storms, so the first-aid and emergency-plan items were affirmed with $525 penalties each.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1918.66(a)(1); 29 C.F.R. § 1918.97(b); 29 C.F.R. § 1918.100(a)
• Outcome: Permanent-crane certification item vacated; first-aid and emergency-plan items affirmed with $1,050 total penalties.
• Key point: Coast Guard authority over uninspected vessels preempts OSHA only for working conditions the Coast Guard actually regulates, not the vessel's operations as a whole.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,
v.
OSHRC Docket No. 98-1731
St. James Stevedoring Co., Inc.,
Respondent.

APPEARANCES

             David Q. Jones, Esq.                          Ralph E. Smith, Esq.
             Office of the Solicitor                       Law Offices of Gerald R. Cooper &
             U. S. Department of Labor                     Ralph E. Smith, P.L.C.
             Dallas, Texas                                 New Orleans, Louisiana
                      For Complainant                              For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                  DECISION AND ORDER
      St. James Stevedoring Co., Inc. (St. James), operates five barges mounted with cranes on

the Mississippi River in Convent, Louisiana, to perform midriver cargo transfers between
oceangoing vessels and river barges. Based on a review of St. James’s safety programs, the
Occupational Safety and Health Administration (OSHA) issued a serious citation on August 26,
1998 (Tr. 25). St. James timely contested the citation. St. James refused to allow an inspection
of its operation claiming that the U. S. Coast Guard had preemptive jurisdiction.
The citation alleges that St. James violated 29 C.F.R. § 1918.66(a)(1) for failing to have
its cranes annually surveyed and quadrennially tested; 29 C.F.R. § 1918.97(b) for failing to have
at least one person certified to perform first aid; and 29 C.F.R. § 1918.100(a) for failing to
develop and implement a written emergency action plan. The citation proposes total penalties of
$3,550.
The hearing was held on March 12, 1999, in New Orleans, Louisiana. St. James admits
that it was an employer in a business affecting commerce (Tr. 4). The parties filed post-hearing
briefs.

                                               1

St. James denies the alleged violations and argues preemption under § 4(b)(1) of the
Occupational Safety and Health Act (Act) based on the jurisdiction of the U. S. Coast Guard.
Having considered the record, OSHA has jurisdiction; the alleged violation of § 1918.66(a)(1) is
vacated as not established; and the violations of §§ 1918.97(b) and 1918.100(a) are affirmed.

                                             The Inspection
   St. James operates five crane-mounted barges in the Mississippi River in Convent,

Louisiana, to load and unload cargo midriver to and from vessels and river barges (Tr. 7, 14, 26).
The five crane barges1 are designated as the Bulk I, Bulk II, Bulk III, Ashley and Margret (Tr. 11).
In size, the barges range from 150 to 200 feet long and 50 feet wide. Each barge is equipped
with a pedestal boom crane with a large clamshell bucket for use in handling bulk materials. The
pedestal provides the operator with a clear view of the boom moving from the ship’s hold to the
river barge alongside, or from the river barge to the ship’s hold (Tr. 15-16). The crane barges are
not self-propelled, but are moved into position by tugboats. Once alongside a ship, the crane
moves fore and aft by cables and winches to the desired location (Tr. 16-17). The crane barges
have registration documents from the U. S. Coast Guard, which are stamped annually (Tr. 17, 66-
67).
The employees aboard the crane barges are more or less permanently assigned. The
employees assist in handling lines and anchors; operating the crane and mobile equipment for
moving cargo and positioning the barges alongside the ships; and lifting covers on the hopper
barges (Tr. 18).
After receiving an informal employee’s complaint, OSHA compliance officer (CO) Barry
Buuck initiated an inspection of St. James (Tr. 24, 47-48). This was St. James’s first OSHA
inspection (Tr. 54). CO Buuck arrived on June 18, 1998, but left because of a possible refusal to
allow the inspection (Tr. 24). He returned, however, on July 12, 1998, and met with Vice-
President Paul Morton and Operations Manager Burton Gonzales. CO Buuck reviewed various
safety programs and remained at the office for approximately two and one-half hours (Tr. 26, 42,

   1
       St. James also operates a barge named Leslie which does not have a crane (Tr. 12).

                                                     2

46). Because of rain, Buuck returned to his office without making a visual inspection of the
operation (Tr. 24). When he telephoned to continue the inspection, CO Buuck was advised that
St. James refused further inspection, claiming OSHA lacked jurisdiction (Tr. 25). OSHA did not
seek an inspection warrant, but issued the serious citation based on Buuck’s review of St.
James’s records (Tr. 48). The employee’s complaint which precipitated the inspection was not
confirmed and was not involved in the conditions cited (Tr. 57-58).

                                        Discussion
                                  OSHA’s Jurisdiction

Application of § 4(a)
Section 4(a) of the Act provides in part that:
This Act shall apply with respect to employment performed in a
workplace in a State, the District of Columbia, the Commonwealth
of Puerto Rico, the Virgin Islands, American Samoa, Guam, the
Trust Territory of the Pacific Islands, Wake Island, Outer
Continental Shelf lands defined in the Outer Continental Shelf Act,
Johnson Island, and the Canal Zone.

   St. James argues that the Act’s jurisdiction does not extend to its crane-mounted barges.

Donovan v. Texaco, Inc., 720 F.2d 825 (5th Cir. 1983) (court determined that the Act’s
regulations did not apply to the working conditions of seamen on vessels in navigation in a case
involving a Coast Guard licensed engineer employed on Texaco’s deep sea fleet who had
complained of discrimination under § 11(c) of the Act).
In considering the application of § 4(a), the Review Commission has concluded that
"OSHA has authority to enforce the OSH Act with respect to vessels that are located in U. S.
territorial waters." Tidewater Pacific, Inc., 17 BNA OSHC 1920, 1923 (No. 93-2529, 1997).
The crane barges operate on the Mississippi River within the territorial boundaries of Louisiana
(Tr. 8, 14-15). The standards cited at 29 C.F.R., Part 1918, regulate the health and safety of
longshore and harbor workers. For the purposes of the Act, the crane barges operated by St.
James were workplaces and its employees were performing longshoring work. The inspection
and citation were within OSHA’s statutory jurisdiction.

                                             3

Application of § 4(b)(1) Preemption
Section 4(b)(1) provides:
Nothing in this Act shall apply to working conditions of employees
with respect to which other Federal agencies, and State agencies
acting under section 274 of the Atomic Energy Act of 1954, as
amended (42 U.S.C. 2021), exercise statutory authority to
prescribe or enforce standards or regulations affecting occupational
safety and health.

     To be preempted by another agency’s regulations, the Review Commission has

determined:
To prove the affirmative defense that OSHA’s jurisdiction has
been preempted under section 4(b)(1), the employer must show
that (1) the other federal agency has the statutory authority to
regulate the cited working conditions, and (2) that agency has
exercised that authority by issuing regulations having the force and
effect of law.

Rockwell International Corp., 17 BNA OSHC 1801, 1803 (Nos. 93-45, 93-228, 93-233, 93-234,
1996).
"Exercise," as used in § 4(b)(1), requires an actual assertion of regulatory authority as
opposed to the mere possession of authority. Where the employer claiming the exemption
satisfies its burden of proving that another agency has exercised its authority, OSHA’s
jurisdiction will be preempted only as to those working conditions actually covered by the other
agency’s regulations. Alaska Trawl Fisheries, Inc., 15 BNA OSHC 1699, 1703-1704 (No. 89-
1192, 1992). OSHA’s jurisdiction over the workplace as a whole is preserved, while the
redundant regulations of a particular working condition prescribed by § 4(b)(1) is avoided.
Southern Pacific Transportation Co. v. Usery, 539 F.2d 386, 392 (5th Cir. 1976).
The U. S. Coast Guard is authorized to promulgate regulations as to all matters not
specifically delegated by law to some other executive department for the safety of life and
property upon the high seas and waters, subject to the jurisdiction of the United States. Title 14
U.S.C. § 2. In general, the Coast Guard is the dominant Federal agency with statutory authority
to prescribe and enforce standards or regulations affecting seamen aboard vessels in navigation.
However, the Coast Guard’s jurisdiction is not industry wide. Alaska Trawl Fisheries, Inc., id.,

                                               4

at 1704-1705. Therefore, in the absence of an industry-wide exemption, OSHA’s jurisdiction is
preempted only if the Coast Guard has specifically regulated the cited condition.
In considering the Coast Guard’s jurisdiction, the Review Commission has determined
that, unlike its expansive coverage over inspected vessels, the Coast Guard’s regulations
involving uninspected vessels are limited. Where the Coast Guard has exercised jurisdiction
over a specific condition with regard to employees on an uninspected vessel, OSHA is
effectively barred from exercising concurrent jurisdiction. Tidewater Pacific, Inc., id., at 1925-
1926 (OSHA’s record-keeping requirement at § 1904.1 is preempted by the Coast Guard’s
regulations). On the other hand, where the Coast Guard is not exercising authority, OSHA
retains the authority to regulate the working conditions of employees aboard uninspected vessels.
Tidewater Pacific, Inc., id., at 1925 (OSHA’s confined space, machine guarding and blood borne
pathogens standards are not preempted by the Coast Guard); Red Star Marine Services, Inc., 739
F.2d 774, 779 (2nd Cir. 1984) (OSHA’s noise standard is not preempted by the Coast Guard).
Because the barges are documented vessels in navigable waters, St. James argues that
under the Fifth Circuit, the barges are subject to the Coast Guard’s regulations and preempted
from OSHA’s jurisdiction. Clary v. Ocean Drilling & Exploration Co., 609 F.2d 1120 (5th Cir.
1980); Donovan v. Texaco, Inc., 720 F.2d 825 (5th Cir. 1983). Generally, these cases hold that
OSHA regulations do not apply to the working conditions of employees on vessels in navigation.
However, the Review Commission analyzed the same Fifth Circuit case law relied upon by St.
James and concluded that it was not controlling. The Commission stated that:
Nevertheless, with due respect to the court, we find that Clary and
Donovan v. Texaco are sufficiently distinguishable from the case
here presented to have left undecided the precise question of OSH
Act applicability to uninspected vessels.

           In neither of the cases considered by the court did it differentiate
           between the extensive degree to which the Coast Guard regulates
           inspected vessels and the minimal degree to which it regulates
           those that are uninspected. The vessel classifications in those cases
           were not identified, although the court’s consideration in Donovan
           v. Texaco of the MOU between the Coast Guard and OSHA
           suggests that the vessel there was inspected. 720 F.2d at 827 n.3.
           Moreover, the court relied in both cases on Commission precedent,
           subsequently overruled, suggesting that OSHA lacks jurisdiction

                                             5

over the working conditions of seamen. Most significantly in
Clary, the court found that the cited OSHA construction and
shipbuilding regulations did not, by their own terms, pertain to the
special purpose drilling vessel on which the injured seaman
worked. 609 F.2d at 1122. This fact alone would have been
sufficient to decide the case. . . . Similarly, the court’s finding in
Donovan v. Texaco, that the Coast Guard’s regulations included
protections "parallel" to those contained in section 11(c), would
have been sufficient to dismiss the Secretary’s case.

   Tidewater Pacific, Inc., id., at 1927.
   In a more recent case, the District Court in Perry v. Falcon Drilling Company, Inc., 1995

U.S. Dist. LEXIS 6656 (E.D. La., 1995) held that OSHA’s regulations on stairways did not apply
to Falcon Rig 16, an uninspected vessel, because of the Coast Guard’s statutory authority. The
decision in Perry is distinguishable from this case. The District Court in Perry stated that
"OSHA regulations simply should not apply to govern safety concerns on vessels which have
unique problems and concerns best addressed by the Coast Guard." In this case, there is no
showing that the Coast Guard exercises authority to regulate crane inspections, first aid, and
emergency plans aboard midriver cargo transfer barges. Also, see this court’s decision in
Mallard Bay Drilling, Inc., LLC, 18 BNA OSHC 1668 (No. 97-1973, 1998), petition for review
filed Fifth Circuit (Feb. 25, 1999), which neither party cited.

St. James’s Barges Are Uninspected Vessels
In the Tidewater Pacific case, the U. S. Coast Guard filed an amicus brief unequivocally
disclaiming comprehensive regulation of "uninspected" vessels. Id., at 1924. "Uninspected"
vessels are defined by the Coast Guard as non-recreational vessels not subject to the Coast
Guard’s safety inspection and certification authority. 46 U.S.C.A. § 2101(43). It includes such
vessels as tugboats, towing vessels, and barges.
There is no dispute that the crane-mounted barges operated by St. James are documented
by the Coast Guard (Tr. 17, 66). However, the documentation is not shown to involve Coast
Guard inspection and certification. St. James does not argue that the crane barges are other than
uninspected vessels. The barges are not self-propelled and need to be towed into place by a

                                               6

tugboat. The barges are operated solely upon the Mississippi River within the territorial
boundaries of the State of Louisiana.
St. James argues that the employees aboard the crane barges are seamen (Tr. 17). They
are employed in a more or less permanent status and contribute to the function of the barges,
notwithstanding that some jobs are not traditionally considered classic sailor jobs. The
employees handle mooring lines, lower anchors, clean decks, and maintain navigation lights (Tr.
18). However, there is no evidence that the employees were licensed or had certificates from the
U. S. Coast Guard. The employees’ activities were more related to St. James’s midriver cargo
transfer work as opposed to performing navigational-related activities. The employees operate
the cranes and engage in the loading and unloading of cargo.
In the present case, the cited working conditions are not navigational, which is the
traditional area of Coast Guard expertise. The OSHA citation alleges conditions involving crane
certifications, first aid certificates, and emergency response plans.
The barges operated by St. James are uninspected. The Coast Guard’s regulations
applicable to uninspected vessels preempt OSHA’s regulations to the extent OSHA’s regulations
are redundant.

The Conditions Cited Are Not Preempted
The U. S. Coast Guard described its safety standards applicable to uninspected vessels as
"minimal" and limited solely to those areas delineated in 46 U.S.C., Chapter 41. Tidewater
Pacific, Inc., id., at 1924. Chapter 41 regulates the (a) number, type, and size of fire
extinguishers; (b) type and number of life preservers; (c) flame arresters, backfire traps, or
similar devices on vessels with gasoline engines; (d) ventilation of engine and fuel tank
compartments; and (e) the number and type of alerting and locating equipment for vessels on the
high seas.
The citation in this case is not shown to encompass any areas regulated and enforced by
the U. S. Coast Guard. The Coast Guard regulations for uninspected vessels do not address the
same concerns regarding crane inspections, first aid certificates and emergency plans as cited by
OSHA. St. James does not show or argue any similar requirements enforced by the Coast Guard.

                                              7

OSHA’s jurisdiction over St. James’s crane barges is not preempted by the U. S. Coast Guard for
the conditions cited.

                                     Alleged Violations
     The Secretary has the burden of proving a violation.
            In order to establish a violation of an occupational safety or health
            standard, the Secretary has the burden of proving: (a) the
            applicability of the cited standard, (b) the employer’s
            noncompliance with the standard’s terms, (c) employee access to
            the violative conditions, and (d) the employer’s actual or
            constructive knowledge of the violation (i.e., the employer either
            knew or, with the exercise of reasonable diligence could have
            known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Part 1918 applies to longshoring operations and related employments aboard vessels.
“Vessel” includes “every description of watercraft” used for transportation on water. See §
1918.2 (definitions). St. James’s business is transferring cargo midriver by its crane barges to
and from ships and river barges. Part 1918 is applicable to St. James’s operations.
At the hearing, St. James argued that it was not aware of the Part 1918 standards. On
June 25, 1997, OSHA published the current longshore standards in Part 1918, which recodified
under different numbers existing standards such as § 1918.66 and § 1918.97, and implemented
new standards such as § 1918.100. The new Part 1918 became effective on January 25, 1998.
62 Fed. Reg. 40202. The OSHA inspection of St. James occurred on June 18, 1998. St. James
argued that the new Part 1918 was not published in the Code of Federal Regulations until July,
1998 (Exh. R-6).
St. James’s argument is rejected. An employer is presumed to know the requirements of
the regulations upon publication in the Federal Register. Also, as noted, the requirements under
§ 1918.66 and § 1918.97 had existed prior to January, 1998. 39 Fed. Reg. 22074 (June 19,
1974).

                       Item 1 - Alleged Violation of § 1918.66(a)(1)


                                              8

The citation alleges that St. James failed to have the cranes used in its midriver transfer
operation annually inspected and tested every four years by an accredited agency. Section
1918.66(a)(1) states:
The following requirements shall apply to the use of cranes and
derricks brought aboard vessels for conducting longshoring
operations. They shall not apply to cranes and derricks forming
part of a vessel’s permanent equipment.

             (1) Certification. Cranes and derricks shall be certified in
             accordance with part 1919 of this chapter.

      Part 1919 requires maritime certifications of annual surveys and quadrennial tests by an

accredited agency of cargo gear and material handling devices such as cranes (Exh. C-1; Tr. 28-
29). CO Buuck testified that his review of St. James’s safety programs found no record of annual
crane inspection certifications and only one quadrennial test (Margret). The remaining test
records, dated in 1993, were within five years (Tr. 28). CO Buuck was told that St. James
performed its own annual inspections and contracted the quadrennial tests to the National Cargo
Bureau, Inc., which is accredited.
Paul Morton, Vice President of St. James Management Company, acknowledged that St.
James inspected its own crane barges (Tr. 8, 11). Burton Gonzales, Plant Manager for St. James
Management, also testified that St. James conducted its own annual inspections using a form
from the American Crane Manual (Exh. R-2; Tr. 74-75). Gonzales also testified that he thought
quadrennial inspections were to be conducted every five years (Tr. 75-76).
Section 1918.66(a)(1) does not apply to St James’s cranes. By its terms, the standard
applies to cranes which are “brought aboard vessels for conducting longshoring operations.” It
specifically excludes cranes “forming part of a vessel’s permanent equipment.” The cranes
operated by St. James are permanently mounted on the barges and constitute part of the barges’
equipment (Tr. 8, 15, 16). The National Cargo Bureau, Inc., who performed the quadrennial
tests, identified the cranes as permanently mounted (Exhs. R-3, R-4). The Secretary failed to
show that the cranes were not permanently mounted. CO Buuck did not observe the barges or
cranes.
The alleged violation is vacated.

                                                9

Item 2 - Alleged Violation of § 1918.97(b)
The citation alleges that St. James had no employee available who held a current valid
first aid certificate in case of an injury aboard the five barges. Section 1918.97(b) provides that:
A first aid kit shall be available at or near each vessel being
worked. At least one person holding a valid first aid certificate,
such as is issued by the Red Cross or other equivalent organization,
shall be available to render first aid when work is in progress.

    CO Buuck testified that he was told “they thought one of the men was a volunteer

fireman that might have first aid training” (Tr. 31, 37). He was not provided any documentation,
such as a first aid certification (Tr. 31, 37-38).
Morton testified that St. James has three employees who are “first responders” trained to
conduct first aid (Tr. 63). Morton, however, did not testify when the three employees became
first responders. He also testified that at the time of OSHA’s inspection, there were no first aid
certificates in the St. James’s office (Tr. 80).
During the hearing, St. James listed employees with first aid or CPR certificates along
with copies of three cards (Exh. R-1; Tr. 68-69). However, the list of employees does not
identify when they received first aid certification. Two of the attached cards show an issuance
date after OSHA’s citation. The third card does show that Kenny Wilkins completed “BLS”
training of the American Heart Association in March, 1998. However, Wilkins did not testify to
explain the training and, according to Gonzales, Wilkins told him that he did not have a
certificate in first aid (Tr. 83). Therefore, no weight is given to Morton’s testimony and the list
of employees.
Gonzales testified that three employees (Kenny Wilkins, Earl McGee and Ronnie Barlow)
were certified in first aid at the time of OSHA’s inspection (Tr. 72-73). He stated that he was
aware of the information but did not provide it to CO Buuck (Tr. 80).
Gonzales’s testimony is also given no weight. Upon examination, Gonzales conceded
that he did not know whether Barlow, a superintendent, had a certificate showing completion of
first aid training (Tr. 83). Also, as stated, Gonzales testified that Wilkins told him that he did not
have a card (Tr. 83). It was Wilkins to whom St. James was referring when CO Buuck was told

                                                 10

an employee might have first aid training (Tr. 85). Finally, Gonzales stated that McGee had first
aid training in the Reserves, but that he had not seen a certificate of completion (Tr. 84).
The standard requires an employer to assure that at least one employee is holding a valid
first aid certificate, such as from the Red Cross. Although the record shows that employees
currently are certified, there is no credible evidence that at least one employee held a valid first
aid certificate at the time of OSHA’s citation. See CMC Electric, Inc., 1995-97 CCH OSHD ¶
31,297 (No. 96-0619, 1997) (case involves a similar requirement under § 1926.50(c)). Also,
there is no showing that St. James considered any employee available to render first aid, if
necessary. It maintained no record of certified employees. Without such knowledge, St. James
could not be assured that a certified first aid person was available when work was in progress on
its five barges.
First aid treatment is necessary to give an injured employee some level of medical
attention while waiting for professional medical treatment. Because its longshoring operations
are conducted midriver, it is unlikely that timely medical attention could be obtained, making it
more important that St. James have someone available who is certified in first aid. Although the
standard does not require that the employer maintain copies of the certificates, it is reasonable to
expect an employer to know which employees hold valid first aid certificates.
The violation of § 1918.97(b) is affirmed as serious.

                           Item 3 - Alleged Violation of § 1918.100(a)
    The citation alleges that St. James failed to develop and implement a written emergency

action plan to ensure employees’ safety from fire and other emergencies aboard the crane barges.
Section 1918.100(a) provides:
This section requires all employers to develop and implement an
emergency action plan. The emergency action plan shall be in
writing (except as provided in the last sentence of paragraph (e)(iii)
of this section) and shall cover those designated actions employers
and employees must take to ensure employee safety from fire and
other emergencies.

                                                11

Under Subpart (b), the emergency action plan must contain procedures for emergency
escape, operating critical functions, accounting for all employees, rescue and medical duties,
reporting the fire or other emergency, and contacting persons for further information. During the
inspection, CO Buuck was not shown a written emergency plan. He was told that St. James did
not have a written emergency action plan, except for two lines addressing hurricane procedures
(Tr. 32, 38-39, 51).
At the hearing, St. James introduced a written emergency plan developed in 1988 and
provided to the U. S. Coast Guard (Exh. R-5; Tr. 78). The plan discusses the procedures to take
during a fire aboard the ship, river barge or the crane barges while transferring ammonium
nitrate. The St. James’s emergency plan describes the use of the alarm system, the notification to
employees, the use of the radio to contact shore and tugboats, the wearing of respiratory
equipment and instructions for evacuation.
The emergency plan presented by St. James fails to comply. It was developed in 1988
and only addressed the transfer of ammonium nitrate. The plan was not shown to be currently
enforced by St. James or to encompass a fire emergency involving other types of cargo transfers.
The plan was not shown to CO Buuck during his inspection. Also, the plan does not address
other potential emergencies in midriver transfers, such as collisions or storms.
The violation is affirmed as serious. St. James should have known it had to have
emergency procedures in place for its midriver transferring operations. Without emergency
procedures, employees were exposed to possible serious injury or death.

                                  Penalty Considerations
   The Commission is the final arbiter of penalties in all contested cases. Under § 17(j) of

the Act, the Commission is required to consider the size of the employer’s business, the history
of previous violations, the employer’s good faith, and the gravity of the violation when
determining an appropriate penalty. Gravity is the principal factor to be considered.
St. James is considered a medium-sized employer because it employed approximately 80
employees (Tr. 12). This was St. James’s first OSHA inspection (Tr. 54). Although it refused an
on-site inspection, St. James appeared cooperative and it reasonably believed that the U. S. Coast

                                            12

Guard had jurisdiction. St. James did provide OSHA with copies of its safety programs, which
were not shown to be deficient. St. James is entitled to credit for size, history and good faith.
A penalty of $525 is reasonable for violation of § 1918.97(b) (item 2). During the OSHA
inspection, St. James failed to show it had at least one employee certified in first aid. The gravity
is considered moderate. St. James’s 80 employees worked midriver and were not in a position to
receive timely medical attention, if necessary.
A penalty of $525 is reasonable for violation of § 1918.100(a) (item 3). The emergency
plan offered by St. James was not shown to be currently enforced or that it encompassed
potential emergencies, other than a fire during transfers of ammonium nitrate. The gravity is
considered moderate.

                               FINDINGS OF FACT AND
                               CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

                                          ORDER
   Based upon the foregoing decision, it is ORDERED that:

Serious Citation No. 1
1. Item 1, violation of § 1918.66(a)(1), is vacated and no penalty is assessed.
2. Item 2, violation of § 1918.97(b), is affirmed and a penalty of $525 is assessed.
3. Item 3, violation of §1918.100(a), is affirmed and a penalty of $525 is assessed.

                                          KEN S. WELSCH
                                          Judge

Date: October 11, 1999

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