The Davey Tree Surgery Company
Logging items vacated and $300 reporting penalty affirmed
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This order from 2016 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
A Davey Tree employee was fatally struck during tree removal in a utility right-of-way. Following Commission precedent in companion Davey Tree cases, the judge found the work was line clearance rather than logging, so the logging standard did not apply. The evidence also showed training on tree felling and hazard evaluation. The logging items and one fatality-reporting item were vacated, but a separate reporting item was affirmed with a $300 penalty because the company did not use OSHA's central number after the local office was unavailable.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1904.39(a), 1904.39(b)(1), 1910.266(d)(2)(ii), 1910.266(d)(6)(i), 1910.266(h)(2)(ii), 1910.266(i)(3)(ii), and 1910.266(i)(3)(iii).
- Outcome: All logging items and one reporting item were vacated; one other-than-serious reporting item was affirmed with a $300 penalty.
- Key point: Utility line-clearance tree removal is not covered by the logging standard, but employers must follow the required alternate reporting method when the local OSHA office is unavailable.
Full text (OSHRC public release)
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3457
SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 12-0096
THE DAVEY TREE SURGERY COMPANY,
Respondent.
DECISION AND ORDER
I. BACKGROUND
On June 27, 2011, an employee of the Davey Tree Surgery Company ( “Davey Tree”)
was killed while cutting trees in a utility easement right-of-way that belonged to the Idaho Power
Company. This utility easement was located on federal government property in the Boise
National Forest. On December 27, 2011, the Secretary cited Respondent for failing to comply
with several sections of the logging operations standard found at 29 C.F.R § 1910.266 and the
reporting requirements found at 29 C.F.R. § 1904.39. The Secretary characterized the logging
violations as serious, the reporting violations as other-than-serious, and proposed a penalty of
$31,175.00.
II. DISCUSSION OF RECENT CASE LAW
On February 26, 2016, the Occupational Safety and Health Review Commission issued
decisions in two companion cases that are relevant to the instant case, as they provide binding
precedent. Both cases are entitled The Davey Tree Expert Company and are listed as Docket
Nos. 12-1324 and 11-2556. The Commission’s holdings in these two companion cases will be
discussed infra. Additionally, for purposes of brevity, the Parties’ respective arguments and legal
positions shall be summarized.
III. THE SECRETARY’S ARGUMENTS
The Secretary’s theory of the case is that Respondent was engaged in logging operations
on June 27, 2011. The Secretary believes it has established that Davey Tree Surgery Company’s
“large-scale tree removal project” for Idaho Power is covered by OSHA’s logging operations
standard. The Secretary asserts that its interpretation of the logging standard is entitled to
deference.
OSHA received notification of Mr. Butterfield’s fatal workplace accident on June 28,
2011 via a phone message that was left on the Boise Area Office answering machine around 8:00
p.m. on June 27, 2011. (Tr. 52). Area Director (AD) Kearns assigned Cecil Tipton, an
experienced Compliance Safety and Health Officer (CSHO), to lead OSHA’s investigation. (Tr.
393).
AD Tipton 1 contacted Davey Tree’s representative on June 28 and arranged to inspect the
accident scene where Mr. Butterfield was fatally injured. (Tr. 58). AD Tipton met Davey Tree
area manager James Hartzell and safety manager Pat McDermott in Boise and drove to
Respondent’s staging area in Idaho City. (Tr. 58). From the staging area in Idaho City, they
travelled to the worksite in the same manner as Respondent’s employees. (Tr. 59, Govt. Ex. 2 at
182). It took about an hour to get to the worksite from Boise. (Tr. 394–95).
- Mr. Tipton has since been promoted and is now the Area Director in Portland, Oregon.
2When AD Tipton got to the worksite, he spoke to the Boise County Sheriff’s deputy and
took video and measurements of the accident site, the hazard tree 2 that struck Mr. Butterfield,
and the distance from other trees on the worksite. (Tr. 61–62; Govt. Ex. 2 at 128). The hazard
tree was 103-feet tall, and Mr. Butterfield was only about 70 feet away from this tree when he
was struck. (Tr. 64; Govt. Ex. 4 at 12). This same tree was approximately 100 feet from the
power line. (Tr. 63). OSHA also met with Davey Tree management, returned another time to the
worksite to take more detailed photographs and measurements, and conducted employee
interviews. (Tr. 65). A couple weeks after the fatal accident, OSHA observed a different Davey
Tree crew felling trees also using a rope come-along system. (Tr. 66).
OSHA alleged that Davey Tree violated several provisions of the logging operations
standard. (Govt. Ex. 1). OSHA determined that the logging operations standard applied to Davey
Tree’s worksite because the employees were conducting manual felling, and the logging
operations standard addresses manual felling. (Tr. 69). Additionally, OSHA consulted a
compliance directive related to the application of the logging operations standard for tree care
operations. (Tr. 69). AD Tipton testified that he considered the application of 1910.269, OSHA’s
Electrical Power Generation, Transmission, and Distribution standard, but determined that it did
not apply. (Tr. 70). AD Tipton determined that 1910.269 did not apply because the work crew
was not working within ten feet of the power lines and they were exposed to struck-by hazards,
not electrical hazards. (Tr. 70). AD Tipton did not consider the work that Mr. Butterfield and Mr.
Slaven were performing to be arboriculture because they were not trimming trees, they were not
using herbicides, and they were not piecing out trees—they were felling trees whole, from the
stump. (Tr. 70, 74).
- Herein, the tree that fatally struck Mr. Butterfield will be designated “the hazard tree.”
3Citation1, Item 1. OSHA’s investigation revealed that Davey Tree’s first aid kit was
missing the following required items listed in 1910.266, Appendix A: roller bandages, triangle
bandages, scissors, a blanket, tweezers, tape, elastic wrap, splints, and directions for requesting
emergency assistance. (Tr. 78; Govt. Exs. 1 and 2 at 25; Resp. Ex. KK, LL, MM). OSHA
determined that Davey Tree did not have a written plan for what to do in case of an emergency.
(Tr. 61; 695–96). AD Tipton explained that because there was no communication method at the
worksite, Davey Tree was “relying on traveling down a path and getting in the car and traveling
down a dirt road and then hoping that somebody is going to be at home in one of these houses so
you can make a phone call if there is an emergency.” (Tr. 61–62). There was no plan, written or
otherwise, about what the crew would do in an emergency. In other circumstances, Mr. Slaven
had employed the “nearest phone” policy. Prior to commencing previous jobs, he had contacted a
nearby resident and made arrangements to use the homeowner’s telephone in the case of an
emergency. (Tr. 695–96; Resp. Ex. FFF at 109–111). But Davey Tree did not make prior
arrangements with a nearby resident before starting the work on the instant job in Boise National
Forest, and there was no cell phone coverage in the area. Id.
Citation 1, Item 2. OSHA also determined that Davey Tree violated 1910.266(d)(6)(i),
which requires employees to be spaced properly so that one employee does not present a danger
to any other. (Tr. 79–80; Govt. Ex 1, Citation 1, Item 2). Mr. Butterfield and Mr. Slaven were
both working within the drop zone of the hazard tree. (Tr. 536–37). Because a tree being felled
can strike another tree, workers other than the sawyer need to be two-tree lengths away from the
tree being felled. (Tr. 537–38).
Citation 1, Item 3. OSHA determined that Davey Tree violated 1910.266(h)(2)(ii), which
requires a hazard evaluation to be conducted before the felling of a tree. (Tr. 81; Govt. Ex. 1,
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Citation 2, Item 3). OSHA determined that Mr. Slaven failed to do an appropriate hazard
evaluation by not evaluating the lean of the hazard tree and the other trees in the area. (Tr. 81,
539–40; Govt. Ex. 2 at 69). OSHA found that Davey Tree could have felled the hazard tree more
uphill instead of to the side of the hill, could have used ropes properly, could have used the rope
come-along system, and could have used wedges. (Tr. 81).
Citation 1, Item 4a and 4b. OSHA determined that Davey Tree violated the training
requirements at 1910.266(i)(3)(ii) and (iii). (Tr. 82; Govt. Ex. 1, Citation 1, Items 4a and b).
OSHA reviewed Davey Tree’s safety manual and conducted employee interviews to understand
the information and training Davey Tree provided to its employees. (Tr. 66–67; Govt. Ex. 11).
OSHA determined that Davey Tree did not train its employees on how to use the rope come-
along system; instead, employees learned how to use it through trial-and-error. (Tr. 82). Davey
Tree has no written instructions related to using the rope come-along system. (Tr. 273). And,
based on review of the manual and employee interviews, OSHA determined that Davey Tree did
not provide any training on how to determine the height of a tree that was going to be felled. (Tr.
67–68, 82–83, 93–95). AD Tipton conducted several interviews with employees, who told him
that that they guessed and relied on experience to determine tree height. (Tr. 68).
AD Tipton testified that Davey Tree employees could have measured the height of the
hazard tree with a laser range finder, a clinometer, or a rope. (Tr. 83–84). Based on his employee
interviews, AD Tipton testified that employees were not trained on the “stick trick” before Mr.
Butterfield was fatally struck by the tree. (Tr. 84–85). AD Tipton testified that the first he heard
about the “stick trick” was from James Hartzell showing him what it was with a different crew.
(Tr. 85–87). The stick trick involves holding up a stick and trying to figure out if you are in the
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fall shadow of a tree. (Tr. 87). Davey Tree does not have any written instructions related to using
the stick trick. (Tr. 86, 266).
Citation 2, Item 1a and 1b. OSHA alleges that Davey Tree failed to comply with the
reporting requirements at 1904.39(a) and (b)(1). (Tr. 87–88; Govt. Ex. 1). OSHA was notified
about the fatal accident the following workday from a voicemail left by Mr. Pat McDermott. (Tr.
620). There was no record of calls made by Davey Tree to the 1-800 number as required by the
regulations, although other callers were able to access the 1-800 number and were routed to the
Boise Area office in a timely manner. (Govt. Exs. 6–8). Mr. McDermott testified that he
attempted to call the 1-800 number and could not get through, but his phone records show only
calls to the local area office. (Tr. 621; Govt. Ex. 21).
In support of its citations, OSHA consulted with a logging expert, Jeff Funke, to provide
his analysis of the performance standards at issue. (Govt. Ex. 13). Mr. Funke is the Area Director
for OSHA’s Omaha Area Office in Nebraska. (Tr. 510). AD Funke has been involved in the
logging industry since 1990. He got his start as an employee of his family’s business, Funke
Brothers Logging. (Tr. 511–13). Throughout AD Funke’s career at OSHA, he developed
specialized experience in logging. Funke conducted the majority of the logging inspections
when he was a compliance officer in Montana and Idaho and provided training to compliance
officers in OSHA about the logging industry. (Tr. 514–17). As AD Funke advanced in OSHA, he
continued to hone his experience in logging through the supervision of compliance officers and
by providing training to the industry. (Tr. 518–19). In the course of his career at OSHA, AD
Funke has personally inspected at least a hundred cases involving felling operations where trees
were removed from the stump. (Tr. 521). From his work at Funke Brothers Logging and
throughout his career at OSHA, AD Funke has gained expertise in felling techniques in this
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specialized area and he testified that there are widely accepted safe directional felling methods in
the industry, including accepted distances for workers. (Tr. 522–24). AD Funke has been
qualified and has testified as an expert in two matters before the Commission. (Tr. 525–26).
Based on the foregoing, the Secretary argues as follows:
1. Davey Tree’s argument that the logging standard applies only if trees are felled, moved,
and turned into a forest product is in direct conflict with the plain language of the
standard, with this Court’s order in Pettey Oil Field Servs., Inc., 2006 WL 2050961 at *1,
4–5 (No. 05-1039, 2006), and with OSHA guidance and interpretation.
2. The logging operations standard provides the regulated community adequate notice that
tree removal operations are covered by the standard, even if the removal operation was
performed outside the commercial tree-harvesting industry.
3. By its plain language, the logging operations standard covers Davey Tree’s manual
felling operations.
IV. THE SECRETARY’S CONCLUSION
The Secretary urged the Court to reject Davey Tree’s affirmative defenses, uphold the
OSHA citations, and promote the necessary safeguards to prevent future fatal accidents.
V. RESPONDENT’S ARGUMENTS
Respondent’s basic theory of the case is that The Secretary “inappropriately attempted to
apply the logging standard to a wholly separate and distinct industry, to wit, the utility line-
clearance industry.” See Davey Tree’s Response to the Secretary of Labor’s Post-Hearing Brief
at 3 (emphasis added). Respondent asserts that the logging standard simply does not apply to
line-clearance operations. Id. Respondent asserts the following general, salient points:
1. Davey Tree is in the arboricultural industry.
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2. A subset of arboricultural operations is line-clearance.
3. Line-clearance arborists are regulated by 29 C.F.R § 1910.269; the Electric Power
Generation, Transmission and Distribution standard.
3. The American National Standards Institute (ANSI) standard Z133.1 contains
arboricultural safety requirements for removing trees in the vicinity of electrical power
lines.
4. Arborists are not loggers. See 59 Fed. Reg. 51672 (Oct. 12, 1994).
5. Respondent was performing line-clearance operations on June 27, 2011.
Respondent articulates the following, specific arguments as to why the logging standard,
in particular, is inappropriate:
1. The logging standard’s language is clear and unambiguous: “These types of logging
include, but are not limited to, pulpwood and timber harvesting and the logging of
sawlogs, veneer bolts, poles, pilings and other forest products.” See 29 C.F.R §
1910.266(b)(2). The Secretary’s interpretations have been inconsistent.
2. Respondent lacked adequate notice of the Secretary’s interpretation.
3. The Secretary’s interpretation lacks evidence of pertinent policy considerations.
4. The August 2008 Directive in invalid for lack of notice and comment rulemaking.
5. No reasonable person could conclude that Respondent was engaged in logging
operations.
6. The scale and complexity of the project demonstrates that Respondent was engaged in
typical line-clearance operations on June 27, 2011.
7. Respondent did not harvest trees for usable wood.
8. Respondent did not use any heavy machinery.
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9. The location of the tree removal project was not atypical for line-clearance work.
10. Respondent was not performing tree removals on large tracts of land.
11. The Secretary’s interpretation is not entitled to deference.
VI. ANALYSIS
This Court has carefully reviewed the hearing transcript, the case file and the parties’
post-hearing submissions. Additionally, this Court has carefully read the Commission’s decisions
in The Davey Tree Expert Company cases, Docket Nos. 11-2556 and 12-1324. The threshold
issue before the Court is whether the logging standard applied to the work that was being
performed by Davey Tree at the cited worksite on June 27, 2011. This Court finds that the
totality of the evidence establishes that Respondent was not engaged in logging trees for harvest
as forest products, and that the logging standard does not apply. Rather, the Court finds that
Respondent was engaged in line clearance operations for Idaho Power.
Following the precedent articulated by the Commission in The Davey Tree Expert
Company line of cases, this Court cannot conclude that Respondent’s work on the date cited in
this Complaint was covered by the logging standard. The facts of this case are nearly identical to
the recently decided Davey Tree line of cases, wherein the Commission determined that the
logging operations standard did not apply. Accordingly, the Court finds that the logging
standard’s requirements do not apply to the conditions found here in Citation 1. Having decided
that the logging standard does not apply, the following analyses provide additional bases for
vacating certain Citations.
In Citation 1, Item 1, Respondent was cited for a serious violation, pursuant to 29 C.F.R.
1910.266(d)(2)(ii): Each first aid kit did not contain the items listed in Appendix A at all times.
However, AD Tipton testified that if the logging standard should be found not to apply, then
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Respondent’s first aid kit would have been in compliance with 29 C.F.R. 1910.269. (Tr. 178–
79). Accordingly, the Secretary has not met his burden of persuading the Court that this Citation
item should be affirmed.
In Citation 1, Item 2, Respondent was cited for a serious violation, pursuant to 29 C.F.R.
1910.266(d)(6)(i): Employees were not spaced and the duties of each employee were not
organized so that the actions of one employee will not create a hazard for any other employee.
However, since the Court has determined that the logging standard does not apply, the
Secretary has not met his burden of persuading the Court that this Citation item should be
affirmed.
In Citation 1, Item 3, Respondent was cited for a serious violation, pursuant to 29 C.F.R.
1910.266(h)(2)(ii): Conditions such as, but not limited to, snow and ice accumulation, the wind,
the lean of the tree, dead limbs and the location of other trees, were not evaluated by the feller
and precautions were not taken so a hazard in not created for an employee before each tree is
felled. Mr. Harry Slaven, a Davey Tree employee, testified as a witness for the Respondent. (Tr.
672–710). Mr. Slaven was the feller of the tree that killed Mr. Butterfield. During direct
examination, Mr. Slaven related that he had fourteen years of experience with Respondent and
was a certified line clearance crew leader. (Tr. 672–73). He also stated that he was a member of
the International Society of Arborists. He identified his copy of the Davey Tree Company
Operations Manual. (Tr. 674). The witness advised that the Operations Manual has always been
kept in his truck. (Id.).
Mr. Slaven continued with an extensive account of the hazard evaluation process prior to
the felling of this particular tree. He related that the day before the fatality, his crew, consisting
of himself, Rob Butterfield and Darrell Sheepskin, conducted a walk-through of the area. They
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found steep terrain, burned trees and other standing trees that were dead. He related that for each
tree to be felled, his crew took soundings to determine whether the tree was hollow or partially
rotted. In addition, the crew noted the lean of the tree and its estimated weight. (Tr. 682–84).
Mr. Slaven explained that they took the time to do soundings on the trees to be felled
because such a tree “has the potential to be a very hazardous tree and it sends up a red flag, and it
requires more attention and care to bring this tree down.” (Tr. 686). Accordingly, the Secretary
has not met his burden of proving that the standard applies or that its terms were violated.
In Citation 1, Item 4a, Respondent was cited for a serious violation, pursuant to 29
C.F.R. 1910.266(i)(3)(ii): Training did not consist of safe use operation and maintenance of
tools, machines and vehicles the employee uses or operates, including emphasis on
understanding and following the manufacturer’s operating and maintenance instructions,
warnings and precautions. This item refers to the alleged failure to train employees on the use of
a rope come-along system.
Mr. Patrick McDermott testified for Respondent. He related that he had been with Davey
Tree Company for many years (1970–1975 and 1982–present), and that he was now a senior
safety coordinator. (Tr. 604). His duties included safety policy, safety enforcement and safety
training. (Tr. 605). Mr. McDermott discussed those safety classes he conducted for Davey Tree
at four different locations in Idaho. (Tr. 606). Some of these training presentations included
“Notching and Felling”, “Communications”, “Ropes and Knots”, “Policy on Ropes in Trees”,
and “Hazard Trees”. The substance of these five classes appears to dovetail perfectly with the
duties of line clearance crews. (Tr. 619).
Mr. Slaven’s testimony was rich with discussions of his training in the uses of a rope
come-along. Beginning in 2001, Mr. Slaven received come-along training from Brett Dixon.
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(Tr. 675). He subsequently became familiar with using a come-along to fell trees while working
with other individuals. Tr. (677–78).
The testimony from Mr. McDermott and Mr. Slaven made it clear that Respondent
provided the disputed training and that such training is provided in multiple locations throughout
Idaho. Accordingly, the Secretary has not met his burden of persuading the Court that this
citation item should be affirmed.
In Citation 1, Item 4b, Respondent was cited for a serious violation, pursuant to 29
C.F.R. 1910.266(i)(3)(iii): Training did not consist of recognition of safety and health hazards
associated with the employee’s specific work tasks, including the use of measures and work
practices to prevent or control those hazards. This Item refers to the alleged failure to train
employees on how to determine the height of a tree or the tree length from the stump.
During the testimony of Mr. McDermott, he testified about the stick trick. (Tr. 616–17).
He testified, “It is a method we use to determine the height of a tree.” (Tr. 616). He recalled
performing this training in 2009. (Tr. 617). Mr. Slaven’s testimony included his training on the
use of the stick trick in March 2009. (Tr. 678–82). When asked on direct examination if, on the
day of the accident, he knew how to use the stick trick, Mr. Slaven replied, “Yes I did.” (Tr.
682).
The testimony from Mr. McDermott and Mr. Slaven makes it is clear that the latter was
adequately trained in an accepted method of estimating tree height. Further, on the day of the
accident, Mr. Slaven knew how to use the stick trick method. Accordingly, the Secretary has not
met his burden of persuading the Court that this Citation item should be affirmed.
In Citation 2, Item 1a, Respondent was cited for an other-than-serious violation, pursuant
to 29 C.F.R. 1904.39(a): Within eight (8) hours after the death of any employee from a work-
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related incident or the in-patient hospitalization of three or more employees as a result of a
work-related incident, the employer did not orally report the fatality/multiple hospitalization by
telephone or in person to the Area Office of the Occupational Safety and Health Administration
(OSHA), U.S. Department of Labor, that is nearest to the site of the incident. The employer did
not use the OSHA toll-free central telephone number, 1-800-321-OSHA (1-800-321-6742). This
item refers to the alleged failure of Respondent to timely report the fatality to OSHA.
In fact, however, the Secretary acknowledges that Respondent telephonically notified the
OSHA Area Office in Boise; to wit: “A voice message was left on the local office telephone.”
Citation 2, Item 1a. Also, Area Director Cecil Tipton testified as follows: “A telephone message
was left on our answering machine at our office at approximately 8:00 that night, on the 27th.”
(Tr. 52, 88–89).
Accordingly, the Secretary has not met his burden of persuading the Court that this
citation item should be affirmed.
In Citation 2, Item 1b, Respondent was cited for an Other-than-Serious violation,
pursuant to 29 C.F.R. 1904.39(b)(1): On or about June 27, 2011 and at times prior thereto, the
employer did not report a fatal accident to the 800 number after no one was available at the area
office. This Item refers to the alleged failure of Respondent to timely report the fatality to the
OSHA toll-free central number.
Respondent argues that Patrick McDermott, Davey Tree’s senior safety coordinator,
twice received a busy signal on the central telephone number. (Tr. 620–21). Mr. Hartzel was
present when Mr. McDermott attempted to call the central number and was not able to get
through. (Tr. 371–74). But, Mr. McDermott’s phone records showed only calls to the local area
office. (Tr. 621; Govt. Ex. 21). The Secretary has also shown that Davey Tree employees did not
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make prior arrangements with a nearby resident for emergency telephone services before starting
the work on the instant job in Boise National Forest, and there was no cell phone coverage in the
area. (Tr. 695–96; Ex. FFF at 109–111).
On balance, however, the Court finds that the Secretary has carried his burden of proof
regarding Citation 2, Item 1b, by establishing sufficient evidence of a violation, which
Respondent was unable to rebut. Accordingly, Citation 2, Item 1b shall be AFFIRMED.
VII. ORDER
This Court concurs with and is bound by the analyses conducted and the decisions
reached by the Commission in The Davey Tree Expert Company line of cases; Docket Nos. 12-
1324 and 11-2556. This Court finds that the logging standard does not apply to the instant case.
Instead, the Court finds that Respondent was engaged in line clearance operations on June 27,
2011 at the cited worksite.
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. Based upon the foregoing
Findings of Fact and Conclusions of Law, it is ORDERED that:
1. Citation 1, Item 1 is hereby VACATED, with no penalty assessed.
2. Citation 1, Item 2 is hereby VACATED, with no penalty assessed.
3. Citation 1, Item 3 is hereby VACATED, with no penalty assessed.
4. Citation 1, Items 4a and 4b are hereby VACATED, with no penalty assessed.
5. Citation 2, Item 1a is hereby VACATED, with no penalty assessed.
6. Citation 2, Item 1b is AFFIRMED, and a $300.00 penalty is ASSESSED.
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SO ORDERED
JOHN H. SCHUMACHER
OSHRC Judge
Dated: May 27, 2016
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