Applied Aquatic Management, Inc.

Plain-English summary

Applied Aquatic Management used airboats to perform aquatic plant management work in Florida. Two company airboats collided in a blind trail after one operator entered a dead end and turned back, seriously injuring one employee and causing the death of another. OSHA alleged that the company had not provided and enforced safe boating procedures and proposed adoption of navigation rules covering lookout, speed, collision risk, and right of way. The judge found that Applied Aquatic already taught those basic rules through hands-on training and weekly safety meetings and enforced them through supervision and discipline. The operator involved knew the correct procedure but did not follow it, and the Secretary did not prove that the company knew or should have known he would do so. Because the company's existing program was as effective as OSHA's proposed abatement, the citation was vacated and no penalty was assessed.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: The serious general duty clause citation was vacated, with no penalty.
• Key point: A general duty clause citation fails when the employer already uses an equally effective abatement method and the Secretary does not prove employer knowledge.

Full text (OSHRC public release)

                                       United States of America
              OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                        100 Alabama Street, S.W., Room 2R90
                               Atlanta, Georgia 30303

SECRETARY OF LABOR,
Complainant
v. OSHRC Docket No. 12-2562
Applied Aquatic Management, Inc.,

    Respondent.

Appearances:

            Dane Steffenson, Esquire.
            U. S. Department of Labor, Office of the Solicitor, Atlanta, Georgia
            For Complainant

            Jack Morgan III, Esquire
            Fort Myers, Florida
            For Respondent

Before:Administrative Law Judge Ken S. Welsch

                                   DECISION AND ORDER

     Applied Aquatic Management, Inc., (AAM) provides aquatic plant management services

throughout Florida. AAM employees routinely use airboats to access aquatic plants. On May
24, 2012, two airboats operated by AAM employees collided at a water treatment facility in
Clewiston, Florida. The two occupants of one of the airboats were thrown from the boat. One of
the employees was seriously injured; the other employee died when he struck the propeller of the
second airboat.

     The Occupational Safety and Health Administration (OSHA) began an inspection of the

worksite on May 25, 2012. As a result of the inspection, the Secretary issued a one-item Citation
and Notification of Penalty to AAM on November 23, 2012, alleging a serious violation of the
general duty clause, § 5(a)(1) of the Occupational Safety and Health Act of 1970 (Act), 29
U.S.C. §§ 651.657. The Secretary proposed a penalty of $6,300.00 for the item.

     AAM timely contested the Citation. The Court held a hearing in this matter on May 31,

June 13, and June 14, 2013, in Fort Myers, Florida. AAM stipulated the Commission had
jurisdiction over this proceedings under § 10(c) of the Act and it is an employer engaged in a
business affecting interstate commerce under § 3(5) of the Act (Tr. 4). AAM contends the
Secretary failed to establish a § 5(a)(1) violation. AAM also asserted the affirmative defense of
employee misconduct. 1

     For the reason discussed below, the Court determines the Secretary failed to establish a §

5(a)(1) violation. The Citation is vacated and no penalty is assessed.

                                                 Background

     AAM was founded in 1981 by the Myers family. Paul Myers, Jr., now operates the

company as general manager. A significant percentage of its contracts are with governmental
agencies, including the Army Corps of Engineers, Florida Fish and Wildlife Commission, and
South Florida Water Management, to control unwanted invasive plants by applying herbicide to
land and aquatic plants (Tr. 759-760).

     AAM owns approximately 58 boats. The majority of these are airboats (Tr. 772). An

airboat is a flat-bottomed boat propelled forward by an aircraft-type propeller and powered by
either an aircraft or automotive engine. The airboats are used in shallow or marshy waters where
a boat engine with a submerged propeller would be impractical. The three airboats in use the day
of the accident were aluminum hulled and powered by 350 Chevrolet engines. The engines have
belt reduction units on them, which reduce the propeller speed to approximately 2,500 rpms (Tr.
766-767). (A propeller spinning over 3,000 rpms “will have a tendency to come apart” (Tr.
767).)

     Airboats are not equipped with braking devices and are not operable in reverse. An

airboat operator can turn the vessel left or right, but only when its speed is sufficient to cause it
to “plane” or ride on the surface of the water (Tr. 36, 439-440). Airboat engines are quite loud.
Operators cannot carry on conversations or hear other airboat engines when their engines are
running (Tr. 42).

     On May 24, 2012, four AAM employees on three airboats were working at a water

treatment area (referred to as a “cell”) in central Florida pursuant to a contract with South Florida
Water Management. The water treatment cell is a private area near Lake Okeechobee and is not
open to the public (Tr. 181). The cell at issue is one square mile and broken up with vegetation

1
This defense was not developed at the hearing and AAM does not address it in its post-hearing brief. It is deemed
abandoned.
strips (Tr. 449). Employee #1 was training a Trainee, who was positioned in the front of his
airboat. Employee #2 and Employee #3 each operated his own airboat (Tr. 48).

    Employee #1 sent Employees #2 and #3 to work together applying herbicide to aquatic

plants in another area of the cell. Employee #1 and the Trainee stayed closer to the boat ramp,
where they began spraying herbicide (Tr. 814).

    A storm began developing and Employee #1 determined the employees should leave the

cell and meet back at the boat ramp. He could not reach Employees #2 and #3 on their cell
phones so he and the Trainee went over in the airboat to the area where they were working.
Employee #1 told the others to return to the boat ramp. (Tr. 51)

    AAM’s procedure for airboats traveling together is for them to proceed in a single line.

At the level of the water’s surface it can be difficult to locate other airboats through the tall grass.
If another airboat is not visible, an airboat operator will sometimes turn off his engine so he can
locate the other airboat by sound (Tr. 30).

    As the senior employee at the site, Employee #1 would have normally taken the lead.

However, since the Trainee was positioned in the front of his airboat, Employee #1 did not want
him being hit in the face by cattails and other debris. Employee #1 instructed Employee #2 to
take the lead, followed by Employee #1 and the Trainee, with Employee #3 bringing up the rear
(Tr. 51).

    To return to the boat ramp, the airboats had to cross several vegetation strips using trails

made through the vegetation. Airboat operators try to use existing trails, but trails often look
alike (Tr. 56-58). Employee #2 entered the opening of what he believed was a trail head to the
boat ramp. Employee #1 and Employee #3 followed, losing sight of Employee #2 as he entered
the trail. As Employee #2 went on, he realized the trail led to a dead end. Employee #2 made a
U-turn and headed out of the same trail he had entered. Meanwhile, Employee #1 and the
Trainee were following behind in the same trail. The curve of the trail created a blind turn.

    As Employee #2 exited the trail, his airboat collided with Employee #1’s airboat. The

Trainee was thrown into the water. Employee #1 was ejected into the propeller of Employee

2’s airboat and died. (Tr. 460-461). The Florida Fish and Wildlife Commission investigated the

accident. It did not issue a citation in the matter (Tr. 255).
 The Citation

   The Secretary charges AAM with a serious violation of § 5(a)(1). The original citation

alleged:

   The employer did not furnish employment and a place of employment free from
   recognized hazards that were causing or likely to cause death or serious physical
   harm to employees.

   On or about 05/24/2012, the employer failed to provide and enforce safe
   procedures for operators of airboats who were navigating waters that had
   unmarked routes, exposing employees to struck-by hazards from collisions
   between airboats. An employee who was operating an airboat and had been
   applying herbicide, was fatally injured in a collision with another airboat that had
   taken an incorrect route that led to a dead end, after it had made an evasive
   maneuver at Storm Water Treatment Area (STA 5) Cell 2B, South Florida Water
   Management District, Lake Okeechobee, Clewiston, Florida, 33440.

   Among other methods of abatement, some feasible and acceptable methods to
   correct the hazard are to:

   a. Use the provided Global Positioning Devices to identify and follow the
      established routes of travel.

   b. Use items such as but no limited to marking tape and signs / flags attached to
      structures such as posts in the water to identify established safe routes of
      travel.

   c. Use a means of instant and direct communication between boat operators such
      as head-sets that serve as hearing protection.

   d. Increase the distance between boats when traveling in formation to provide for
      more reaction time to unexpected emergencies.

On May 29, 2013, two days before the hearing, the Secretary filed a motion to amend the
Complaint and Citation by substituting a different feasible means of abatement. The Secretary
moved to amend the proposed feasible abatement to state:

   Among other methods of abatement, a feasible and acceptable method to correct
   the hazard is to adopt and ensure all employees follow “rules of the road” for
   boaters consistent with the Inland Navigation Rules contained in the Inland
   Navigational Rules Act of 1980 and similar rules established by the State of
   Florida such as those discussed in the Florida Boater’s Handbook.

   The Court granted the motion without objection (Tr. 5).

                           Elements of a § 5(a)(1) Violation

   Section 5(a)(1) of the Act mandates that each employer “furnish to each of his
   employees employment and a place of employment which are free from
   recognized hazards that are causing or are likely to cause death or serious physical
   harm to his employees.” 29 U.S.C. § 654(a)(1). To establish a violation of the
   general duty clause, the Secretary must show that: (1) a condition or activity in
   the workplace presented a hazard; (2) the employer or its industry recognized the
   hazard; (3) the hazard was likely to cause death or serious physical harm; and a
   feasible means existed to eliminate or materially reduce the hazard. Pegasus
   Tower, 21 BNA OSHC 1190, 1191, 2005 CCH OSHC ¶ 32,861, p. 53,077 (No.
   01-0547, 2005).

Erickson Air-Crane, Inc., 2012 WL 762001 at *2 (No. 07-0645, 2012).

   In addition to the above-quoted elements of a § 5(a)(1) violation, the Secretary must also

establish the employer had either actual or constructive knowledge of the hazardous condition.
Deep South Crane & Rigging Co., 23 BNA OSHC 2099 (No. 09-0240, 2012), aff’d Deep South
Crane & Rigging Co. v. Seth D. Harris, 24 BNA OSHD 1089 (5th Cir. 2013).

   (1) The Cited Condition Presented a Hazard

   The Commission has held that as part of his burden of proving a § 5(a)(1) violation, the

Secretary “must define the cited hazard in a manner that gives the employer fair notice of its
obligations under the Act by specifying conditions or practices over which the employer can
reasonably be expected to exercise control.” Otis Elevator Co., 21 BNA OSHC 2205, 2206 (No.
03-1344, 2007).

   The Secretary defined the hazard in this case as “struck-by hazards from collisions

between airboats” created by AAM’s failure “to provide and enforce safe procedures for
operators of airboats who were navigating waters that had unmarked routes.” This description
adequately informed AAM of the conditions alleged to be dangerous.

   It is evident from the tragic death of Employee #1 and the injury to the Trainee that

struck-by hazards due to airboat collisions existed. The Secretary has established the first
element.

   (2) Employer of Industry Recognition of Hazard

   The Secretary alleges that both AAM specifically and the aquatic plant management

industry generally are aware of struck-by hazards created by airboat collisions. Seven current or
former employees of AAM testified at the hearing. All of them agreed they recognize the danger
posed by airboat collisions.

   Brian Knapp is a retired Coast Guard officer with over 25 years of experience

investigating marine casualties. He was qualified as an expert in the rules of the road for boaters
(Tr. 344-345, 363-364). Knapp testified the rules of the road are intended to help boat operators
avoid collisions (Tr. 370).

   The Secretary has established struck-by hazards created by airboat collisions are

recognized hazards both by AAM and by its industry.

   (3) The Hazard Was Likely to Cause Death or Serious Physical Harm

   The facts of this case establish struck-by hazards created by airboat collisions are likely

to cause death or serious physical harm.

   (4) Feasible Means of Abatement

   “The Secretary must specify the proposed abatement measures and demonstrate both that

the measures are capable of being put into effect and that they would be effective in materially
reducing the incidence of the hazard.” Beverly Industries, Inc., 19 BNA OSHC 1161, 1190
(Nos. 91-3144, 92-238, 92-819, 92-1257, 93-724, 2000).

   After initially recommending four methods of abatement (use of GPS; use of sign or flags

to mark routes; use of radio headsets; and increased distance between boats) that it later
discarded, the Secretary settled on this phrasing for its recommended feasible method of
abatement designed to eliminate or materially reduce the cited hazard:
 [A]dopt and ensure all employees follow “rules of the road” for boaters consistent
with the Inland Navigational Rules Act of 1980 and similar rules established by
the State of Florida such as those discussed in the Florida Boater’s Handbook.

   At the hearing, the Secretary focused on certain rules of the road found in the U.S. Coast

Guard’s Navigation Rules. The rules addressed look-out, safe speed and risk of collision. They
provide in pertinent part:
RULE 5
Look-out

   Every vessel shall at all times maintain a proper look-out by sight and hearing as
   well as by all available means appropriate in the prevailing circumstances and
   conditions so as to make a full appraisal of the situation and of the risk collision.

                                        RULE 6
                                       Safe Speed

   Every vessel shall at all times proceed at a safe speed so that she can take proper
   and effective action to avoid collision and be stopped within a distance
   appropriate to the prevailing circumstances and conditions.

           In determining a safe speed the following factors shall be among those
   taken into account:

   (a) By all vessels:
       (i)     the state of visibility;
       (ii)    the traffic density including concentration of fishing vessels or any
               other vessels;
       (iii) the maneuverability of the vessel with special reference to stopping
               distance and turning ability in the prevailing conditions;
       (iv)    at night, the presence of background light such as from shore lights or
               from back scatter of her own lights;
       (v)     the state of wind, sea, and current, and the proximity of navigational
               hazards;
       (vi)    the draft in relation to the available depth of water.



                                        RULE 7
                                    Risk of Collision

   (a) Every vessel shall use all available means appropriate to the prevailing
       circumstances and conditions to determine if risk of collision exists. If there
       is any doubt such risk shall be deemed to exist.

(Exh. C-13).
 In addition to these rules, the Secretary also emphasized that the operator of a boat should
stay to the right of a channel where appropriate and know which boat has the right of way (Tr.
251).

    The Secretary’s phrase “adopt and ensure all employees follow the ‘rules of the road’”

created some confusion at the hearing. Upon questioning by the Court, the Secretary’s counsel
and the CSHO explicitly stated that AAM was not cited for a training violation or for not having
written rules of the road:

    The Court:     Wait a minute. Counsel, the Secretary is not changing their theory
    of the case, are they? The citation is not a citation for failing to train or the
    inadequacy of the training program, correct?

    The Counsel: Correct.

    The Court:      The citation is for failing to have and enforce certain what you’re
    calling rules of the road, correct?

    The Counsel: Right. The Secretary has cited that the policies that would
    ultimately need to be trained on would need to exist first.

    The Court:    But, there’s not an issue before me as to the adequacy or
    inadequacy of training. That’s not what the Secretary is citing for.

    The Counsel: I think the testimony has been elicited since the only potential
    policy or procedure is verbal, that the training is sort of how people are talking
    about establishing whether or not there is a policy or procedure.

    The Court:     But, the bottom line is -- and maybe I should ask you, [CSHO] – is
    there any requirement specific to 5(a)(1) that the Company have verbal rules of
    the road as opposed to written rules of the road?

    CSHO:          To my knowledge, OSHA does not impose requirements either
    way as to in this particular instance how the rules of the road are communicated,
    are even established and communicated to the employees.

    The Court:      So, OSHA would accept from the Company if there were verbal
    rules of the road?

    CSHO:          Yes, sir.

    The Court:     That you could confirm that they had rules.

    CSHO:          Yes, sir.

    The Court:     They didn’t have to be written; they could be verbal.

CSHO: Correct.

    The Counsel: Your statements about training, I didn’t view this as a training
    violation, per se, but it does say “failed to provide and enforce.”
            So, I think although it’s not training, per se, because I would believe that
    there was no policies to train on, that the abatement does require that once you
    have a policy, they are policies that actually get communicated to the employees.
            In other words, you can’t just adopt policies and procedures for safe
    boating operations without a policy and procedures –

    The Court:     The citation reads “to provide and enforce safety procedures.”

    The Counsel: Yes.

    The Court:     It doesn’t say, “provide training and enforce.”

    The Counsel: I guess you could provide and enforce without communicating or
    training.

    The Court:      I’m just asking what the nature of the citation is. In my mind, I
    didn’t read it – until you asked those last questions, I didn’t read this as an alleged
    training violation. I read it as alleged failing to have procedures, in this case rules
    of the road that were being enforced.

    The Counsel: Right. It’s a very fine line for me for the few weeks I’ve had the
    case that I’m staying on the one side away from training.

(Tr. 223-226).

    According to the parameters set out by the Secretary, AAM is not required to train its

employees in the rules of the road nor is it required to issue its employees a written copy of the
rules of the road. It is only required to (1) “adopt” the rules and (2) ensure that its employees
follow them.

    (1)“Adoption” of the Rules of the Road

    Jerry Renney is AAM’s safety manager. He has been with the Company for over 25

years (Tr. 120). He testified that new hires are trained in airboat safety using a two or three week
“hands-on apprenticeship” (Tr. 135, 139). The new hire is partnered with one of the Company’s
twelve to fifteen competent trainers (Tr. 189). AAM also holds weekly safety meetings (Tr.
444).

    Robert Green is AAM’s primary trainer (Tr. 667). He testified he trains new hires in the

rules of the road. Green explained his understanding of the rules of the road:
 Traveling on the right side. If you come to a blind curve or something,
stay to the right. If you should meet an oncoming boat or vessel in the trail, you
always go right so that the other person who’s training, if he goes right and you
go right, you avoid a collision.

            We come to intersections in trails or canals, crossing a canal, we always
   come off plane to a stop, idle, look both ways, I’ll signal the boat behind me that
   it’s clear.

           They still don’t get on plane, they idle up to it because they know – if I see
   something coming, I’ll point that there’s a boat coming. And, they do the same
   all the way back.

          When we’re traveling out there, every once in a while, look behind you to
   make sure the people are still behind you because if someone breaks down or
   something, you can go three miles and if you don’t look back, and then, you
   know, they’re lost.

           If for some reason you should have to stop in the trail, get off the trail and
   not stop in the trail because you know there’s oncoming boats. Never, never turn
   around in the trail and go back the same way. If for some reason you need to
   stop, you need to get off the trail, stop and wait for the other boats and preferably
   stop in an open area where they can see you off to the side and wait until
   everybody is in the area, whatever your problem is and then go from there.

(Tr. 672-673)

   Green confirmed that these are “fairly basic principles” for any kind of boating and that

when he trains new hires, he goes over these rules with them “constantly” (Tr. 674).

   (1) Ensure All Employees Follow “Rules of the Road”

   The second factor in the Secretary’s formulation of his proposed abatement is to “ensure

all employees follow ‘rules of the road’.” All of the employee witnesses who testified stated that
they were aware of the rules of the road.

   The Trainee injured in the airboat collision stated his trainer was Employer #2, the first

day he started work. Employee #2 gave the Trainee some site-specific instructions regarding
rocks and low water “and stuff like that that I would have to watch out for” (Tr. 816). The
Trainee had previous experience operating an airboat and was permitted to operate one his first
week, but Employee #2 drove back one day “because it was an area where the rocks were
bad”(Tr. 818). His third day on the job, the Trainee switched to Employer #1 as his competent
trainer because Employer #1 did not think Employee #2 was adequately training him in herbicide
application (Tr. 49, 819-820). The Trainee testified he was aware the rules of the road require
boat operators to maintain a safe speed, maintain a safe lookout, and to pass on the right (Tr.
837-839).

   Employee #4 is an herbicide applicator for AAM (Tr.746). Safety director Renney

trained Employee #4 for two weeks. Employee #4 testified Renny “discussed the proper and
safe way to navigate the waterway that we were on” (Tr. 748). AAM also conducted weekly
safety meetings during which the rules of the road are reiterated. Employee #4 testified, “[W]hat
we discuss is maintaining good spacing between the boats. Again, controlling your speed and try
to maintain a visual sighting of the boat ahead of you, and occasionally look behind you to see
what’s going on behind you” (Tr. 755). He also stated that passing and keeping to the right of a
channel is “one of the things we discuss at safety meetings” (Tr. 758).

   Employee #5 transports crews on airboats for AAM (Tr.718). He was trained by an

AAM trainer before he was allowed to operate an airboat alone (Tr. 724). He was taught to keep
a good lookout, operate at a safe speed, avoid other boats, and keep to the right (Tr. 726-727).

   Employee #2, who was driving the airboat that collided with the airboat carrying the

deceased employee and the Trainee, testified at the hearing. He had been terminated
approximately six months after the accident for falsifying his time sheets (he claimed to be at
various worksites when his company truck GPS showed his truck was parked at the hotel where
he was staying) (Tr. 83). Employee #2 was a witness for the Secretary. He testified AAM did
not provide him with safety training: “I really wasn’t told anything” (Tr. 40); “[T]hey never gave
me any information” (Tr. 44). He denied being told what to do if he went up a wrong trail or
how to keep a lookout (Tr. 44-45). When asked about the rules of the road, however, Employee

2 knew them well;

           Always try to stay to the right. If you’re going – running trails that are
   real narrow and curved, go slow. If you think you’re going to be running into like
   dark areas where there’s a bunch of trees and stuff, make sure you’re going at a
   slower speed. That way, you have time to react. Always try to stay 100 feet
   behind the person in front of you.

   The testimony of the employee witnesses establishes AAM took steps to ensure its

employees follow the rules of the road. AAM trained its employees for a minimum of two
weeks. It taught its employees the rules of the road and reiterated the rules in weekly safety
meetings. AAM’s supervisors and safety director Renney audit the employees on a daily basis.
If a supervisor sees a safety infraction, he gives the employee either a verbal or written
reprimand and discusses it with the employee (Exhs. R-8, R-9; Tr. 172).

   The Secretary framed his proposed method of abatement so that a minimal amount of

evidence is required to meet it. All AAM must show is that it follows the rules of the road, its
employees know it follows the rules of the road, and it takes steps to enforce the rules of the
road. AAM has achieved that here. Its safety program is not formalized, systematic, or uniform.
But it is sufficient to inform AAM’s employees of the basic rules of the road at issue here. The
rules of the road are not complicated. They are, essentially, watch where you are going, do not
go too fast, and keep to the right. All of the employees who testified stated they were aware of
these rules. Even Employee #2, who had been terminated by the company for falsifying
documents and who claimed, alone of the employees, that he had not received training from
AAM, conceded he was aware of the rules of the road.

   After squabbling with AAM’s counsel over who was at fault for the collision, Employee

2 admitted he knew the correct procedure to follow, he just did not follow it:

   The Counsel: You’re telling me that you did not pull off in 200 feet down, make
   the turn 200 feet back because you were afraid of [Employee #1’s] driving but
   you trusted it enough to be on the left hand side?

   Employee #2: Yes.

   The Counsel: You won’t agree with me that you were in a bad place?

   Employee #2: Yes, I was in a bad place.

   The Counsel: And, you had a lot of opportunities not to be there, right?

   Employee #2: Yes.

   The Counsel: And, that’s something you know; am I right?

   Employee #2: Yes.

   The Counsel: Because you knew these two boats were coming?

   Employee #2: Yes.

   The Counsel: Regardless of whether anyone from Applied told you or didn’t tell
   you that, you knew you should have gotten out of the way?

   Employee #2: Yes.

(Tr. 116)

   The fact that an accident occurred does not negate AAM’s evidence that it took steps to

ensure its employees follow the rules of the road. “Because OSHA is designated to encourage
abatement of hazardous conditions themselves, however, rather than to fix blame after the fact
for a particular injury, a citation is supported by evidence which shows the preventability of the
generic hazard, if not this particular instance.” Champlin Petroleum Co. v. OSHRC, 593 F.2d
637, 642 (5th Cir. 1979).

   Employee #2 was not a supervisor and his knowledge cannot be imputed to AAM. AAM

had no actual knowledge Employee #2 would violate the rules of the road. The Secretary also
failed to establish AAM had constructive knowledge that Employee #2 was likely to violate the
rules. AAM could not reasonably foresee Employee #2 would recklessly exit a trail when he
knew he was being followed by two airboats entering the same trail.

                        Effectiveness of AAM’s Abatement Method

   “[T]he employer may defend against a general duty clause citation by demonstrating that

it was using an abatement method that is as effective as the one suggested by the Secretary.
Brown & Root, Inc., 8 BNA OSHC 2140, 2144 (No. 76-1296, 1980).” Waldon Health Care
Center, 16 BNA OSHC 1052, 1063 (No.89-3094,1993.)

   AAM’s abatement method of providing verbal training to its newly hired employees for a

minimum period of two weeks and holding weekly safety meetings for all employees is as
effective in materially reducing the hazard of airboat collisions as the one proposed by the
Secretary.

   Item 1 of the citation is vacated.

               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 HEREBY ORDERED that the Citation and

Notification of Penalty, alleging a serious violation of § 5(a)(1), is vacated and no penalty is
assessed.
 SO ORDERED.

                      /s/
                      KEN S. WELSCH
                      Administrative Law Judge

Date: December 30, 2013