Truston Technologies, Inc.

Plain-English summary

Truston Technologies supervised Navy mooring-maintenance work in Pearl Harbor where an 11,500-pound buoy detached during a crane lift, killing two subcontractor employees and seriously injuring two others. The judge vacated a sling shock-loading item because the backup sling did not establish the connection that moved the buoy, and the cited shock hazard depended on failure of the primary hoisting mechanism. A separate item was affirmed because employees used sawhorses rather than a ladder to access the tops of 4.5-foot concrete sinker blocks. Truston controlled the work and its on-site safety supervisor could see the access method. One additional item was withdrawn, and the judge assessed a $2,000 penalty for the serious access violation.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.251(c)(11); 29 C.F.R. § 1926.1051(a)
• Outcome: Sling item vacated, access item affirmed as serious, one item withdrawn; $2,000 penalty assessed.
• Key point: A ladder or stairway must be located at the actual access point when the elevation change exceeds 19 inches; merely having a ladder elsewhere is insufficient.

Full text (OSHRC public release)


Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR ,

Complainan t,

v.

TRUSTON TECHNOLOGIES, INC. ,

Respondent.

OSHRC Docket No .
15- 1023

Appearances:

Susan Brinkerhoff, Esq. and Cheryl Adams, Esq. , Department of Labor, Office of Solicitor,
Seattle, Washington

For Complainant

Elena
A.
Pecoraro , Esq.,
Pecoraro
Law, LLC, Lafayette, Louisiana

F or Respondent   

Be fore: Administrativ e Law Judge
Patrick B. Augustine

DECISION AND ORDER

Approximately
three
years ago, the United States Navy hired Respondent,
Truston
Technologies, to perform maintenance on mooring systems in the Middle Loch of Pearl Harbor, Honolulu, Hawaii. ( Stip.
No. 3 ). Truston , 1
in turn, hired Healy
Tibbitts
Builders to carry out certain aspects of the maintenance operation. ( Stip. No. 4 ). P art of the maintenance operation involved lifting
an
11,500-pound
buoy approximately 75 feet above the deck of the barge where
Truston’s
and Healy
Tibbitts ’ employees were stationed.
(Tr.
97, 171 ). Tragically, d uring the
course of one such lift,
the buoy detached
from the crane hook
and fell to the deck of the
barge , seriously injuring
two Healy Tibbitts
employees and killing two others. ( Stip. No. 25 ). In response, Complainant conducted an inspection, and cited
Truston
for three violations of the
Occupational Safety and Health
Act. 2   

I. Procedural History

As noted above, Complainant cited
Truston
for three violations of the Act
and proposed a total penalty of
$15,400 . In response, Respondent filed a
Notice of Contest ,
arguing Complainant
could not prove a violation with respect to any of the citation items.
By filing the
Notice of Contest ,
Truston
brought this case before
the Occupational Safety and Health Review Commission
pursuant to
s ection 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §
659(c). 3

In addition to citing
Truston , Complainant also cited Healy
Tibbitts
for multiple violations of the Act. Because the facts and some of the alleged violations overlapped,
Truston , Healy
Tibbitts , and Complainant agreed to consolidate the cases for the purposes of trial only.
Although the discussion of facts, and certain conclusions of law, will inevitably involve the actions of both
Truston
and Healy
Tibbitts , t his decision
only
addresses
the citations issued to
Truston . As previously noted,
Complainant issued three separate citation items,
but
only two were addressed at trial — Citation 1, Item 1
was withdrawn by Complainant
at the beginning
of the trial. (Tr. 16).

The
trial took place on
October 24–27, 2016,
in
Honolulu, Hawaii .
The
following witnesses testified: (1)
Compliance Safety and Health Officer (CSHO)
Rajkumar
Sundram ; (2) Edward
DeLach , Safety and Occupational Health Manager for OSHA Region 10; (3) Roger
Forstner, Area Director for the Honolulu OSHA Area Office; (4) Daniel T. Crane, OSHA Lead Physical Scientist at Salt Lake City Technical Center; (5) Richard E. Cabral, Jr., Superintendent for Healy Tibbitts; (6) Cristian
Caicedo , Project Manager for Healy Tibbitts ; (7) Richard
Heltzel , President of Healy Tibbitts; (8) Richard
Vonderhaar , Marine Construction Supervisor for
Truston ; (9) Ricky K. Cabral, an operator for Healy Tibbitts; (10)
Robert Pittman,
Navy contracting officer ; (11) Gustav
Ruetenik , Chief Engineer for P.C.C.I., Inc . ; and (12) Erick
Knezek , Co-Owner of
Truston . 4
Both parties timely submitted post-trial briefs .

II. Stipulations
& Jurisdiction

The parties
stipulated to a number of facts, both substantive and jurisdictional. Those stipulations were
submitted by the parties as Joint Exhibit 1 . 5

Based on the parties’ stipulations, the Court finds
the
Commission has jurisdiction over the action
pursuant to Section 10(c) of the Act. Further, the Court finds
Respondent was an employer engaged in a business and industry affecting interstate commerce within the meaning of
s ection 3(5) of the Act, 29 U.S.C. § 652(5). Sl ingluff
v. OSHRC , 425 F.3d 861, 866 – 67 (10 th
Cir. 2005).

III. Factual Background

In May
2009, the United States Navy’s Naval Engineering and Expeditionary Warfare Center
entered into a contract with
Truston
to provide
ocean facilities engineering support services to the Navy’s Inactive Ships Yard, located in the Middle Loch of Pearl Harbor. (Stip. No. 2). Th e
contract was subsequently modified in
August
2014 to include attaching sinker blocks to existing mooring legs, which were installed in 1997. ( Id. ). Pursuant to the contact,
Truston
hired Healy Tibbitts to
provide labor and equipment for
the mooring upgrades.
(Stip. No. 4).

According to
Truston
and Gustave
Ruetenik , another contractor for the Navy, the Navy dictates the parameters of the contract, including specifications, guidelines, and safety. (Tr. 536 , 585–86 ). In this case,
Truston
and representative s
from the Navy participated in pre-planning meetings to discuss how the mooring upgrades would be accomplished, how previous operations have been carried out, and how safety would be handled. (Tr. 53, 573–74). The procedures and plans developed during this meeting were then reduced to a Project Execution Plan. (Tr. 484; Ex.
T- 52 ). Bob Pittman and Steve Cohen, both Navy representatives, reviewed the plan and gave it their approval.
(Tr. 484).

Pittman was
the
designated
onsite representative
for the Navy . However, according to
Healy Tibbitts’ Contract Proposal 6
and
Truston’s
Site-Specific Accident Prevention Plan ,
Truston
assumed responsibility for supervis ion of subcontractor personnel and over all safety-related matters. (Ex. C-5, C-12). The Accident Prevention Plan specifically states, “We will provide and enforce safety rules to protect employees, subcontractor, clients and the public.” (Ex. C-12 at 3). The testimony of
Richard E. Cabral, Jr.
and
Ricky Cabral
confirmed those assumed responsibilities were carried out on a day-to-day basis by
Truston’s
onsite supervisors, Robert
Vonderhaar
and
Chris Pacheco . (Tr.
313, 398, 403 ). While Pittman participated in a portion of the work—identifying the link on the riser chain to which the
sinker blocks
would be attached— Truston
was still responsible for carrying out the mooring maintenance in accordance with the plan approved by the Navy. (Tr.
439–41 ; Ex.
C-5, C-12 ). This is reflected in the Project
Organizational chart, which was supplied by
Truston
in its Project Execution Plan. (Ex.
T- 52 at 4).

The Navy-approved plan called for repairs to the D-8 and D-11 moorings. (Ex. C-5 ,
T- 52). The D-8 mooring s ecured
three retired ships,
the USS Tarawa, an LHA-1 class amphibious assault ship, as well as two FFG class frigates. (Ex.
T- 52 at 18).
The D-8 mooring
consisted of
eight legs, which we re used to secure the previously mentioned vessels. (Tr. 55; Ex. C-1 at
3 ). The project called for attaching two 15-ton concrete sinker blocks to each of the D-8 mooring legs , which secure the buoy and, in turn, the vessels, to the seabed . (Ex.
T- 52 at 19).

Each mooring leg consisted of a buoy, a riser chain, and a series
sinkers and/or anchors placed at predetermined locations along the riser chain . (Tr. 52; Ex. C-2;
T- 52 ). The D-8-H mooring leg, which is the subject of this proceeding, consisted of a
hawsepipe
buoy, a riser chain, and sinkers. A
hawsepipe
buoy contains a section of vertical, hollow pipe that runs through the
center . (Tr.
52; Ex. C-2 at 1) . The riser chain
travels through the pipe
and connects the vessel above water
to
the sinker blocks below. ( Id. ). The chain is held in place by a capture plate, which locks the buoy onto a specific position on the chain. (Tr.
478–79 ; Ex.
C-1 at 2, C-15 at 5 ). The capture plate, in turn, is welded onto a flange ring, which is then
screwed
to the top of the hawse pipe.
(Tr. 481–82).

Prior to lifting the mooring out of the water, Respondent had to place the sinker blocks on the bow of a working barge. (Tr. 324). In order to affix the sinker blocks, the D-8-H mooring
was
disconnected from the Tarawa and attached to the hook of a crane , which was
mounted on a
separate
barge. (Tr. 326) . Before the crane was connected, however, Healy Tibbitts’ crew, supervised by Richard E. Cabral, Jr., jumped onto the buoy and inspected the surface, including hitting it with hammers, to ensure it was sound to lift. (Tr. 326). The hook was
then
attached to
the last link in the riser chain before it entered the
hawsepipe
section of the buoy . (Tr. 326; Ex.
C-11 ). The crane operator, Ricky Cabral, began lifting the buoy, but only enough to make the connection taut and stabilize the surface of the buoy. ( Tr. 326 ). At that point, the crew on the buoy attached the back-up cable , 7
a
3/4-inch wire sling,
by looping it through the highest li nk available on the riser chain and attaching it to the pad eyes on the side of the buoy. ( Id. ). Even though the crew utilized the highest link available in the riser chain, the back-up sling retained a fair amount of slack; it was not used to lift the buoy. Once the buoy was ready to lift, the crew returned to the barge.
(Tr. 326).

The initial stages of the lift are a delicate dance. The crane operator must slowly lift the mooring leg to account for the anchors being sunk into the seabed and the location of the load. (Tr. 327). As the load is being lifted, the barge operator has to back up
the barge
to align the load directly underneath the crane . (Tr. 328). Once properly aligned, the buoy and chain are lifted straight up out of the water, and the chain is “dogged off” to a cleat on the side of the barge, which holds the chain in place. (Tr. 328). From there, the chain is washed down with a high-pressure
hose to remove years of marine growth , which
allowed Pittman to count the chain links and determine where the sinker blocks should be located. (Tr.
169,
328). After the chain is washed, the load is moved over to the working barge, where the chain is cleated and the first of two anchors/sinker blocks is held static at the water line. (Tr. 328–29). This process is repeated for the remaining anchor(s). ( Id. ).

The accident occurred w hen the crew was attaching the first sinker block. (Tr. 331). After the riser chain was cleated, as described above, the buoy was lifted 75 feet into the air . The crew was positioned below the buoy on the deck of the working barge. (Tr.
97 ; Ex.
C-6 ). Though they were not standing directly below the buoy, the crew was standing along the path of the riser chain , and some
had already taken positions atop the concrete sinker blocks in order to
affix
them to the chain. (Tr.
344–45 ; Ex.
C-6 ). While the buoy was suspended,
the flange plate came loose, and the buoy
fell
down the
path of the
riser chain and crashed on to
the deck of the barge, killing two Healy Tibbitts employees and seriously injuring two others.
(Tr.
45 ;
Stip.
No. 25 ).

Subsequent analysis of the buoy components, which was performed by Daniel Crane of the Salt Lake City Technical Center, sh owed only 2 or 3
of the
16
screws
that affixed the flange plate to the buoy were structurally sound. (Ex. C- 15 at 15 ). The remaining
screws
had corroded to the point they were no longer fastened to the buoy. ( Id. ). W hen the lift occurred, only two
screws
were securing the flange plate, and hence the capture plate and riser chain, in place. According to Crane, most of the corrosion was covered over with layers of paint and some sort of foam application, which obscured the problem from
the
visual observation
performed by the Healy Tibbitts crew . (Ex.
C-15 at 8, 16 ).

T he back-up sling did not catch the buoy. Though there was some indication the flange plate, once detached from the buoy, had hit the sling during the fall, Crane determined the failure of the sling was the result of a shock load, or tensile failure. (Tr.
264–77 ; Ex.
C-15 ). Crane illustrated how this occurred by pointing out the
sling had been stretched an additional
ten
inches, and the break s along the individual wire strands
appeared
consistent with a tensile failure . (Tr.
281 ; Ex.
C-15 at 2–4 ).

According to Crane,
depending on which link the
back-up sling
was looped through, it
was subject to a downward force of at least
91,275 pounds
and potentially
more than a
million pounds .
(Tr.
277 , 630–632 ; Ex. C-15 at
51, C-32). This was far in excess of the sling’s rated capacity, which was
56,000 pounds .
(Tr. 270).

Due to the overwhelming
amount of force, the sling did very little, if anything, to arrest the fall of the buoy down the riser chain.

After the incident, OSHA was notified and sent CSHO
Rajkumar
Sundram
to perform an investigation. (Tr.
57 ). As a result of his investigation, CSHO
Sundram
recommended
Truston
be cited for three violations of the Act. Complainant withdrew one of the violations at trial, leaving the Court with two alleged violations, which are addressed below.

IV. Discussion

A. Truston
Was a Controlling Employer

At trial,
Truston
pursued
a line of argument suggesting it was not a controlling employer and, hence, not responsible for the Healy Tibbitts employees were exposed to the hazardous condition. In its brief,
Truston
appears to have abandoned that argument, save for suggesting the Navy was ultimately responsible for the deteriorated condition of the buoy. To the
extent
Truston
argues it should not be held liable as a controlling employer, the Court disagrees.

An employer will be held
liable
as a controlling employer
if it could reasonably be expected to prevent or detect and abate
a
violation by reason of its supervisory capacity and control over the worksite .
See IBP, Inc. , 17 BNA OSHC 2073, 2074 (No. 93-3059, 1997);
see also
Summit Contractors, Inc. , 23 BNA OSHC
1196,
1206
(No. 05-0839, 2010)
(finding
controlling
employer
where record shows company “maintained significant control over the worksite in general and over the cited condition in particular”) ;
Grossman Steel & Aluminum Corp. , 4 BNA OSHC 1185 (No.
12775, 1975 ) (finding general contractor “well-situated to obtain abatement of hazards” and thus “reasonable to expect the general contractor to assure compliance with the standards insofar as
all employees
on the site are affected”)
(emphasis added) .

The evidence regarding
Truston’s
control over
the worksite was substantial. Healy Tibbitts’ contract proposal indicated “[a] ll
work shall be under the direct supervision of [ Truston’s ] designated superintendent.”
(Ex. C-12 at 4).

The lift plan, which was developed by
Truston , identified two of its own employees—Chris Pacheco and Richard
Vonderhaar —to serve as the on-site construction supervisors. (Ex. C-13 at 2). The Project Execution Plan also reiterated
Truston’s
supervisors would be directing operations. (Ex.
T- 25). Finally,
Truston’s
Accident Prevention Plan specifically states, “ Truston
has
ultimate responsibility
for the safety of the project and ensuring that all employees,
subcontractor
and vendors have a clear understanding of and adhere to any safety instructions.” (Ex. C-5 at 4) (emphasis added). These documents indicate
Truston
specifically assumed the responsibilities of a controlling employer.

Further, the testimony of the various witnesses established
Truston’s
position as a controlling employer. Richard E. Cabral, Jr., Healy Tibbitts’ superintendent,
testified
Truston
was in charge of the worksite,
and if
he had any questions he would ask either Chris Pacheco or Richard
Vonderhaar ,
Truston’s
construction supervisors. (Tr. 314). Healy Tibbitts’ project manager, Christian
Caicedo , testified
Truston’s
project manager would provide the schedule, instructions, and equipment lists. (Tr. 350–51). In that regard, he also testified Healy Tibbitts had no control over scheduling or sequencing; instead,
Truston’s
on-site management managed the workflow and provided direct instruction to the Healy Tibbitts workers that were at the worksite. (Tr. 352–53).

Truston
developed the lift and execution plans, developed a site-specific accident prevention plan, assumed responsibility for health and safety at the worksite, and supervised the work of Healy Tibbitts’ employees. Given its supervisory capacity and control over the worksite
in general, including the manner in which the mooring legs were to be lifted and replaced, the Court finds Respondent was a controlling employer.

B. Law Applicable to Alleged Violations

To establish a violation of an OSHA standard
pursuant to
section
5(a)(2) ,
Complainant
must
establish :
(1)
the
standard
applies ;
(2) the terms of the standard were violated;
(3) employees
were exposed
to the hazard covered by the standard ;
and (4) the employer had actual or constructive knowledge of the violation (i.e. ,
the employer knew
or ,
with the exercise of reasonable diligence ,
could have known of the violative condition).

Atlantic Battery Co. ,
16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

Complainant has the burden of establishing
each element by a preponderance of the evidence.
See Hartford Roofing Co. , 17 BNA OSHC 1361 (No. 92-3855, 1995). “Preponderance of the evidence” has been defined as:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact
but by evidence that has the most convincing force ; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’ s Law Dictionary, “Preponderance of the Evidence” (10th ed. 2014)
(emphasis added) .

1. Citation 1, Item 2

Complainant alleged a serious violation of the Act in Citation 1, Item
2
as follows:

29 CFR 1926. 251(c )( 11) : Shock loading is prohibited:

a.

On December 10, 2014, on the barge, a 3/4-inch wire rope sling was used on a
hawsepipe
buoy that was subject to a shock load when the capture plate separated from the
hawsepipe
buoy, exposing employees to a struck-by hazard.

See Citation and Notification of Penalty
at
7 .

a. The Standard
Does Not
Appl y

The cited standard applies to “slings used in conjunction with other material handling equipment for the movement of material by hoisting.” 29 C.F.R. § 1926.251(a)(5). The buoy lift was accomplished by attaching the crane hook to a riser chain, which ran through the center of the buoy and was held in place by a capture plate. (Tr.
52 ). In addition to the crane hook, however,
Truston
loosely attached a sling to the buoy and looped it through one of the links in the riser chain.
Truston
contends, and Complainant concedes, the sling was used as a back-up to the crane hook, which performed the lift. Even though the parties agree it was a back-up, Complainant cited Respondent for improperly rigging the sling. Should the rigging in construction standards apply to a sling that the parties agree was used solely for back-up?

i. Plain Language Does not Support Complainant’s Interpretation

While the parties have many disagreements—controlling employer, how the wire rope broke, etc.—they agree on the
one
fact fundamental to the question of whether the standard applies: the sling was a back-up to the principal hoisting mechanism. Insofar as the parties agree on that fact, the only question is whether the standard applies.

Complainant contends the language of the scope and application paragraph clearly
indicates the
cited standard applies to the back-up sling because (1) it was a sling, and (2) it was used in conjunction with other material handling equipment to hoist the buoy.
Compl’t
Br.
at 16. Truston , on the other hand, argues the standard does not apply to a back-up sling because it was not used —nor was it intended to be used— to hoist or otherwise move the buoy ; rather, it was a “can’t hurt, might help” proposition that should not subject them to liability under the Act.
(Tr. 383).

The Court agrees with Respondent . Although Complainant’s reading of the scope and application paragraph appears to be premised on plain language, his
application of the standard
to the facts of this case improperly broadens its scope and, in so doing, imposes liability where no obligation existed in the first place.

Because the parties dispute the import of the scope and application paragraph ,
the
Court first
look s
to its text and structure.
Gen. Motors. Corp. , 17 BNA OSHC 1217 (No. 91-2973
et. al. , 1995).

“ When the statute speaks with clarity, in all but the most extraordinary circumstances, judicial inquiry is ended. ”
Id.
(citing
Estate of Cowart v.
Nicklos
Drilling Co.,
112
S.Ct . 2589, 2594 (1992) ) .
If the meaning of a standard cannot be gleaned from a plain language analysis, the next step is to review co ntemporaneous legislative histories of the standard.
Id.

If the question
still
remains unsettled,
the Court will defer to Complainant’s interpretation of the standard insofar as it is reasonable.
Id.
(citing
Kiewit Western Co. ,
16 BNA OSHC 1689, 1693 (No. 91–2578, 1994) ).

The scope and application paragraph states: “This section applies to slings used in conjunction with other material handling equipment for the movement of material by hoisting.” 29 C.F.R.
§
1926.251(a)(5). To clarify,
the Court reviewed
the definition of “sling” in the parallel , general industry
standard found
at 29 C.F.R. §
1910.184 , which is defined as
“[a]n assembly which
connects
the load to the material handling equipment.” 29 C.F.R. § 1910.184(b) (emphasis added). See
29 C.F.R. § 1910.184(b).

Based on their location in the C.F.R.,
section
1910.184 and
section
1926.251 are applicable to different employments; however, the history of
section
1926.251 illustrates that the standards found at
section
1910.184 were not only identified as applicable to construction, but were
eventually
adopted , in significant part,
into the Part 1926 standards. 8
See
Identification of General Industry Safety and Health Standards (29 CFR Part
1910) Applicable to Construction Work, 44 Fed. Reg. 8577, 8577–8578, 8605
(1979) .
Although the
definitions were not incorporated into the Part 1926 standards, the respective (and identical) scope and application paragraphs illustrate that they apply to identical subject matter, albeit on different worksites.
See
note 8,
infra . This is further confirmed by nearly identical language used throughout the two standards.
See generally
29 C.F.R §§ 1910.184, 1926.251.

What appears to be
confusing the issue in this case is the intervening clause “in conjunction with other material handling equipment” , which is found in the scope and application paragraph
of both the construction and general industry standards .
See id.

If that phrase is removed, the paragraph states, “This section applies to slings used . . . for the movement of material by hoisting.”
Id.

The intervening clause merely serves to indicate the circumstances under which slings themselves will be governed by the standards found in
section
1926.251 (or
section
1910.184). Those circumstances are when the sling is used in conjunction with other material handling equipment
for the movement of material by hoisting . Presumably this distinction is necessary to distinguish slings not used
in that manner .

If
the
section
1910.184 definition of ‘sling’
is read
in conjunction with
section
1926.251(a)(5), the scope of the rigging standard becomes clear and its application to the present case less certain. A sling is “an assembly
which connects the load
to the material handling equipment.”
29 C.F.R. §
1910.184(b) (emphasis added). T he wire rope at issue here was a sling, so defined, and the crane and hook should be considered the “material handling equipment.” As such,
Complainant argues
that because the sling was attached to the buoy (load/material) and was looped through the riser chain, it thereby “connected” the load to the material handling equipment. This
reading, as applied to the facts of this case, is
overly broad for the purposes of
the standard. While the sling was connected to the material handling equipment and to the load,
it was only “connected” in the loosest sense. I t did not facilitate the connection between the material handling equipment and the load; rather, the connection between material handling equipment (crane) and load (buoy) was accomplished through a direct connection to the riser chain, which was part of the buoy.

When read as a whole, the purpose of the standard is to regulate the integrity of an
active
connection between material handling equipment and its load to ensure safe lifting. See
29 C.F.R. §
1910.184(b) (“which connects the load” is in the present tense and connotes an active, rather than potential, connection between load and crane). The sling at issue did not actively connect anything.

T his concept of an active connection clarifies the scope of
section
1926.251 and the meaning of “in conjunction with other material handling equipment.” If we use the definition of slings in place of the actual term, then the scope and application paragraph
reads
like this: “This section applies to
assembl [ ies ] which connect[] the load to the material handling equipment . . . for the movement of material by hoisting.”

29 C.F.R. § 1926.251(a)(5). By
applying the definition of a sling to
the scope and application paragraph, the meaning of the intervening clause becomes apparent: “[I]n conjunction with other material handling equipment” is another way of saying “connects the load to the material handling equipment”. 9

The sling in this case was not used, nor was it intended to be used, for the movement of material by hoisting; the parties stipulated, and the testimony supported, the sling was purely a back-up measure. 10

To be sure, the sling was connected to the load and to the crane, but it did not establish the connection between the load and the crane in order to move the material (buoy).
Instead, this was accomplished through a direct connection between the riser chain and the crane hook, which was then “used . . . for the movement of material by hoisting.” The sling did not move nor hoist anything in this case.

The sling
may have been used in conjunction with other material handling equipment, but that only meets half of the requirements for the scope and application paragraph.

It must also be used in
conjunction with the
material handling equipment (crane) to move a load by hoisting. The sling did not move anything; rather, it moved with the load.
This is not
sufficient to meet the requirements of the standard.

ii. Complainant’s Interpretation is not Reasonable   

In addition to the plain language analysis, there are
sound reasons
for not imposing liability
in the manner suggested by Complainant .

According to CSHO
Sundram , Respondent would not have been cited under the rigging standards if the back-up wire sling was not attached to the crane/load.
(Tr.
149 ).

While this is certainly attributable to the fact that no shock load would have occurred, it also says something about the nature of the violation itself.

Other than the shock load violation, Respondent was not cited for any other issue related to the rigging of the buoy. 11
There was a hazard associated with the lift, to be sure, but Complainant did not identify a hazard associated with the principal lifting mechanism; instead, Complainant identified hazards associated with the failure of the back-up sling. This is problematic for a number of reasons.

First, not only did the CSHO testify Respondent would not have been cited
if the sling was not attached , but
Crane’s analysis of the shock load
illustrate s the accident/hazard would have been the same regardless of whether the sling was used or not. What this suggests is the hazard identified in the citation was merely ancillary to the principal hazard posed by the buoy
itself.

Normally, a shock load is dangerous because it places an
instantaneous and
exponentially greater amount of force upon the sling than if the load were slowly lifted/hoisted.
(Tr.
272–73 ).

As illustrated by
Crane , a difference of a few inches can magnify the downward force of load by a factor of 10
times.
(Ex.
C-32 ).

The
primary concern under the shock loading
standard— 29 C.F.R. §
1926.251(c )( 11)—is that the sling and/or the crane
would not
be able to handle the additional downward force caused by the shock, which would lead to failure of the sling, the crane, or both. 12

Here, the shock load would not have occurred but for the failure of the principal lifting mechanism, which was not cited as a violation by Complainant.

The actual hazard to which Respondent’s employees were exposed
did not come
from
the potential for a shock load. Instead, the hazard was the result of
the manner in which the buoy was lifted, the state of the flange plate
screws , and the location of the employees on the deck of the barge.
If the sling was removed, no shock load would have occurred, but Respondent’s employees would nonetheless have been exposed to the hazard imposed by the primary, yet unstable, load connection.

This distinction is slight, but important:

Employees were exposed to a hazard, but that hazard was not the result of a potential shock load. The existence of a shock load hazard was not the result of the lift or the movement of the load, but rather the failure of the principal hoist mechanism. In other words, it is a second-order hazard the existence of which is contingent upon yet another hazard coming to fruition. T he hazard to the employees was the same irrespective of whether the sling was attached to the buoy or not.

Second, and somewhat relatedly, is the issue of abatement. According to the CSHO, if Respondent had not used the sling, then it would not have been cited.
This is tantamount to
saying removal of the sling constituted proper abatement of the violation. While that might remove the hazard associated with shock loading, it does not address the hazard to which Respondent’s employees were actually exposed.

Indeed, the abatement suggested by Complainant does not address the problem of shock loading; rather, it addresses the manner in which the load and principal hoisting mechanism are handled. Complainant’s suggest ed
abatement,
such as the manner in which the buoy is lifted, how long or how high it is aloft, and whether it is placed on the deck only address the principal hazard of a falling load.
(Tr.
317, 466 ).

If the flange plate does
not
fail, then the shock load does
not
occur.

What seems to be the case here is that
a tragic accident occurred , and Complainant could not (or simply did not) identify an appropriate standard for the purposes of citing Respondent. While
Truston
may
have been at fault for the accident, it is
the Court’s
obligation to
ensure it
is
being held at fault according to an appropriate standard. To suggest Respondent be held responsible for a shock loading violation when that violation was not
the reason employees were exposed to a hazard
is
like trying to fit a square peg into a round hole. The fact that not doing something would constitute sufficient abatement only reinforces the absurdity of holding Respondent liable for something they were not required to do in the first instance.

Finally, though there is no case law directly on point in this case, the Commission and Circuit Courts of Appeal have grappled with the issue of
an employer
taking additional precautions over and above what is legally required. In
Diebold v. Marshall , 585 F.2d 1327 (6th Cir. 1978), the Sixth Circuit was confronted with the question of whether point of operation guarding was required on press brakes.

Evidence was presented that showed Diebold’s engineers had begun seeking out workable point of operation guards for the company’s press brakes.
Diebold , 585 F.2d at 1338. The Secretary contended that such attempts illustrated
Diebold’s awareness of the point of operation guarding requirement. The Sixth Circuit disagreed, stating:

Considered simply in terms of probative value, an employer’s attempts to render machinery or working premises more safe, without anything more, cannot reasonably support an inference that the attempts were made because the employer believed them to be legally required. Further, the drawing of such an inference would be repugnant to the purposes of the Act. Congress expected that safety in the nation’s workplaces would be achieved as much by the voluntary efforts of employers as by the enforcement programs of the government.

Id.
(citing
Dunlop v. Rockwell Int’l , 540 F.2d 1283, 1292 (6th Cir. 1976)). In other words, there is an important distinction between taking additional steps to increase safety and recognizing that those steps are required by law. The Sixth Circuit found conflating those two principles would have a chilling effect on safety as a general proposition: “If employers are not to be dissuaded from taking precautions beyond the minimum regulatory requirements, they must be able to do so without concern that their efforts will later provide the sole evidentiary basis for an adverse finding of the sort urged here.”
Id.
(citing
Cape and Vineyard
Div’n
of New Bedford Gas Co. v. OSHRC , 512 F.2d 1148, 1154 (1st Cir., 1975)).

The man in charge of the lift,
Richard
Vonderhaar , stated, without contradiction, the sling was used as a “can’t hurt, might help” precaution.
(Tr.
383 ). Characterized as such, and armed with the foregoing analysis of the scope and application paragraph’s plain meaning, the back-up sling was an “attempt[] to render machinery or working premises more safe” and was in no way legally required.
Id.
To hold Respondent liable on that basis alone would, in the words of the Sixth Circuit, be repugnant to the purposes of the Act and would dissuade similarly situated employers from making any additional attempts at safety when such was not required by regulation.

The hazard associated with the cited standard was merely ancillary to the principal hazard imposed by the faulty
screws
and flange plate. The fact that the hazard associated with shock
loading could be removed by simply not taking the extra precaution — but that the principal hazard would remain — illustrates the concerns of the Sixth Circuit to a “T”.

Complainant’s interpretation is unreasonable because
it targets extra precautions taken by the employer, though they are not required, and turns them into obligations.

Based on the foregoing, the Court finds that Complainant failed to establish a violation of 29 C.F.R. § 1926.251(c )( 11). Accordingly, Citation 1, Item 2 shall be VACATED.

2. Citation 1, Item 3

Complainant alleged a serious violation of the Act in Citation 1, Item
3
as follows:

29 CFR 1926. 1051(a) : Stairway(s) or ladder(s) were not provided at all personnel points of access where there was a break in elevation of 19 inches (48 cm) or more.

a. On December 10, 2014, on the barge, a 4-foot 6-inch high concrete sinker block was accessed using a saw horse that was 2-foot 3-inch [sic] high, exposing employees to a fall hazard.

See Citation and Notification of Penalty
at 7.

The cited standard provides:

A stairway or ladder shall be provided at all personnel points of access where there is a break in elevation of 19 inches (48 cm) or more, and no ramp, runway, sloped embankment, or personnel hoist is provided.

29 C.F.R. § 1926. 1051(a) .

Employees needed to access the tops of the sinker blocks to attach them to the riser chain.
In order to
access the top of the blocks, which stood 4.5 feet tall, employees were using sawhorses to step up onto the top of the block. (Tr.
120 ; Ex.
C-14 at 1–2 ). Complainant cited
Truston
because it failed to provide ladders
or stairways
at the point where Healy Tibbitts’ employees were accessing the tops of the concrete sinker blocks.
Amongst other arguments,
Truston
contends the standard requires Respondent
to
merely
provide
ladders, not that
employees should be required to use them.
See
Truston
Br.
at 33–34 (citing
Usery
v. Kennecott Copper Corp. , 577 F.2d 1113, 1118 (10th Cir. 1977)).

a.    The Standard Applies

The cited standard applies to all personnel points of access where there is a break in elevation of 19 inches or more, and there is no ramp, runway, slope, or hoist provided. A ‘point of access’ is defined as “all areas used by employees for work-related passage from one area or level to another. Such open areas include doorways, passageways, stairway openings, studded walls, and various other permanent or temporary openings used for such travel.” 29 C.F.R.
§ 1926.1050(b);
see also
Safety Standards for Stairways and Ladders Used in the Construction Industry, 55 Fed. Reg. 47660, 47763 (“The term is used in § 1926.1051(a) of this subpart to indicate
where
a stairway or ladder
must be provided
when there is a break in elevation, and
includes permanent and temporary travel ways
. . . . It is intended to state clearly what OSHA meant when it proposed § 1926.1051(a).”)
(emphasis added) .

In order to access the top of the sinker blocks, which were 4.5 feet tall, employees used a
sawhorse as a makeshift step.
   A sawhorse is neithe r a ramp, nor runway, nor hoist, nor did it reduce the break in elevation to less than 19 inches. (Tr. 121). Because the break in elevation was more than 19 inches at the point of access, the standard applies.

b. T he Standard Was Violated

The terms of the standard are unequivocal —“ a stairway or ladder
shall
be provided
at all personnel points of access
where there is a break in elevation of 19 inches or more.” 29 C.FR. § 1926.1051(a) (emphasis added). 13

Truston
did not provide a stairway or ladder at the point
where the
4.5-foot tall
sinker blocks were accessed. Nevertheless,
Truston
contends
a
ladder w as
available aboard the working barge and its obligation extended no further than ensuring
a ladder
was
available for use.

CSHO
Sundram
testified he did not see ladders on board the working barge, and he believed the closest available ladder was on the adjacent crane barge. (Tr.
122–23 ). Instead, the evidence showed employees were climbing atop the sinker blocks by using sawhorses as makeshift stepstools, which
Truston
contends were
sturdier
than ladders and made it easier for tools to be passed to the top of the blocks. (Tr. 324). Further, b oth Richard E. Cabral, Jr. and Richard
Vonderhaar
testified
a ladder was on the deck of the working barge and was available to employees for use at their discretion. (Tr. 323–24, 387). Photographs were introduced to support this assertion. (Ex.
C-10 ). Thus, it is reasonable to conclude a ladder was present on the working barge ; however , that fact alone is not sufficient to establish compliance with the standard.

Truston
makes two principal arguments to suggest it was in compliance with, or at the very least did not violate, the standard.
First, it contends ladders were not the safest means of accessing the sinker blocks. In other words,
Truston
contends ladders imposed a greater hazard than the sawhorses. In support of this argument,
Truston
points to the testimony of Richard E. Cabral, Jr. Mr. Cabral said that the sawhorse was sturdier and made it easier to pass tools and equipment to the top of the sinker blocks. (Tr. 323–24). Truston
also notes CSHO
Sundram
agreed an employee carrying equipment in his hands would not be able to maintain three points of contact with the ladder.
(Tr. 153).

In order to establish the defense of greater hazard,
Truston
must show: “(1) the hazards created by complying with the standard are greater than those of noncompliance; (2) other methods of protecting its employees from the hazards are not available; and (3) a variance is not available or that application for a variance is inappropriate.” Spancrete
Ne., Inc. , 15 BNA OSHC 1020 (No. 86-521, 1991) (citing
Walker Towing Corp. , 14 BNA OSHC 2072, 2078 (No. 87-1359. 1991)).
Truston
has failed to prove this defense. Not only is there is distinct lack of persuasive evidence to suggest that ladders are more hazardous th an sawhorses—the Court is not clear as to how the handling of equipment or tools is made any easier by the sawhorse, which suffers from the same problem of maintaining three points of contact as the ladder— but Richard E. Cabral, Jr. testified that ladders were actually used during the placement of the sinker blocks on the working barge prior to the lift. (Tr. 321). Further,
there is no evidence whatsoever to suggest
Truston
sought a variance or made an informed judgment that such an application would be futile.
See
Spancrete
Ne., Inc. , 15 BNA OSHC 1020 (No. 86-521, 1991) (rejecting greater hazard defense when employer failed to seek variance and noting this element has been recognized and endorsed by several courts of appeal) ;
see also
Dole v. Williams Enters., Inc. , 876 F.2d 186, 188 (D.C. Cir. 1989);
RSR Corp. v. Donovan , 747 F.2d 294, 303 (5th Cir. 1984);
Diebold v. Marshall , 585 F.2d 1327, 1339 (6th Cir. 1978).
Truston’s
“greater hazard” defense is rejected.

Second,
Truston
cites to
Usery
v. Kennecott Copper Corp. , 577 F.2d 1113 (10th Cir. 1977), to suggest that the phrase “shall be provided” merely connotes that such equipment shall be “furnished or made available.” In
Kennecott , the Tenth Circuit was confronted with the
question of the proper scope of
the scaffolding standard found at 29 C.F.R. § 1910.28(a )( 12), which provides, “An access ladder or equivalent safe access shall be provided.”

The Tenth
Circuit
reversed the Commission, which held
that “shall be provided” was equivalent to “shall require use”—because the ordinary meaning of the term “to provide” means to “fur nish, supply, or make available.”
Kennecott , 577 F.2d at 1118–19.

The problem 14
with
Truston’s
argument is the standards at issue are drastically different. Whereas the standard in
Kennecott
simply states that ladders “shall be provided”,
29 C.F.R. §
1926.1051(a) specifies exactly where and under what conditions ladders shall be provided; namely, at the point of access when there is a break of 19 inches or more.
Compare
29 C.F.R. § 1910.28(a )( 12)
with
29 C.F.R. § 1926.1051(a). Further, the preamble to
section
1926.1051(a) clarifies the import of its mandate: “The term [point of access]
is used in § 1926.1051(a) of this subpart to indicate
where
a stairway or ladder
must be provided
when there is a break in elevation, and
includes permanent and temporary travel ways
. . . . It is intended to state clearly what OSHA meant when it proposed § 1926.1051(a). ”
55 Fed. Reg.
at
47763
(emphasis added). Thus, with respect to the cited standard, Respondent cannot fulfill its obligations merely by having a ladder anywhere on the worksite available for use; it must be located where
the break in elevation occurs .
Although there may have been a ladder on board the working barge, there is no dispute the ladder in question was not provided at the point of access
to the sinker blocks . Thus, the terms of the standard were violated.

c. Respondent’s Employees Were Exposed to a Hazard

According to the Commission, a controlling employer’s duty under section 5(a)(2) of the Act flows to both its own employees and subcontractor employees engaged in a common undertaking.
See Summit Contractors, Inc.
(“Summit IV”) , 23 BNA OSHC 1196 (No. 05-0839,
2010) (citing
U.S. v. Pitt-Des Moines , 168 F.3d 976 (7th Cir. 1999);
Brennan v. Underhill Constr. Corp. , 513 F.2d 1032 (2d Cir. 1975);
Anning-Johnson Co. , 4 BNA OSHC 1193 (No. 3694
et al. , 1976);
Grossman Steel & Aluminum Corp. , 4 BNA OSHC 1185 (No. 12775, 1976)).
As a controlling employer,
Truston
was responsible for its own employees, as well as those of Healy Tibbitts.

As discussed above, Richard E. Cabral, Jr. testified Healy Tibbitts’ employees used the sawhorse to access the tops of the sinker blocks. In so doing, the employees were exposed to a potential fall hazard of up to 4.5 feet. Accordingly, the Court finds Respondent’s employees were exposed to the hazard.

d. Respondent Was Aware of the Hazard

“To establish knowledge, the Secretary must prove that the employer knew or, with the exercise of reasonable diligence, should have known of the conditions constituting the violation.”
Central Florida Equip. Rentals, Inc. , 25 BNA OSHC 2147 (No. 08-1656, 2016). To satisfy this burden, Complainant must show “knowledge of the
conditions
that form the basis of the alleged violation; not whether the employer had knowledge that the conditions constituted a hazard.”
Id. “When a corporate employer entrusts to a supervisory employee its duty to assure employee compliance with safety standards, it is reasonable to charge the employer with the supervisor’s knowledge actual or constructive of noncomplying conduct of a subordinate.”
Mountain States Tel. & Tel. Co. v. Occupational Safety & Health Review Comm'n , 623 F.2d 155, 158 (10th Cir. 1980 ).

Richard
Vonderhaar ,
Truston’s
on-site supervisor and site safety and health officer, was present on the day of the accident and was on-site to observe the process of attaching the sinker blocks to the riser chain. (Tr. 381–82). Vonderhaar
testified a ladder was available on the deck
of the working barge on the day of the accident; however, there was no testimony to suggest the ladder was ever used . (Tr.
386–87 ). Instead, the overwhelming weight of the testimony was that Healy Tibbitts employees were openly using the sawhorses, which were located directly adjacent to the concrete sinker blocks. ( Tr. 120 ). As illustrated by the photographs of both Bob Pittman and CSHO
Sundram , this condition was in plain view for anyone, especially the site safety supervisor, to see.
(Ex.
C-14 at 1 ). Accordingly, the Court finds that
Truston , through its designated site supervisor,
Vonderhaar , was
actually and
constructively
aware of the violative condition.

e. The Violation Was Serious

A violation is “serious” if there was a substantial probability that death or serious physical harm could have resulted from the violative condition. 29 U.S.C. § 666(k). Complainant need not show that there was a substantial probability that an accident would actually occur; he need only show that if an accident occurred, serious physical harm could result. Phelps Dodge Corp. v. OSHRC , 725 F.2d 1237, 1240 (9th Cir. 1984). If the possible injury addressed by a regulation is death or serious physical harm, a violation of the regulation is serious. Mosser Construction , 23 BNA OSHC 1044 (No. 08-0631, 2010);
Dec-Tam Corp ., 15 BNA OSHC 2072 (No. 88-0523, 1993).

According to Roger Forstner,
Area Director for OSHA’s Honolulu Area Office,
falls from ladders are the second-leading cause of death in the construction industry and ten percent of those fatal falls are from
heights
less than six feet. (Tr. 242).
This conclusion was echoed by CSHO
Sundram , who determined a fall from the sinker blocks could result in permanent injury or death. (Tr. 123). Given the dangers associated with the fall hazard, and the fact these conclusions went undisputed by
Truston , the Court finds that the violation was serious.

The Court finds Complainant established a violation of 29 C.F.R. § 1926.1051(a). Accordingly, Citation 1, Item 3 shall be AFFIRMED as a serious violation of the Act. 15

V. Penalty

In determining the appropriate penalty for affirmed violations,
s ection 17(j) of the Act requires the Commission to give due consideration to four criteria:

(1) the size of the employer ’ s business ;
(2) the gravity of the violation ;
(3) the good faith of the
employer ;
and (4) the employer’ s prior history of violations. 29 U.S.C. § 666(j) . Gravity is the primary consideration and is determined by the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood of an actual injury. J.A. Jones Constr. Co. , 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993).
It is well established the Commission and its judges conduct
de novo
penalty determinations and have full discretion to assess penalties based on the facts of each case and the applicable statutory criteria. E.g. ,
Allied Structural Steel Co. , 2 BNA OSHC 1457, 1458 (No. 1681, 1975);
Valdak
Corp ., 17 BNA OSHC 1135, 1138 No. 93 1 -0239, 1995),
aff’d ,
73 F.3d 1466 (8 th
Cir. 1995).

Complainant proposed a penalty of $4,620 for Citation 1, Item 3. Unfortunately, the basis for this penalty was not clearly explained by Complainant. AD Forstner testified it is OSHA’s policy to review probability, severity, employer size, good faith, and history. (Tr. 246–47). With respect to
Truston , he stated, “We looked at both of [the citations] and all information was adequate and correct to support it.” (Tr. 247). The only other point of clarification was that
Truston
received a larger discount than Healy
Tibbitts
because
Truston
has fewer employees, though no testimony or documentary evidence was introduced to establish an actual number. (Tr.
247). Further,
Complainant did not
discuss
any specific facts relevant to its
assessments of severity or probability.

Notwithstanding the foregoing, the Court is empowered to make penalty determinations on a
de novo
basis, focusing in particular on the gravity of the violation, which considers the
number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood of an actual injury . There were
at least four
employees installing rigging on the sinker blocks. ( Stip. No. 25 ). Based on the testimony, those employees took their positions atop the sinker blocks for only as long as was necessary
to install the rigging. Though
Truston
did not comply with the cited standard, it did make an attempt to bridge the break in elevation through the use of sawhorses. Additionally, though AD Forstner testified fatalities have occurred on ladders at heights of less than 6 feet,
Truston’s
employees were only ever 4 feet, 6 inches off of the ground. At that height,
Truston
is not even required to provide fall protection.
See
29 C.F.R. § 1926.501(b)(1). Further, while the evidence indicates fatal falls from less than 6 feet are possible, the percentage of those falls that actually result in fatalities is low. As such, the Court finds that the violation was of medium to low gravity.

Complainant did not present evidence on good faith, history, or the number of employees. While the Court has sufficient evidence to find
Truston
at least made an attempt at compliance through its use of the sawhorses, there is no evidence regarding its size or history of violations. This constitutes a failure of proof. In the absence of evidence to the contrary, the Court shall credit Respondent with good faith for the attempt and significant reductions related to its size, history, and the foregoing assessment of gravity. Based on those determinations, the Court finds that a penalty of $2,000 is appropriate.

O RDER

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 Conclus ions of Law, it is ORDERED that:

1. Citation 1, Item
   1
   is
   WITHDRAWN .

2. Citation 1, Item 2 is
   VACATED.

3. Citation 1, Item 3 is AFFIRMED, and a penalty of $2,000.00 is ASSESSED .

SO ORDERED

/s/

Patrick B. Augustine

Judge, OSHRC

Date:
September 19, 2017

Denver, Colorado            

"

1 . Typically the Court would refer to all parties as either “Complainant” or “Respondent”; however, because this trial involved two respondents, the Court shall refer to them by their shortened, proper name to clarify any confusion that may result from using the generic “Respondent”.

2 .
The Court shall refer to the foregoing as “the Act”.

3 . The Court shall refer to the Occupational Safety and Health Review Commission as “the Commission”.

4 . The testimony of Ricky K. Cabral, Robert Pittman, and Gustav
Ruetenik
was read into the record through the use of deposition testimony. Unfortunately, Ricky K. Cabral passed away during the pendency of these proceedings, though such was not the result of injuries suffered in the accident.

5 . Subsequent references to the parties’ Joint Stipulations will indicate the source and specific stipulation, e.g., “Stip. No. ___”.

Due to the joint nature of the trial,
references to exhibits submitted by
Truston
will be labeled as “T-_” and those submitted by Healy Tibbitts will be labeled as “HT-__”.

6 . Although the actual contract between the parties was not introduced into evidence, neither
Truston
nor Healy Tibbitts disputed that
Truston, in fact, assumed responsibility for supervising the work described in the proposal. (Ex. C-12).

7 . During his testimony, Richard E. Cabral, Jr. referred to the back-up cable as the “safety” cable. (Tr. 326).

8 . Compare
29 C.F.R. §
1910.184(a) (“This section applies to slings used in conjunction with other material handling equipment for the movement of material by hoisting, in employments covered by this part.”) to
29 C.F.R.
§

1926.251(a)(5) (“This section applies to slings used in conjunction with other material handling equipment for the movement of material by hoisting, in employments covered by this part.”). The two sections mirror each other in most respects, save for the employment practices to which they apply.

9 . The Court
removed the intervening clause in this construction because it proves to be redundant in its reference to “material handling equipment”, but such a construction does not interfere with the plain meaning.

10 . There was some dispute as to when the sling would serve as an effective back-up—Respondent contended it was only for when the initial lift out of the water occurred—but that does not change the purpose behind the sling’s use.

11 .

Respondent was cited for another rigging violation, but that
Citation item
was withdrawn by the Secretary.

12 . The shock loading standard is also found in 1910.184.
See
29 C.F.R. § 1910.184(c)(11).

13 .
When determining the meaning of a standard, the Commission first looks to its text and structure.
Superio r
Masonry Builders, Inc ., 20 BNA OSHC 1182, 1184 (No. 96-1043, 2003). “If the meaning of the [regulatory] language is ‘sufficiently clear,’ the inquiry ends there.”
Beverly Healthcare-Hillview , 21 BNA OSHC 1684, 1685 (No. 04-1091, 2006) (consolidated) (citing
Unarco
Commercial Prods ., 16 BNA OSHC 1499, 1502 (No. 89-1555, 1993)),
aff’d in relevant part , 541 F.3d 193 (3d Cir. 2008).
The Court
finds
the meaning of the regulation cited is sufficiently clear as to what
was required of Respondent.

14 . A secondary problem for Respondent is that this case occurred in the Ninth Circuit. Kennecott
was decided by the Tenth Circuit and, as such, only has value as persuasive precedent. For the reasons mentioned in this
Decision, the Court finds that
Kennecott
has little value
as applied to the facts of this case.

15 . Truston
asserted two “affirmative defenses” with respect to the ladder: (1) A ladder was available at all personnel points of access; and (2) A ladder was available on-site at all times. Neither of these
arguments
is an affirmative defense, which negates a finding that the
Complainant
proved
his
prima facie
case. Rather, these “defenses” are nothing more than facts that are relevant to the question of whether the standard was violated in the first instance. As addressed above, the Court rejects these “defenses”.