HCI Industrial & Marine Coatings, Inc.

Plain-English summary

HCI employees were sandblasting and painting inside a barge storage tank when an employee fell from staging and was hospitalized. The judge vacated the general fall-protection item because the Secretary did not prove that HCI knew or should have known the employee was working without fall protection. An item based only on paint found on harnesses was also vacated because deterioration was not proven. The judge affirmed serious items for failing to inspect personal fall-arrest systems before use and failing to remove an impact-loaded harness from service, with a grouped $2,000 penalty. An uncontested other-than-serious item was affirmed without penalty, while the lighting item was vacated for lack of reliable measurements and work-specific proof.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1915.152(a); 29 C.F.R. § 1915.159(c)(4); 29 C.F.R. § 1915.159(c)(5); 29 C.F.R. § 1915.159(c)(6); 29 C.F.R. § 1915.82(a)(1)
• Outcome: Two serious fall-arrest items and one uncontested item affirmed; three other items vacated; grouped penalty of $2,000.
• Key point: Fall-arrest equipment must be inspected before use, and equipment subjected to impact loading must be removed from service.

Full text (OSHRC public release)


HCI Industrial & marine Coatings, Inc. Docket No. 17-1424

Some personal identifiers have been redacted for privacy purposes

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

S ECRETARY OF LABOR ,

Complainan t,

v.

HCI INDUSTRIAL & MARINE COATINGS, INC. ,

Respondent.

DOCKET NO.
   17-1424

Appearances:

Jeannie Gorman , U.S. Department of Labor, Office of the Solicitor,
Seattle, Washington

For Complainant

J. Randy Cornelius , Vice President, HCI Industrial & Marine Coatings, Brush Prairie, Washington

For Respondent

Before: Administrative Law Judge
Brian A. Duncan

DECISION AND ORDER

Procedural History

On
June 30, 2017 , Complainant’s
Portland
Area Office received a report
from Oregon OSHA (OR-OSHA)
that one of Respondent’s employees fell
while working
on
a barge in Portland, Oregon
and sustained injuries requiring hospitalization . 1
(Tr.
62–63 ). That same day, Compliance
Safety
and Health Officer (CSHO) Michael Potter was dispatched
to
the pier where the barge was located and
began
a three-day inspection of the worksite. (Tr.
62 , 119-121 ). CSHO Potter
learned that
Respondent’s employee,
[Redacted] , was
working
inside the barge’s
No. 1 port storage
tank
when he fell.
(Stip. No. 13 at Tr. 44). He was not wearing fall protection at the time. ( Stip. No. 15 at Tr. 45 ) .

After completing his investigation,
CSHO Potter
concluded that
Respondent committed
multiple
violations of the Occupational Safety and Health Act of 1970 (“the Act”). CSHO Potter recommended, and
OSHA issued, a
six -item
Citation and Notification of Penalty , with
total proposed penalt ies
of
$12,752 . Respondent filed a
Notice of Contest , which
brought this case before
the Commissio n . O n
September 1, 2017, Complainant filed his
Complaint ,
within which he amended Citation 1, Item 1 to
allege a violation of 29 C.F.R. §
1915.152(a). 2

The matter was designated for Simplified Proceedings
on
September 15, 2017 .

A trial was conducted
on
May 15, 2018,
in Portland, Oregon . Prior to the presentation of evidence , Respondent withdr e w its notice of contest to Citation 2, Item 1, which alleged an
other-than-serious violation
of the Act with no monetary penalty .
(Tr. 10).

The Court accepted Respondent’s
contest withdrawal. Accordingly, Citation 2, Item 1 will be affirmed as issued.

Four witnesses
testified
at the trial : (1) CSHO Michael Potter; (2) OSHA Area Director Cecil Tipton; ( 3 )
Joseph Bishop, Respondent’s site superintendent and safety manager; and (4) Foo Beng Fong, a blaster/painter foreman for Respondent.

The parties
file d
post-trial briefs
for consideration .

Jurisdiction
& Stipulations

The parties
stipulated the Commission has j urisdiction
over this proceeding
pursuant to Section 10(c) of the Act
and
that, at all times relevant to this proceeding,
Respondent was an employer engaged in a business and industry affecting interstate commerce within the meaning of Sections 3(3) and 3(5) of the Act, 29 U.S.C. § 652(5).
( Tr.
42 –43 ) .

See
Slingluff v. OSHRC , 425
F.3d 861 (10th Cir. 2005).
The parties also stipulated to other factual matters, which were read into the record. 3
(Tr.
42–46 ).

Factual
Background

Respondent was hired by
Zidell
to
sandblast and paint interior
storage tanks
on
Barge 686. 4
(Tr.
44 ). On
June 30, 2017 , Respondent’s employees were working
in
the No. 1
p ort storage tank, which measured 40 feet long ,
30 feet wide , and
22 feet
high . (Stip. No s . 13 , 15
at Tr. 44). Due to the size of the tank, Respondent had to install marine staging
(also known as “hanging staging”) , which is similar to scaffolding but ,
instead of being built upward
from the ground ,
it
hangs from the
top of a tank
using
wire ropes .
(Tr.
108 ; Ex.
C-3 at 41–43 ). During the installation of the staging,
[Redacted]
fell
approximately
9
feet to the ground. ( Stip No. 15 at
Tr.
45 ; Ex.
C-3 at 41–46 ). His harness was found
on the bottom of the tank a few feet from where he landed;
he was not wearing it at the time. ( Id. ). Although Superintendent Bishop testified that he saw
[Redacted]
wearing a fall protection harness earlier that morning, after the company safety meeting, he could not confirm that
[Redacted]
continued to wear it when he was working. (Tr. 158). Bishop testified he reminded everyone that morning, as he said he does every morning, of their 100% tie-off policy. (Tr. 152–53).

CSHO Potter arrived at the scene the same day, roughly six to eight hours after the
accident . (Tr. 63). During the opening conference, CSHO Potter learned Respondent was the only employer on-site at the time of the accident.
(Tr. 67). By the time CSHO Potter arrived, Respondent had se nt
its
remaining employees home
for the day .
So, he inspected the
work area where the accident occurred and took the opportunity to inspect
Respondent’s
fall protection equipment, stored in a Conex
box located on the pier. (Tr. 82–85).

CSHO Potter did not
actually
observe
any
employees working on staging , or at heights,
during any part of his
inspection. (Tr.
1 19 –21 ). His conclusions were based on post-accident observations of the empty tank, and discussions with witnesses. According to CSHO Potter, one of Respondent’s employees
also
provided
him
with
a photograph of
two
unidentified
workers , who appear to be working on elevated staging
at some point ,
without wearing appropriate fall protection. (Tr.
76–78 ; Ex.
C-2 3
at 74 ).
CSHO Potter
was told by
the employee who supplied the photo
that
it was taken approximately one
or
two weeks
before the accident involving
[Redacted] . (Tr.
79 ). However , no
one
with personal knowledge
of the scene depicted in the photograph testified at trial. Therefore, the conditions, time, date, location, names of individuals, or
even
the employer of the individuals
in the photograph
could not be properly
authenticate d . In addition to the photograph,
CSHO Potter
relied heavily on three unnamed
employees
who
allegedly
told him that Respondent required
employees
to keep a fall protection harness close by, but
not necessarily wear it. (Tr. 72). However,
a fourth
employee , and several members of management,
told CSHO Potter
that
Respondent
does enforce the use of fall protection harnesses .
CSHO Potter
chose
to believe
the three employees who told him
fall protection
policies were
not enforced . (Tr.
73- 74).
No ne
of these unidentified employees were called by either
party
to testify at trial. Complainant’s only witnesses were CSHO Potter and Area Director Tipton (who did not visit the jobsite).

Although
Respondent
stipulated
that
[Redacted]
failed to wear
his
harness while he was installing marine staging above the threshold height for fall protection , Respondent maintained it had no knowledge, and
could not have foreseen , his failure to wear it. In support, Respondent
introduced documentation of safety policies, safety training sessions, and weekly safety meetings ,

to
demonstrat e
that fall protection
and their 100% tie-off policy
w ere
discussed
on a regular basis .
( Tr. 163; Ex. R-5, R-7 ).
Further, as mentioned above,
Supt.
Bishop
saw
[Redacted]
wearing his
harness earlier that day. The Court also notes that Bishop
was sent to this worksite
before the accident
specifically to
address and correct
some
safety
concerns
raised
by
Gunderson
( the
pier facility owner)
(Tr.
64,
172–73 ).

During the
OSHA
inspection,
CSHO Potter also identified what he perceived to be poorly maintained fall protection
gear
being
stored in Respondent’s Conex
box . Specifically, CSHO Potter identified multi ple
harnesses
and lanyards coated
with paint, which he believed could
diminish the ability of the equipment to
function properly , a s well as a
harness
in a that
showed
it
had
already
been exposed to a n
impact
load,
i.e. , fall .
(Tr.
83 ; Ex.
C-2 at 56, 63 , 64 , 65 ).

The harness’s “impact indicator tag” was showing.

CSHO Potter
concluded that
Respondent
did not have
a n adequate
program to inspect fall protection gear and ensure it was safe for use. (Tr.
91–92 ). Although there was no evidence that
the paint-splattered harnesses, or the “popped” harness, were
actually
being used,
they were stored in the same location as new fall protection equipment
and were
readily accessible .
(Tr.
84–85 ). Bishop testified that Respondent provided each employee with their own harness , but confirmed that
the harnesses in the Conex box were
available to employees for
replacement purposes. (Tr. 158).

Finally,
CSHO Potter
concluded that the
lighting
inside the barge tank
was deficient, which consisted of a combination of
headlamps, ambient light from the access point,
and
string lights . ( Stip No. 18;
Tr.
103 ; Ex.
C-3 at 39–43 ). Since
CSHO Potter
did not observed any employees performing specific work, under specific lighting conditions, his conclusions were based on conversations with
unnamed
employees
telling him
that most painting and sandblasting work occurred
using
headlamps only. (Tr.
103 ). Supt.
Bishop, however,
testified that
the lighting
being used at any given moment depended
on
what stage in the process
employees were
in. (Tr.
159– 61 ). For example, Respondent substantially relie d
on headlamps
while installing staging
because the
staging
wa s required to access the
tank locations
where
string
lights c ould
be
subsequently
installed.
(Tr. 161). Furthermore, d epending on the activity, such as sandblasting or washing,
some types of
lights
w ould
be
exposed to potential damage and
create
an electrical shock hazard if they g o t wet. (Tr. 159–160). Thus, different steps in the process require d
different sources/types of illumination
at any given moment .

Based on CSHO Potter’s observations
and conclusions , Complainant issued a
Citation and Notification of Penalty , with a proposed
total
penalty of $ 12,752 . The Court address es
each citation item below.

Discussion

To establish a violation of an OSHA standard pursuant to 5(a)(2), Complainant must prove
that : (1) the standard applie d to the work being performed ; (2) the employer failed to comply with the terms of the standard; (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
of the foregoing
element s
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).

This case illustrates the
significance
of the “preponderance
of the evidence ” standard, even under the relaxed requirements of
Simplified P roceedings
pursuant to Subpart M of the Commission Rules.
See
29 C.F.R. Part 2200, Subpart M. Under
Commission
R ules for Simplified Proceedings, the Federal Rules of Evidence do not apply as they do in conventional cases.
See id.
§ 2200.200(b)(6). Thus, otherwise inadmissible evidence, such as hearsay, can be introduced in a simplified case. However, though the rules may be more permissive, that
does not mean
that
any
evidence
the parties
offer on a particular point
is automatically deemed
persuasive or reliable. 5

Citation 1, Item 1 6

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

[ 29 CFR
19 15.152(a) :
The employer shall provide and shall ensure that each affected employee uses the appropriate personal protective equipment (PPE) . . . , including . . . personal fall protection equipment . . . meeting the applicable provisions of this subpart, wherever employees are exposed to work activity hazards that require the use of PPE.]

(a) HCI Industrial & Marine Coatings Inc. – 4350 NW Front Ave. Portland Or. 97210 – Barge 686 – On or about June 30 th , 2017 and at times prior thereto,
the employer did not provide adequate fall protection for employees installing marine hanging staging .

Citation and Notification of Penalty
at
6 .

The Standard Applies and Was Violated

According to the personal protective equipment standard for shipyard employment, “This subpart applies to
all work
in shipyard employment regardless of geographic location.” 29 C.F.R. § 1915.151(a). There is no dispute that Respondent was performing
surface preparation and tank
lining services on a marine barge. (Stip. No. 10). The Court finds this qualifies as “work in shipyard employment” . Thus, the standard applies.

The Court also finds that the terms of the standard were violated. According to its terms, the standard requires Respondent to both provide and ensure the use of fall protection equipment when its employees are exposed to hazards requiring the same.
Id.
§ 1915.152(a). 7
At the time of his injury,
[Redacted]
was working on a platform located roughly 9 feet above the lower deck
and was not wearing fall protection . ( Stip. No. 15 at Tr. 45 ).

Respond ent’s Employee
W as
Exposed
to the Hazard

To establish
exposure
under Commission precedent, the Secretary must show Respondent’s employees were actually exposed to the violative condition or that it
was
“reasonably predictable by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.”
Fabricated Metal Prods. , 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997).
See Oberdorfer Industries , Inc. , 20 BNA OSHC 1321 (“The zone of danger is determined by the hazards presented by the violative condition that presents the danger to employees which the standard is designed to prevent .”) . [Redacted]
was working on a platform 9 feet above the next lower level without wearing any fall protection. This exposed
[Redacted]
to
a fall hazard that, unfortunately, came to fruition.
Complainant established
employee
exposure.

Complainant Failed to Establish Employer Knowledge

T o prove
this element , Complainant must show Respondent knew or, with the exercise of reasonable diligence, could have known of the violation.
Dun-Par Engineered Form Co. , 12 BNA OSHC 1962, 1965 (No. 82-928, 1986). The key is whether Respondent was aware of the
conditions constituting a violation, not whether it understood the conditions violated the Act.
Phoenix Roofing, Inc. , 17 BNA OSHC 1076, 1079–80 (No. 90-2148, 1995). Complainant can prove knowledge of a corporate employer through the knowledge, actual or constructive, of its supervisory employees.
Dover Elevator Co. , 16 BNA OSHC 1281, 1286 (No. 91-862, 1993). If a supervisor is, or should be, aware of the noncomplying conduct of a subordinate, it is reasonable to charge the employer with that knowledge.
See Mountain States Tel. & Tel. Co. v. OSHRC , 623 F.2d 155, 158 (10th Cir. 1980) .

Complainant’s theory of knowledge is premised, in large part, on two types of evidence: (1) testimony from CSHO Potter regarding what he
says he
was told
by unnamed
employees and managers, and (2) an unauthenticated photograph of two unidentified individuals who were working on hanging marine staging without any apparent form of fall protection
at an unknown time and unknown location .

The Court is not
persuaded by this type of unreliable evidence .

The Court finds that
CSHO Potter’s testimony about
Respondent’s practices regarding fall protection were based on selective acceptance of unnamed, non-testifying employees’ hearsay statements who told him fall protection was not enforced; rejection of
an
unnamed, non-testifying employee
and supervisor
hearsay statement s
who told him fall protection was enforced; and an unreliable photograph provided to him by an unnamed, non-testifying
employee of unidentified workers at an unidentified location, on an unknown date . Although hearsay, and in this case double-hearsay, may be admissible in
Simplified Proceedings , it is not automatically persuasive or reliable. Not one of these employees ,
whose
out-of-court
statements
were offered
as affirmative evidence
that Respondent
failed to enforce fall protection rules, and therefore, should have known
[Redacted]
was working without wearing his harness, testified at trial or was otherwise available for cross-examination by Respondent.

Conversely,
Respondent presented actual in-person, live
testimony
from
Fong
(one of Respondent’s supervisors present on this job)
and Bishop
(superintendent and safety manager present on this job). They testified about their
actual
and direct
knowledge of
worksite conditions,
employee activities,
Respondent’s
safety
policies ,
and
fall protection training and enforcement . Bishop testified , without contradiction,
that he
personally
observed
[Redacted]
wearing
his
harness as he left the morning safety meeting, during which Bishop
specifically
discussed fall protection
requirements . (Tr.
155–156 ). According to Bishop ,
employees were provided with daily instructions to wear their harness inside the tanks at all times and to tie-off when exposed to a fall hazard on the upper portions of the staging. (Tr.
156 ).

Records
and testimony
illustrate that
these
instructions
were also given on a weekly basis and as the needs of a particular project called for it. (Tr.
199; Ex. R-7 ).

Providing further evidence of attempts to prevent falls, Bishop pointed out that the
barge’s
storage tanks themselves
were
equipped with signs specifically requiring the use of fall protection upon entry. (Tr.
168 ; Ex.
R-12 ) . Bishop
acknowledged that some employees
occasionally
attempt to skirt the rules when no one
wa s watching . This
is less an indictment of the quality of Respondent’s program ,
and more a lamentation about the inabili ty to be everywhere at one time on a worksite ,
with multiple project s
occurr ing simultaneously , and
using
employees that
were
chosen for
them
by the local union . (Tr.
165,
173–74 ). The Court finds that Respondent’s
records and
the testimony
of Bishop and Fong,
establish that Respondent
regularly discusse d
fall protection at its safety meetings
and
conducted
inspections of the worksite
to ensure fall protection was being used .
This evidence weighs more heavily than Complainant’s hearsay and double-hearsay unidentified employee comments, which by CSHO Potter’s own admission, sometimes contradicted one another.

As for the photograph that was given to CSHO Potter by one of Respondent’s
unidentified
employees, the Court has
grave
concerns about its reliability . First, Complainant asserts in a
post-trial brief
footnote, without any support in the record, that the individuals in the photograph are
[Redacted]
and Dustin Colby, an employee and foreman, respectively.
Sec’y Post-Trial Br.
at 8 n.2. This identification never occurred on the record. Indeed, Colby’s name was
mentioned
very
sparingly . First, Cornelius referred to Dustin Colby as “an HCI employee” when identifying him as a potential witness.
(Tr. 8). Colby is referred to in Stipulation No. 12 as one of “HCI’s employees on the jobsite” . (Tr. 44). Third,
Colby
was identified as an individual with whom CSHO Potter discussed lighting. (Tr. 113).

Contrary to Complainant’s representation, Mr. Colby was not listed as a competent person in Stipulation No. 11. Further, while Mr. Fong identified a “Dustin” as a foreman, Stipulation No. 12 identifies two different Dustins that were on the jobsite during the course of CSHO Potter’s inspection. (Tr. 44 , 192–93 ).
Put simply, the Court does not have adequate, competent evidence to conclude that the
individuals in the
picture in Exhibit
C-2 at 74
we re
[Redacted]
and Colby, nor
wa s there
any foundation as to where or when the photograph was taken by the unnamed employee who purportedly gave it to CSHO Potter. Simply too much is unknown about this photograph to make it a reliable indicator that Respondent knew or could have known of a violation of 1915.152(a)
on June 30, 2017 .

Complainant’s
presentation of
evidence fail ed
to show Respondent knew or could have known of the fall protection violation
alleged in Citation 1, Item 1 . Nearly all of Complainant’s substantive evidence on the issue of knowledge is
vague
hearsay or double hearsay
from unnamed sources. Respondent, on the other hand, introduced direct , un contradicted
testimony from two supervisors who actually worked at this jobsite, which the Court found much more persuasive and reliable. Accordingly, Citation 1, Item 1
will
be VACATED .

Citation
1, Item 2a

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

29 CFR 19 15.159(c)(4) :
Lifelines and lanyards were not protected against cuts, abrasions, burns from hot work operations and deterioration by acids, solvents, and other chemicals .

(a) HCI Industrial & Marine Coatings Inc. – 4350 NW Front Ave. Portland Or. 97210 – Barge 686 – On or about June 30 th , 2017 and at times prior thereto,
the CSHO observed several components of personal fall arrest systems that were covered in paint .

Citation and Notification of Penalty
at
7 .

Complainant Failed to Prove a Violation of the Standard

The standard cited in Citation 1, Item 2a applie d
per 29 C.F.R. § 1915.151(a) . 8 Complainant
failed to prove , however,
that the
terms of the standard were violated. The standard requires that fall protection equipment be protected from
cuts, abrasions, burns, and deterioration . 29 C.F.R. § 1915.159(c)(4). Complainant
does not assert
in this case
that the
harnesses CSHO Potter found in the Conex box
w ere
exposed to
cuts, abrasions, or burns; instead, he claims Respondent failed to protect the fall protection equipment from deterioration due to chemical exposure . Specifically, CSHO Potter
testified
that
some
harnesse s and lanyards
were c overed
with paint and, therefore, would not
arrest a fall
properly when exposed to a n
impact
load.

The Court does not question CSHO Potter’s conclusion that some of the harnesses had paint on them and, indeed, looked more used than
other
newer harnesses that were available in the Conex
box
. (Tr. 83; Ex. C-3 at 56). However, the Court is not convinced the presence of paint on
a
harness, alone, constitutes a violation of the 29 C.F.R. § 1915.159(c)(4). CSHO Potter did not testify
as to how
the
paint on the
harnesses
resulted in deterioration , per the terms of the standard . His non-expert opinion that “when they’re covered in paint and stiff and hard like this, the
likelihood that it’s going to arrest the fall in less than 1800 pounds is – is low” was
not
otherwise
supported by the record.

Other than the presence of paint, there was nothing to suggest the harnesses in question were de ficient , and no evidence was introduced to illustrate the effect of paint , as a “chemical”,
on the structural integrity of the harness comp onents . Surprisingly,
CSHO Potter
testified
that the harness
found on the bottom of the tank next to
[Redacted] ,
in C-3 at 57, although covered in
some
paint, oil, and dirt, was otherwise compliant with 29 C.F.R. § 1915.159(c)(4) , whereas the
harness
found in the Conex was not .
(Tr.
87 ; Exs. C-3 at 56 & 57 ).
O ne simply appears to have more paint and dirt on it
than the other . There was no reliable explanation as to why or how one harness was acceptable to use, and the other was not.

Without evidence that the harness/PFAS in question had actually
deteriorated or w ere
otherwise damaged per the terms of the standard, the Court cannot conclude the cited standard was violated. Accordingly, Citation 1, Item 2a
wi ll be VACATED.

Citation 1, Item 2b

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

29 CFR 19 15.159(c)(5) : Personal fall arrest systems were not inspected prior to each use for mildew, wear, damage, and other deterioration. Defective components were not removed from service.

(a) HCI Industrial & Marine Coatings Inc. – 4350 NW Front Ave. Portland Or. 97210 – Barge 686 – On or about June 30 th , 2017 and at times prior thereto,
the CSHO observed several harnesses, lanyards, and anchorage connectors that were coated with paint and had many other indicators of wear and damage, including frayed stitching .

Citation and Notification of Penalty
at
8 .

Citation 1, Item 2c

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

29 CFR 19 15.159(c)(6) : Personal fall arrest systems and components subjected to impact loading were not immediately removed from service.

(a) HCI Industrial & Marine Coatings Inc. – 4350 NW Front Ave. Portland Or. 97210 – Barge 686 – On or about June 30 th , 2017 and at times prior thereto,
the CSHO observed a personal fall arrest harness with a load impact indicator that had been activated .

Citation and Notification of Penalty
at
9 .

The Standard s
Appl y and Were
Violated

There is a fair amount of overla p
between Citation
1,
Items 2b and 2c, which is why Complainant grouped them together (along with 2a) for penalty purposes.
For the same reasons , and to avoid unnecessary repetition, the Court shall address both violations simultaneously.

As
expressed above with respect to the previous two citation items, the Court finds the cited standard s
in Citation 1, Item s
2b
and 2c
appl y . Further, the Court also finds the terms of the
respective
standard s
were violated. During cross-examination, Bishop stated, “Well, if I’d seen those in the Conex box, of course I could look at them and take care of them. But my – my specific thing was to make sure that the guys were being safe out on the job.” (Tr. 178). Subsequently, Bishop rather forthrightly admitted, “I didn’t inspect them.” (Tr. 179).

This admission is sufficiently clear to establish, at the very least, that Respondent did not perform inspections of the fall protection equipment prior to each use. Accordingly, the Court finds Respondent violated the terms of 29 C.F.R. § 1915.159(c)(5).

For similar reasons, the Court also finds Respondent vi olated 29 C.F.R. § 1915.159(c)(6 ).

The standard requires fall arrest systems and equipment subject to impact loading to be removed from service. During his inspection of the Conex, CSHO Potter found a
harness
with an exposed tag indicating that the fall arrest system had been subject to an impact load and needed to be removed from service. ( Stip. No. 16 at 45–46;
Ex.
C-3 at 65–66 ). I t was stored in the Conex
box , along with other
employee-accessible
harnesses and equipment. Accordingly, the Court finds the terms of 1915.159(c)( 6 ) were violated.

Respondent’s Employees Were Exposed to a Hazard

As noted above, to prove exposure the Secretary must show Respondent’s employees were actually exposed to the violative condition or that it
wa s “reasonably predictable by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.”
Fabricated Metal Prods. ,
supra . In the case of defective equipment, a ccess to a hazard is considered reasonably predictable where
such
equipment is “available for use.”
Dover Elevator Co. ,
supra .

According to Bishop,
Respondent’s
employees met at the Conex box every morning before work started. (Tr. 180). T hey would have morning briefings, conduct safety talks, and collect gear /equipment
from the Conex. (Tr. 180). Although Respondent argues only management had access to the Conex
box , the testimony and evidence presented at trial suggests otherwise.
Resp’t Post-Trial Br.
at 4. For example, in response to questions about why
the
harness/ PFAS
with a “popped” impact load tag
was not removed from service or destroyed, Bishop testified, “[S]omeone probably went in there and got a new harness, threw that one on the floor, or he maybe even hung it up, and didn’t tell anybody.” (Tr. 169).
Bishop also
acknowledged employee access , “I suppose somebody could go in there and grab them.” (Tr. 179).

CSHO Potter
also
testified
that employees told him they had to get to work early to get the best equipment
out of the Conex .
(Tr.
75 ). At the very least, t his suggests that access to the Conex was not as restricted as Respondent argues .

Respondent’s
failure to conduct inspections
and remove defective /unusable
equipment
subjected
its
employees to the
possibility
of being exposed to a fall hazard.
See, e.g., R.B. Thomas Electric, Inc. , 19 BNA OSHC 1785 (No.
00-2333 , 2001) (ALJ) (holding employer’s failure to
inspect
worksites and provide training exposed an employee to a 15- to 20-foot fall).

Complainant established
employee
exposure to
a
hazard
in both Items 2b and 2c .

Respondent
Had Knowledge of the Violation s

Typically, the failure to conduct
required
inspections, of itself, is sufficient to find an employer has constructive knowledge of a violation.
See
Pride Oil Well Service , 15 BNA OSHC 1809, 1814 (No. 87-692, 1992) (reasonable diligence includes, amongst other things, an obligation to inspect the work area) .
Bishop, Respondent’s
site superintendent ,
readily admitted he did not perform inspections of the fall protection equipment,
and Respondent did not put forth evidence that any other employees performed
such
inspections. A s noted by Bishop,
daily meetings
were
held a t
the Conex
box , and
the equipment in side of it
was
accessed every day.
(Tr.
152, 158, 178 ). Thus, not only did Respondent have a regular opportunity to perform such inspections, but it also had a compelling reason to perform
them .
Second , not only does the cited standard require regular, pre-work inspections of fall protection equipment, but Respondent’s own safety checklist for
marine hanging
staging requires the same.
The checklist inquires, 9
“Is each person equipped with and wearing a safety harness and an independently hung safety line that is in good condition and free of defects? ”
(Ex. R-14 at 15).

Along similar lines, the Commission found constructive knowledge when a construction site superintendent failed to “take steps to verify the safe condition of equipment” prior to allowing its use.
See
Summit Contractors, Inc. ,
23 BNA OSHC 1196
( No. 05-0839, 2010) . Because reasonable diligence requires an employer to “inspect the work area, anticipate hazards to which employees may be exposed, and take measures to prevent the occurrence of violations” , the Commission found the superintendent’s failure to inspect
newly purchased
equipment for GFCI
did not meet that standard.
Id. Accordingly, the Court found the superintendent had constructive knowledge of the violation, which was imputable to the employer based on his position as a supervisor.
Id.
(citing
N & N Contractors, Inc. , 18 BNA OSHC 2121, 2123 (No. 96-0606, 2000)). Similarly, this Court finds Bishop’s failure to conduct any inspections of the fall protection equipment
constitutes constructive knowledge of both Items 2b and 2c. Bishop
was
aware that he was not performing (or delegating the performance of) required inspections of fall protection equipment under 1915.159(c)(5),
and
his failure to do so allowed defective and questionable equipment
(at least one harness previously exposed to an impact load)
to be available for use in violation of 1915.159(c)(6).

Given Bishop’s position as site
superintendent , the Court finds his knowledge is properly imputable to Respondent.

The Violations Were 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
the parties’ stipulations , Respondent’s employees worked on suspended platforms
that were between 9 and 15 feet above the ground during the Barge
686
project. ( Stip. No. 14 at Tr. 45) . A fall from such heights could result in
contusions, broken bones , or ,
as
occurred in this case, a disabling injury.
(Tr.
45, 146 ). Respondent’s failure to ensure
that fall protection
equipment was being
regularly
inspected ,
and defective equipment /unusable equipment
was not immediately removed from service ,
exposed its employees to a real possibility of serious injury or death. An employee, or even a manager, could conceivably grab
the
harness that had already been exposed to a fall and proceed to get onto suspended marine staging not knowing
that his equipment was defective /unusable . These are not a mere paperwork errors, but
rather
failures
which
expose d
employees to a substantial fall hazard that could result in serious bodily injury or death. The violation s
w ere
serious.

Accordingly, Citation 1, Items 2b and 2c
wi ll be AFFIRMED .

Citation 2, Item 2

Complainant alleged a n other-than-serious
violation of the Act in Citation
2 , Item
2
as follows:

29 CFR 19 15.82(a)(1) : The employer did not ensure that each work area and walkway was adequately lighted whenever an employee is present.

(a) HCI Industrial & Marine Coatings Inc. – 4350 NW Front Ave. Portland Or. 97210 – Barge 686 – On or about June 30 th , 2017 and at times prior thereto,
the employer provided headlamps to employees as their only means of illumination in the #1 port storage tank .

*note: OSHA FactSheet: Emergency or portable lights do not fall within the temporary lighting category and are not required to meet similar lighting levels. However, such lights are only intended for short-term use, such as evacuating a space, and must not be used to perform work tasks unless it is in addition to the already existing lighting.

Citation and Notification of Penalty
at
11 .

Complainant Failed to Prove a Violation of the Standard

There was a fair amount of conflicting and confusing evidence introduced on the issue of whether adequate lighting ex isted within the storage tank during the installation of the marine hanging staging. As with Citation 1, Item 1, though, Complainant overstate d
the parties ’
stipulations , place d
substantial emphasis on hearsay
and double-hearsay evidence , and failed to present sufficient evidence to sustain a violation of the standard.

First, Complainant submits that the parties stipulated that the only light available to employees was from their headlamps and the ambient light from the manhole/access point.
Sec’y Post-Trial Br.
at 16. The stipulation actually states, “HCI begins the staging under the
manhole/access point
and uses the ambient light from the manhole/access point.”
(Stip. No. 18 at Tr. 46). In other words, while this might be how the process begins, there was ample testimony
from individuals who actually worked at this jobsite
to
establish
that headlamps were not the sole source of illumination during the tank re-lining process.

Second, CSHO Potter testified he was told by
several unnamed employees
that
they
work
using
headlamp
light
only. (Tr. 101–103, 114). Depending on the stage of the process, this may have been the case for some periods of time. However,
Bishop testified , without contradiction,
that headlamps and ambient light from the access point
were
typically the only sources of illumination
at early stages of work in a tank,
until
the hanging staging
could be built
to allow access to the points where
string
lights
were
installed. (Tr. 160–61).

Otherwise, Bishop testified, the amount and type of lighting used
for particular employees at particular locations wa s dependent upon the
activity.

When power washing
a tank, for example ,
string
light s
are
unplugged because of electrical shock hazards. When sandblasting,
string
light s
are
removed because
they
would be damaged; instead, lights
we re attached at the end of the sandblasting hoses to provide
adequate
illumination. Fi nally, when painting, explosion- proof lights
were installed . (Tr. 159–60). The Court credits Bishop’s uncontroverted testimony on this issue over CSHO Potter’s hearsay and double-hearsay testimony from unknown sources. Additionally, the Court notes again that CSHO
Potter did not observe employees performing any work in the tank, under any particular lighting conditions.

According to the cited standard, an employer is required to ensure a work area is “adequately lighted”. 29 C.F.R. § 1915.82(a)(1). The question of whether a particular work area ha d
adequate light is not
relegated to the opinion of the CSHO ; rather, it is a two-part question: (1) where
wa s the work taking place ?
and (2) d id
the lighting provided meet the requirements of that particular location ?
See id.
§ 1915.82 , Tbl.
F-1. The reference table provided for the cited standard indicates that, depending on the area where work is being performed, a certain minimum light intensity
is required.
Id.

In that respect, Complainant’s failure
to present persuasive evidence
is t wo -fold: (1) he
generally alleged that lighting used in the #1 port storage tank was insufficient, without regard to the specific type of work being performed, or the location within the tank, at any given time; and (2)
he never
presented evidence
of any
measure ment of
light intensity
(in lumens)
for any particular employees, performing any particular work, at any particular location in the tank .

The cited standard has specific
thresholds
for the amount of light required in a given work location.
See id.

Complainant’s only
non-hearsay
evidence on this point was that CSHO Potter , when he entered the tank after the accident while no employees were
present ,
believed
it was too dark within the work space. (Tr. 104).
Complainant failed to present sufficient evidence to prove a violation of the cited standard . Accordingly, Citation 2, Item
2
will
be VACATED.

Penalty

In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act requires the Commission 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. 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 Construction Co. , 15 BNA OSHC 2201 (No. 87-2059, 1993). It is well established that 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. Valdak Corp ., 17 BNA OSHC 1135 (No. 93-0239, 1995);
Allied Structural Steel , 2 BNA OSHC 1457 (No. 1681, 1975).

Citation 1, Items 2b and 2c were
calculated as part of
a grouped
item
penalty. (Tr. 145–46; Ex. C-2 at 27-a). Complainant appl ied multiple
reductions in penalty, including 30% for
Respondent’s small
size, 15% for
demonstrated
good faith, and 10% for
no violation
history, which r esulted in
an
overall
proposed grouped
penalty
of
$3 , 879. ( Id. ) Given Respondent’s size, safety program, and lack of violation history, the Court finds the reductions were appropriate
as
applied. In addition, however,
Respondent
demonstrated that it
perform ed
regular safety meetings, during
which fall protection
wa s
regularly
discussed.
Further , while Respondent makes
had replacement
harnesses / PFAS available
in the Conex box
for its crew members, the weight of the evidence suggests that employees were
issued
their own
individual
harnesses, which they were responsible for bringing to work and maintaining. Thus, it is unclear
how often employees needed to access the extras in the Conex box. In addition, the fall-impacted harness was among several brand new harnesses, making it unlikely that the
spent
harness would have actually been selected by an employee. (Tr. 177). Considering the totality of the circumstances discussed above, and given that one of the three grouped items is being vacated, the
Court finds that a
grouped
penalty of
$ 2,0 00 for Citation 1, Items 2b and 2c
is appropriate.

Order

Based upon the foregoing Findings of Fact and Conclus i ons of Law, it is ORDERED

that :

1. Citat ion 1, Item
   1
   is
   VACATED ;

2. Citation 1 , Item
   2a
   is
   VACATED;

3. Citation 1, Items 2b and 2c are AFFIRMED
   as serious violations of the Act , and a grouped penalty of
   $ 2,0 00
   is ASSESSED;

4. Citation 2 , Item 1 is AFFIRMED as an
   other-than-serious violation of the Act, and no penalty is assessed; and

5. Citation 2, Item 2 is VACATED.

/s/ Brian A. Duncan

Date:    February 14, 2019

Judge Brian A. Duncan

Denver, Colorado         
U.S. Occupational Safety and Health Review Commission

"

1 .

The referral was made to Federal OSHA because the barge was located on navigable waters, which is considered maritime jurisdiction. (Tr. 62).

2 . The
Citation
initially alleged a violation of 29 C.F.R. § 1915.71(b)(7).

3 . When citing to the record, the Court will refer to individual stipulations as “Stip. No. __”.

4 . Ziddell was the shipbuilder.

5 . Judge John Gatto provides a concise discussion of the tension between admissibility and weight in Simplified Proceedings.
See U.S. Utility Contractor Co. , 25 BNA OSHC 1292, 2014 WL 7644310 at *6–7 (No. 14-0744, 2014). In summary, live in-person testimony is generally more persuasive than hearsay or double-hearsay.

6 . As noted above, Citation 1, Item 1 was amended by Complainant upon the filing of the
Complaint . The narrative of Citation 1, Item 1 in the
Citation and Notification of Penalty
includes the language of the originally cited standard. For clarity, the Court has supplied the language from 1915.152(a).

7
29 C.F.R. § 1915.159(b)(7)
provides that personal fall arrest systems for shipyard employees must protect against free fall distances of
6 feet
or more.

8 . The standard applies for the same reasons supplied in the Court’s discussion of Citation 1, Item 1,
supra .

9 . The checklist is an appended attachment to the section on Marine Hanging Staging within Respondent’s Safety Manual. (Ex. R-14).