United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

ON BRIEFS:

Kimberly A. Robinson, Attorney; Heather R. Phillips, Counsel for Appellate Litigation; Ann S. 

Rosenthal, Acting Associate Solicitor; M. Patricia Smith, Solicitor; U.S. Department of Labor, 

Washington, D.C.

For the Complainant

Edwin G. Foulke, Jr., Esq.; Joseph J. Brennan, Esq.; Fisher & Phillips, LLP, Atlanta, GA and 

Cleveland, OH

For the Respondent

DECISION

Before: MACDOUGALL, Chairman; ATTWOOD and SULLIVAN, Commissioners.

BY THE COMMISSION:

Envision Waste Services operates a solid waste facility in Seville, Ohio. On December 6, 

2010, following an inspection of the facility, the Occupational Safety and Health Administration 

issued three citations to Envision under the Occupational Safety and Health Act of 1970, 29 U.S.C. 

§§ 651-678. The citations, after subsequent amendment, allege a total of ten violations—six 

repeat-serious, three willful, and one other-than-serious. Administrative Law Judge Keith E. Bell 

affirmed all but one citation item and assessed each of the Secretary’s proposed penalties, for a 

total penalty of $224,000. All nine affirmed items are on review before the Commission.

Most of these citation items concern the work of employees in the facility’s “sorting 

rooms” through which mixed residential and commercial solid waste is transported by conveyors. 

SECRETARY OF LABOR,

ENVISION WASTE SERVICES, LLC,

Complainant,

Respondent.

v. OSHRC Docket No. 12-1600
2

These employees, referred to as “sorters,” remove recyclable materials from the waste as it is 

conveyed through the rooms. At issue is whether Envision provided sorters with adequate

protection for eyes and hands (Citation 1, Item 1b and Citation 2, Item 1) and various types of 

training (Citation 1, Items 1a, 2, 3b, 3c, and 5). Also at issue is Envision’s alleged failure to make 

the company’s hazard exposure control plan accessible to employees (Citation 1, Item 3a) and to 

provide respirator information to employees who voluntarily wear dust masks (Citation 3, Item 1).

For the reasons that follow, we affirm Citation 1, Items 1b, 2, 3b, 3c, 5 and Citation 3, Item 

1; recharacterize Citation 1, Items 2 and 5 from willful to serious; and vacate Citation 1, Items 1a 

and 3a, and Citation 2, Item 1. We assess penalties totaling $15,000.

I. Repeat-Serious Citation 1, Item 1b—Providing appropriate personal protective 

equipment (puncture-resistant gloves)

Citation 1, Item 1b pertains to the personal protective equipment (PPE) that sorters wear to 

protect their hands while separating recyclable materials from mixed waste. As waste travels

through each sorting room on conveyors, sorters remove metal items, mixed papers, cardboard, 

and newspapers, and they deposit these recyclables down chutes or into bins. After the recyclables 

are removed, the remaining waste includes “all kinds of things” such as glass, clothing, waste from 

restaurants, and medical waste, including vials of blood, intravenous tubing that still contains

blood, used gauze patches, surgical scissors, and used needles.

The Secretary alleges that because sorters come into contact with used needles when 

sorting mixed waste, the bloodborne pathogens (BBP) standard—specifically 29 C.F.R. 

§ 1910.1030(d)(3)(i)—requires Envision to provide these employees with puncture-resistant 

gloves. This provision states that “[w]hen there is occupational exposure, the employer shall 

provide, at no cost to the employee, appropriate [PPE] such as, but not limited to, gloves . . . .” 

Envision does not dispute that its sorters are subject to an “occupational exposure” when sorting 

mixed waste, but claims that the company adequately addresses this exposure by requiring 

employees to comply with certain work practices—which Envision concedes fail to completely 

eliminate the occupational exposure—and providing them with cut-resistant (but not punctureresistant) gloves.1

 See 29 C.F.R. § 1910.1030(d)(3) (requiring that “[e]ngineering and work 

 

1 The work practices Envision instructs its employees to follow consist of two policies. The first 

is known as the “off-the-top” policy, which requires that sorters remove recyclables that are within 

arm’s length from the top or sides of the waste piled on the conveyor. The second is known as the 
3

practice controls . . . be used to eliminate or minimize employee exposure,” but if “occupational 

exposure remains,” then PPE must be used). 

The judge agreed with the Secretary, finding that sorters are exposed to medical waste, 

including used needles, but are not adequately protected from this exposure because the gloves 

Envision provides are not puncture-resistant. On review, Envision argues that because the cited 

provision is a performance standard, it is part of the Secretary’s prima facie burden to prove “the 

feasibility and utility” of puncture-resistant gloves. Envision further contends that the Secretary 

has failed to meet this burden. We disagree. 

Regarding the Secretary’s burden of proof, Envision relies on a Sixth Circuit decision in 

which the court recognized “the principle that where a standard imposes a duty without specifying 

the means of compliance, the Secretary has the burden of establishing the existence of a specific 

and technologically feasible means of compliance as an element of his showing that a violation 

has occurred.”

2 Diebold, Inc. v. F. Ray Marshall, 585 F.2d 1327, 1333 (6th Cir. 1978) (emphasis 

added). The Secretary, however, is not required to prove feasibility where the cited standard 

“states the hazard to be protected against and the performance criterion by which the adequacy of 

the employer’s abatement must be judged”; that is, where “ ‘the performance required by the 

standard is clear enough.’ ” See Hughes Bros., 6 BNA OSHC 1830, 1835 (No. 12523, 1978) 

(contrasting circumstances, which involved citation under 29 C.F.R. § 1910.212(a)(3)(ii), to prior 

case in which Commission required Secretary to prove feasibility with respect to PPE standard 

that required “unspecified [PPE] against unspecified hazards”); Consol. Aluminum Corp., 9 BNA 

OSHC 1144, 1156-57 (No. 77-1091, 1980) (extending rationale in Hughes to citation alleging 

violation of § 1910.212(a)(1) and concluding that Secretary did not bear burden of proving 

feasibility, because standard “states the hazards to be protected against and the performance 

required with sufficient clarity, particularly when read in the context of [§] 1910.212 as a whole”).

 

“hands-off” policy, which requires that sorters not touch medical waste (including needles), 

chemicals, and other dangerous debris as it passes by on the conveyor. 

2 Envision’s waste facility, as well as its corporate offices, are located in the Sixth Circuit. Pursuant 

to the Act, either the Secretary or an employer may appeal a Commission decision to “any United 

States court of appeals for the circuit in which the violation is alleged to have occurred or where 

the employer has its principal office . . . .” See 29 U.S.C. § 660(a), (b). Where it is probable that 

a decision will be appealed to a certain circuit, the Commission generally applies the law of that 

circuit. Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000).
4

Although the provision cited here, § 1910.1030(d)(3)(i), is performance-oriented in that it 

does not mandate particular PPE in all circumstances, it does set out a non-exclusive list of 

examples of acceptable PPE and specifies criteria that must be met. Occupational Exposure to 

Bloodborne Pathogens, 56 Fed. Reg. 64,004, 64,126-27 (Dec. 6, 1991) (final rule) (describing 

performance-oriented nature of standard). Indeed, the provision explicitly states that PPE, such as 

“gloves,” is “ ‘appropriate’ only if it does not permit blood or other potentially infectious materials 

to pass through to or reach the employee’s . . . skin . . . under normal conditions of use and for the 

duration of time which the protective equipment will be used.” 29 C.F.R. § 1910.1030(d)(3)(i). 

Therefore, under Commission precedent, the Secretary need not demonstrate the feasibility of 

puncture-resistant gloves to establish a violation of § 1910.1030(d)(3)(i) in this case.

As the cases cited by the Secretary on review instruct, the pertinent inquiry is “whether a 

reasonable person, examining the generalized standard in light of a particular set of circumstances, 

can determine what is required, or if the particular employer was actually aware of the existence 

of a hazard and of a means by which to abate it.” W.G. Fairfield Co. v. OSHRC, 285 F.3d 499, 

505 (6th Cir. 2002) (internal quotation marks omitted; citing R & R Builders, Inc., 15 BNA OSHC 

1383, 1387 (No. 88-0282, 1991)); Siemens Energy & Automation, Inc., 20 BNA OSHC 2196, 2198 

(No. 00-1052, 2005) (“[A] broad, performance-oriented standard . . . may be given meaning in 

particular situations by reference to objective criteria, including the knowledge of reasonable 

persons familiar with the industry.”); see, e.g., Thomas Indus. Coatings, Inc., 21 BNA OSHC 2283, 

2287-88 (No. 97-1073, 2007) (citing to Siemens and W.G. Fairfield, and holding that “[b]ecause 

performance standards, such as [the requirement for adequate hand-washing facilities], do not 

identify specific obligations, they are interpreted in light of what is reasonable”); Cent. Fla. Equip. 

Rentals, Inc., 25 BNA OSHC 2147, 2151 (No. 08-1656, 2016) (citing to Siemens and Thomas, and 

holding that standard regarding safe movement of equipment on access roadways and grades was 

performance standard and, therefore, must be “interpreted in light of what is reasonable”).

We conclude that a reasonable person examining § 1910.1030(d)(3)(i) can determine that 

puncture-resistant gloves are “what is required.” W.G. Fairfield Co., 285 F.3d at 505. The record 

shows that Envision was aware its work practice controls did not eliminate exposure to the hazard 

posed by used needles. Specifically, even with these controls in place, needles sometimes “stick[]

up on the [conveyor] belt” but are hidden from view underneath other garbage, exposing sorters 

to needle-sticks during the sorting process. Indeed, Envision’s safety manager conceded that he 
5

was informed needle-sticks had, in fact, occurred. Also, Envision knew the gloves it provided to 

employees, while made of Kevlar and cut-resistant, did not act as a protective barrier against 

needle-sticks, as the sorting room supervisor told the safety manager on multiple occasions that 

the gloves did not provide adequate protection, and the safety manager himself was aware that the 

gloves were not puncture-resistant. Finally, to the extent Envision’s safety manager claims to have 

been unaware that puncture-resistant gloves are available for purchase on the market, testimony 

from the OSHA compliance officer shows that such gloves were, indeed, easily obtainable at the 

time of the inspection. In short, Envision understood that the conditions to which its sorters were 

exposed necessitated the use of puncture-resistant gloves; further, a reasonable person could have 

determined that they were available and provided them to the exposed employees. 

Therefore, we conclude the Secretary has established that puncture-resistant gloves were 

required under § 1910.1030(d)(3)(i). Given that Envision concedes it failed to provide such gloves 

to its sorters and no other element of the Secretary’s burden of proof is in dispute, we affirm the 

violation. As the characterization of this item has not been challenged, we affirm the violation as 

repeat-serious.

II. Willful Citation 2, Item 1—Eye protection for employees wearing prescription lenses

Citation 2, Item 1 pertains to Envision’s practice of not requiring protective eyewear for 

sorters who wear prescription lenses while working. The Secretary alleges that this practice

violates 29 C.F.R. § 1910.133(a)(3), which requires an employer to “ensure that each affected 

employee who wears prescription lenses while engaged in operations that involve eye hazards 

wears eye protection that incorporates the prescription in its design, or wears eye protection that 

can be worn over the prescription lenses without disturbing the proper position of the prescription 

lenses or the protective lenses.” 29 C.F.R. § 1910.133(a)(3). Envision does not dispute that it 

permitted sorters to wear non-safety-grade prescription glasses in lieu of safety glasses. In 

addition, the CO observed during her inspection of one of the sorting rooms that sorters who wore 

prescription glasses were not using eye protection compliant with § 1910.133(a)(3). 

Based on these facts, the judge affirmed the violation, but he did so without addressing 

Envision’s argument—raised again on review—that the Secretary failed to establish 

§ 1910.133(a)(3)’s applicability. Specifically, Envision claims the record does not show that, at 

the time of the inspection, the company knew of—or a reasonable person would have recognized—

a hazard requiring the use of protective eyewear. We agree with Envision that the Secretary has 
6

failed to establish the company had actual knowledge of a hazard requiring the use of eye 

protection.

3

 Wal-Mart Distrib. Ctr. No. 6016, 25 BNA OSHC 1396, 1400-01 (No. 08-1292, 2015) 

(“[t]o establish the applicability of a PPE standard that, by its terms, applies only where a hazard 

is present,” Secretary must demonstrate that “there is a significant risk of harm and that the 

employer had actual knowledge of a need for protective equipment, or that a reasonable person 

familiar with the circumstances surrounding the hazardous condition, including any facts unique 

to the particular industry, would recognize a hazard requiring the use of PPE”), aff’d in part and 

vacated in part on other grounds, 819 F.3d 200 (5th Cir. 2016).

4

 

As with the provision at issue in Wal-Mart,

5

the provision cited here applies only when 

employees are exposed to “eye hazards.” 29 C.F.R. § 1910.133(a)(3). The Secretary maintains 

that Envision knew sorters could be exposed to eye hazards from chemical splashes or flying 

debris. We find insufficient evidence of such exposure.

As to chemical splashes, the evidence is limited. Although certain company hazardous 

communication (HazCom) documents, which were highlighted by the Secretary, show chemicals 

come through the sorting room, nothing in the record shows that these chemicals have the potential 

to splash into the sorters’ eyes during the sorting process. The CO merely speculated that there 

“could be a chemical splash, if a container should open up on the line” and spill when the sorter 

 

3 While the Secretary relies exclusively on Envision’s “actual knowledge” as the basis for proving 

applicability and does not claim that “a reasonable person familiar with the circumstances 

surrounding the hazardous condition, including any facts unique to the particular industry, would 

recognize a hazard requiring the use of PPE,” Wal-Mart, 25 BNA OSHC at 1400-01, there is no 

evidence in the record showing that eye protection, under the circumstances here, is generally used 

in Envision’s industry. Id. at 1401-02 (“ ‘Commission precedent also holds that evidence of 

industry custom and practice will aid in determining whether a reasonable person familiar with the 

circumstances would perceive a hazard, though it is not necessarily determinative.’ ” (citation 

omitted)). Nor is there sufficient evidence to show that “a reasonable person” aware of conditions 

in the sorting room would have known of an eye hazard requiring use of eye protection.

4 Chairman MacDougall noted in Wal-Mart that she would not limit, as part of the Secretary’s 

burden, the reasonably prudent employer test to the element of applicability. In her opinion, when 

assessing an alleged violation of a PPE standard, which does not presume a hazard, the reasonably 

prudent employer test applies to the entire analysis of the Secretary’s burden. Wal-Mart, 25 BNA 

OSHC at 1400 n.9.

5 That provision, paragraph (a)(1) of the same section at issue here, requires “[t]he employer [to] 

ensure that each affected employee uses appropriate eye or face protection when exposed to eye 

or face hazards . . . .” 29 C.F.R. § 1910.133(a)(1).
7

pulls a bundle from the conveyor, or “if . . . an aerosol can [that] could compress and explode” 

comes through the sorting room. There is no evidence that the CO actually observed specific 

conditions that could result in splashing chemicals or that an eye injury had, in fact, ever resulted 

from such splashes at Envision’s facility. 

As to flying debris, neither the nature of such a hazard nor the risk of injury is apparent 

from the record. Indeed, there is only one recorded eye injury that occurred in the sorting rooms 

between 2009 and 2012: a sorter was injured in 2009 when a “[p]article” entered his right eye.

6

Neither party, however, has provided a methodology for assessing the risk of injury, and we cannot 

determine an injury rate ourselves based on this one recorded injury; the record does not even show 

how many employees worked in the sorting room during this period.7 Wal-Mart, 25 BNA OSHC 

at 1402-04 (vacating § 1910.133(a)(1) item because evidence was insufficient to show that 

employer had actual knowledge, or reasonably prudent person would have known, of hazard 

requiring eye/face protection, where Secretary established “existence of only three pertinent 

incidents” over two-year period in workforce of 60 order fillers, and neither party, including 

Secretary who had burden of proof on issue, “provided expert or other relevant evidence describing 

accepted injury rate methodologies”). 

The Secretary also claims that the safety manager had knowledge of an eye hazard, given 

that a November 2010 hazard assessment he conducted states that sorting poses a medium risk 

level of “[s]mall flying debris” coming into contact with employees’ eyes. The safety manager’s 

testimony, however, shows that his assessment of a medium risk level pertained to the sorters’ 

potential exposure to “a little bit of dust.” Based on this risk-level assessment, it is not clear the 

safety manager knew that such exposure would have constituted a “significant risk of harm” and, 

 

6 According to one former sorter, pulling recyclables from the line can cause broken glass to “fl[y] 

up in air.” This witness also claimed that while working as a sorter, he once “got a piece of glass 

. . . with a chemical” in his eye even though he was wearing safety goggles at the time. The record 

does not show, however, that he ever told anyone at Envision about the injury. Also, the CO 

testified that sorters “could be” exposed to flying metal shards and that such exposure could result 

in a condition “called rust rings in their eyes.” Nothing in the record, however, shows that the CO 

observed this during her inspection, and none of the employees testified that they had ever 

observed or were exposed to flying metal shards.

7 According to the company’s OSHA 300 logs, Envision has around 80 or 90 employees overall, 

and a supervisor for one of the sorting rooms testified that she supervised eight workers. It is not 

clear from the record, though, how many workers were in the two sorting rooms at any given time, 

let alone whether the number of workers was the same during all three work shifts.
8

therefore, was a hazard under the standard, particularly since his assessment lacked specific 

information concerning the severity of potential harm and the likelihood of occurrence.8 Id. at 

1400-01; see Weirton Steel Corp., 20 BNA OSHC 1255, 1259 (No. 98-0701, 2003) (“Whether 

there exists a significant risk depends on both the severity of the potential harm and the likelihood 

of its occurrence . . . .”). 

Finally, the Secretary claims that Envision’s safety policies show the company knew 

sorters could be exposed to hazards requiring the use of eye protection. Envision’s safety manual 

states generally when eye protection is required, but it does not identify which jobs at the facility 

require the use of eye protection.9 A written safety policy specific to the sorters contains more 

detail: “Appropriate safety glasses or prescription glasses must be worn at all times in all areas of 

the plant, tipping floor, transfer floor and sorting rooms. Employees wearing prescription glasses 

should wear safety straps.” As Envision correctly points out, however, this safety policy alone

cannot be used to establish the employer’s knowledge of an alleged hazard. Gen. Motors Corp., 

GM Parts Div., 11 BNA OSHC 2062, 2066 (No. 78-1443, 1984) (consolidated) (“An employer’s 

safety recommendations do not establish that such precautions were necessary in order to comply 

with a standard.”), aff’d, 764 F.2d 32 (1st Cir. 1985). Moreover, nothing in this safety policy 

shows that it is intended to comply with the requirements of § 1910.133(a)(3). Thus, neither policy

supports a finding that the company knew sorters were exposed to hazards that require the use of 

 

8 The Secretary also relies on testimony from the CO that the safety manager admitted to her that 

allowing sorters to wear only prescription glasses was a hazardous practice. It is not clear from 

the CO’s testimony, however, whether the safety manager recognized that the conditions in the 

sorting room exposed the sorters to the types of hazards that would have been covered by 

§ 1910.133(a)(3).

9 Envision’s safety manual states that “[s]afety goggles, glasses and face shields shall correspond 

to the degree of hazard, i.e., chemical splashes, welding flashes, impact hazard, dust, etc.” The 

manual also includes the following eye protection requirements:

1. Where there is a danger of flying particles or corrosive materials, employees 

must wear protective goggles and/or face shields provided [or approved] by 

Envision . . . .

2. Employees are required to wear safety glasses at all times in areas where there 

is a risk of eye injuries such as punctures, contusions or burns.

3. Employees who need corrective lenses are required to wear only approved safety 

glasses, protective goggles, or other medically approved precautionary procedures 

when working in areas with harmful exposures, or risk of eye injury.
9

eye protection under § 1910.133(a)(3). See id. (“If employers are not to be dissuaded from taking 

precautions beyond the minimum regulatory requirements, they must be able to do so free from 

concern that their efforts will be relied on to establish their knowledge of an alleged hazard.”). 

Accordingly, we conclude that the Secretary has failed to establish Envision had actual knowledge 

of a hazard requiring the use of eye protection under § 1910.133(a)(3) and therefore, has not shown 

that the provision applies. We therefore vacate Citation 2, Item 1.

III. Repeat-Serious Citation 1, Item 1a—PPE training

Citation 1, Item 1a alleges that Envision violated 29 C.F.R. § 1910.132(f)(1) because it 

“did not train new employees who are required to use [PPE].” This provision requires an employer 

to train “each employee who is required by this section to use PPE,” and it specifies that the 

employees must “be trained to know . . . (i) When PPE is necessary; (ii) What PPE is necessary; 

(iii) How to properly don, doff, adjust, and wear PPE; (iv) The limitations of the PPE; and, (v) The 

proper care, maintenance, useful life and disposal of the PPE.” In affirming the violation, the 

judge found that the safety manager had “provided PPE training to new employees upon initial 

hire,” but he nonetheless concluded that Envision failed to comply with § 1910.132(f)(1). 

According to the judge, the eye protection training Envision provided was inadequate because 

employees were instructed that they could wear prescription glasses in lieu of safety glasses. 

On review, Envision argues that the judge improperly amended the pleadings sua sponte 

to add an “inadequate training” theory, which the Secretary never pleaded, and that this amendment 

caused “considerable prejudice towards Envision[’s] ability to adequately prepare and defend its 

case.” The Secretary maintains that the judge did, in fact, find that training “never” occurred with 

respect to “use of proper equipment for eye protection”; therefore, he made no amendment to the 

pleadings. Contrary to the Secretary’s characterization of the judge’s decision, the judge explicitly 

found that training was given, but he affirmed the violation because the training was deficient. 

Thus, the effect of the judge’s decision was to sua sponte amend the pleadings. Cf. NORDAM 

Grp., 19 BNA OSHC 1413, 1414-15 (No. 99-0954, 2001) (where citation alleged violation of 

§ 1910.133(a)(1) based on employer not providing eye protection, but judge instead based 

affirmance on employer not ensuring that employees wore eye protection, Commission amended 

pleadings—following Secretary’s motion—to conform to judge’s legal theory because 

Respondent “ ‘squarely recognized’ that it was trying the issue of whether it ensured that 

employees used eye protection” (emphasis added)), aff’d, 37 F. App’x 959 (10th Cir. 2002).
10

Nonetheless, there was nothing improper about the judge’s sua sponte amendment because

this unpleaded issue was tried by consent of the parties. Under Federal Rule of Civil Procedure 

15(b)(2), “[w]hen issues not raised by the pleadings are tried by express or implied consent of the 

parties, they shall be treated in all respects as if they had been raised in the pleadings.” Trial by 

consent exists “only when the parties knew, that is, squarely recognized, that they were trying an 

unpleaded issue.” See McWilliams Forge Co., 11 BNA OSHC 2128, 2129-30 (No. 80-5868, 1984) 

(internal footnote omitted). Here, the parties included arguments concerning the adequacy of PPE 

training in their post-hearing briefs to the judge; this shows that they both “squarely recognized” 

that the adequacy of training was at issue. In addition, the factual matter on which the judge based 

his finding of noncompliance—that employees were improperly instructed on what eyewear to use 

in the sorting room—was thoroughly litigated by the parties with respect to the protective eyewear 

violation (Citation 2, Item 1, discussed supra). Since the parties consented to try this issue, it is 

treated “as if [it] had been raised in the pleadings.” FED.R.CIV. P. 15(b)(2) (“A party may move—

at any time, even after judgment—to amend the pleadings to conform them to the evidence and to 

raise an unpleaded issue[,] [b]ut failure to amend does not affect the result of the trial of that 

issue.”). Further, because there is nothing to suggest that Envision did not have a fair opportunity 

to defend or that it could have introduced additional evidence if the case were retried, there is no 

basis for its claim of prejudice.

10

 See NORDAM Grp., 19 BNA OSHC at 1415.

We vacate Citation 1, Item 1a, however, on its merits. As discussed above, the Secretary 

has failed to establish Envision’s knowledge of an eye hazard requiring the use of PPE under 

§ 1910.133(a)(3) (Citation 2, Item 1). That failure of evidence also requires that we vacate this 

item—a training violation alleged under § 1910.132(f)(1)—because the judge’s finding of 

inadequate training was based exclusively on Envision providing improper instruction concerning 

the use of prescription glasses as eye protection. Since the Secretary has not established that 

Envision knew of an eye hazard requiring use of PPE under § 1910.133(a)(3), he cannot establish 

 

10 Because Chairman MacDougall agrees with her colleagues to vacate this item on its merits, she 

finds it unnecessary to resolve the issue of whether the judge’s sua sponte amendment was proper. 

However, she notes that it is at least concerning that the judge failed to address whether the issue 

was tried by consent of the parties. If this issue was outcome determinative, Chairman 

MacDougall would deem a remand to the judge appropriate in order for him to consider whether 

the unpleaded issue was tried by implied consent.
11

that Envision should have known that its training under § 1910.132(f)(1) required instruction to 

wear eye protection compliant with § 1910.133(a)(3). 

IV. Willful Citation 1, Item 2 (Fire extinguisher training); Repeat-Serious Citation 1, 

Items 3b and 3c (BBP training); and Willful Citation 1, Item 5 (HazCom training)

In Citation 1, Items 2 and 5, the Secretary alleges that Envision failed to provide portable 

fire extinguisher training “annually,” in violation of 29 C.F.R. § 1910.157(g)(2);

11 BBP program

training both “annually” and “[a]t the [employees’] time of initial assignment,” in violation of 29 

C.F.R. § 1910.1030(g)(2)(ii);

12 and HazCom program training “at the time of [the employees’] 

initial assignment,” in violation of 29 C.F.R. § 1910.1200(h)(1).13 The judge affirmed all four 

 

11 Section 1910.157(g)(2) requires the employer to “provide the education required in paragraph 

(g)(1) of this section upon initial employment and at least annually thereafter”; paragraph (g)(1), 

in turn, states that “[w]here the employer has provided portable fire extinguishers for employee 

use in the workplace, the employer shall also provide an educational program to familiarize 

employees with the general principles of fire extinguisher use and the hazards involved with 

incipient stage fire fighting.” 29 C.F.R. § 1910.157(g).

12 Citation 1, Item 3b alleges a failure to provide training at the time of initial assignment and 

Citation 1, Item 3c alleges a failure to provide annual training, in violation of 

§ 1910.1030(g)(2)(ii)(A) and (B), respectively. This provision requires as follows:

(2) Information and Training. (i) The employer shall train each employee with 

occupational exposure in accordance with the requirements of this section. Such 

training must be provided at no cost to the employee and during working hours. 

The employer shall institute a training program and ensure employee participation 

in the program.

(ii) Training shall be provided as follows:

(A) At the time of initial assignment to tasks where occupational exposure may take 

place;

(B) At least annually thereafter.

29 C.F.R. § 1910.1030(g)(2)(ii) (emphasis added). 

13 Citation 1, Item 5 alleges that Envision, in violation of § 1910.1200(h)(1), failed to train 

employees at the time of their initial assignment “on the hazardous chemicals such as household 

chemicals and industrial chemicals that include used motor oil, organics and engineered fuel 

fractions that come through on the sorting line.” This provision requires as follows:

(h) Employee information and training. (1) Employers shall provide employees 

with effective information and training on hazardous chemicals in their work area 

at the time of their initial assignment, and whenever a new chemical hazard the 

employees have not previously been trained about is introduced into their work 

area. Information and training may be designed to cover categories of hazards (e.g., 
12

violations based on training failures that he found occurred in 2011. He characterized Items 2 and 

5 as willful, and Items 3b and 3c as repeat-serious. The only element of these four violations that 

Envision disputes is its alleged noncompliance with the cited training provisions. For the reasons 

that follow, we find the Secretary has established noncompliance as to all four training items, but 

that the judge erred by characterizing two of the violations as willful.

A. Compliance

Employees E1 and E2 work as sorters at Envision, and S1 is a supervisor in the sorting 

room. All three employees were interviewed by the CO, after which each employee signed a 

Statement of Interview (“SOI”). The CO drafted each SOI from handwritten notes she took during 

the interviews; the employee signed the SOI after the CO read the statement aloud and the 

employee was given an opportunity to make any corrections.14 In their SOIs, which the Secretary 

questioned the employees about at the hearing, the employees identified the types of training they 

had, or had not, received from Envision in 2011: (1) E1’s SOI states that she did not receive fire 

extinguisher, BBP, or HazCom training; (2) E2’s SOI states that he did not receive BBP or 

HazCom training; and (3) S1’s SOI states that she received fire extinguisher training and had seen 

 

flammability, carcinogenicity) or specific chemicals. Chemical-specific 

information must always be available through labels and safety data sheets.

29 C.F.R. § 1910.1200(h)(1). 

14 On review, Envision argues that the judge erred in relying on the SOIs as corroborating evidence 

that the Secretary had established noncompliance with the cited training provisions when he had 

previously ruled that the SOIs were not admissible as prior out-of-court statements under Federal 

Rule of Evidence 801(d)(1)(A). As Envision points out, the judge expressly concluded that the 

SOIs were not “given under penalty of perjury at a trial, hearing, or other proceeding or in a 

deposition,” and therefore they could only “be admitted into evidence for impeachment 

purposes”—in other words “not as substantive evidence.” See Rush v. Illinois Cent. R.R. Co., 399 

F.3d 705, 720-22 (6th Cir. 2005) (“It is well-settled that where the contents of the writing used to 

refresh a witness’s memory include prior statements of that witness that are inconsistent with the 

witness’s present testimony, the prior statement may be introduced to impeach the witness.”), cert. 

denied, 546 U.S. 1172 (2006). The Secretary responds that the judge’s reliance on the SOIs as 

corroborating evidence was nonetheless appropriate, because they are admissions by a party 

opponent under Federal Rule of Evidence 801(d)(2)(D). The SOIs, however, were never “offered” 

by the Secretary as evidence under this rule. We agree, therefore, that the judge erred to the extent 

that he relied on the SOIs as corroborating evidence. Nonetheless, because there is other evidence 

in the record, as discussed above, to support the Secretary’s allegations of noncompliance, the 

judge’s error in this regard is harmless.
13

the HazCom program, but she did not receive BBP training.15 At the hearing, however, all three 

employees testified, at times contrary to their respective SOIs, that in 2011 they did receive fire 

extinguisher, BBP, and HazCom training.

In affirming the training violations, the judge discounted the testimony of these employees 

based on credibility determinations he made regarding their demeanor at the hearing—the 

adequacy of which Envision does not dispute—and his conclusion that their testimony 

contradicted prior statements documented in their SOIs.16 See L & L Painting Co., 23 BNA OSHC 

at 1990; see also Rush, 399 F.3d at 720 (“Rule 613 of the Federal Rules of Evidence authorizes 

the impeachment of a witness by use of a prior inconsistent statement.”). We conclude that the 

 

15 The judge mischaracterized part of S1’s SOI by suggesting that her SOI corroborates that no 

training was conducted in 2011, when in fact her SOI indicates that she received fire extinguisher 

training. 

16

 The judge also relied on specific testimony from the CO, who he found “to be credible” and 

“accord[ed] full weight to her testimony” based, in part, on her calm demeanor and frequent eye 

contact. According to the CO, Envision’s safety manager told her the facility “[doesn’t] have a lot 

of turnover and that he had had nine new employees since 2010 and they hadn’t received training.” 

Envision argues on review that the judge should not have credited this testimony because it 

contradicts the CO’s own inspection notes. We agree. 

The CO’s inspection notes from the first day she visited Envision’s facility quote the safety 

manager as stating, “ ‘We don’t have a lot of turnover, so it’s not like we are training all the 

time.’ ” (Emphasis added.) Then, on her return visit to the facility over a month later, the CO 

recorded in her notes that Envision had “8-9 new employees since 2010,” but this appears to be 

neither a quote of the safety manager nor specifically attributed to him. Subsequently, in the 

OSHA Violation Worksheets, the CO conflated these two sets of notes into the following statement 

from the safety manager: “[nine] new employees have been hired since 2010 and have not been 

trained on [fire extinguisher use or PPE in their work areas].” The CO admitted that these 

Worksheets include only a summary of the safety manager’s statements, and when presented with 

her inspection notes, the CO first denied that they were inconsistent with her testimony and the 

Worksheets. When asked, though, whether she interpreted the safety manager’s quote “to mean 

that he doesn’t train new employees,” the CO simply responded: “From employee interviews and 

from documents [OSHA] determined that [the safety manager] hadn’t done the training.” 

Given the disparity between her testimony, the Worksheets, and her inspection notes, which she 

failed to adequately explain under direct questioning, we accord no weight to the CO’s testimony 

on this issue despite the judge’s otherwise sound demeanor-based credibility determinations. See 

Metro Steel Constr. Co., 18 BNA OSHC 1705, 1707 (No. 96-1459, 1999) (finding judge’s reliance 

on CO’s testimony was in error when record as whole contradicted that testimony); Brickfield 

Builders, Inc., 17 BNA OSHC 1084, 1084-85 (No. 93-2801, 1995) (rejecting judge’s reliance on 

credibility findings favoring CO, because photographic evidence conclusively supports 

employer’s position). 
14

judge’s demeanor-based credibility determinations, coupled with the portions of E1’s, E2’s, and 

S1’s testimony on training they received in 2011 that directly conflict with their SOI statements

(which were properly relied upon for impeachment purposes), show that these witnesses were 

being “dishonest[] about a material fact.” This, we find, establishes that the required training was, 

in fact, not provided to them. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 

(2000) (noting in case involving action under Age Discrimination in Employment Act that “the 

general principle of evidence law that the factfinder is entitled to consider a party’s dishonesty 

about a material fact as ‘affirmative evidence of guilt’ ” (citing Wright v. West, 505 U.S. 277, 296 

(1992)); Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2182 & n.12 (No. 90-2775, 2000) 

(finding that while witness claimed her recordkeeping practices remained unchanged from 1970 

until 1990, her claim is belied by data included in some records from those years; citing to Reeves

as analogous support), aff’d, 268 F.3d 1123 (D.C. Cir. 2001). 

Thus, the record shows that the required training was not provided as follows: (1) E1 did 

not receive fire extinguisher training, in violation of § 1910.157(g)(2) (Citation 1, Item 2);17 (2) 

E1 did not receive BBP training at the time of initial assignment after being hired in September of 

that year,18 in violation of § 1910.1030(g)(2)(ii)(A) (Citation 1, Item 3b); (3) E1, E2, and S1 did 

not receive annual BBP training, in violation of § 1910.1030(g)(2)(ii)(B) (Citation 1, Item 3c); and 

 

17 Because the Secretary did not raise E2’s SOI in questioning him about whether he received fire 

extinguisher training, there is no basis to find that E2—unlike E1—was being dishonest about a 

material fact. The judge noted in his decision that E2 testified that he must not have been at work 

when the fire extinguisher training occurred, because his name did not appear on a training signin sheet (which Envision concedes was falsified, as discussed infra). This testimony, however, 

merely shows that E2’s name did not appear on the falsified sheet, not that Envision failed to 

provide him fire extinguisher training in 2011. Accordingly, this item is affirmed only as to E1.

18 Of E1, E2, and S1, only E1 was hired in 2011. Without evidence that S1 and E2 were newly 

exposed to BBPs in 2011, E1 was the only one of the three that year who required BBP training 

“[a]t the time of initial assignment.” 29 C.F.R. § 1910.1030(g)(2)(ii).
15

(4) E1 did not receive HazCom training at the time of initial assignment after being hired in 

September of that year,19 in violation of § 1910.1200(h)(1) (Citation 1, Item 5).20

Corroborating this evidence of noncompliance is Envision’s failure to produce authentic 

training documents for 2011. As several employees testified (and Envision concedes), it was the 

company’s practice to have sign-in sheets for training. After the 2012 OSHA inspection, Envision 

provided the CO with sign-in sheets purportedly for fire extinguisher, BBP, and HazCom training 

that occurred in 2011. Envision admits on review, as it did before the judge, that these documents 

were falsified,

21 and it has provided no other training documentation for 2011. In these 

circumstances, we find that Envision exhibited a “culpable state of mind,”—in other words, an 

intent to actually suppress or withhold the evidence. See Brewer v. Quaker State Oil Ref. Corp., 

72 F.3d 326, 334 (3d Cir. 1995); cf. Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 

 

19 E2, like E1, did not receive HazCom training in 2011, but E2 was not hired in 2011. Rather, he 

was hired in March 2010 and, therefore, would not have required such training under the cited 

provision in 2011 since that was not “the time of [his] initial assignment.” 29 

C.F.R. § 1910.1030(g)(2)(ii). 

20 Envision points out that other hearing testimony shows training did in fact occur in 2011. 

Specifically, Envision’s safety manager testified that fire extinguisher, BBP, and HazCom training 

were provided to Envision employees that year, and his claim finds support in testimony from two 

other employees (E3 and E4) about training they either conducted or received. As Envision 

correctly notes, the judge made no demeanor-based credibility determinations for these two 

employees, but even if he had credited their testimony, along with that of the safety manager, we 

fail to see how it undermines or contradicts the evidence establishing that training was not 

specifically provided to E1, E2, and S1. 

21 The CO testified that after receiving the sign-in sheets from Envision, she raised some concerns 

regarding their authenticity with Envision. The CO noted that an employee listed on the 2011 BBP 

training sign-in sheets was not actually employed by Envision at the time the employee supposedly 

signed them; the signatures on the 2011 HazCom training sign-in sheets are identical to the 

signatures on the previous year’s HazCom training sign-in sheets; and the headings on the fire 

extinguisher training sign-in sheets are slanted in a way that may suggest the documents were 

fabricated. 

Once these concerns were brought to the safety manager’s attention, he reviewed the sign-in sheets 

and agreed that they were not accurate. He testified that he found the sign-in sheets in a stack of 

files, and, before that, he had last seen the sign-in sheets at the safety training meetings. He claimed 

that when he initially found the sign-in sheets, he had no reason to doubt their authenticity. The 

CO testified that the safety manager informed her during his deposition that “a deceased [Envision] 

secretary . . . was thought to have made the false documents.” The CO could not follow-up with 

the secretary because the CO did not learn of her purported involvement until after the secretary 

had died.
16

99, 107 (2d Cir. 2002) (similar to rules concerning destruction of evidence, when “an adverse 

inference instruction is sought on the basis that the evidence was not produced in time for use at 

trial, the party seeking the instruction must show (1) that the party having control over the evidence 

had an obligation to timely produce it; (2) that the party that failed to timely produce the evidence 

had ‘a culpable state of mind’; and (3) that the missing evidence is ‘relevant’ to the party’s claim 

or defense such that a reasonable trier of fact could find that it would support that claim or 

defense”).

An adverse inference may be drawn against a party for failing to produce documents if 

those documents were “within the party’s control” and it “appear[s] that there has been an actual 

suppression or withholding of evidence . . . .” Brewer, 72 F.3d at 334; see Jones v. Hawley, 255 

F.R.D. 51, 52-53 (D.D.C. 2009) (“ ‘[i]t is settled beyond all question that at common law the 

destruction, alteration, or failure to preserve evidence in pending or reasonably foreseeable 

litigation warrants the finder of fact inferring that the destroyed evidence would have been 

favorable to the opposing party’ ” (cited case omitted)).22 Based on Envision’s initial production 

of fraudulent 2011 sign-in sheets and subsequent failure to produce the authentic ones, we infer 

that the names of employees who should have received training did not appear on those sign-in 

sheets, if indeed those sign-in sheets existed. See, e.g., Xin Qiu Lin v. Gonzales, 231 F. App’x 94, 

96 (2d Cir. 2007) (determining, in review of immigration judge’s denial of asylum and withholding 

of removal, that judge “was entitled to draw ‘adverse inferences’ from the submission of fraudulent 

documents, especially a marriage certificate that related to the crux of Lin’s claim that he was 

married to a person who was forcibly sterilized”).

Accordingly, we find the Secretary has established that three Envision employees did not 

receive the training required by the cited standards in 2011. We therefore affirm Items 2, 3b, 3c, 

and 5 of Citation 1. As the characterization of Items 3b and 3c is not challenged, we affirm them 

as repeat-serious. The characterization of Citation 1, Items 2 and 5, however, is challenged upon 

review.

 

22 In contrast, “[n]o unfavorable inference arises when the circumstances indicate that the 

document or article in question has been lost or accidentally destroyed, or where the failure to 

produce it is otherwise properly accounted for.” Brewer, 72 F.3d at 334.
17

B. Willful characterization for Citation 1, Items 2 and 5

“The hallmark of a willful violation is the employer’s state of mind at the time of the 

violation—an ‘intentional, knowing, or voluntary disregard for the requirements of the Act or . . . 

plain indifference to employee safety.’ ” Kaspar Wire Works, Inc., 18 BNA OSHC at 2181 

(citation omitted). 

[I]t is not enough for the Secretary to show that an employer was aware of conduct 

or conditions constituting the alleged violation; such evidence is already necessary 

to establish any violation . . . . A willful violation is differentiated by heightened 

awareness of the illegality of the conduct or conditions and by a state of mind of 

conscious disregard or plain indifference . . . .

Hern Iron Works, Inc., 16 BNA OSHC 1206, 1214 (No. 89-433, 1993). This state of mind is 

evident where “ ‘the employer was actually aware, at the time of the violative act, that the act was 

unlawful, or that it possessed a state of mind such that if it were informed of the standard, it would 

not care.’ ” AJP Constr., Inc. v. Sec’y of Labor, 357 F.3d 70, 74 (D.C. Cir. 2004) (emphasis and 

citation omitted). On review, Envision does not claim it lacked a heightened awareness of the 

standards’ requirements, but it argues that the record does not show it possessed the state of mind 

necessary for willfulness. According to Envision, the judge “in his haste to find willfulness, could 

not find any evidence of clear intent to intentionally disregard the [t]raining requirements outside 

of the allegation that the [t]raining just did not occur.”23

We agree that the record fails to establish Envision intentionally disregarded the

requirements of the cited standards. See Hern Iron Works, Inc., 16 BNA OSHC at 1214; Greenleaf 

Motor Express, Inc., 21 BNA OSHC 1872, 1875 (No. 03-1305, 2007) (noting distinction between 

mere negligence and willfulness), aff’d, 262 F. App’x. 716 (6th Cir. 2008). The judge based his 

 

23

 In concluding that Envision had a heightened awareness of the requirements in § 1910.157(g)(2) 

and § 1910.1200(h)(1), the judge noted that the company was issued a citation in 2010 following 

OSHA’s inspection of the same facility at issue here; this citation was resolved by a settlement 

agreement in which Envision waived its right to contest items alleging, as relevant here, violations 

of § 1910.157(g)(1) (fire extinguisher) and § 1910.1200(h) (HazCom). The judge specifically 

relied on evidence that Envision’s safety manager was the plant and safety manager at the time of 

both the 2010 and 2012 OSHA inspections, and that during the closing conference for the 2010 

inspection, the safety manager discussed with OSHA how to comply with the cited standards, and 

was informed that fire extinguisher and HazCom training were both required. Altor, Inc., 23 BNA 

OSHC 1458, 1470-71 (No. 99-0958, 2011) (concluding that previous citations involving violations 

of fall protection standards resulted in employer’s heightened awareness of OSHA’s fall protection 

requirements), aff’d, 498 F. App’x 145 (3d Cir. 2012).
18

finding of intentional disregard solely on the safety manager’s “statement to the CO at the 

inspection that he had not conducted training because there was no employee turnover.” As 

discussed supra in footnote 16, however, we accord the CO’s testimony on this issue no weight 

given the contradictions between her testimony and her inspection notes. Moreover, having 

reviewed the entirety of the record, it is not clear that the safety manager ever indicated to the CO

that, prior to OSHA’s inspection of the facility, he was cognizant of his failure to provide training 

in 2011 to the particular employees at issue here. See Gen. Motors Corp., 22 BNA OSHC 1019, 

1043-44 (No. 91-2834E, 2007) (consolidated) (concluding Secretary did not establish willful 

characterization where employer “was keenly aware of the LOTO standard and its requirements” 

but no evidence showed employer “appreciated its procedure was deficient”); see also AJP 

Constr., Inc., 357 F.3d at 74 (willful state of mind is evident where “employer was actually aware, 

at the time of the violative act, that the act was unlawful, or that it possessed a state of mind such 

that if it were informed of the standard, it would not care” (internal quotation marks omitted; 

emphasis added)). 

Accordingly, we conclude that the record does not establish that Envision intentionally 

disregarded the training requirements at issue under Citation 1, Items 2 and 5. See Stanley Roofing 

Co., 21 BNA OSHC 1462, 1466 (No. 03-0997, 2006) (Secretary bears “burden of proof to show 

the requisite state of mind for willfulness”); see also E.R. Zeiler Excavating, Inc., 24 BNA OSHC 

2050, 2053 (No. 10-0610, 2014) (declining to characterize violation as willful where record is 

poorly developed on key evidentiary issues); George Campbell Painting Corp., 17 BNA OSHC 

1979, 1983 (No. 93- 0984, 1997) (same); Access Equip. Sys., Inc., 18 BNA OSHC 1718, 1727-28 

(No. 95-1449, 1999) (same). The Secretary does not claim that any other basis exists for finding 

these violations willful. Both items are, therefore, affirmed as serious. Stanley Roofing Co., 21 

BNA OSHC at 1466 (violation found serious rather than willful where seriousness was evident 

from record). 

V. Repeat-Serious Citation 1, Item 3a—Accessibility of exposure control plan

Citation 1, Item 3a pertains to the accessibility of Envision’s exposure control plan to its 

employees. Specifically, the Secretary alleges that “[o]n or about March 21, 2012,” Envision, in 

violation of § 1910.1030(c)(1)(iii), failed to “ensure that a copy of the Exposure Control Plan was 

accessible to employees.” This provision requires that “[e]ach employer . . . ensure that a copy of 

the Exposure Control Plan is accessible to employees in accordance with [29 C.F.R. 
19

§ 1910.1020(e)].”24 Section 1910.1020(e) requires, among other things, that “[w]henever an 

employee or designated representative requests access to a record, the employer shall assure that 

access is provided in a reasonable time, place, and manner.” The judge affirmed the violation.

 On review, Envision challenges only the judge’s conclusion that the Secretary established 

noncompliance. The judge relied in part on what he considered “an admission” by the safety 

manager to the CO that the company lacked an exposure control plan:

[The CO] testified that when she inquired about Respondent’s BBP Exposure 

Control Plan, on her first attempt to [inspect] Envision on February 16, 2012, [the 

safety manager] stated that the company didn’t have one and that such information 

was communicated verbally. The plan was not provided to the [CO] until she 

returned on March 21, 2012 with the warrant to conduct the inspection. The fact 

that the . . . safety manager wasn’t able to provide [the CO] a copy of the plan upon 

request along with his admission [to her] that it didn’t exist, establishes the plan 

was not accessible to employees.

However, the plan Envision provided to the CO on March 21, 2012 is the same plan Envision 

provided to OSHA on January 3, 2011 to successfully abate a 2010 citation.25 Although the 

Secretary states on review that the plan provided to the CO “did not appear to relate to Envision’s 

Seville facility,” he does not identify or discuss any specific inadequacies in the plan. Determining 

whether the Secretary has established noncompliance, therefore, turns solely on the accessibility 

of Envision’s plan under § 1910.1030(c)(1)(iii), not its existence or adequacy.

Moreover, there is no dispute that when the CO returned to the facility on March 21, 2012, 

a copy of the plan was immediately provided to her. Because the plan was “accessible” at the time 

the Secretary alleges in the citation that the violation occurred (“on or about March 21, 2012”), we 

conclude that the record does not establish Envision’s noncompliance with the cited provision.

26

 

Accordingly, we vacate Citation 1, Item 3a.

 

24 The Code of Federal Regulations mistakenly refers to this provision as § 1910.20(e), which was 

redesignated as § 1910.1020(e) in 1996. Consolidation of Repetitive Provisions; Technical 

Amendments, 61 Fed. Reg. 31,427, 31,429 (June 20, 1996) (final rule).

25 As to the settlement agreement resolving the 2010 citation, Envision waived its right to contest 

an item that alleged a violation of § 1910.1030(c)(1)(i). The violation alleged that “[t]he employer 

had not compiled and made available a written [BBP] program for all workers with occupational 

exposure including, but not limited to the workers in the sorting area who are exposed to sharps 

and other potentially infectious materials while sorting the household and business wastes.”

26 We do not construe the citation’s use of the phrasing “on or about March 21, 2012” as 

encompassing the February date—a day that was four weeks earlier. In addition, the Secretary has 

made no attempt to amend the citation to allege that the violation occurred on February 16, 2012, 
20

VI. Other-than-Serious Citation 3, Item 1—Providing information on respirators

The Secretary alleges in Citation 3, Item 1 that Envision, in violation of 29 C.F.R. 

§ 1910.134(k)(6), failed to “provide Appendix D of the respirator standard when employees 

voluntarily wear N-95 dust masks.” This provision requires that “[t]he basic advisory information 

on respirators, as presented in appendix D of this section, . . . be provided by the employer in any 

written or oral format, to employees who wear respirators when such use is not required by this 

section or by the employer.” 

The judge affirmed the violation, finding that the cited standard was applicable because the 

CO testified that the safety manager “told her that Envision makes N-95 dust masks available for 

an employee’s [voluntary] use.” On review, Envision argues that no evidence shows the dust 

masks made available to its employees were “N-95” dust masks or any other type of respirator 

covered by § 1910.134(k)(6); thus, the item should be vacated because the provision does not 

apply. The Secretary responds that even if there is no evidence identifying the type of dust mask, 

this is “inconsequential” because “dust masks are defined in § 1910.134(b) as respirators.”27

We agree that a requirement under § 1910.134(k)(6) to provide Appendix D was triggered

by Envision when it made “dust masks” available to its employees for voluntary use.

28

 The 

requirement at issue is triggered by an employee wearing any type of “respirator[] when such use 

is not required” by the standard.

29 Even when used colloquially, as the safety manager might have 

 

and nothing in the record suggests that the parties impliedly consented to try this unpleaded issue. 

See McWilliams, 11 BNA OSHC at 2129-30.

27 Section 1910.134(b) defines “Filtering facepiece (dust mask)” as “a negative pressure 

particulate respirator with a filter as an integral part of the facepiece or with the entire facepiece 

composed of the filtering medium.” There is no evidence in the record describing the type or 

characteristics of the masks at issue.

28 Our holding that the cited requirement applies here is confined to the specific circumstances 

present in this case; we do not address whether an employer has obligations under the cited 

provision where the employer does not provide the respirator, such as in situations in which an 

employee brings his own dust mask to the workplace.

29 “Respirator” is not defined by the standard, but the term is used broadly throughout it to refer to

various types of personal air-filtering/supplying devices. See 29 C.F.R. § 1910.134(b) (defining 

“negative pressure respirator,” “positive pressure respirator,” “pressure demand respirator,” etc.); 

see also RANDOM HOUSE UNABRIDGED DICTIONARY 1640 (2d ed. 1993) (defining respirator as “a 

masklike device, usually of gauze, worn over the mouth, or nose and mouth, to prevent the 

inhalation of noxious substances or the like”).
21

done when speaking with the CO, “dust mask” refers to some type of filtering “masklike device,”

—a respirator.30 As there is no dispute that Envision failed to provide the Appendix D information 

to its employees and no other elements of the violation are at issue, we affirm Citation 3, Item 1 

as other-than-serious. 

VII. Penalty

In assessing penalties, the Act requires the Commission to give “due consideration to the 

appropriateness of the penalty with respect to the size of the business of the employer being 

charged, the gravity of the violation, the good faith of the employer, and the history of previous 

violations.” 29 U.S.C. § 666(j). The judge assessed the penalties proposed by the Secretary for 

each of the violations that he affirmed—$70,000 for each item characterized as willful, and $7,000 

for each item characterized as either serious or repeat-serious. 

Taking into consideration the gravity of the violations (two of which are no longer 

characterized as willful), as well as Envision’s business size (see supra footnote 7) and its efforts 

to come into compliance following the 2010 citation, we find that a reduction in the penalty 

amounts assessed by the judge is warranted. As to gravity, we recognize the dangers posed by 

BBPs, particularly when employees are not adequately protected from exposure. Indeed, given 

the nature of the work performed by the sorters, the potential for sticks from contaminated needles 

is a grave concern. For the training items, however, our affirmance is limited to Envision’s failure 

to train three of its employees. In addition, while portable fire extinguisher training is no doubt 

important, in the event of a fire, the presence of other employees who attended such training would 

mitigate the risks associated with failing to train one employee. This is not the case with respect 

to PPE, HazCom, and BBP training, as those types of training focus more on ensuring the safety 

of the individual employee. 

Under these circumstances, we find it appropriate to assess the following penalties for the 

items affirmed in Citation 1: $5,000 for Item 1b (repeat-serious), $1,000 for Item 2 (serious), a 

 

30 Envision cites to Cranesville Block Co., 23 BNA OSHC 1977, 1980 & n.2 (No. 08-0316, 2012) 

(consolidated), rev’d on other grounds, 878 F.3d 25 (2d Cir. 2017), to support its contention that 

the term “dust mask,” as used colloquially by the safety manager, may not be referring to a 

“respirator” covered by the cited standard. In Cranesville, however, the factual matter at issue 

pertained to the specific type of respirator that an employee was using, not whether the term “dust 

mask,” if used colloquially, might refer to something other than a respirator. Id.
22

single penalty of $5,000 for Items 3b and 3c (repeat-serious), and $4,000 for Item 5 (serious). For 

Citation 3, Item 1, no penalty is assessed.

SO ORDERED.

/s/

Heather L. MacDougall

Chairman

/s/

Cynthia L. Attwood

Commissioner

/s/

James J. Sullivan, Jr.

Dated: April 4, 2018 Commissioner
 

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

 Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET No. 12-1600

ENVISION WASTE SERVICES, LLC.,

 Respondent. 

Appearances:

Paul Spanos, Esquire, U.S. Department of Labor, Office of the Solicitor, Cleveland, OH

 For the Complainant

Joseph J. Brennan, Esquire, Fisher & Phillips, LLP, Cleveland, OH

 For the Respondent

Before: Keith E. Bell, Administrative Law Judge

DECISION AND ORDER

 This proceeding is before the Occupational Safety and Health Review Commission (“the 

Commission”) pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 

§ 651 et seq. (“the Act”). On February 16, 2012, the Occupational Safety and Health 

Administration (“OSHA”) attempted to conduct an inspection of a worksite located at 8700 Lake 

Road in Seville, Ohio, based on a complaint. On March 21, 2012, OSHA returned with an 

administrative warrant and conducted an inspection of the worksite. Based on the inspection 

findings, OSHA issued a Citation and Notification of Penalty (“Citation”) to Envision Waste 

Services (“Respondent” or “Envision”) on July 10, 2012, alleging violations of the Act. 
2

Respondent filed a timely Notice of Contest, bringing this matter before the Commission. 

The Citation issued to Respondent consisted of the following alleged violations and proposed 

penalties:

Citation 1, Item 1a is classified as “Repeat-Serious” and alleges that Respondent violated 29 

C.F.R. § 1910.132(f)(1), based on information that employees did not receive training on the use 

of personal protective equipment (“PPE”). A penalty of $7,000.00 is proposed for this item. 

Citation 1, Item 1b is also classified as “Repeat-Serious” and alleges that Respondent 

violated 29 C.F.R. § 1910.1030(d)(3)(i) based on information and observations that some 

employees were not provided with PPE.

1

 

Citation 1, Item 2 is classified as “Willful” and alleges that Respondent violated 29 C.F.R. § 

1910.157(g)(2) based on information that employees were not provided with training on the use 

of portable fire extinguishers.2 A penalty in the amount of $70,000.00 is proposed for this item. 

Citation 1, Item 3a is classified as “Repeat-Serious” and alleges that Respondent violated 29 

C.F.R. § 1910.1030(c)(1)(iii), for failure to make a copy of its Bloodborne Pathogens (“BPP”) 

Exposure Control Plan accessible to employees. A penalty in the amount of $7,000.00 is 

proposed for this item.3 

Citation 1, Item 3b is classified as “Repeat-Serious” and alleges that Respondent violated 29 

C.F.R. § 1910.1030(g)(2)(ii)(A) based on information that employees did not receive training on 

employer’s BPP program upon initial assignment. 

Citation 1, Item 3c is classified as “Repeat-Serious” and alleges that Respondent violated 29 

C.F.R. § 1910.1030(g)(2)(ii)(B), based on information that employees who worked in the 

 

1 Citation 1, Items 1a and 1b are grouped for penalty purposes.

2 By Order dated May 22, 2013, granting Complainant’s Motion to Amend, Citation 1, Items 2 and 5 were 

reclassified from “Repeat-Serious” to “Willful.” Citation 2, Item 1 was also reclassified from “Serious” to 

“Willful.” The penalty for each of these citation items was increased to the statutory maximum of $70,000.00.

3 Citation 1, Items 3a, 3b, and 3c are grouped for penalty purposes.
3

“sorting room” did not receive annual training on the employer’s BPP program. 

Citation 1, Item 4 is classified as “Repeat-Serious” and alleges that Respondent violated 29 

C.F.R. § 1910.1030(f)(2)(i), based on information that the Hepatitis B vaccination was not made 

available to employees working in the “sorting line” within 10 working days of initial 

assignment. A penalty in the amount of $7,000.00 is proposed for this item. 

Citation 1, Item 5 is classified as “Willful” and alleges that Respondent violated 29 C.F.R. § 

1910.1200(h)(1), based on information that employees who worked on the “sorting line” were 

not provided with effective information and training on hazardous chemicals upon initial 

assignment. A penalty in the amount of $70,000.00 is proposed for this item. 

Citation 2, Item 1 is classified as “Willful” and alleges that Respondent violated 29 C.F.R. § 

1910.133(a)(3), when it did not provide adequate eye protection for employees who wear 

prescription lenses. A penalty in the amount of $70,000.00 is proposed for this item. 

Citation 3, Item 1 is classified as “Other-than-Serious” and alleges a violation of 29 C.F.R. § 

1910.134(k)(6), based on information that employees who wear respirators were not provided 

basic advisory information on respirators in written or oral form. No penalty is proposed for this 

item.

A hearing in this case was held on June 4-5, 2013, in Cleveland, Ohio. The parties each filed 

a post-hearing brief. For the reasons that follow, all items except Citation 1, Item 4 are

AFFIRMED and penalties totaling $224,000.00 are assessed.

Jurisdiction

The record establishes that at all times relevant to this case, Respondent was an employer

engaged in a business affecting commerce within the meaning of § 3(5) of the Act, 29 U.S.C. § 

625(5). 
4

Factual Background

Respondent is the operator of the Medina County processing facility which receives the 

entire county’s sanitary waste. Tr. 406. Various independent haulers bring the waste to the 

facility. Tr. 406. Incoming waste includes such material as: paper, cardboard, metals glass, toys, 

clothing, and medical waste from the local hospital. Tr. 213-214. The hospital waste includes, 

among other things, needles, vials of blood, I.V. tubing (with blood still in it), and used gauze 

patches. Tr. 326-327. In the summer, the facility also receives human waste from port-a-pots. 

Tr. 327. Once the waste is received at the facility, it travels by conveyor belt into sorting rooms 

where recyclables are removed. Tr. 402-403. 

February 16 Attempted Inspection

On February 16, 2012, the OSHA Area Office in Cleveland, Ohio sent a Compliance Safety 

and Health Officer (“CSHO”) to conduct an inspection of Respondent at its facility located at 

8700 Lake Road in Seville, Ohio. Upon arrival, CSHO Janelle Zindroski met with the Plant 

Manager Gary Kaufman and informed him that she was there to conduct an inspection based on 

a complaint. Tr. 33. The complaint concerned an issue with sharp objects. Tr. 435. In response 

to a request for documents, the CSHO received the following: (1) BPP Exposure Control 

Agenda, Dec. 30, 2010 (C-1) 4; (2) Fire Extinguisher training records for 2010 (C-2); Hazard 

Communication (“HAZCOM”) agenda dated December 30, 2010 (C-3); and (4) PPE agenda 

dated December 22, 2010 (C-4). Tr. 38-39. After providing the documents to the CSHO, Mr. 

Kaufman left the room to take a phone call. When he returned, he asked the inspector for a 

warrant. Tr. 40. The CSHO then left to obtain an administrative warrant. Tr. 41. 

 

4

“C” denotes Complainant’s exhibit and “R” denotes Respondent’s exhibit.
5

March 21 Inspection

CSHO Zindroski, along with another OSHA inspector, returned with an administrative 

warrant on March 21, 2012. Tr. 41. After presenting the warrant, the inspectors proceeded to 

conduct an inspection of Respondent’s facility beginning in the sorting room. Id. During the 

inspection, photographs were taken and employee interviews were conducted. Id. The 

Respondent provided the CO with additional documents to include: (1) BBP Exposure Control 

Plan (C-7); (2) HAZCOM Program (C-6); and (3) PPE Hazard Assessment (C-13). Tr. 42. 

On March 29, 2012, Respondent, through its attorney, provided the employee vaccination log 

for Hepatitis B (C-11) and 2011 training sign-in sheets for the following: (1) HAZCOM (C-8);

(2) PPE; (3) Fire Extinguisher (C-10); and (4) BPP (C-9). The CSHO noticed that an employee 

that had not yet been hired was listed on a 2011 sign-in sheet and notified Envision that the 2011 

training sign-in sheets may have been falsified. Tr. 45, 47-48, 450. In response, the Plant 

Manager Gary Kaufman, conceded that the sign-in sheets “didn’t seem to be correct.” Tr. 450, 

455-456. Mr. Kaufman implied that [redacted] may have tampered with the sign-in sheets 

because she had been the only one with physical control over them. Tr. 413, 453-454. Kaufman 

also testified that he had no knowledge that [redacted] tampered with the sign-in sheets and that 

she had no history of tampering with records in her eight years of employment with Envision. 

Id. Despite the inaccurate sign-in sheets, Mr. Kaufman maintained that training did occur in 

2011. Tr. 454-455. 

2010 Inspection

Respondent’s facility had previously been inspected by OSHA on or about August 13, 2010. Tr. 

257. Based on that inspection, OSHA issued citations to Respondent for violations of the 

following standards: (1) §§ 1910.132, 1910.133, 1910.134 (PPE); (2) § 1910.157 (portable fire 
6

equipment); (3) § 1910.1030 (BBP); and (4) § 1910.1200 (HAZCOM). Tr. 260-261, 264, 265-

266, 268, 275. C-14. The citations were resolved as part of an informal settlement agreement. 

C-15.

Secretary’s Burden of Proof

The Secretary has the burden of establishing that the employer violated the cited standard. 

“To prove a violation of an OSHA standard, the Secretary must show by a preponderance of the 

evidence that (1) the cited standard applies; (2) the employer failed to comply with the terms of 

the cited standard; (3) employees had access to the violative condition; and (4) the cited 

employer either knew or could have known with the exercise of reasonable diligence of the 

violative condition.” JPC Group Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009)

(citations omitted).

Serious Classification 

To demonstrate that a violation was “serious” under § 17(k) of the Act, the Secretary must 

show that there is a substantial probability of death or serious physical harm that could result 

from the cited. The Secretary need not show the likelihood of an accident occurring. Spancrete 

Ne., Inc., 15 BNA OSHC 1020, 1024 (No. 86-521, 1991).

Repeated Classification

The Commission has held that a violation is repeated under § 17(a) of the Act, if, at the time 

of the alleged repeated violation, there was a Commission final order against the same employer 

for a substantially similar violation. Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 

1979). The Secretary may establish a prima facie case that a violation is repeated by showing 

that the two violations were of the same standard, or if they were not, that they otherwise were 

substantially similar. Id.
7

Willful Classification 

To establish that a violation was “willful” the Secretary must prove that it was “committed 

with intentional, knowing or voluntary disregard for the requirements of the Act or with plain 

indifference to employee safety.” Valdak Corp., 17 BNA OSHC 1135, 1136 (No. 93-0239, 

1995) (citations omitted), aff’d, 73 F.3d 1466 (8th Cir. 1996). The Secretary must differentiate a 

willful from a serious violation by showing that the employer had a heightened awareness of the 

illegality of the violative conduct or conditions, and by demonstrating that the employer 

consciously disregarded OSHA regulations, or was plainly indifferent to the safety of its 

employees. Valdak Corp., 17 BNA OSHC at 1136. “The Secretary must show that the employer 

was actually aware, at the time of the violative act, that the act was unlawful, or that it possessed 

a state of mind such that if it were informed of the standard, it would not care.” Propellex Corp.,

18 BNA OSHC 1677, 1684 (No. 96-0265, 1999) (citations omitted).

Discussion

The Hearing

At the hearing, the Secretary called the following witnesses to establish his case-in-chief: 

Janelle Zindroski, OSHA Compliance Officer; [redacted], Envision employee; Michael Bopp, 

OSHA Industrial Hygienist; [redacted], Envision employee; [redacted], Envision employee; 

[redacted], Envision employee; and, [redacted], Envision employee. The Respondent called the 

following witnesses: Gary Kaufman, Envision Plant Manager; Steven Stottsberry, Envision 

employee; David Hitchings, Envision employee; Patty Zaccardelli-Bart, Envision Office 

Manager; and, Janelle Zindroski (on rebuttal). 

CSHO Janelle Zindroski and Plant Manager Gary Kaufman were the key witnesses for 

Secretary and Respondent respectively. Ms. Zindroski, based the Citation issued to the 
8

Respondent, in large part, on the out-of-court statements she received from employee witnesses 

and Mr. Kaufman. Ms. Zindroski’s testimony concerning the out-of-court statements given to 

her and offered for the truth of the matter asserted is, by definition, hearsay.5 Rule 801(d)(2)(D) 

of the Federal Rules of Evidence provides an exception to the hearsay rule for statements by a 

party opponent. Such statements are treated as “non-hearsay” if made by the party's agent or 

servant concerning a matter within the scope of the agency or employment, made during the 

existence of the relationship. Fed. R. Evid. 801. All of the employee witnesses who gave the 

out-of-court statements of interview (“SOI” or “statement(s)”) during the 2012 inspection were 

employees/agents of Respondent, Envision, at the time the statements were given. Thus, a 

determination of the facts will rest on to the credibility of the Secretary’s key witness versus that 

of Respondent’s key witness.

Janelle Zindroski

Ms. Zindroski was the CSHO assigned to inspect Envisions Waste Services facility in 

Seville, Ohio. Tr. 32. She has been employed with OSHA for 31⁄2 years and holds an 

undergraduate degree in environmental health with an emphasis on industrial hygiene. Tr. 26. 

She has training and work experience with BPP as well as HAZCOM. Tr. 28-30.6 Ms. 

Zindroski has work experience in PPE which includes serving as the coordinator of health and 

safety programs for OSHA. She also conducts training at OSHA’s Occupational Training 

Institute (“OTI”) on PPE programs. Tr. 31. Additionally, she has received training at OTI on 

how to evaluate a fire extinguisher program. Id. 

 

5 As a procedural matter, it should be noted that Respondent failed to make a timely objection to this testimony as 

required by Federal Rule of Evidence 103(a)(1). 

6 Ms. Zindroski received part of her work experience with HAZCOM evaluating factories in Ethiopia and 

conducting training on reading and understanding material safety data sheets, as well as sampling.
9

During her testimony, Ms. Zindroski’s demeanor was calm on both direct and crossexamination. Also, she frequently made eye contact with the undersigned when answering 

questions. When asked how she felt about Respondent’s demand for a warrant, she simply

stated, “it’s an employer’s right.” Tr. 40. Ms. Zindroski had not inspected Envision prior to this 

inspection. Id. For all of the foregoing reasons, I find Ms. Zindroski to be credible and I accord 

full weight to her testimony.

Evidentiary Conflicts and Witness Credibility

Much of the government’s case rests upon out-of-court statements. The following witnesses 

gave statements of interview (“SOI” or “statement”) to the CSHO during the inspection which 

served, in part, as the basis for the violations at issue in this case: (1) [redacted]; (2) [redacted]; 

and (3) [redacted].

7

 However, each individual’s testimony under oath at the hearing, to varying 

degrees, told a different story and often amounted to a recant of the SOI. The Secretary did not 

admit the SOI’s into evidence, but rather used selected portions to impeach these witnesses when

their testimony contradicted their SOI’s. These employee witnesses were called as part of the 

government’s case-in-chief.8 

Generally, statements made outside of court which are then offered in court for the truth of 

the matter asserted are “hearsay” and not admissible as evidence. Fed. R. Evid. 801(c).9 Here, 

the employee witnesses told one story in their SOIs and a different story at the hearing. As a 

result, each was confronted with the inconsistency of the prior statements made in their SOI. A 

witnesses’ prior out-of-court statement is admissible if it is: (1) inconsistent with his/her in court 

testimony; and (2) was given under penalty of perjury at a trial, hearing, or other proceeding or 

 

7 Two executives from Envision were present during the testimony of the employees: Steve Viny, CEO and Clayton 

Minder, CFO. Tr. 6.

8

If the SOIs had been offered into evidence, they may have qualified for admission as an opposing party’s 

statement. Fed. R. Evid. 801(d)(2)(D).

9 The Commission applies the Federal Rules of Evidence. 29 C.F.R. § 2200.71.
10

in a deposition. Fed. R. Evid. 801(d)(1)(A). The SOIs given by these witnesses fail to meet the 

second prong of that test because they weren’t given under penalty of perjury. Tr. 147. Prior 

inconsistent statements that do not meet the test of Rule 801(d)(1)(A) may be admitted into 

evidence for impeachment purposes, but not as substantive evidence. 5 Jack B. Weinstein & 

Margaret A. Berger, Weinstein’s Federal Evidence § 801.21 (Joseph M. McLaughlin, ed., 

Matthew Bender 2d ed. 2013).

[redacted]

[redacted] has been an employee of Envision since September 2011. Tr. 281, 293. She is a 

sorter on the conveyor line which requires her to split open trash bags and sort out certain items, 

such as newspapers and cardboard, from the trash as it moves down the conveyor. Tr. 281-284. 

During OSHA’s inspection of Envision, she signed the SOI she provided to the CSHO.10 

In her statement to the CSHO, she said that she had not been trained on BPP, HAZCOM, fire 

extinguishers, and had been told that wearing only her prescription glasses was okay. Tr. 287-

290. However, her testimony at the hearing was quite different. 

For example, [redacted] denied telling the CSHO that she wasn’t trained on BPP, and 

instead, testified that she had been trained. Tr. 287. She denied telling the CSHO that she did 

not receive training on fire extinguishers. Tr. 288. [redacted] also denied telling the CSHO that 

she had not received training on the company’s HAZCOM program. Tr. 290. To the contrary, 

[redacted] testified that she received training from Mr. Kaufman, the Plant Manager, on: (1) 

HAZCOM; (2) Fire Extinguishers; and (3) BPP. Tr. 298, 300-302. When asked about her prior 

statement to the CSHO that wearing prescription glasses only was okay, she responded by saying 

that she also wears her safety glasses. Tr. 289.

 

10 During the inspection, CSHO Zindroski asked questions and recorded answers as a SOI; she then had each person 

sign the SOI. Tr. 152, 293-94.
11

I find that the out-of-court statement given by [redacted] is credible in that it was given at an 

earlier time when the facts in question were fresher in her mind. Further, I find that [redacted]

gave the statement when she was not facing her employer thereby placing herself at risk by 

making statements against Envision’s interest. [redacted] testified that she did not think she 

would get into trouble for not signing her SOI. Tr. 294. This is an indication that she was not 

under duress or threat of coercion when giving her statement to the CSHO. 

In weighing [redacted] SOI against her in-court testimony, I also considered her demeanor on 

the stand. At times, her testimony at the hearing seemed coerced and rehearsed. For example, 

during her testimony she declared that she had been trained on BPP before the Secretary’s 

attorney could finish asking her about her prior statement to OSHA that she had not been trained 

on BPP. Tr. 287. She did not make eye contact with the undersigned even when answering 

questions. Also, she seemed very defensive while answering questions on direct examination. 

In view of the fact that [redacted] SOI was offered for impeachment purposes only during her 

direct examination, I do not treat it as substantive proof; however, I do find that it substantially 

contradicts her in-court testimony. For these reasons, I accord little weight to her testimony at 

the hearing.

[redacted]

[redacted] has been an employee of Envision for approximately 15 years. Tr. 334. His 

current job is a sorter in Room 1. This job requires him to sort out paper and bulk items. Id. 

During the inspection, he also gave a signed SOI to OSHA. Tr. 339-340. Like [redacted], at the 

hearing, [redacted] told a very different story from the one he told the CSHO in his SOI. For 

example, he denied telling OSHA that he did not have safety glasses and that his prescription 

glasses were “good enough.” Tr. 343-344. He also denied telling OSHA that he did not receive 
12

any HAZCOM training. Tr. 345. [redacted] was confident that when there is training he always

signs the training “sign-in” sheet. He was also confident in his testimony that he received 

firefighting training from Steve Stottsberry, an Envision employee, who is also a volunteer 

firefighter. Tr. 342, 349-350. However, when confronted with Envision’s firefighting training 

sign-in sheet that did not include his name, he admitted that his name would not be on the sheet 

if he “wasn’t there at work that day.” Tr. 357-358. Finally, he did concede that his name was 

not on the firefighting training sign-in sheet. C-10; Tr. 358.

I find that the out-of-court SOI given by [redacted] is credible in that it was given at an 

earlier time when the facts in question were fresher in his mind. Further, I find that [redacted]

gave the statement when he was not facing his employer thereby placing himself at risk by 

making statements against Envision’s interest. Although [redacted] testified that he signed the 

SOI only because he felt it was part of his job, he made no claim of coercion by the CSHO. Tr. 

355-356. In weighing [redacted]’ SOI against his in-court testimony, I also considered his 

demeanor on the stand. For example, he did not make eye contact with the undersigned and 

seemed to be very defensive during direct examination. 

In view of the fact that [redacted]’ SOI was offered only for impeachment purposes during 

his direct examination, I do not treat it as substantive proof; however, I do find that it 

substantially contradicts his in-court testimony. For these reasons, I accord little weight to his 

testimony at the hearing.
13

[redacted]

[redacted] has been employed by Envision since February 2007. Tr. 362. At the time of the 

inspection, she was a room supervisor/sorter. Tr. 363. She has been a supervisor at Envision for 

five years. Tr. 364. 

[redacted] gave a signed SOI to OSHA during the inspection. Tr. 365. Unlike [redacted] and 

[redacted], [redacted] did not recant her entire SOI at the hearing. Initially, she denied telling the 

CSHO that Envision had not provided her with any training for the past year. Tr. 366. She also 

testified that she did not remember telling the CSHO that she hadn’t been trained on Envision’s 

PPE hazard assessment. Tr. 368. She testified that she received BPP and HAZCOM training 

conducted by Gary Kaufman in the fall of 2011. Tr. 370, 373. She also testified that the gloves 

being used at Envision were not cut resistant and that she’s spoken to Gary about this many 

times. Tr. 390. In response to my questions about which of the statements in her SOI that she 

still agreed with, [redacted] agreed with the following statements:

• [T]he “gloves don’t work. They are not puncture resistant.” Tr. 382.

• “[I]n two weeks I’ve had to pull glass out of my fingers.” Tr. 383.

• “Gary told me as long as I wear my prescription glasses, I don’t have to wear my safety 

glasses.” Tr. 385.

• She had never been trained on evacuation procedures in the event of a fire. Tr. 386.

In weighing Robertson’s SOI against her in-court testimony, I also considered her demeanor 

on the stand. For example, she did make eye contact with the undersigned and appeared to be 

calm and relaxed while answering questions about her SOI. [redacted] testified that she did not 

feel coerced into signing her SOI. Tr. 381. In contrast, other parts of her testimony seemed 

coerced and rehearsed. For example, the undersigned had to admonish her about offering 

answers before Respondent’s attorney could finish the questions on cross-examination. Tr. 372.
14

In view of the fact that [redacted]’s SOI was offered for impeachment purposes only, I do not 

treat it as substantive proof; however, I do find that it contradicts her in-court testimony, in part. 

For these reasons, I accord some weight to her testimony at the hearing, to the extent it is 

corroborated or consistent with other evidence.

Gary Kaufman

Mr. Kaufman is currently employed by Envision as the first shift plant manager, safety 

manager, and third shift maintenance crew/cleaning crew supervisor. Tr. 393, 471. His 

responsibilities include supervising daily operations and conducting safety meetings. Tr. 394. 

Mr. Kaufman has a bachelor’s degree in health and education. Tr. 472. Mr. Kaufman did not 

receive any formal training for his position as safety manager. Tr. 405-406, 472. He testified 

that his knowledge of health and safety is based on his own experience along with Internet 

research. Tr. 402, 462. He was the plant manager and safety manager for Envision at the time of 

both the 2010 and 2012 OSHA inspections. Tr. 33, 263, 395, 474.

Mr. Kaufman testified that he did recall the 2010 inspection and that citations were issued to 

Envision. Tr. 395. He also testified that after the 2010 inspection Envision implemented a 

“formal lockout, tag-out program and a risk assessment and a formal Blood-Borne Pathogen and 

Hazardous Communication [program].” Tr. 396. The changes to the safety policy were done 

with the assistance of an outside safety consultant hired by Envision, Steve Ogle. Tr. 396.

During the 2012 inspection, when asked about the 2011 training documents, Mr. Kaufman 

told the CSHO that because Envision doesn’t have a lot of turnover he had not done any training. 

Tr. 51. Interestingly, he also told the CSHO that Envision had eight or nine new hires since 

2010. Tr. 62, 69, 106. 
15

As a result of the 2010 inspection and resulting Citation, Envision hired a safety consultant, 

Steve Ogle, who provided, inter alia, the creation of a HAZCOM program. Tr. 399. When 

asked about the creation of a written BPP program, Mr. Kaufman testified that he developed this 

document with the assistance of Envision’s attorney, Joseph Brennan. Id. Also, after the 2010 

inspection he utilized the Internet for self-education. Tr. 401-02.

Regarding health and safety at Envision, he told the CSHO that he wasn’t very familiar with 

what he was required to do and no one told him when he was supposed to provide training for

employees. Id. Yet, on direct examination at the hearing, he testified that Steve Ogle, an expert 

in OSHA requirements, suggested that safety trainings be conducted once a month. Tr. 396-398. 

Kaufman conceded that he has no training on OSHA regulations and compliance nor does he 

have a copy of the regulations. Tr. 410. He provided new hires with initial training by 

reviewing highlights of Envision’s safety manual. Tr. 422. In addition to oral presentations, Mr. 

Kaufman utilized a series of VHS tapes as part of Envision’s safety and health training program. 

Tr. 479-480. Mr. Kaufman confirmed that he is the “Responsible Safety Officer” referred to in 

Envision’s safety manual. Tr. 482.

Regarding training in 2011, Mr. Kaufman testified that fire extinguisher training was 

conducted in the fall and led by Steve Stottsberry, who is an Envision employee and volunteer 

firefighter. Tr. 408-409. Mr. Kaufman testified that except for the firefighting training, he alone 

conducted all other training. Id. at 409. He testified that BPP training was conducted in 

November 2011. Tr. 413-414. According to Mr. Kaufman, HAZCOM training was conducted 

on the same day as the BPP training. Tr. 416. PPE training was addressed during a new hire’s 

initial training as part of the review of Envision’s safety manual. Tr. 422. Employees signed 
16

employee training certifications for initial PPE training after reviewing the safety manual with 

Mr. Kaufman. R-7. 

In November 2010, Mr. Kaufman used a PPE assessment data form provided by Mr. Ogle to 

conduct a safety audit. Tr. 431, 433. With regard to safety glasses, Mr. Kaufman recorded 

“appropriate safety glasses or prescription glasses.” Id. at 433. He believed that prescription 

glasses were sufficient based on the lack of eye injuries. Tr. 434. Mr. Kaufman denied telling 

the CSHO that Envision didn’t offer Hepatitis B vaccines. Tr. 459. Finally, regarding the 

CSHO’s note referencing his comment that he “got stuck doing health and safety . . . ,” Mr. 

Kaufman didn’t deny making the comment but rather testified that he was “unclear as to how this 

refers to anything.” Tr. 460.

Mr. Kaufman’s testimony concerning training conducted in 2011 is at odds with the 

testimony of CSHO Zindroski whose testimony I have fully credited. Additionally, his 

contention that training was conducted is not supported by credible documentary evidence such 

as sign-in sheets or written agendas. The SOI statements of employee witnesses also indicate a 

lack of training at Envision. There are inconsistencies in Mr. Kaufman’s own testimony that 

there was a lack of employee turnover at Envision, yet eight or nine employees were hired since

2010. Additionally, there is Mr. Kaufman’s statement that no one told him when training should 

be done which contradicts his testimony that Steve Ogle had suggested training be conducted at 

least once a month. For the foregoing reasons, I find Mr. Kaufman’s testimony to be less than 

credible and I accord his testimony little weight.

Training Records

According to Mr. Kaufman, Envision uses sign-in sheets created by the administrative 

assistant to memorialize the names of attendees at training. Tr. 411. The administrative assistant 
17

was responsible for collecting and maintaining the sign-in sheets. Tr. 412-413. In 2011, 

[redacted] at Envision. Tr. 413. At the end of each training session she collected the sign-in 

sheets.11 Tr. 417. Mr. Kaufman testified that if an employee missed a training session, he 

offered an individual make-up session. Following the make-up session, the employee would 

sign the same sign-in sheet as those who attended the initial training session. Tr. 419. Mr. 

Kaufman testified that [redacted] was the only person with physical control over the sign-in 

sheets. Tr. 453-454. Despite the implication that [redacted] may have tampered with the sign-in 

sheets, Kaufman admitted that he had no knowledge of such an occurrence. Moreover, during 

her eight-year tenure at Envision, [redacted] had no known history of tampering with company 

records. Tr. 453-454. 

The name of one employee, [redacted], appeared on a sign-in sheet that pre-dated his 

employment with Envision. Tr. 47, 451. Also, the names of two Envision employees who were 

employed at the time of the alleged September 2011 firefighting training are missing from the 

sign-in sheets: (1) [redacted]; and (2) [redacted]. Tr. 62-63; R-10. Regardless of who may have 

tampered with the sign-in sheets, Kaufman conceded that the sign-in sheets presented were not 

correct. Tr. 180-181, 455-456. 

I find that the testimony regarding these sign-in sheets renders them an unreliable source of 

evidence in this case. The absence of accurate sign-in sheets, in and of itself, is not dispositive 

of the question of whether training was actually conducted. However, when considered in 

 

11 [redacted] had been having serious health issues prior to her death that caused her to miss work during the last few 

months of 2011. Tr. 437. On January 16, 2012, [redacted] tendered her resignation indicating that she would be 

leaving at the end of March or when a replacement could be hired. R-10. [redacted] passed away prior to her 

effective retirement date. Tr. 439. 
18

conjunction with credible testimonial evidence, it strengthens the government’s argument that 

Envision failed to conduct training as required.12

The Citations

Rather than numerical order, the citations are presented by subject matter in the following 

sequence: training, PPE, Hepatitis B vaccines, BBP program, and N-95 mask information.

Citation 1, Item 2 -- Alleged “Willful” violation of 29 C.F.R. § 1910.157(g)(2)

The Portable Fire Extinguisher regulation found at 29 C.F.R. § 1910.157(g) states in 

pertinent part:

(g)(1) Where the employer has provided portable fire extinguishers for employee 

use in the workplace, the employer shall also provide an educational program to 

familiarize employees with the general principles of fire extinguisher use and the 

hazards involved with incipient stage firefighting.

(g)(2) The employer shall provide the education required in paragraph (g)(1) of 

this section upon initial employment and at least annually thereafter.

In his Citation, the Secretary alleges:

29 CFR 1910.157(g)(2): The educational program to familiarize employees with 

the general principles of fire extinguisher use and the hazards involved with 

incipient stage firefighting was not provided to all employees upon initial 

employment, and at least annually; On or about March 21, 2012, the employer did 

not provide annual training for portable fire extinguishers when available for 

employee use:

Envision Waste Services LLC was previously cited for a violation of this 

Occupational Safety and Health standard or its equivalent standard,

1910.157(g)(l), which was contained in OSHA Inspection Number 314808163,

Citation Number 01, Item Number 03, and was affirmed as a final order on 

10/14/2010, with respect to a workplace located at 8700 Lake Road, Seville OH

44273.

 

12 In reaching this conclusion, I also considered the testimony of witnesses Steve Stottsberry and David Hitchings. 

Like Mr. Kaufman, their testimony concerning training is unsupported by the quantum of evidence to the contrary 

and any credible documentary evidence.
19

1. Applicability

The cited standard requires employers who provide portable fire extinguishers for use by 

employees to provide training on their use and the hazards that can be encountered when fighting 

a fire in its early stages. Respondent’s safety manual states, “[p]ortable fire extinguishers are 

provided...” and “[a]ll employees are periodically instructed in the use of extinguishers and fire 

protection procedures.” R-8 at pg. 11. Therefore, I find that this standard applies to the 

condition cited.

2. Non-compliance

According to CSHO Zindroski, she asked Plant Manager Kaufman why there were no 2011 

training documents available and he stated that due to the lack of turnover at Envision, no 

training had been done. Tr. 51. This statement is corroborated by the SOI’s given by: 

[redacted] and [redacted]. Tr. 288, 366. Employee [redacted], who testified that he always signs 

the sign-in sheets, conceded that he must not have been at work for the training since his name 

did not even appear on the sign-in sheets. Tr. 342, 357-358. Ultimately, during testimony, Mr. 

Kaufman admitted that the sign-in sheets presented were inaccurate. Tr. 180-181, 455-456, 500. 

As a result, there is no objective, credible documentary evidence to support Respondent’s 

contention that firefighting training was conducted in 2011. Accordingly, I find that Respondent 

did not conduct firefighting training in 2011.

3. Employee exposure

Based on my finding that no firefighting training was conducted in 2011, employees were 

exposed to hazards resulting from non-compliance with this standard.
20

4. Employer knowledge

Envision’s safety manual states that the Responsible Safety Manager is delegated authority to 

administer the safety program and that “[t]he Plant Manager shall be responsible for 

implementing these policies by insisting that employees observe and obey all rules and 

regulations necessary to maintain a safe work place and safe work habits and practices.” 

(emphasis added). R-8 at pp. 2, 32. Mr. Kaufman confirmed he is the Responsible Safety 

Officer in Envisions written safety program. Tr. 482. Moreover, he was the safety manager for 

Envision and such training was part of his responsibility. Tr. 394, 471. Based on Mr. 

Kaufman’s statement to the CO at the inspection that he had not conducted training because 

there had been no employee turnover, he had actual knowledge of the violative condition, which 

is imputed to Envision. Envision’s knowledge is established.

With respect to the willful characterization, I find that Envision knew or could have known 

of OSHA’s requirement for fire extinguisher training. Gary Kaufman was the plant and safety 

manager for Envision at the time of the 2010 and 2012 inspections. Tr. 33, 263, 395, 474. 

During the closing conference of the 2010 inspection, Mr. Kaufman met with OSHA Industrial 

Hygienist, Michael Bopp to discuss recommendations for compliance with this standard. Tr. 

254-255, 265. In particular, Mr. Bopp told Kaufman that training on the use of fire extinguishers 

was required. Id. 

Additionally, an Envision representative13 signed an informal settlement agreement based on 

the 2010 inspection which also shows that Envision knew or could have known of OSHA’s 

requirement. I find that Envision, through the 2010 inspection’s closing conference, citations 

and settlement agreement, had a heightened awareness of the requirement. As discussed above, I 

find there is no credible evidence that employees were provided with training. Further, Mr.

 

13 The name of the individual signing on behalf of Envision is in cursive and therefore, difficult to read. C-15.
21

Kaufman intentionally disregarded the training requirement when he failed to ensure that every 

employee received annual training in 2011. The Secretary has met his burden and proved a 

willful violation.

Citation 1, Item 3b -- Alleged “Repeat-Serious” violation of 29 C.F.R. § 1910.1030(g)(2)(ii)(A)

The Bloodborne Pathogen Training regulation found at 29 C.F.R. §1910.1030(g)(2)(i) and 

(ii) states in pertinent part:

(2) Information and Training. (i) The employer shall train each employee with 

occupational exposure in accordance with the requirements of this section. Such 

training must be provided at no cost to the employee and during working hours. 

The employer shall institute a training program and ensure employee participation 

in the program. (ii) Training shall be provided as follows: (A) At the time of 

initial assignment to tasks where occupational exposure may take place; (B) At 

least annually thereafter.

The Secretary alleges:

The employer did not ensure that training was provided to employees with 

occupational exposure at the time of initial assignment to tasks where 

occupational exposure might take place: On or about March 21, 2012, the 

employer did not train employees on the Bloodborne Pathogen Program at the 

time of initial assignment: 

Envision Waste Services, LLC was previously cited for a violation of this 

Occupational Safety and Health standard or its equivalent standard, 

1910.1030(c)(l)(i), which was contained in OSHA Inspection Number 

314808163, Citation Number 01, Item Number 05, and was affirmed as a final 

order on 10/14/2010, with respect to a workplace located at 8700 Lake Road, 

Seville OH 44273. 

1. Applicability

 The standard requires employers whose employees have “occupational exposure” to provide 

BBP training upon initial assignment. The record reveals that Envision employees have 

occupational exposure to hospital waste that includes needles, vials of blood, I.V. tubing with 

blood still in it, and used gauze patches. Tr. 326-327. Additionally, Respondent’s employees are 
22

exposed to human waste from port-a-pots in the summer. Id. at 327. I find that the standard 

applies to the condition cited.

2. Non-compliance

During the 2012 inspection, when asked about the 2011 training documents, Mr. Kaufman 

told the CSHO that Envision doesn’t have a lot of turnover so he hadn’t done any training. Tr. 

51. [redacted] was hired by Envision in September 2011. Tr. 281. In her SOI and again at the 

hearing, [redacted] stated that she was familiar with BPP because she worked in a nursing home. 

Tr. 287. Though she denied it at the hearing, [redacted] told the CSHO that she had not been 

trained on BPP. Tr. 287. Her SOI concerning lack of BPP training corroborates Mr. Kaufman’s 

admission that he didn’t do any training in 2011. I find that these statements taken together 

along with the absence of any objective, credible documentary evidence of training establish that 

BPP training was not conducted at initial assignment for [redacted].

3. Employee exposure

[redacted] is a “sorter” who separates the trash as it comes down the conveyor belt. Tr. 284. 

[redacted] who is also a “sorter” and a supervisor testified that she knows of two employees in 

her sorting room who were stuck by needles. Tr. 328.14

4. Employer knowledge

Envision’s safety manual states that the Responsible Safety Manager is delegated authority to 

administer the safety program and that “[t]he Plant Manager shall be responsible for 

implementing these policies by insisting that employees observe and obey all rules and 

 

14 Envision instructed its employees on two policies: hands-off, and take/pull from the top. The “hands off” policy 

instructs employees not to touch medical waste but rather let it pass. Tr. 310. The “take/pull from the top” policy 

instructs employees to refrain from digging into the trash but rather take/pull from the top only. Tr. 311. These 

policies, at best, could only reduce the exposure of employees to hazards such as needle-sticks. The needle-sticks 

demonstrate that despite these policies, such exposures do occur. In any case, these policies do not negate the 

violations cited.
23

regulations necessary to maintain a safe work place and safe work habits and practices.” 

(emphasis added). R-8 at pp. 2, 32. Envision had a BBP Exposure Control plan in place at the 

time of the violation which required “training upon hiring.”15 C-7, pp. 1-2. Based on Mr. 

Kaufman’s statement to the CO at the inspection that he had not conducted training because 

there had been no employee turnover, he had actual knowledge of the violative condition, which 

is imputed to Envision. Envision’s knowledge of the violation is established. 

CSHO Zindroski testified that BBP training is needed due to the hazard of needle-sticks at 

this facility. Needle-sticks could expose employees to Hepatitis B which, if not treated, can be 

permanently disabling and even lethal. Tr. 67. Accordingly, I find that this violation is properly 

classified as “Serious.”

Concerning the repeated classification of this violation, the Secretary has established that 

Respondent was cited in 2010 for a violation of § 1910.1030(c)(1)(i). C-14. That citation 

became a final order as part of an informal settlement. C-15. The 2010 citation was for a 

different subsection of the same standard at issue here; it was a violation of the requirement to 

have a BBP exposure control plan. Both citations are for the hazard of employees in the sort 

room exposed to bloodborne pathogens through needle-sticks and are substantially similar. I 

find the Secretary has established a “repeat” violation for this item.

Citation 1, Item 3c -- Alleged “Repeat-Serious” violation of 29 C.F.R. § 1910.1030(g)(2)(ii)(B)

Subsection (B) of 29 C.F.R. § 1910.1030(g)(2)(ii) adds the requirement that such training be 

conducted at least annually thereafter. 

The Secretary alleges: 

29 CFR 1910.1030(g)(2)(ii)(B): The employer did not ensure that the training was 

provided to employees with occupational exposure at least annually: On or about 

 

15 Envision’s plan also requires the training be done by a “qualified medical professional.” C-7 at pgs. 1-2. 

However, the OSHA standard does not require a qualified medical professional to conduct the training.
24

March 21, 2012, the employer did not provide annual training to employees in the 

Sorting Room on the Bloodborne Pathogen Program:

Envision Waste Services, LLC was previously cited for a violation of this 

Occupational Safety and Health standard or its equivalent standard,

1910.1030(c)(l)(i), which was contained in OSHA Inspection Number

314808163, Citation Number 01, Item Number 05, and was affirmed as a final 

order on 10/14/2010, with respect to a workplace located at 8700 Lake Road, 

Seville OH 44273.

1. Applicability

The standard requires employers whose employees have “occupational exposure” to provide 

training annually. The record reveals that Envision employees have occupational exposure to 

hospital waste that includes needles, vials of blood, I.V. tubing with blood still in it, and used 

gauze patches. Tr. 326-327. Additionally, Respondent’s employees are exposed to human waste 

from port-a-pots in the summer. Id. at 327. I find that this standard applies to the condition 

cited.

2. Non-compliance

During the 2012 inspection, when asked about the 2011 training documents, Mr. Kaufman 

told the CSHO that Envision doesn’t have a lot of turnover so he hadn’t done any training. Tr. 

51. I find that this statement and the absence of any objective, credible documentary evidence of 

such training establish non-compliance with the cited standard.

3. Employee exposure

Based on Mr. Kaufman’s admission that no training was conducted in 2011, I find that all 

Envision employees working at this facility were exposed.

4. Employer knowledge

Envision had a BBP Exposure Control plan in place at the time of the violation which 

required annual training. C-7, pp. 1-2. As discussed above, Mr. Kaufman’s knowledge of the 
25

lack of training provided is imputed to Envision. Envision’s knowledge of the violation is 

established. 

Based on the testimony of CSHO Zindroski addressed in the discussion of the violation 

immediately preceding this one, I find that the classification of this violation as “serious” is 

appropriate.

Concerning the repeated classification of this violation, the Secretary has established that 

Respondent was cited in 2010 for a violation of § 1910.1030(c)(1)(i). C-14. That citation 

became a final order as part of an informal settlement. C-15. The 2010 citation was for a 

different subsection of the same standard at issue here; it was a violation of the requirement to 

have a BBP exposure control plan. Both citations are for the hazard of employees in the sort 

room exposed to bloodborne pathogens through needle-sticks and are substantially similar. I 

find the Secretary has established a “repeat” violation for this item. 

Citation 1, Item 5 -- Alleged “Willful” violation of 29 C.F.R § 1910.1200(h)(1)

The Hazard Communication standard found at 29 C.F.R. § 1910.1200(h)(1) states in 

pertinent part:

(1) Employers shall provide employees with effective information and training on 

hazardous chemicals in their work area at the time of their initial assignment, and

whenever a new physical or health hazard the employees have not previously 

been trained about is introduced into their work area. Information and training 

may be designed to cover categories of hazards (e.g., flammability, 

carcinogenicity) or specific chemicals. Chemical-specific information must 

always be available through labels and material safety data sheets.

The Secretary alleges:

29 CFR 1910.1200(h)(1): The employer did not provide employees with effective 

information and training on hazardous chemicals in their work area at the time of 

their initial assignment, and whenever a new physical or health hazard the 

employees had not previously been trained about was introduced into their work 

area; On or about March 21, 2012, the employer did not provide training to new

employees on the hazardous chemicals such as household chemicals and 
26

industrial chemicals that include used motor oil, organics, and engineered fuel 

fractions that come through on the sorting line at the time of their initial 

assignment:

Envision Waste Services LLC was previously cited for a violation of this 

Occupational Safety and Health standard or its equivalent standard, 1910.1200(h), 

which was contained in OSHA Inspection Number 314808163, Citation Number

01, Item Number 06(b), and was affirmed as a final order on 10/14/2010, with 

respect to a workplace located at 8700 Lake Road, Seville OH 44273.

1. Applicability

This standard requires employers whose employees are exposed to hazardous chemicals to 

provide training upon initial assignment and whenever a new chemical is introduced to the 

workplace. CSHO Zindroski testified that Envision employees are exposed to hazardous 

chemicals such as: (1) Grimebuster; and (2) motor oil. Tr. 79-82. The hazards associated with 

Grimebuster are skin irritation and chemical burns. Id. at 81. A hazard associated with motor oil 

skin irritation. Id. at 82. I find that this standard applies to the condition cited.

2. Non-compliance

During the 2012 inspection, when asked about the 2011 training documents, Mr. Kaufman 

told the CSHO that Envision doesn’t have a lot of turnover so he hadn’t done any training. Tr. 

51. This admission by Mr. Kaufman is corroborated by the SOI of both [redacted] and 

[redacted] who told OSHA that they didn’t receive HAZCOM training at initial assignment. Tr. 

290, 345. I find that these statements and the absence of any objective, credible documentary 

evidence of such training establish non-compliance with the cited standard.

3. Employee exposure

The Secretary did not establish when the chemicals, Grimebuster and motor oil, were 

introduced into the workplace; the standard only requires training upon initial assignment and 

whenever a new chemical is introduced into the workplace. However, [redacted] and [redacted]
27

both stated in their SOI’s that the never received HAZCOM training. Tr. 290, 345. Their 

statements along with the statement of Mr. Kaufman that he did not do any training in 2011 

establish employee exposure to the hazards resulting from non-compliance with the cited 

standard.

4. Employer knowledge

Envision’s safety manual states that the Responsible Safety Manager is delegated authority to 

administer the safety program and that “[t]he Plant Manager shall be responsible for 

implementing these policies by insisting that employees observe and obey all rules and 

regulations necessary to maintain a safe work place and safe work habits and practices.” 

(emphasis added). R-8 at pp. 2, 32. Mr. Kaufman confirmed he is the Responsible Safety 

Officer in Envision’s written safety program. Tr. 482. Moreover, he was the safety manager for 

Envision and such training was part of his responsibility. Tr. 394, 471. Envision had a 

HAZCOM program in place at the time of the violation which required “hazard-specific training 

for employees. C-8, pp. 43, 45. Based on Mr. Kaufman’s statement to the CO at the inspection 

that he had not conducted training because there had been no employee turnover, he had actual 

knowledge of the violative condition, which is imputed to Envision. Envision’s knowledge of 

the violation is established. 

With respect to the willful characterization, I find that Envision knew or could have known

of OSHA’s requirement for HAZCOM training. Gary Kaufman was the plant and safety 

manager for Envision at the time of the 2010 and 2012 inspections. Tr. 33, 263, 395, 474. 

During the closing conference of the 2010 inspection, Mr. Kaufman met with OSHA Industrial 

Hygienist, Michael Bopp to discuss recommendations for compliance with this standard. Tr. 

254-255, 265. In particular, Mr. Bopp told Kaufman that HAZCOM training was required. Id. 
28

Additionally, an Envision representative signed an informal settlement agreement based on 

the 2010 inspection which also shows that Envision knew or could have known of OSHA’s

requirement. I find that Envision, through the 2010 inspection’s closing conference, citations 

and settlement agreement, had a heightened awareness of the requirement. As discussed above, I 

find there is no credible evidence that employees were provided with training. I also find that 

Kaufman intentionally disregarded the training requirement of the standard when he failed to 

conduct training for employees, [redacted] and [redacted]. The Secretary has established a 

“willful” violation for this item.

Citation 1, Item 1a -- Alleged “Repeat-Serious” violation of 29 CFR § 1910.132(f)(1)

The Personal Protective Equipment standard found at 29 C.F.R. § 1910.132(f)(1) states:

(f) Training. (1) The employer shall provide training to each employee who is 

required by this section to use PPE. Each such employee shall be trained to know 

at least the following: (i) When PPE is necessary; (ii) What PPE is necessary; (iii) 

How to properly don, doff, adjust, and wear PPE; (iv) The limitations of the PPE; 

and, (v) The proper care, maintenance, useful life and disposal of the PPE.

The Secretary alleges:

29 CFR 1910.132(f)(1): The employer did not provide training to each employee 

who is required by this section to use personal protective equipment: On or about 

March 21, 2012, the employer did not train new employees who are required to 

use personal protective equipment such as safety glasses, gloves, and bump caps:

Envision Waste Services LLC was previously cited for a violation of this 

Occupational Safety and Health standard or its equivalent standard, 

1910.132(d)(2), which was contained in OSHA Inspection Number 314808163, 

Citation Number 02, Item Number 01, and was affirmed as a final order on 

10/14/2010, with respect to a workplace located at 8700 Lake Road, Seville OH

44273.
29

1. Applicability

The standard requires an employer to provide training to employees who are required under 

this section to use PPE. Envision’s safety manual states, “[p]roper safety equipment is necessary 

for your protection.” R-8 at p. 9. I find that this standard applies to the condition cited.

2. Non-compliance

The record reveals that Mr. Kaufman provided PPE training to new employees upon initial 

hire. R-7. However, the standard requires training on “[w]hat PPE is necessary.” (emphasis

added). As discussed below in Citation 2, Item 1, employees who wear prescription lenses must 

wear protective lenses, either over their prescription lenses or be incorporated into their 

prescription lenses. Kaufman testified that Envision’s policy toward safety glasses was that an 

employee had to wear them or prescription glasses. (emphasis added). Tr. 434. However, 

Envision’s safety manual states that: “[E]mployees who need corrective lenses are required to 

wear only approved safety glasses, protective goggles, or other medically approved 

precautionary procedures when working in areas with harmful exposures, or risk of eye injury.” 

R-8, p. 25.

Employee [redacted], testified that she agreed with her SOI statement that, “Gary told me as 

long as I wear my prescription glasses, I don’t have to wear my safety glasses.” Tr. 385. CSHO 

Zindroski testified that compliance with this standard requires that if an employee wears 

prescription glasses, they must have impact resistant lenses and side shields. Tr. 84. Based on 

the foregoing, Envision did not train its employees on the use of proper equipment for eye 

protection and failed to comply with the cited standard.
30

3. Employee exposure

CSHO Zindroski testified that she observed a sorting room supervisor wearing only 

prescription glasses. Tr. 85; C-5. I find that the lack of training on proper protective eyewear for 

employees with prescription lenses exposed those employees to eye hazards.

4. Employer knowledge

Envision’s safety manual states that the Responsible Safety Manager is delegated authority to 

administer the safety program and that “[t]he Plant Manager shall be responsible for 

implementing these policies by insisting that employees observe and obey all rules and 

regulations necessary to maintain a safe work place and safe work habits and practices.” 

(emphasis added). R-8 at pp. 2, 32. Based on Mr. Kaufman’s testimony he did not train 

employees wearing prescription lenses on the use of proper eye protection. His knowledge is 

imputed to Envision. Envision’s knowledge of the violation is established. 

CSHO Zindroski testified that lack of adequate eye protection exposes employees to serious 

eye injuries, including metal shards and chemical burns. Tr. 86-87. I find that the classification 

of this violation as “serious” is appropriate.

Concerning the repeated characterization, I find that the Secretary has not established the 

required substantial similarity between the current violation and the 2010 citation that she relies 

on. The prior citation of 29 C.F.R. § 1910.132(d)(2) alleged that Envision had not conducted 

and provided a written workplace hazard assessment for PPE. C-14. While both are generally 

related to PPE hazards, the prior citation for lack of written assessment is too attenuated from the 

current citation’s training violation to be substantially similar. The record was deficient with 

respect to the evidence needed to sustain a repeated violation. Therefore, I find the evidence 

supports a “serious” violation for this item.
31

Citation 1, Item 1b -- Alleged “Repeat-Serious” violation of 29 C.F.R. § 1910.1030(d)(3)(i)

This subsection of the Bloodborne Pathogens standard states in pertinent part:

(3) Personal protective equipment---(i) Provision. When there is occupational 

exposure, the employer shall provide, at no cost to the employee, appropriate 

personal protective equipment such as, but no limited to, gloves, gowns, 

laboratory coats, face shields or masks and eye protection, and mouthpieces, 

resuscitation bags, pocket masks, or other ventilation devices. Personal protective 

equipment will be considered “appropriate” only if it does not permit blood or 

other potentially infectious materials to pass through to or reach the employee’s 

work clothes, street clothes, undergarments, skin, eyes, mouth, or other mucous 

membranes under normal conditions of use and for the duration of time which the 

protective equipment will be used.

The Secretary alleges:

29 CFR 1910.1030(d)(3)(i): When there was occupational exposure, the employer 

did not provide, at no cost to the employee, appropriate personal protective 

equipment such as, but not limited to, gloves, gowns, laboratory coats, face 

shields, masks, eye protection, and mouthpieces, resuscitation bags, pocket 

masks, or other ventilation devices: On or about March 21, 2012, the employer 

did not provide puncture resistant gloves for employees who come in contact with 

used needles on the Sorting Line.

Envision Waste Services LLC was previously cited for a violation of this 

Occupational Safety and Health standard or its equivalent standard, 

1910.1030(c)(1)(i), which was contained in OSHA Inspection Number 

314808163, Citation Number 01, Item Number 05, and was affirmed as a final 

order on 10/14/2010, with respect to a workplace located at 8700 Lake Road, 

Seville OH 44273.

1. Applicability

This standard requires employers whose employees are exposed to BPP to provide 

appropriate PPE. The record reveals that Envision employees are exposed to hospital waste to 

include: needles, I.V. tubing containing blood, and used gauze patches. Tr. 326-327. I find that 

this standard is applicable to the condition cited.
32

2. Non-compliance

CSHO Zindroski testified that Mr. Kaufman admitted that he did not have puncture resistant 

gloves. Tr. 54. She testified that the gloves used by Envision employees would not prevent 

needle-sticks. Tr. 57.

3. Employee exposure

Envision employee, [redacted], testified that she knows of two employees who were stuck by 

needles in her sorting room. Tr. 328. [redacted] testified that the gloves do not work because 

they are not puncture resistant. Tr. 382. She further testified that she had pulled glass out of her 

fingers. Tr. 383. I find that the testimony of these employees along with Mr. Kaufman’s 

admission that the company did not have puncture resistant gloves establishes that all Envision 

employees were exposed to the hazards resulting from non-compliance with this standard.

4. Employer knowledge

Envision’s safety manual states that the Responsible Safety Manager is delegated authority to 

administer the safety program and that “[t]he Plant Manager shall be responsible for 

implementing these policies by insisting that employees observe and obey all rules and 

regulations necessary to maintain a safe work place and safe work habits and practices.” 

(emphasis added). R-8 at pp. 2, 32. As the safety manager for Envision, I find that Mr. 

Kaufman knew or could have known that employees did not have adequate gloves to prevent 

needle-stick injuries. His knowledge is imputed to Envision; knowledge of the violation is 

established. 

Based on the testimony of CSHO Zindroski addressed in the discussion of the violation of 29 

C.F.R. § 1910. 1030(g)(2)(ii)(A), I find that the classification of this violation as “serious” is 

appropriate.
33

Concerning the repeated classification of this violation, the Secretary has established that 

Respondent was cited in 2010 for a violation of § 1910.1030(c)(1)(i). C-14 at p.8. The 2010 

citation was for a different subsection of the bloodborne pathogen standard at issue here; it was a 

violation of the requirement to have a BBP exposure control plan. Id. In the violation 

description, the following was noted as the hazard requiring a program: “workers in the sorting 

area who are exposed to sharps.” C-14 at p. 8. Envision was also cited in 2010 for not providing 

adequate PPE and in particular “for all hazards on site such as possible skin cuts or punctures 

and proper gloves etc.” C-14 at p. 10. The 2010 citation became a final order as part of an 

informal settlement agreement. C-15. Both the 2010 and current citations are for the hazard of 

employees exposed to bloodborne pathogens through skin punctures and, thus, are substantially 

similar. I find that the Secretary has established a “repeat” violation for this item.

Citation 2, Item 1 -- Alleged “Willful” violation of 29 C.F.R. § 1910.133(a)(3)

This subsection of the Personal Protective Equipment standard states in pertinent part:

The employer shall ensure that each affected employee who wears prescription 

lenses while engaged in operations that involve eye hazards wears eye protection 

that incorporates the prescription in its design, or wears eye protection that can be 

worn over the prescription lenses without disturbing the proper position of the 

prescription lenses or the protective lenses. 

The Secretary alleges:

29 CFR 1910.133(a)(3): The employer shall ensure that each affected employee 

who wears prescription lenses while engaged in operations that involve eye 

hazards wears eye protection that incorporates the prescription in its design, or 

wears eye protection that can be worn over the prescription lenses without

disturbing the proper position of the prescription lenses or the protective lenses: 

On or about March 21, 2012, the employer did not provide eye protection for 

employees who wear prescription lenses.

1. Applicability
34

This standard requires employers whose employees wear prescription glasses to ensure that 

the prescription glasses are designed to protect against hazards or require employees to wear 

safety glasses over prescription glasses. CSHO Zindroski observed an employee wearing 

prescription glasses that were not adequate eye protection. Tr. 85. I find that this standard is 

applicable to the condition cited.

2. Non-compliance

CSHO Zindroski testified that she observed a sorting room supervisor wearing only 

prescription glasses. Tr. 85. C-5. Employee [redacted], testified that she agreed with her 

previous statement that, “Gary told me as long as I wear my prescription glasses; I don’t have to 

wear my safety glasses.” Tr. 385. I find that the evidence shows Envision’s non-compliance 

with the cited standard.

3. Employee exposure

Mr. Kaufman’s testified that Envision’s policy for safety glasses was that an employee had to 

wear either safety glasses or prescription glasses. (emphasis added). Tr. 434. I find that 

Kaufman’s testimony along with that of [redacted] concerning the use of prescription glasses 

instead of safety glasses establishes that Envision employees were exposed to the hazards 

resulting from non-compliance with the cited standard.

4. Employer knowledge

Envision’s safety manual states that the Responsible Safety Manager is delegated authority to 

administer the safety program and that “[t]he Plant Manager shall be responsible for 

implementing these policies by insisting that employees observe and obey all rules and 

regulations necessary to maintain a safe work place and safe work habits and practices.” 

(emphasis added). R-8 at pp. 2, 32. Mr. Kaufman confirmed he is the Responsible Safety 
35

Officer in Envision’s written safety program. Tr. 482. Mr. Kaufman’s testimony shows he 

knew that employees were wearing prescription lenses instead of safety glasses. His knowledge 

is imputed to Envision; knowledge of the violation is established. 

With respect to the willful characterization, Envision had heightened awareness of the 

requirement to use safety glasses and intentionally disregarded that requirement. The 2010 

inspection included a citation that the employer must assess the PPE needs of its employees. C14. Mr. Kaufman was the plant manager and safety manager at the time of the 2010 inspection. 

Mr. Kaufman testified that he worked with the consultant, Gary Ogle, that Envision hired after 

the 2010 inspection. As a result of this consultation, Mr. Kaufman conducted a PPE hazard 

assessment in November 2010. Tr. 431, 509; C-13. In that assessment, Mr. Kaufman identified 

safety glasses as necessary PPE for the hazards of flying debris in the sort room. C-13. 

Additionally, Envision’s safety manual states: 

[E]mployees who need corrective lenses are required to wear only approved 

safety glasses, protective goggles, or other medically approved precautionary 

procedures when working in areas with harmful exposures, or risk of eye injury. 

R-8, p. 25.

I find that the 2010 citation, the consultation with Mr. Ogle, and the PPE risk assessment 

put Mr. Kaufman, on behalf of Respondent, on heightened awareness of the requirement to have 

every employee using prescription glasses that had protective safety features or have protective 

safety glasses to wear over the prescription lenses. Mr. Kaufman was responsible for ensuring 

safety at the facility but did not enforce Envision’s written policy that approved safety glasses 

are needed. I find that Kaufman intentionally disregarded the standard when he failed to require 

employees to wear the appropriate eyewear and instead told them just wearing their prescription 

lenses were sufficient. A willful violation has been established for this item. 

Citation 1, Item 3a -- Alleged “Repeat-Serious” violation of 29 C.F.R. § 1910.1030(c)(1)(iii)
36

This subsection of the Bloodborne Pathogens standard states in pertinent part:

(iii) Each employer shall ensure that a copy of the Exposure Control Plan is 

accessible to employees in accordance with 29 CFR 1910.20(e).

The Secretary alleges:

29 CFR 1910.1030(c)(l)(iii): The employer did not ensure that a copy of the 

Exposure Control Plan was accessible to employees, in accordance with 29 CFR 

1910.1020(e): On or about March 21, 2012, the employer did not make the 

Exposure Control Plan accessible to employees at the facility: 

Envision Waste Services LLC was previously cited for a violation of this 

occupational safety and health standard or its equivalent standard, 

1910.1030(c)(1)(i), which was contained in OSHA Inspection Number 

314808163, Citation Number 01, Item Number 05, and was affirmed as a final 

order on 10/14/2010, with respect to a workplace located at 8700 Lake Road, 

Seville OH 44273.

1. Applicability

This standard requires employers to make their BPP Exposure Control Plan accessible to 

employees. Envision has a written BPP Exposure Control Plan. C-7. I find that this standard is 

applicable to the condition cited.

2. Non-compliance

CSHO Zindroski testified that when she inquired about Respondent’s BPP Exposure Control 

Plan, on her first attempt to inspection Envision on February 16, 2012, Kaufman stated that the 

company didn’t have one and that such information was communicated verbally. Tr. 66. The 

plan was not provided to the CSHO until she returned on March 21, 2012 with the warrant to 

conduct the inspection. Id. The fact that the plant and safety manager wasn’t able to provide a 

copy of the plan upon request along with his admission that it didn’t exist, establishes the plan 

was not accessible to employees. 

3. Employee exposure
37

I find that all employees working at Envision at the time of the violation were exposed to the 

hazards associated with non-compliance with the cited standard.

4. Employer knowledge

Envision’s safety manual states that the Responsible Safety Manager is delegated authority to 

administer the safety program and that “[t]he Plant Manager shall be responsible for 

implementing these policies by insisting that employees observe and obey all rules and 

regulations necessary to maintain a safe work place and safe work habits and practices.” 

(emphasis added). R-8 at pp. 2, 32. Based on his statement to the CSHO that he could not 

provide a copy of the plan to her, he had actual knowledge no plan was accessible to employees. 

This knowledge is imputed to Envision and, therefore, knowledge of the violation is established. 

Based on the testimony of CSHO Zindroski addressed in the discussion of the violation of 29 

C.F.R. § 1910.1030(g)(2)(ii)(A), I find that the classification of this violation as “serious” is 

appropriate.

Concerning the repeated classification of this violation, the Secretary has established that 

Respondent was cited in 2010 for a violation of 29 C.F.R. § 19l0.1030(c)(1)(i). C-14. The 2010

citation became a final order as part of an informal settlement agreement. C-15. Both the 

citations are for violations of the BBP standard. The 2010 citation was for a lack of a BBP 

exposure control plan; here the plan was not accessible to employees. C-14. Both citations 

address the hazard of not having a BBP plan available to protect employees from exposure to 

pathogens. I find the citations are substantially similar. I find that the Secretary has established 

a “repeat” violation for this item.

Citation 1, Item 4 -- Alleged “Repeat-Serious” violation of 29 C.F.R. § 1910.1030(f)(2)(i)

This subsection of the Bloodborne Pathogens standard states in pertinent part:
38

Hepatitis B Vaccination. (i) Hepatitis B vaccinations shall be made available 

after the employee has received the training required in paragraph (g)(2)(vii)(I) 

and within 10 working days of initial assignment to all employees who have 

occupational exposure unless the employee has previously received the complete 

hepatitis B vaccination series, antibody testing has revealed that the employee is 

immune, or the vaccine is contraindicated for medical reasons.

The Secretary alleges:

29 CFR 1910.1030(f)(2)(i): Hepatitis B vaccination was not made available 

within 10 working days of initial assignment to all employee(s) with occupational 

exposure: On or about March 21, 2012, the employer did not provide Hepatitis B 

vaccines within 10 working days of initial assignment to employees who have 

occupational exposure to bloodborne pathogens while working on the Sorting

Line:

Envision Waste Services LLC was previously cited for a violation of this 

occupational safety and health standard or its equivalent standard, 

1910.1030(c)(1)(i), which was contained in OSHA Inspection Number 

314808163, Citation Number 01, Item Number 05, and was affirmed as a final 

order on 10/14/2010, with respect to a workplace located at 8700 Lake Road, 

Seville OH 44273.

1. Applicability

The standard requires employers to provide the Hepatitis B vaccine to new hires who will 

have “occupational exposure” within 10 days of initial assignment unless they have already had 

the vaccine series. The record reveals that Envision employees have occupational exposure to 

hospital waste that includes needles, vials of blood, I.V. tubing with blood still in it, and used 

gauze patches. Tr. 326-327. Additionally, Respondent’s employees are exposed to human waste 

from port-a-pots in the summer. Id. at 327. I find that this standard applies to the condition 

cited.

2. Non-compliance

To establish Respondent’s non-compliance with this standard, CSHO Zindroski relies on 

Envision’s Hepatitis B vaccine records. C-11. The records have entries for a majority of the 

employees listed; however, there are a few employees who do not have complete entries. For 
39

example, [redacted] has no entries beside his name. At the hearing, [redacted] testified that he 

already had the Hepatitis vaccination. Tr. 230. Envision’s vaccination record alone does not 

establish non-compliance. Unlike the training violations, there is documentary and testimonial 

evidence that Envision employees had the requisite Hepatitis B vaccination. Although there may 

indeed be a problem with shoddy recordkeeping, I find that the Secretary has not proven 

Respondent’s non-compliance by a preponderance of the evidence. Therefore, the Secretary has 

not met his burden and this item is vacated.

Citation 3, Item 1 -- Alleged “Other-than-Serious” violation of 29 C.F.R. § 1910.134(k)(6)

This subsection of the Respiratory Protection standard states in pertinent part:

(6) The basic advisory information on respirators as presented in Appendix D of 

this section shall be provided by the employer in any written or oral format, to 

employees who wear respirators when such use is not required by this section or 

by the employer.

The Secretary alleges:

29 CFR 1910.134(k)(6): The employer did not provide the basic advisory 

information on respirators, as presented in Appendix D of 29 CFR 1910.134, in 

written or oral format to employees who wear respirators when such use was not 

required by the employer: On or about March 21, 2012, the employer did not 

provide Appendix D of the respirator standard when employees voluntarily wear 

N-95 dust masks.

1. Applicability

This standard requires employers to provide basic information on respirators when its 

employees wear respirators voluntarily. Such information can be provided orally or in writing. 

CSHO Zindroski testified that Mr. Kaufman told her that Envision makes N-95 dust masks 

available for an employee’s voluntarily use. Tr. 89. I find that this standard is applicable to the 

condition cited.

2. Non-compliance
40

CSHO testified that Mr. Kaufman told her that Envision had not offered Appendix D to its

employees. Tr. 89. I find that Mr. Kaufman’s admission is evidence of non-compliance with the 

cited standard.

3. Employee exposure

I find that all employees working at Envision at the time of the violation were exposed 

insofar as these dust masks were made available for use and no one was provided with the basic 

advisory information from Appendix D.

4. Employer knowledge

Envision’s safety manual states that the Responsible Safety Manager is delegated authority to 

administer the safety program and that “[t]he Plant Manager shall be responsible for 

implementing these policies by insisting that employees observe and obey all rules and 

regulations necessary to maintain a safe work place and safe work habits and practices.” 

(emphasis added). R-8 at pp. 2, 32. Mr. Kaufman was the safety manager for Envision and 

providing such information is his responsibility. Tr. 394, 471. I find that Mr. Kaufman knew or 

could have known that employees were not provided with the information from Appendix D. I 

find the Secretary has met his burden and proved this “other-than-serious” citation item.

Penalty Determination

The Commission, as the final arbiter of penalties, must give due consideration to the gravity 

of the violation and to the employer's size, history and good faith. J.A. Jones Constr. Co., 15 

BNA OSHC 2201, 2213-14 (No. 87-2059, 1993). These factors are not necessarily accorded 

equal weight, and gravity is generally the most important factor. Trinity Indus., Inc., 15 BNA 

OSHC 1481, 1489 (No. 88-2691, 1992). The gravity of a violation depends upon such matters as 

the number of employees exposed, duration of exposure, precautions taken against injury, and 
41

the likelihood that an injury would result. J.A. Jones, 15 BNA OSHC at 2213-14.

CSHO Zindroski testified that she considered severity, probability, size of the company, and 

eligibility for “good faith” discounts in assessing penalties for the violations at issue. Tr. 90. 

Although she did not address each citation item specifically, CSHO Zindroski explained her 

proposed penalty for the violations according to the nature of hazard as follows:

• HAZCOM was evaluated as “low” severity because she could not determine the 

chemicals to which the employees were exposed. Tr. 90.

• BPP was evaluated as “high” severity because of the possible exposure to HIV and 

Hepatitis. Id.

• Fire extinguisher was evaluated as “high” due to the number of fires Envision has had at 

this facility. Id.

• PPE (Eye protection) was evaluated as “low” severity because any resulting injury can be 

treated with first aid or by a doctor. Tr. 91.

• PPE (Safety gloves and training) was evaluated as “high” severity because of the possible 

exposure to HIV and Hepatitis. Id. 

Based on the record in this case, I find that the penalty proposed for each of the affirmed 

cited violations is appropriate.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing constitutes the findings of fact and conclusions of law in accordance with Rule 

52(a) of the Federal Rules of Civil Procedure.
42

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Citation 1, Item 1a, alleging a “Repeat-Serious” violation of 29 C.F.R. § 

1910.132(f)(1), is AFFIRMED as a “Serious” violation, and a penalty of $7,000.00 is 

assessed.

2. Citation 1, Item 1b, alleging a “Repeat-Serious” violation of 29 C.F.R. § 

1910.1030(d)(3)(i), is AFFIRMED.

3. Citation 1, Item 2, alleging a “Willful” violation of 29 C.F.R. § 1910.157(g)(2), is 

AFFIRMED, and a penalty of $70,000.00 is assessed.

4. Citation 1, Item 3a, alleging a “Repeat-Serious” violation of 29 C.F.R. § 

1910.1030(c)(1)(iii), is AFFIRMED, and a penalty of $7,000.00 is assessed.

5. Citation 1, Item 3b, alleging a “Repeat-Serious” violation of 29 C.F.R. § 

1910.1030(g)(2)(ii)(A), is AFFIRMED.

6. Citation 1, Item 3c, alleging a “Repeat-Serious” violation of 29 C.F.R. § 

1910.1030(g)(2)(ii)(B), is AFFIRMED.

7. Citation 1, Item 4, alleging a “Repeat-Serious” violation of 29 C.F.R. §

1910.1030(f)(2)(i), is VACATED.

8. Citation 1, Item 5, alleging a “Willful” violation of 29 C.F.R. § 1910.1200(h)(1), is 

AFFIRMED, and a penalty of $70,000.00 is assessed.

9. Citation 2, Item 1, alleging a “Willful” violation of 29 C.F.R, § 1910.133(a)(3), is

AFFIRMED, and a penalty of $70,000.00 is assessed.

10. Citation 3, Item 1, alleging an “Other-than-Serious” violation of 29 C.F.R. § 

1910.134(k)(6), is AFFIRMED and no penalty is assessed.

DATED: December 31, 2013 /s/Keith E. Bell

 KEITH E. BELL

 Judge, OSHRC