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. 18-0242

ONEKEY, LLC, 

Respondent.

FINAL ORDER 

Administrative Law Judge Keith E. Bell issued a Decision and Order in this case 

affirming the citations at issue, and that decision was directed for review on February 5, 

2021. On February 3, 2023, the Respondent notified the Commission of its decision to 

withdraw its Notice of Contest in the case pursuant to Commission Rule 102, 29 C.F.R. 

§ 2200.102. The Commission therefore vacates the Administrative Law Judge’s Decision 

and Order. 

SO ORDERED.

BY DIRECTION OF THE COMMISSION

Dated: February 7, 2023 /s/

John X. Cerveny

Executive Secretary
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. 18-0242

ONEKEY, LLC, 

 Respondent.

Appearances: Kate S. O’Scannlain, Solicitor of Labor

Jeffrey S. Rogoff, Regional Solicitor

Suzanne Demitrio Campbell, Senior Trial Attorney

Orly S. Godfrey, Attorney

U.S. Department of Labor, Office of the Solicitor, New York, New York 

For the Complainant

Travis W. Vance, Esq.

David I. Klass, Esq.

Fisher & Phillips LLP, Charlotte, North Carolina

For the Respondent

Before: Keith E. Bell

Administrative Law Judge 

DECISION AND ORDER

Respondent Onekey, LLC, is a builder, general contractor, and construction management 

company. One of Respondent’s projects is the development of 300 residential units and 

commercial space (worksite) along the Hudson River in Poughkeepsie, New York. In early 2017, 
2

Respondent implemented a soil compaction plan on the worksite that had been designed by a soil 

engineering company under contract with Respondent. The soil compaction plan dictated using a 

“surcharge,” which was described as a “mountain” of soil at least 15 feet high that spanned and

overlapped the footprint of each pre-constructed building, to slowly compact and settle the earth 

beneath it. (Tr. 248.)

On August 3, 2017, portions of a surcharge and an adjacent concrete block wall collapsed 

on the worksite, killing one of Respondent’s subcontractor’s workers and injuring another. The 

Occupational Safety and Health Administration (OSHA) investigated the worksite the next day, 

August 4, 2017. OSHA took the following picture during the inspection on August 4, the day after 

the accident.
3

(Ex. C-15.)
4

As a result of the inspection of the Poughkeepsie worksite, OSHA issued to Respondent a 

Citation and Notification of Penalty (Citation) on January 19, 2018. The Citation alleged one 

serious two-item violation, and one willful two-item violation of the Occupational Safety and 

Health Act of 1970, 29 U.S.C. §§ 651-678 (OSH Act), and proposed a total penalty of $281,583.00. 

Respondent filed a timely notice of contest, bringing this matter before the Occupational Safety 

and Health Review Commission (Commission). A hearing was held in New York City from July 

9 – 11, 2019, and was continued in Greenbelt, Maryland from September 10-12, 2019. Both parties 

filed post-hearing briefs. 

As discussed below, the Citation and proposed penalty are AFFIRMED.

ALLEGED VIOLATIONS

Serious Citation 1, Item 1 alleges a violation of 29 C.F.R. § 1926.21(b)(2), which provides 

that “the employer shall instruct each employee in the recognition and avoidance of unsafe 

conditions and the regulations applicable to his work environment to control or eliminate any 

hazards or other exposure to illness or injury.” 29 C.F.R. § 1926.21(b)(2). The Secretary alleges 

that Respondent violated 29 C.F.R. § 1926.21(b)(2) when:

a) At the 1 Dutchess Avenue, Poughkeepsie, NY, west of Surcharge, on and before 

August 3 of 2017, workers were exposed to a crushing hazard associated with 

a soil surcharge collapse that could cause the concrete retaining wall to collapse. 

Employees were not informed of the potential sudden collapse of the retaining 

wall and surcharge soil pile. Workers were not trained to keep a safe distance 

away from the surcharge and retaining wall.

(Citation 6.) The Secretary proposed a $12,934 penalty for serious Citation 1, Item 1.

Serious Citation 1, Item 2 alleges a violation of 29 C.F.R. § 1926.501(b)(12), which 

provides that: 

‘Precast concrete erection.’ Each employee engaged in the erection of precast 

concrete members (including, but not limited to the erection of wall panels, 

columns, beams, and floor and roof "tees") and related operations such as grouting 

of precast concrete members, who is 6 feet (1.8 m) or more above lower levels shall 
5

be protected from falling by guardrail systems, safety net systems, or personal fall 

arrest systems, unless another provision in paragraph (b) of this section provides 

for an alternative fall protection measure. Exception: When the employer can 

demonstrate that it is infeasible or creates a greater hazard to use these systems, the 

employer shall develop and implement a fall protection plan which meets the 

requirements of paragraph (k) of 1926.502.

Note: There is a presumption that it is feasible and will not create a greater hazard 

to implement at least one of the above-listed fall protection systems. Accordingly, 

the employer has the burden of establishing that it is appropriate to implement a fall 

protection plan which complies with 1926.502(k) for a particular workplace 

situation, in lieu of implementing any of those systems.

29 C.F.R. § 1926.501(b)(12). The Secretary alleges that Respondent violated 29 C.F.R. 

§ 1926.501(b)(12) when:

a) At the 1 Dutchess Avenue, west of Surcharge D, in Poughkeepsie, NY, on or 

about July 28, 2017, employees were installing pre-cast concrete blocks to a 

level of 8 feet high without the use of fall protection. 

(Citation 7.) The Secretary proposed a $9,977 penalty for serious Citation 1, Item 2.

Willful Citation 2, Item 1 alleges a violation of 29 C.F.R. § 1926.701(a), which provides 

the following: 

Construction loads. No construction loads shall be placed on a concrete structure 

or portion of a concrete structure unless the employer determines, based on 

information received from a person who is qualified in structural design, that the 

structure or portion of the structure is capable of supporting the loads. 

29 C.F.R. § 1926.701(a). The Secretary alleges that Respondent violated 29 C.F.R. § 1926.701(a) 

when:

a) At 1 Du[t]chess Avenue, in Poughkeepsie, NY, on the west side of the Building 

D surcharge soil pile, on and before August 3 of 2017, workers were exposed 

to being crushed by a concrete stacked bin-block wall, that was retaining a soil 

surcharge. The wall was not approved or designed by a qualified engineer. 

Workers were in close proximity to the wall while tying rebar, pouring 

foundation, operating equipment, collecting personal items and tools, and while 

walking though the job site.

(Citation 8.) The Secretary proposed a $129,336 penalty for willful Citation 2, Item 1.
6

Willful Citation 2, Item 2 alleges a violation of section 5(a)(1) of the OSH Act. Section 

5(a)(1), which is commonly known as the “general duty clause,” requires that each employer 

“furnish to each of his employees employment and a place of employment which are free from 

recognized hazards that are causing or are likely to cause death or serious physical harm to his 

employees.” 29 U.S.C. § 654(a)(1). The Secretary alleges that Respondent violated the general 

duty clause when:

a) At the 1 Dutchess Avenue in Poughkeepsie, NY for the Building D soil 

surcharge, between July 25 through 28 of 2017, the employer did not protect 

Onekey, LLC employees from the hazards associated with a soil surcharge 

collapse. The employer did not maintain a slope of 45 degrees at the edge of 

the soil surcharge as per engineer design. Employees were exposed to fatal 

crushing injuries from a collapsed soil surcharge while working near the 

surcharge and constructing the concrete stacked bin-block wall.

(Citation 9-10.) The Secretary proposed a $129,336 penalty for willful Citation 2, Item 2.

JURISDICTION AND COVERAGE

The Commission gains jurisdiction to adjudicate an alleged violation of the OSH Act by 

an employer if the employer is engaged in business affecting commerce within the meaning of 

section 3(5) of the OSH Act, and, if the employer timely contests the citation. 29 U.S.C. §§ 652(5), 

659(c). The record establishes that Respondent, as of the date of the alleged violation, was an 

employer engaged in business affecting commerce within the meaning of section 3(5) of the OSH 

Act. 29 U.S.C. § 652(5); Complaint & Answer ¶¶ 2, 3. Respondent also timely filed a notice of 

contest to the Citation in this case. The Court concludes that Respondent is covered under the Act 

and that the Commission has jurisdiction over this matter. 
7

BACKGROUND

Project Overview

Onekey has approximately 200 employees and a net worth of $2 million. (Tr. 852-853.) 

Its headquarters are in Hackensack, New Jersey and it has projects in Connecticut, New Jersey,

and New York. (Tr. 853.) Onekey’s construction projects include multi-family housing, retail, 

mixed use, and historic restoration. (Tr. 853.) The Poughkeepsie, New York project began in 

2010, when Onekey began readying the worksite. The site itself was a “brownfield,” meaning that 

the land was industrially contaminated, and remediation was necessary to prepare the ground for 

building use. (Tr. 885.) Remediation included soil testing, removing contaminated soil, and then 

“the site had to be capped with a minimum of two foot of fill materials.” (Tr. 885.) 

Onekey had never worked on a “brownfield” project. (Tr. 853.) It contracted with SESI, 

a soil engineering company, to help “clean up” the brownfield. (Tr. 886.) During this remediation 

phase of the project, SESI was responsible for “giving direction” and “to create the clean-up plan” 

for Onekey to follow. Onekey completed the remediation phase of the site in 2014. (Tr. 886.)

The next phase of the project was the site improvement work. (Tr. 716.) Onekey again 

retained SESI for its geotechnical services for this phase of the project. (Tr. 888; Ex. C-51 

(Onekey/SESI contract).) According to Onekey Director of Operations Finbar O’Neill, SESI 

engineer Ken Quazza was the lead “in charge of geotechnical in particular” at the worksite and 

Finbar O’Neill1 worked primarily with Quazza regarding SESI’s geotechnical services during this 

phase of the project. (Tr. 887.) 

1 Finbar O’Neill’s nephew, Aaron O’Neill later joined the project as a Onekey superintendent in 

the summer of 2017. (Tr. 1135.) As both Finbar O’Neill and Aaron O’Neill play principal roles 

in this case, this decision uses both of their first and last names to identify them. 
8

To improve the land so it would be sufficient for the planned construction, Quazza 

developed a plan to compact the soil beneath the footprints of each future building on the worksite. 

For the purposes of this case, the future buildings at issue here have been named: A, B, C, D, E F,

and future townhouses. (Exs. C-4, R-31.) As seen on the map of the worksite, the entire worksite 

follows along the eastern banks of the Hudson river. (Exs. C-4, R-31.) Buildings B, C and D, the 

pertinent areas of construction leading up to the time of the accident, were planned to be four-story 

residential buildings. Buildings B and C were planned to hold 43 units and Building D was planned 

to hold 50 units. (Ex. C-4.) The footprints for these three building formed a horseshoe 

configuration along the Hudson River: Buildings B and C were parallel to each other and Building 

D bridged perpendicularly across the eastern sides of them (parallel to the Hudson River). (Ex. 

C-4.) An amenities courtyard-like area was planned within the Building B-C-D horseshoe 

configured area. 
9

(Ex. C-4.)
10

The first part of SESI’s soil compaction plan was dynamic compaction, which was 

“basically dropping a heavy weight from a height up to 50 feet and dropping it onto the ground.” 

(Tr. 740.) During this phase, SESI was on the Onekey worksite every day inspecting the 

compaction progress. Once the footprints had been compacted, Onekey leveled the depressions 

from the dynamic compaction operation and brought the site grades back up to ground elevation,

to the bottom of the proposed floor slabs for each building. (Tr. 740-741.) “We had an inspector 

there full-time when the site was having compacted fill placed on the ground to raise it back up to 

the elevation of the proposed buildings. And then our services were temporarily halted.” (Tr.

716.) The dynamic compaction phase of SESI’s compaction plan occurred on the site from 2012-

2014. (Tr. 893.) Afterward, the second part of SESI’s soil compaction plan began – the surcharge. 

(Tr. 741.)

The Surcharge

According to Quazza, a “surcharge is a temporary load that’s placed on the ground to occur 

prior to the placement of the building. Once the settlement has occurred that soil – it’s generally 

soil, the surcharge material is then removed, and the building is then constructed.” (Tr. 699.) As 

originally designed in 2013, SESI’s surcharge plan called for over 100,000 cubic yards of fill (soil) 

that Onekey was to ship in by barge up the Hudson River to the worksite. (Tr. 746, 750; Ex. C46.) Originally, the plan was to first surcharge the footprint of Building A; then Buildings B, C 

and D simultaneously; then Buildings E and F; and then the future townhouses on the worksite. 

(Tr. 754.) SESI’s plan called for the fill used to form each surcharge to cover each building’s 

entire footprint plus extend ten feet beyond the footprint in every direction, and then slope down 

to the ground. (Tr. 741-742; Exs. C-45, 52, 53.) The fill was to be piled at least 15 feet high and

sloped at 45 degrees (a one-to-one ratio) from the top of the fill to the ground. (Id.) 
11

(Ex. C-53.) 

Around 2013-2014, Quazza learned that the simultaneous surcharge plan was impossible 

to implement. (Tr. 751, 902.) Critically, the necessary amount of fill, over 100,000 cubic yards, 

proved impossible for Onekey to obtain. (Tr. 751.) Quazza testified that “at the time that the plan 

was developed we were considering one surcharge on all of the buildings. Once they found out 

the difficulty in getting the material, they went down to one building at a time.” (Tr. 752.) Quazza 

then testified that “he only had 40,000 yards of fill instead of 110,000 yards of fill. I only had so 

much fill. I had enough fill to only put a surcharge on one building footprint” at a time. (Tr. 752.) 

To accommodate this issue, SESI and Onekey changed the simultaneous surcharge plan to a 

“rolling” surcharge plan. With this modification, Onekey would transfer the surcharge from one 

building footprint to another building footprint once compaction was achieved for the first building 
12

footprint. Onekey put the rolling surcharge into effect before placing the first surcharge at the site. 

(Tr. 752, 756, 902.) 

According to Quazza, the difference between the simultaneous surcharge method and the 

rolling surcharge method is that:

in one instance you can start construction sooner...A downside would be that 

possibly a surcharge could interfere with the construction of a building that had 

already been surcharged because of the close proximity of the buildings, the 10-

foot overlap[,] the 15 more feet additional for the one-on-one slope, the distances 

between the buildings. You could have surcharges interfering with other building 

construction, which is just what happened with Building C.

(Tr. 755.) Quazza testified that Onekey never consulted him or raised the issue about what to do 

about a surcharge overlapping another building’s footprint and interfering with the construction of 

that building. (Tr. 799.) Quazza testified that he did not realize that this issue existed or how 

Onekey chose to address it before the accident. (Tr. 800.) He never discussed with Finbar O’Neill 

or anyone else at Onekey the use of a retaining wall for any of the surcharges. (Tr. 800.) Nor did 

he discuss the issue of cutting back any surcharge steeper than one-to-one slope. (Tr. 800.) The 

following testimony by Quazza is noteworthy:

Q: Did you know that Onekey had never worked with a surcharge before working 

at this location?

A: I had suspicions when Fin and I first started discussing this. We had quite a few 

discussions on how different things could be dealt with, and so on and so forth. So 

I got the general feel that he maybe not had done a surcharge prior.

Q: Is it fair that you understood that Onekey and Mr. Finbar O’Neill was relying 

upon your expertise regarding how to construct surcharges at the site?

A: Yes.

(Tr. 809.)

As opposed to its full-time presence during the dynamic compaction phase from 2012-

2014, SESI was not onsite regularly while Onekey implemented the surcharge plan. According to 
13

Quazza, Onekey began “bringing in the surcharge material which would be coming in on 

truckloads. So, for us to stand there and watch trucks of dirt come in it was not really practical. 

And the surcharge was then constructed.” (Tr. 716.) 

Surcharge and Construction: The Precast Concrete Bin-Block Wall

By 2017, having begun the rolling surcharge plan, Onekey was also ready to start building 

on the remediated worksite. First, Onekey needed to roll the surcharge from the building footprint

of one building to another. This took time, and the timing of the removal was controlled by 

Quazza. (Tr. 765-766.) However, the method by which Onekey removed the surcharge from the 

building footprints was not controlled by Quazza. (Tr. 763-764.)

In January or February of 2017, Quazza and Finbar O’Neill met on the worksite and stood 

on top of the surcharge for Building B. (Tr. 766, 800, 919-920.) Finbar O’Neill testified that he 

brought up the idea of a temporary retaining wall using “bin blocks” with Quazza while discussing 

construction during the surcharge. (Tr. 896, 930.) Finbar O’Neill claimed that Quazza said that 

the temporary retaining wall using bin blocks “was a good idea.” (Tr. 896.) Finbar O’Neill 

clarified that this conversation was in the larger context of a “general discussion” and that “we 

didn’t get into the real details of the site.” (Tr. 897.) Quazza denied that he discussed the use of 

any retaining wall for the surcharges with Finbar O’Neill during this conversation. (Tr. 800.) 

Quazza also testified that he did not see any retaining walls when he stood on top of the surcharge 

with Finbar O’Neill, and that no surcharge was cut back steeper than a one-to-one angle at that 

time.

2

 (Tr. 800.) Notably, around this same time is when Onekey project manager Steve Fiore 

2 Other than this visit, according to Quazza, SESI had no consistent presence on the worksite in 

2017. (Tr. 716, 782.) Quazza himself remotely monitored the compaction of the building 

footprints by the surcharges, using settlement data transmitted to him by a third-party surveyor 

who gathered the readings on the worksite. (Tr. 804-805.)
14

began working on the worksite. (Ex. C-62 at 10.) In early February 2017, according to Fiore, 

“[B]uilding B was half of a pile of dirt[,] [B]uilding C was a pile of dirt[,]” and Building D had a 

“lower pile,” “not much” on it. (Ex. C-62 at 11-13.) 

In March 2017, according to Finbar O’Neill, Onekey began building the concrete bin-block

“temporary retaining wall” (bin-block wall)3 against the surcharge of Building D, beginning on

the footprint of Building B, “to retain the soils to keep everyone safe while they worked on C and 

B originally before C.” (Tr. 931-932.) The bin blocks were precast concrete blocks, also referred 

to as “mafia blocks,” that were two feet wide, two feet deep, and six feet long, and weighed 3600-

pounds each. (Tr. 78, 80, 83, 463; Exs. C-23, C-24, C-25, C-49 C-62 at 42.) The bin blocks that 

made up the wall were designed to be an interlocking system, using a “key” or “tongue and groove” 

system, as they are stacked. (Tr. 1122; Ex. C-62 at 41-42.) According to Fiore, he directed workers 

to build the wall three bin blocks high at this time. (Ex. C-62 at 35, 40.)

Fiore stated that in late March 2017, the surcharge for Building B was cleared so that 

Onekey could begin working on Building B’s foundation. (Ex. C-62 at 13.) Onekey then moved 

the surcharge to Building C. (Ex. C-62 at 13.) On May 2, 2017, Quazza released the surcharge 

on the southern half of Building C. (Ex. R-54 at 1-4.) 

Robert Tedone

On May 16, 2017, Onekey hired superintendent Robert Tedone. (Tr. 429, 485-486.) 

Tedone was on the worksite from May 16 until June 28, 2017, when he resigned. (Tr. 485-486.) 

As the superintendent, Tedone reported to Fiore, who reported to Finbar O’Neill. (Tr. 430.) 

3 In this Decision, the terms “temporary retaining wall” and “bin-block wall” both refer to the

precast concrete bin-block wall at issue in this case. The use of the term “retaining wall” is 

derived from the words used at the hearing by counsel and the witnesses – this term is not used 

by this Court to connote any geotechnical capability of the wall. 
15

Tedone testified that he never met Aaron O’Neill. (Tr. 440.) Tedone coordinated with the 

“trades,” meaning he “assisted with scheduling and job site coordination of which trades coming 

when, whose performing what, deliveries, that kind of thing.” (Tr. 430.) During his five weeks

on the worksite, the foundation on Building B was completed. (Tr. 444.) He testified that he never 

worked on building the temporary retaining wall himself. (Tr. 441.) 

When Tedone began working on the worksite, the temporary retaining wall looked as 

shown in Exhibit C-33. (Tr. 441-442.) He had concerns about the safety of the wall at one time 

because it was bowed and tilted. (Tr. 445-446.) The wall was tilted away from the dirt pile, 

towards the foundation that was being laid on Building B. (Tr. 453.) He saw that the surcharge 

was pushing against the wall when he stood on top of the surcharge pile and looked down at the 

wall. (Tr. 455-456.) He went up the surcharge pile on a regular basis observing the worksite, and 

he “more than once” drove a dump truck of dirt up the surcharge and dumped the dirt for the 

bulldozer to push it around on the surcharge pile. (Tr. 456-457.) Tedone testified that he reported 

his safety concerns about the temporary retaining wall to Fiore. (Tr. 445-446.) After his 

conversation, according to Tedone, Fiore directed workers to “remove at least the top two 

courses”4 of the wall. (Tr. 452.) He clarified that the workers took “down several courses and put 

the block back, and then we stored dirt behind it[,]” which, according to Tedone, corrected and 

straightened the wall at that time. (Tr. 458.)

Tedone also testified that Finbar O’Neill was on the worksite two times per week. (Tr.

430-431.) During his time on the worksite, Finbar O’Neill directed workers to move the surcharge 

4 Based on testimony in the record, the Court finds that the term “course” refers to a row of concrete 

bin blocks. (Tr. 502, 566, 1140, 1164.)
16

from Building C to Building D.

5

 (Tr. 435-439; Ex. C-52a.) Tedone testified that there was no 

controlled access zone, or safe proximity safety rule, regarding the surcharge or the wall while he 

was on the worksite. (Tr. 466-467.) Tedone testified that he did not see a “shear vertical” wall of 

dirt while he was on the worksite. (Tr. 491.) 

Tedone testified that he and Finbar O’Neill discussed extending the temporary retaining 

wall along the surcharge from Building B, through the courtyard and heading past Building C. 

(Tr. 462.) Tedone testified that he told Finbar O’Neill that building the wall that way “without 

any engineering was going to be a bad idea.” (Tr. 462-463.) He testified that he told Finbar 

O’Neill the following: “You’re going to have 15 Mexicans working directly under this wall and 

someone’s going to get killed.” (Tr. 466.) According to Tedone, Finbar O’Neill replied, “Fuck 

that, it will be fine.”6 (Tr. 466.) 

Tedone also testified about the “traverse points” on the worksite. (Tr. 471-474.) A traverse 

point is set by the surveyor who marks a spot to use as an offset “to have a visible invisible like to 

make sure you’re running straight.” (Tr. 472.) Traverse points are typically stakes in the ground 

with a flag on it, they are never moved, and they are protected using “extreme measures” because 

5 On May 30, 2017, Quazza released the surcharge on the northern half of Building C. (Tr. 781); 

see also Ex. C-62 at 13. 

6 Finbar O’Neill categorically denied that this entire conversation ever took place. (Tr. 965.) 

Based on his demeanor during the hearing, the Court found no issue with Tedone’s credibility 

despite his colorful and coarse testimony. Respondent asserts that Tedone was “a disgruntled 

employee” and is not to be believed concerning his statement that the wall would result in dead 

workers. (Resp’t Br. 14-15 ¶ 57.) Yet, in another breath, Respondent admits that Fiore fixed part 

of the bin-block wall in direct response to a safety complaint made by Tedone. (Resp’t Br. 14 

¶ 54.) Tedone’s testimony at the hearing and his complaint to Fiore are entirely consistent. On 

this issue, Respondent may not have its cake and eat it too. It is also noteworthy that Tedone 

resigned and was not fired, undermining Respondent’s characterization that Tedone was

“disgruntled.”
17

“you got to refer back to it constantly to make sure you’re running straight, where you’re supposed 

to be.” (Tr. 472, 477.) He testified that there were several traverse points on the Onekey worksite. 

(Tr. 472.) A “mason would have used them, again, to either locate the corners of the building or 

they would have been offsets for him so that he could locate where the corners of the building 

were going to go.” (Tr. 472.) He agreed that one would “have to walk physically up to it and be 

near it” to use it; “you would set your equipment right up over it [] and that’s how you would spin 

your angle and get your lines.” (Tr. 472-473.) Tedone then identified the location of a traverse 

point that was five feet from the temporary retaining wall. (Tr. 473-475; Exs.C-15(a), C-33(a).)

Summer of 2017: Ever Growing Surcharge and “Evolving” Bin-Block Wall 

On June 28 or 29, 2017, Tedone resigned from his job at Onekey. (Tr. 429, 465, 486, 492.) 

In his place, Onekey hired Aaron O’Neill, Finbar O’Neill’s nephew, as the site superintendent on 

June 28 or 29, 2017. (Tr. 1012, 1102-1103.) Aaron O’Neill testified that when he arrived onsite 

at that time, “[B]uilding B had the foundation work completed. It was all stoned out, ready for a 

concrete slab. Just previous to the pour of the concrete. And [B]uilding C had the foundation just 

started.” (Tr. 1107.) At that time, there was a surcharge on Building D and “a little bit” of 

surcharge remaining on the east side of Building C. (Tr. 1107.) 

Aaron O’Neill also testified that when he got to the worksite, part of the temporary 

retaining wall along the surcharge for Building D was already there. (Tr. 1119.) There was a 

temporary retaining wall “along part of the surcharge on [B]uilding D,” the full length of the east 

side of Building B and extended “another 20 to 30 feet hearing north.” (Tr. 1107-1108.) Aaron 

O’Neill did not know who built the temporary retaining wall, who designed it, or where the bin 

blocks came from, but from the day he started on the worksite on June 28, “we extended the wall 

on past, to continue on over by [B]uilding C,” in the same manner as the wall had been previously 
18

constructed. (Tr. 1119, 1122, 1136.) Other than being away on vacation from July 3 – July 18, 

he was on the worksite every day until the day of the accident. (Tr. 1128.) 

Aaron O’Neill understood that the purpose of the retaining “wall was to keep the workers 

safe, whenever they’re working near to the surcharge, or come into the building.” (Tr. 1120.) He 

also testified that the Building D surcharge, as designed (with the 10-foot exceeding the footprint 

of the building), prohibited work from being done on both Buildings B and C. (Tr. 1119-1121.) 

Aaron O’Neill testified that the surcharge had been there months before he arrived onsite on June 

28, 2017. (Tr. 1128.) He walked “along the western side of the surcharge on [B]uilding D,” where 

the temporary retaining wall was, “daily, sometimes a few times daily,” from the end of June to 

the day of the accident. (Tr. 1129.) 

Fiore testified that Finbar O’Neill was his boss, and that Fiore considered himself the “lead 

guy” on the site. (Ex. C-62 at 14, 19.) Fiore testified that Aaron O’Neill supervised the 

subcontractors. (Id. at 21.) Fiore also testified that Aaron O’Neill decided to build the wall 

between the footprints for Buildings B and C, that Aaron O’Neill directed the Onekey site 

employees and workers who installed the wall, and that he (Fiore) did not know why the wall,

under Aaron O’Neill’s direction, was four courses high (rather than three). (Id. at 38, 40-41.) 

Fiore did not believe any engineer was involved with designing the temporary retaining wall on 

the worksite. (Id. at 40.) The surcharge drawings did not coordinate with his construction 

drawings of the worksite, and no calculations were performed of the ever-growing surcharge on 

the temporary retaining wall. (Id. at 44.) Fiore testified that the retaining wall just “evolved” over 

time. (Id. at 40.) Regarding the surcharge, Fiore testified that his main role was to contact the 

surveyor to take “elevation shots to monitor the surcharge.” (Id. at 49.) Fiore did not actively 
19

monitor the slope of the surcharge, specifying that the “surcharge wasn’t my bailiwick,” and that 

he was “not a soil guy.” (Id. at 47, 49-50.) 

July-August 2017: Subcontractor Observations

The worksite was busy. According to Respondent, Onekey, SESI, and “a host of third parties, 

including engineers, inspectors, and subcontractors also performed work at the [worksite] in the 

months leading up to the accident.” (Resp’t Br. 18.) According to Finbar O’Neill, SESI, M.A. Day 

(engineering firm), GPI (structure engineer), Larry Lynn (surveyor), and IMTL (testing and 

inspections) were all “consistently” active on the worksite. (Tr. 921-922, 934, 941.) IMTL tested 

materials, inspected concrete and rebar for footings, and inspected the framing on the worksite. 

(Tr. 933-934.) IMTL performed consistent daily, every other day, weekly inspections, depending 

what work had progressed. They inspected the concrete or the rebar on Building B in July of 2017. 

(Tr. 934.) 

About a month after starting at the site, sometime between July 20 and July 25, 2017, Aaron 

O’Neill met with an SESI geotechnician who was testing the compaction on the east side of 

Building C, within 4-10 feet of the surcharge on Building D, and 80-100 feet away from the 

temporary retaining wall that was being built along the surcharge for Building D.7

 (Tr. 1113-

1114.) At that time, the temporary retaining wall extended about halfway along the surcharge of 

Building D. (Tr. 1114.)

7 After the surcharges were moved, representatives from SESI also inspected the footings for 

Building B (May 2) and Building C (July 12 and July 20, 2017) to prepare for the next phase of 

construction. (Tr. 770, 775, 778; R-54 at 5-6.) “[A] footing inspection occurs after the excavation 

of the building site is done, and the engineer tests the materials below to ensure that it is adequate 

to support a concrete foundation.” (Resp’t Br. 12 n 5.) Quazza testified that all three of the footing 

inspections were performed outside of the SESI contract, as SESI was not contracted to perform 

those footing inspections. He believed that “somebody on both ends of [the picture] were 

misinformed on both sides. Why would they call us if they weren’t using us and why would we 

send somebody if we knew we weren’t providing them with the service?” (Tr. 702-703, 770-773, 

778, 798-799, 803.)
20

According to OSHA Area Director Robert Garvey, OSHA determined that approximately 

30-40 workers were on the worksite during the time of the alleged hazardous conditions: 6-8

Onekey employees and the rest subcontractors Onekey had retained. (Tr. 425.) Other 

subcontractors on the worksite included MG Commercial Concrete and Madeira Framing. MG 

Commercial Concrete had about eight employees at the site who built foundations: they were 

supervised by Guido Gonzalez, and included Saul Saban-Jacobo and the fatality victim, SabanJacobo’s cousin. (Tr. 262-263; Sec’y Br. 4.) Madeira Framing is owned by Paulo Madeira, who 

employed about eight people onsite including his brother Jay Madeira. (Tr. 301, 343.) Saban-Jacobo 

speaks Spanish, and Paulo Madeira and Jay Madeira speak Portuguese. They all testified at the hearing 

through the use of an interpreter. (Tr. 231-232, 244, 284, 311.)

Saban-Jacobo, a worker for MG Commercial Concrete, testified that he was onsite beginning 

three months before the accident and was on the worksite every day. (Tr. 240.) Saban-Jacobo’s job 

duties included “putting iron bars together, building walls and footing.” (Tr. 237.) He identified the 

photographs Ex. C-4, C-5, and C-12 as accurate to the worksite during the time he was there. (Tr. 236-

240, 248.) Over the three months he was there, he watched as workers added dirt to the surcharge pile 

on Building D, until the surcharge resembled a “mountain.” (Tr. 247-248.) He watched as the 

temporary retaining wall was built while he was on the worksite. (Tr. 247-248.) He saw that they 

“opened holes” so that one of the blocks could be in the ground. (Tr. 252.) Saban-Jacobo testified that 

Aaron O’Neill was in charge of the bulldozers, and that Aaron O’Neill approached Guido Gonzalez 

two to three times a week to give instructions. (Tr. 240, 245.) Saban-Jacobo began to have concerns 

about the surcharge when it became higher than the temporary retaining wall. (Tr. 254.) He testified 

that he worked within 5-6 feet of the temporary retaining wall 3-4 days per week. (Tr. 254.) The

temporary retaining wall was built one month before the accident. (Tr. 252.) He was never told to 

stay a certain distance away from the wall. (Tr. 254.) Saban-Jacobo testified that he did not know the 
21

name Finbar O’Neill. (Tr. 276.) He was asked, “You wouldn’t purposefully put yourself in harm’s 

way, would you?” He replied, “No, but I need the money.” (Tr. 279.) Saban-Jacobo was working on 

the worksite on the day of the accident that killed his cousin. (Tr. 262-263.)
22

(Ex. C-5.)
23

Paulo Madeira owns Madeira Framing, the subcontractor in charge of installing the wooden 

framing, or “structural part,” of the building. (Tr. 285, 343.) He was on the worksite “less than a 

month” when the accident occurred, and he was on the worksite 1-2 days per week. (Tr. 286, 291.) 

He was not in the worksite on the day of the accident. (Tr. 300.) He identified the worksite as depicted 

in the pictures in Exhibits C-4, C-5, C-12, and C-21. (Tr. 288-295.) He testified that he worked on 

the framing of Building B. (Tr. 291; Ex. C-4a.) Paulo Madeira testified that he “always” reported to 

Aaron O’Neill. (Tr. 292.) When he started, there was a “pile of dirt” on Building D, and over the 

course of the month, “they” put more dirt on it. (Tr. 295.) He testified that he watched the temporary 

retaining wall being built. (Tr. 295.) He testified that he “always” worked closer than 10 feet from 

the “pile of dirt” and the wall. (Tr. 296-297.) Paulo Madeira was not given instructions to stay away 

from the “pile of dirt” because that was where the framing had to be. (Tr. 297-299; Ex. C-21.) He 

also testified that the “people that worked with the cement on the foundation” had to work close to the 

“big pile of dirt” and the wall. (Tr. 300.)
24

(Ex. C-21.)

Jay Madeira, Paulo Madeira’s brother, also works for Madeira Framing. (Tr. 311, 343.) Like 

his brother, Jay Madeira was on the worksite for about a month when the accident occurred, but, unlike 

his brother, Jay Madeira was on the worksite Monday-Friday, sometimes Saturdays, for 7.5-8 hours 

per day. (Tr at 315.) He was on the worksite, in his trailer, when the accident occurred. (Tr. 331.) 
25

Jay Madeira identified the worksite as depicted in the photograph in Exhibit C-12, and the parties 

stipulated that Jay Madeira and Paulo Madeira worked in the same location on the worksite on Building

B together. (Tr. 316-318.) Jay Madeira testified that Aaron O’Neill was in charge of the job, but 

unlike his brother, Jay Madeira spoke English with Aaron O’Neill. (Tr. 315.) He saw Aaron O’Neill 

on the worksite every day and talked with him almost every day, about work and “the culture in 

different countries.” (Tr. 313-314.) Jay Madeira also watched the temporary retaining wall being 

built. (Tr. 318-319.) He testified that he worked closer than 6 feet from the “pile of dirt” and the wall 

for about a week and a half. (Tr. 319.) Like his brother, Jay Madeira testified that no one told him to 

stay away from the wall and the “big pile of dirt.” (Tr. 320-321.) 

Worksite Safety 

Both Fiore and Aaron O’Neill were responsible for employee safety onsite, they were both 

authorized to verbally discipline employees for Onekey safety rule infractions, including fall 

protection safety rules, and they both were empowered to report greater safety infractions requiring 

more than verbal counseling to Finbar O’Neill. (Tr. 1012-1014, 1025-1026); see also Exs. R-1, 

R-2, R-3, R-4, R-5, R-6, R-7, R-8, R-9, R-10, R-11, R-12, R-13 (Onekey safety policies and 

procedures). Aaron O’Neill testified that he verbally disciplined employees for not having 

“harnesses on,” while he was onsite from June 28 or 29 until the date of the accident, August 3, 

2017. (Tr. 1105-1106.) Respondent claims that Aaron O’Neill and all Onekey employees have 

“stop work authority” should a safety issue be unresolved. (Resp’t Br. 15 citing Tr. 1103.) All 

workers, including subcontractors, take an OSHA 10 course before appearing on a Onekey 

worksite. (Tr. 385, 1106.) Onekey employees and subcontractors also attended weekly safety 

meetings. (Tr. 1104-1105.)

Aaron O’Neill testified that “it’s my understanding, I’m not sure, but every contractor is 

required to take the safety manual from Onekey, whenever they sign the contract. I don’t know 
26

that for sure, but it’s my understanding that’s what they did.” (Tr. 1127.) Fiore testified that he 

did not know who wrote Onekey’s safety plan. (Ex. C-62 at 74.) Fiore testified that there were 

no work rules regarding how close someone could get to the surcharge or the temporary retaining 

wall. (Id. at 83-84.) It is undisputed that Onekey had no written safety rule specifically regarding 

safe distance from the surcharge or the temporary retaining wall at issue here. 

Finbar O’Neill testified, however, that although he did not personally direct the temporary 

retaining wall construction for the Building D surcharge in the summer of 2017, he expected his 

workers “not to go close enough to it to get themselves in harm’s way.” (Tr. 1006-1007, 1009.) 

He testified that “you wouldn’t want to go where the pile is taller than yourself.” (Tr. 1009.) 

Worksite Warnings

According to Finbar O’Neill, none of these contractors ever expressed to him any safety 

issues regarding the temporary retaining wall or the surcharge. (Tr. 948-950.) Despite the “host” 

of engineers, inspectors, and subcontractors on the worksite, Respondent argues that no one 

brought any safety concerns to Finbar O’Neill or Aaron O’Neill at all. (Resp’t Br. at 18; Tr. 934-

935 (IMTL), 946 (M.A. Day), 947-948 (City of Poughkeepsie), 1109-1110 (the surveyor), 1116-

1117 (IMTL), 1118 (M.A. Day, City of Poughkeepsie).) 

The record, however, is replete with testimony from those at the worksite warning Finbar 

O’Neill, as well as other members of Onekey management, about safety issues with the temporary 

retaining wall or the surcharge, or both the wall and the surcharge. 

The Secretary accurately summarized this testimony in his brief as provided below:

First, Superintendent Robert Tedone, who was on site for five weeks in June 2017, 

testified that he spoke to Finbar O’Neill about the wall: “So we talked about the 

construction process of the retaining wall, and I advised him that building the wall there 

without any engineering was going to be a bad idea.” Tr. 462:21-463-1 (Tedone). Mr. 

Tedone told Mr. O’Neill that he should have an engineer design the wall, but Mr. 

O’Neill said no. Tr. 464:7-11,13-21 (Tedone). Mr. Tedone then spoke to Mr. O’Neill 

“about the proximity of the workers directly in front of what would be the new wall, 
27

even the wall that had existed.” Tr. 466:3-8 (Tedone). Mr. Tedone said, “You're going 

to have 15 Mexicans working directly under this wall and someone's going to get 

killed.” Tr. 466:9-13 (Tedone). Mr. O’Neill rebuffed him, saying “Fuck that, it will be 

fine.” Tr. 466:14-18 (Tedone). 

Next, Jay Madeira of Madeira Framing spoke to Superintendent Aaron O’Neill in July 

2017, about two weeks before the fatality. Tr. 325:20-22 (J. Madeira). He told Mr. 

O’Neill “that the wall was tilted, and like it is going to fall, to fall down.” Tr. 325:16-

19 (J. Madeira). He raised an alarm “[b]ecause you could see how tilted the wall was. 

And because of the amount of dirt that was on the other side, and nothing to counterbalance that on the other side, what would hold the wall from falling?” Tr. 325:23-3 (J. 

Madeira). Mr. O’Neill responded by shrugging his shoulders. Tr. 331:14-25 (J. 

Madeira). 

Finally, Saul Saban, an employee of M.G. Commercial Concrete, raised concerns about 

the surcharge and wall. Tr. 255:3-7 (Saban). M.G. Commercial Concrete’s onsite 

supervisor Guido Gonzalez spoke to Aaron O’Neill, but Mr. O’Neill did not do 

anything about the surcharge or wall. Tr. 259:7-260:3, 262:12-14 (Saban).

(Sec’y Br. 8.)

Respondent denies all of these warnings in the following manner:

Many of the subcontractors at the Site spoke little to no English; indeed, they all 

needed translators to testify at the hearing. For example, Aaron O'Neill was able to 

speak with Paulo Madeira, from Madeira Framing, who spoke some English, but 

O'Neill was not able to have a conversation with Jay Madeira because of the 

language gap. Tr. 1124:4-1125:2. Neither Jay nor Paulo Madeira raised any safety 

concern with Aaron O'Neill regarding the surcharge or the wall. Tr. 1125:3-9. 

Similarly, despite testimony presented by the Secretary, Aaron O'Neill did not have 

any conversations with other subcontractors' employees- including Saul Eduardo 

Saban Jacobo - let alone conversations regarding any safety concerns, about the 

surcharge or the wall. Tr. 1125:10-24. Aaron O'Neill, rather, spoke only with the 

subcontractors' foremen. Tr. 1125:21 - 24. While Aaron O'Neill would speak with 

one foreman, Guido Gonzalez, Gonzalez's English was broken, and the two would 

use a woman named Tanya as a translator. Tr. 1125:25-12. Gonzalez also never 

raised any safety concern to Aaron O'Neill about the surcharge or the wall.

Tr. 1126:13-21.

(Resp’t Br. 19-20.) Regarding Tedone, Respondent states that “Finbar O’Neill denies Tedone’s 

unsupported claim that he told O’Neill that the retaining wall would result in dead workers.” 

(Resp’t Br. 14 citing Tr. 964.) Respondent questions Tedone’s credibility as a “disgruntled 

employee,” and someone who “appeared at a deposition for OSHA without a subpoena and 
28

testified at trial without a subpoena, yet when Onekey tried to subpoena him for a deposition, he 

avoided service.” (Resp’t Br. 14 citing Tr. 484-485.) As noted above in footnote 6, the Court 

rejects Respondent’s arguments regarding Tedone’s credibility on this issue.

Expert Witness Testimony

Both parties introduced expert testimony regarding the design of the temporary retaining 

wall. Dr. Alan Lu (the Secretary’s expert) and Matthew Gardiner (Respondent’s expert) hold civil 

engineering degrees and professional engineering licenses. (Tr. 513-514, 1031, 1034.) The Court 

admitted the testimony of Dr. Lu after deciding that he was qualified to testify as a “geotechnical 

expert,” and the Court admitted the testimony of Mr. Gardiner after deciding that he was qualified 

in “engineering, including structural issues, and matters relating to surcharges and retaining 

walls[.]” (Tr. 527, 1036.) Notably, both experts agreed that the temporary retaining wall on the 

Onekey worksite was not designed to withstand the load posed on it by the surcharge in the summer 

of July 2017. (Tr. 559 (Lu), 1073 (Gardiner), 1083 (Gardiner).) 

Summary of Dates of Alleged Hazards

The accident occurred on August 3, 2017. (Tr. 36-37.) Portions of the Building D

surcharge and portions of the bin-block wall collapsed, crushing Onekey’s subcontractor and 

injuring another while they were nearby. (Tr. 263, 359, 786.) OSHA Safety and Health 

Compliance Officer (CO) Rickey Foster investigated Respondent’s worksite on August 4, 2017. 

(Tr. 37.) After CO Foster’s investigation, OSHA Area Director Garvey issued the citations and 

proposed the penalties in this matter. (Tr. 358.)

In his post-hearing brief, the Secretary provides the dates of the alleged violative 

conditions. The Secretary claims that the hazardous condition alleged in Citation 1, Item 1 (failure 

to instruct employees of unsafe conditions) occurred on or before August 3, 2017. (Sec’y Br. 35-
29

26.) The alleged violative condition in Citation 1, Item 2 (failure to use fall protection) occurred 

“on or about July 28, 2017[.]” (Sec’y Br. 37.) The hazards posed by the bin-block wall in Citation 

2, Item 1, allegedly occurred from July 28, 2017 to August 3, 2017. (Sec’y Br. 28.) The hazards 

posed by the surcharge allegedly occurred on or before July 28, 2017. (Sec’y Br. 27-28.) 

DISCUSSION

The Citations are Affirmed 

To prove a violation of an OSHA standard, the Secretary must establish that (1) the cited 

standard applies, (2) there was a failure to comply with the cited standard, (3) employees had 

access to the violative condition, and (4) the employer knew or could have known of the condition 

with the exercise of reasonable diligence. Astra Pharma. Prods., 9 BNA OSHC 2126, 2129 (No. 

78-6247, 1981) aff’d in relevant part, 681 F.2d 691 (D.C. Cir. 1980). A violation is “serious” if a 

substantial probability of death or serious physical harm could have resulted from the violative 

condition. 29 U.S.C. § 666(k).

Serious Citation 1, Item 1: Safety Training

The Secretary claims that Respondent violated 29 C.F.R. § 1926.21(b)(2), which provides 

that “the employer shall instruct each employee in the recognition and avoidance of unsafe 

conditions and the regulations applicable to his work environment to control or eliminate any 

hazards or other exposure to illness or injury.” 29 C.F.R. § 1926.21(b)(2). The Secretary alleges 

that Respondent violated 29 C.F.R. § 1926.21(b)(2) when:

b) At the 1 Dutchess Avenue, Poughkeepsie, NY, west of Surcharge, on and before 

August 3 of 2017, workers were exposed to a crushing hazard associated with 

a soil surcharge collapse that could cause the concrete retaining wall to collapse. 

Employees were not informed of the potential sudden collapse of the retaining 

wall and surcharge soil pile. Workers were not trained to keep a safe distance 

away from the surcharge and retaining wall.

(Citation 6.)
30

Respondent concedes, that “Onekey did not instruct its employees specifically related to 

claimed hazards regarding the surcharge or the wall[.]” (Resp’t Br. 24-25.) Indeed, it is undisputed 

that Onekey had no proximity rule associated with the surcharge or the temporary retaining wall. 

Instead, Respondent claims that Onekey was not responsible for the “claimed hazards” of the 

surcharge or the wall because the use of a surcharge was “uncommon” on construction worksites 

and the sole purpose of the temporary retaining wall it chose to build was to protect its workers

from the surcharge. (Resp’t Br. 24-26.) Respondent then claims that “the Secretary cannot prove 

that a reasonably prudent employer would have instructed its employees regarding the claimed 

hazards[.]” (Resp’t Br. 25.)

As an initial matter, the Court finds that the cited standard applies to Respondent’s

worksite. The constructions standards in Part 1926 apply because Respondent’s worksite was a 

construction worksite. 

The Court also finds that Respondent was responsible for the crushing hazard presented by 

sudden collapse of the soil surcharge as well as the bin-block wall. “Under § 1926.21(b)(2), an 

employer must instruct its employees in the recognition and avoidance of those hazards of which 

a reasonably prudent employer would have been aware.” Capform, Inc., 19 BNA OSHC 1374, 

1376 (No. 99-0322, 2001) aff’d, 34 F. App’x 152 (5th Cir. 2002) (unpublished); see also N&N 

Contractors, Inc., 18 BNA OSHC 2121, 2126 (No. 96-0606, 2000) (“To establish noncompliance 

with a training standard, the Secretary must show that the cited employer failed to provide the 

instructions that a reasonably prudent employer would have given in the same circumstances.”), 

aff’d, 255 F.3d 122 (4th Cir. 2001); Pressure Concrete Constr. Co., 15 BNA OSHC 2011, 2015 

(No. 90-2668, 1992) (“An employer must instruct its employees in the recognition and avoidance 

of those hazards of which a reasonably prudent employer would have been aware.”); W.G. 
31

Fairfield Co., 19 BNA OSHC 1233, 1236 (No. 99-0344, 2000) (where underlying violation is of 

a generalized standard, the “employer’s obligation to train is dependent upon the specific 

conditions, whether those conditions create a hazard, and whether the employer or its industry has 

recognized the hazard”) (citation omitted), aff’d, 285 F.3d 499 (6th Cir. 2002). 

The Court finds that the cut-back surcharge presented a hazardous condition to the workers

on the worksite. Although it is undisputed that the use of a surcharge is uncommon not only to 

Respondent, but also in the construction industry in general, the record supports a finding that the 

conditions on this worksite were hazardous. 

As discussed above, the record establishes that soil on the footprint of Building D was 

slowly, over months, piled up at least 15 feet high, spanning the footprint of a 40-unit apartment 

building, and one side of this massive pile of soil was cut back such that a vertical (or at least far 

exceeding a one-to-one slope) soil wall was formed. This massive pile towered over workers’

heads as they walked by, sometimes within mere feet of the cut-back surcharge. Pictures of the 

worksite depict an astonishingly vast pile of dirt sloped at an excessively steep angle with workers 

busy nearby performing various construction tasks. See, e.g., Exs. C-6, C-11, C-12, C-13. The 

record also establishes that the “toe” of the surcharge was “cut back” because it interfered with 

constructing the nearby Buildings B and C. (Tr. 538, 551, 755, 799, 1119-1121.)
32

(Ex. C-6.)

All of the record testimony is consistent regarding how a vertical, or near-vertical, wall of 

soil towering over a worker’s head is an obvious hazard. The Secretary’s expert explained that 

the vertical wall of soil from the surcharge created a collapse or cave-in hazard. (Tr. 552.) 
33

Respondent’s expert agreed, noting “there was a time when the soil had been cut back but the wall 

was not yet fully built[, and that] during that time there was something that should have been done 

to protect those employees building the wall from the collapse of the soil.” (Tr. 1085 (Gardiner 

testifying, “Well, what I would’ve done is I would’ve benched it.”).) Finbar O’Neill directed 

workers to build the bin-block wall to protect the workers from soil falling on them. (Tr. 1006-

1007.) Finbar O’Neill himself claimed he expected workers to keep their distance from the 

vertical wall of soil while they built the bin-block wall. (Tr. 1009.) However, there is no evidence 

that his expectation was ever communicated to anyone, let alone the exposed employees.

Although the surcharge was not part of excavation work during the pertinent time of the 

alleged violations, the hazards typically associated with trenching and excavations (such as soil 

collapse) were considered relevant to the surcharge by both OSHA’s expert and Finbar O’Neill. 

(Tr. 535, 537-538, 551-552, 554, 1006); see Bardav, Inc., 24 BNA OSHC 2105, 2115 (No. 10-

1055, 2014) (holding that long-standing Commission precedent requires employers to provide 

excavation safety instructions under section 1926.21(b)(2) to employees engaged in excavation 

work “regardless of whether the potential hazards posed by excavations are actually present.”). 

OSHA Area Director Garvey testified that Onekey “could use common sense recognition that 

there’s a hazard there,” with respect to the cut-back surcharge pile. (Tr. 400.) 

As for the bin-block wall, the record also supports a finding that the wall was not strong 

enough to withstand the loading from the massive surcharge. Both experts agreed that no one 

designed the wall properly for the load of the surcharge, and that the wall failed because of the 

loading by the surcharge. (Tr. 559, 1073, 1083.) The failure of the wall presented a crushing 

hazard by the 3600-pound precast concrete bin blocks. (Tr. 122, 408.)
34

Based on the above, the Court finds that the record establishes that the cut-back surcharge 

pile on Building D presented a crushing hazard associated with a collapse and/or cave-in to 

Onekey’s employees and subcontractors on the worksite. The Court also finds that the precast 

concrete bin-block wall presented a crushing hazard to Onekey’s employees and subcontractors 

on the worksite. 

Furthermore, based on the above-described undisputed evidence, the Court finds that a 

reasonably prudent employer would have been aware of the collapse hazards presented by the cutback surcharge and the bin-block wall, and would have instructed its workers in the awareness and 

avoidance of these hazards. Pressure Concrete Constr. Co., 15 BNA OSHC at 2015 (“An 

employer must instruct its employees in the recognition and avoidance of those hazards of which 

a reasonably prudent employer would have been aware.”). The Court is not persuaded by 

Respondent’s argument that the wall’s purpose was to protect workers. To the contrary, Aaron 

O’Neill testified that it was impossible to construct Building B with the surcharge “as designed.” 

(Tr. 1119-1120.) Onekey decided to cut-back the surcharge to allow workers to construct Building 

B, even though cutting back the surcharge created a steeper slope than was designed. Despite 

Respondent’s claim, the Court finds that the bin-block wall was not there solely to protect 

employees. Instead, it was there to facilitate the concurrent construction of Building B. 

Regarding the remaining elements of this violation, the record supports the Secretary’s 

claims. Onekey employees and subcontractors, without receiving the training required by the 

standard, worked within a few feet of the cut-back surcharge while building the bin-block wall and 

worked on the foundation for Building B. Additionally, knowledge is established as Respondent 

concedes that it did not instruct its workers to avoid the surcharge and bin-block wall hazard. 

Bardav, Inc., 24 BNA OSHC at 2115 citing Pressure Concrete Constr., 15 BNA OSHC at 2018 
35

(“[t]he fact that [the company] failed to train [employees] in the recognition and avoidance of 

dangerous conditions establishes that it had at least constructive knowledge of the inadequacy of 

its training program.”); see also Am. Eng’g & Dev. Corp., 23 BNA OSHC 2093, 2095 (No. 10-

0359, 2012) (knowledge is imputed to the employer “through its supervisory employee.”).

With regard to characterization, this citation item is properly characterized as serious. 29 

U.S.C. § 666(k) (A violation is “serious” if a substantial probability of death or serious physical 

harm could have resulted from the violative condition). CO Foster testified that violation of this 

standard presented a crushing hazard by both the surcharge and the wall. (Tr. 121-122.) The tragic 

circumstances of this case establish that death and serious physical harm resulted from this hazard. 

This citation item is affirmed.

Serious Citation 1, Item 2: Fall Protection

The Secretary claims that Respondent violated 29 C.F.R. § 1926.501(b)(12), which 

provides that: 

‘Precast concrete erection.’ Each employee engaged in the erection of precast 

concrete members (including, but not limited to the erection of wall panels, 

columns, beams, and floor and roof "tees") and related operations such as grouting 

of precast concrete members, who is 6 feet (1.8 m) or more above lower levels shall 

be protected from falling by guardrail systems, safety net systems, or personal fall 

arrest systems, unless another provision in paragraph (b) of this section provides 

for an alternative fall protection measure. Exception: When the employer can 

demonstrate that it is infeasible or creates a greater hazard to use these systems, the 

employer shall develop and implement a fall protection plan which meets the 

requirements of paragraph (k) of 1926.502.

Note: There is a presumption that it is feasible and will not create a greater hazard 

to implement at least one of the above-listed fall protection systems. Accordingly, 

the employer has the burden of establishing that it is appropriate to implement a fall 

protection plan which complies with 1926.502(k) for a particular workplace 

situation, in lieu of implementing any of those systems.

29 C.F.R. § 1926.501(b)(12). The Secretary alleges that Respondent violated 29 C.F.R. 

§ 1926.501(b)(12) when:
36

a) At the 1 Dutchess Avenue, west of Surcharge D, in Poughkeepsie, NY, on or about 

July 28, 2017, employees were installing pre-cast concrete blocks to a level of 8 

feet high without the use of fall protection. 

(Citation 7.) 

This citation item is based on the condition depicted in photographs admitted into the 

record as Exhibits C-11 and C-12 and are also found as OSHA-4 and OSHA-5 in the deposition 

of Onekey Project Manager Steven Fiore. (Exs. C-11, C-12, C-62 at 113-114.) During his 

deposition, Fiore was shown the photographs pictures labeled “OSHA-4” and “OSHA-5.” These 

pictures depict a Onekey employee working on top of the bin-bock wall at a height greater than 6 

feet without fall protection. (Ex. C-62 at 37-38; Ex. C-62 at 113-114.) Fiore explained that he 

walks the site “at least once a day [and] take[s] photos,” and indeed took the photos in OSHA-4 

and OSHA-5. (Ex. C-62 at 22, 37.) He testified that “most all of [the photos]” are his, and that he 

took a “general walk usually every day at least to see what progress because I did have to keep my 

head up so I can do the daily field reports.” (Id. at 22.) 

Regarding deposition photographs OSHA-4 and OSHA-5, Fiore testified that the correct 

date of the pictures is July 28, 2017, and it would coincide with the, presumably, electronic “dates 

on the folders” of the files provided under subpoena by Respondent to OSHA. (Id. at 36-37.) 

These photographs referred to in the deposition were the same as those entered into the record at 

the hearing, according to CO Ricky Foster. He used the photographs as the basis for 

recommending Citation 1, Item 2 (the alleged fall protection violation). (Tr. 119, 131-136; Exs. 

C-11, 12.) Additionally, regarding the photograph in Exhibit C-12, Saban-Jacobo, Paulo Madeira 

and Jay Madeira testified that they recognized the photograph’s depiction as what the worksite 

looked like when they worked on the worksite. (Tr. 248, 295, 318.)

The Court has reviewed these photographs. Exhibit C-11 appears identical to OSHA-4, 

and Exhibit C-12 appears identical to OSHA-5. See Exs. C-11, C-12, C-61 amended at 113 
37

(“OSHA-4”), C-61 amended at 114 (“OSHA-5”). Thus, the Court finds that Exhibits C-11 and C12 are OSHA-4 and OSHA-5 as identified in Exhibit C-62 (Fiore’s deposition). (Tr. 1138-1139, 

1187; Ex. C-62 amended at 113-114.) As Fiore authenticated that he took these photographs on 

July 28, 2017, and the subcontractors testified to Exhibit C-12’s accurate representation of what 

they saw when they were on the worksite in the summer of 2017, these photographs are given 

weight to show the conditions on Respondent’s worksite on that day. See FED. R. EVID. 901(a) 

(“To satisfy the requirement of authenticating or identifying an item of evidence, the proponent 

must produce evidence sufficient to support a finding that the item is what the proponent claims it 

is.”)

Regarding applicability, the Court finds that the cited standard applies to Respondent’s 

worksite. Respondent was engaged in construction at the Poughkeepsie worksite, and was working 

with precast concrete bin blocks on July 28, 2017. (Tr. 78, 80, 83, 463; Exs. C-11, C-12, C-23, C24, C-25, C-49 C-62 at 42.) As the Secretary notes, photographs in the record show a Onekey 

employee, identified by Fiore and Aaron O’Neill as Shawn Hazel, on top of the wall with no fall 

protection. (Tr. 1139; Exs. C-11, C-12, C-62 at 104-105, 114.) Hazel is at least eight feet above 

ground. The photographs show him on top of four stacked 2-feet tall bin blocks. (Tr. 86, 132-

134.) There are no guardrails or safety nets, and Hazel is not wearing a personal fall arrest system. 

(Tr. 135-138.) The Secretary has established non-compliance with the cited standard and the 

exposure of a Onekey employee to the violative condition.

With regard to knowledge, Onekey’s project manager had actual knowledge of the 

violative condition because he photographed it. (Sec’y Br. 38.) As Oneykey’s project manager, 

Fiore had the authority to discipline employees for safety infractions. His knowledge can be 

imputed to Onekey. Am. Eng’g & Dev. Corp., 23 BNA OSHC at 2095 (knowledge is imputed to 
38

the employer “through its supervisory employee.”). The Court finds that the Secretary established 

a prima facie case for this citation item.

Respondent claims the unpreventable employee misconduct (UEM) defense. (Resp’t Br.

27-29.) Only after the Secretary has established his prima facie case of a violation of an OSHA 

standard does the burden shift to the employer to establish the affirmative UEM defense. N.Y. 

State Elec. & Gas Corp. v. Sec’y of Labor, 88 F.3d 98, 108 (2d Cir., 1996). To establish the UEM 

defense, the employer must show that it: (1) it established work rules to prevent the violation; (2) 

these rules were adequately communicated to the employees; (3) it took steps to discover 

violations; and (4) it effectively enforced the rules when infractions were discovered. Pub. 

Utilities Maint., Inc. v. Sec'y of Labor, 417 F. App’x 58, 64 (2d Cir. 2011) (unpublished), citing 

D.A. Collins Constr. Co. v. Sec'y of Labor, 117 F.3d 691, 695 (2d Cir.1997).

Respondent has a fall protection safety program in place. Both Fiore and Aaron O’Neill 

were responsible for employee safety onsite. They were both authorized to verbally discipline 

employees for Onekey safety rule infractions, including fall protection safety rules, and report 

greater safety infractions to Finbar O’Neill. (Resp’t Br. 27-28; Tr. 1012-1014, 1025-1026); see 

also Exs. R-5, R-9 (Onekey safety policies regarding fall protection). Aaron O’Neill testified that 

he had verbally disciplined employees for not having “harnesses on,” while he was onsite from 

June 28 or 29 until the date of the accident, August 3, 2017. (Tr. 1105-1106.) All workers, 

including subcontractors, take an OSHA 10 course before appearing on a Onekey worksite. (Tr.

385, 1106.) Onekey employees and subcontractors also attend weekly safety meetings. (Tr. 1104-

1105.)

However, as the Secretary notes, no evidence in the record reveals that Hazel was 

disciplined for not having fall protection on July 28, 2017, even though Fiore had actual knowledge 
39

of the violative condition and he was authorized to verbally discipline, and report fall protection 

violations. This suggests that Onekey did not effectively enforce its fall protection rule. D.A. 

Collins Constr. Co., 117 F.3d at 695-696 (holding that employer’s claim of adequate enforcement 

was undercut in part by persuasive evidence that the supervisor failed to enforce its safety rules); 

Nat’l Realty and Constr. Co., Inc. v. OSHRC, 489 F.2d 1257, 1267 n. 38 (D.C. Cir. 1973) (“the 

fact that a foreman would feel free to breach a company safety policy is strong evidence that 

implementation of the policy was lax.”) Additionally, CO Foster testified that the only feasible 

kind of protection that could be used in the situation the photographs depict was a personal fall 

arrest system. (Tr. 135-136.) Yet, as the Secretary points out, Hazel is not wearing a harness at 

all and there is no tie-off point for him to use even if he were wearing a harness. (Sec’y Br. 39 

citing Tr. 137-138.) Considering this lax enforcement of its fall protection rules, Respondent failed 

to establish the UEM defense for this citation item. D.A. Collins Constr. Co., 117 F.3d at 695-

696. 

Turning to characterization, this citation item is properly characterized as serious. 29 

U.S.C. § 666(k) (A violation is “serious” if a substantial probability of death or serious physical 

harm could have resulted from the violative condition). CO Foster testified that violation of this 

standard presented a fall hazard to the employee and he could break a bone or be hospitalized. (Tr.

140.) This citation item is affirmed as serious.

Willful Citation 2, Item 1: Bin-Block Wall 

The Secretary claims that Respondent willfully violated 29 C.F.R. § 1926.701(a), which 

provides the following: 

Construction loads. No construction loads shall be placed on a concrete structure 

or portion of a concrete structure unless the employer determines, based on 

information received from a person who is qualified in structural design, that the 

structure or portion of the structure is capable of supporting the loads. 
40

29 C.F.R. § 1926.701(a). The Secretary alleges that Respondent violated 29 C.F.R. § 1926.701(a) 

when:

a) At 1 Du[t]chess Avenue, in Poughkeepsie, NY, on the west side of the Building D 

surcharge soil pile, on and before August 3 of 2017, workers were exposed to being 

crushed by a concrete stacked bin-block wall, that was retaining a soil surcharge. 

The wall was not approved or designed by a qualified engineer. Workers were in 

close proximity to the wall while tying rebar, pouring foundation, operating 

equipment, collecting personal items and tools, and while walking though the job 

site.

(Citation 8.) Respondent argues that the standard does not require a “design,” and that Finbar 

O’Neill discussed the bin-block wall with Quazza, and Quazza said that the bin-block wall would 

be a good idea. (Resp’t Br. 29.) Respondent also claims that it lacked actual and constructive 

knowledge that “building the wall in the manner it did was a violation,” because Finbar O’Neill 

and Aaron O’Neill both believed the wall was built to protect workers. Respondent also contends 

that SESI was contractually obligated to notify Onekey of any safety concerns. (Resp’t Br. 30.) 

Respondent further claims that no one, including Tedone and the subcontractors on the worksite, 

raised any safety concerns regarding the wall to Onekey. (Resp’t Br. 30-31.)

A) Merits

The cited standard applies to the precast concrete bin-block wall. It is undisputed that the 

bin blocks are made from precast concrete and that the bin blocks were part of an interlocking 

system Onekey used to form the wall. The Court finds that a wall made of precast concrete bin 

blocks constitutes a concrete structure. It is also undisputed that the surcharge loaded the wall

such that the wall collapsed on August 3, 2017. Accordingly, the surcharge load constituted a 

construction load because it was part of Onekey’s construction project at the Poughkeepsie 

worksite. See 29 C.F.R. § 1910.12(a) (construction industry standards prescribed in Part 1926 

apply to “every employment and place of employment of every employee engaged in construction 
41

work.”); 29 C.F.R. § 1910.12(b) (“construction work” as used in section 1910.12(a) “means work 

for construction, alteration, and/or repair, including painting and decorating.”).

Respondent did not comply with the standard. Onekey did not determine, based on 

information received from a person qualified in structural design, that the bin-block wall, or any

portion of the bin-block wall, was capable of supporting the surcharge load. 29 C.F.R. 

§ 1926.701(a). The bin-block wall changed as the worksite progressed. For example, Fiore 

testified that he used three layers of bin blocks, whereas Aaron O’Neill used four layers of bin 

blocks, to construct the wall. The record also establishes that the surcharge itself, and therefore its

load on the bin-block wall, changed throughout the project. Fiore testified that hardly any soil was 

on building footprint D when he arrived on-site in February of 2017. Tedone testified that he 

himself dumped soil on the surcharge of Building D while he worked on the worksite in June 2017. 

All three subcontractors who testified in this case stated that they watched as more and more soil 

was added to the surcharge of Building D’s surcharge during the summer, until it reached at least 

15 feet high. 

None of these changes in the bin-block wall or surcharge loading were discussed by Finbar 

O’Neill and Quazza when they stood on top of the Building B surcharge in January/February 2017

and, allegedly, discussed whether a bin-block wall was a good idea. The record shows that there 

was no surcharge on Building D at that time. Even Finbar O’Neill concedes that this conversation 

was “general” and did not go into detail about the dimensions of the bin-block wall, the dynamic 

loading of the surcharge over the course of the summer, or the dynamic shape of the surcharge

over the course of the summer. Further, at the time of this alleged conversation, which Quazza 

denies, there is no dispute that Onkey had not yet cut back any surcharge at a steep slope, and there 

was no bin-block wall on the worksite. In addition, it is undisputed that Quazza was not asked nor 
42

did he aid in the design of the bin-block wall at all. The parties also agree that Quazza did not 

return to the site after the January/February alleged discussion, and that the SESI inspectors that 

did visit the site in May and July 2017 were there to inspect poured concrete footings, not the 

surcharge or the bin-block wall. Quazza also testified that those inspections were outside of the 

Onekey/SESI contract. 

Respondent’s actions regarding this bin-block wall reflect an all too casual approach, 

especially given that Respondent had never worked with a surcharge before and that the use of 

a surcharge is uncommon even in the construction industry. None of the people involved with 

the bin-block wall were qualified in structural design. These same people altered the surcharge by 

cutting it back to a near vertical slope, and thus also altered the loading on the bin-block wall. 

Additionally, the alleged conversation between Finbar O’Neill and Quazza, in which Finbar 

O’Neill said was general and not detailed, is not what the cited standard contemplates. Under 

these circumstances, the Court finds that Respondent cannot credibly claim it relied on Quazza or 

any other subcontractors on the worksite to raise safety concerns regarding the bin-block wall. 

See, e.g., Acchione & Canuso, Inc., 7 BNA OSHC 2128, 2131 (No. 16180, 1980) (“[A]n employer 

remains accountable for the health and safety of its employees . . . and cannot divest itself of its 

obligations under the [OSH] Act by contracting the responsibility to another employer.”); Wiley 

Organics, Inc. d/b/a Organic Tech., 17 BNA OSHC 1586, 1597 (No. 91-3275, 1996), aff’d, 124 

F.3d 201 (6th Cir. 1997) (“An employer has a general obligation to inform itself of the hazards 

present at the worksite and cannot claim lack of knowledge resulting from its own failure to make 

use of the sources of information readily available to it.”) (citations omitted).

Under the terms of the cited standard, Respondent was obligated to determine whether the 

precast concrete bin-block wall could withstand the surcharge load, and it failed to do so. 
43

To establish the exposure element of his prima facie case, the Secretary must prove actual 

exposure to the violative condition or that access to the violative condition was reasonably 

predictable. See Calpine Corp., 27 BNA OSHC 1014, 1016 (No. 11-1734, 2018) (citing Phoenix 

Roofing, Inc., 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995), aff’d, 79 F.3d 1146 (5th Cir. 1996) 

(unpublished)), aff’d, 774 F. App’x 879 (5th Cir. 2019) (unpublished); S & G Packaging Co., 19 

BNA OSHC 1503, 1506 (No. 98-1107, 2001). It is undisputed, and the record is replete with 

evidence, that not only were the victims of the accident exposed to the hazard of the bin-block wall

collapse, but that Onekey’s employees and subcontractors routinely worked in close proximity to, 

and sometimes on, the wall during their construction duties. Nuprecon LP, 23 BNA OSHC 1817, 

1819 (No. 08-1307, 2012) (citations omitted) (Reasonably predictable exposure is established by 

proving that “either by operational necessity or otherwise (including inadvertence) . . . employees 

have been, are, or will be in the zone of danger.”); Donovan v. Adams Steel Erection, Inc., 766 

F.2d 804, 812 (3d Cir. 1985) (“ ‘access,’ not exposure to danger is the proper test”). The Secretary 

has established exposure for this citation item.

The Court also finds that Respondent had actual knowledge of the violative condition in 

that Onekey did not determine whether the bin-block wall was capable of withstanding the 

surcharge load. See Phoenix Roofing, Inc., 17 BNA OSHC at 1079 (“Employer knowledge is 

established by a showing of employer awareness of the physical conditions constituting the 

violation”). Finbar O’Neill testified that he asked Quazza “generally” about the bin-block wall, 

but he did not ask about the wall’s details, including what load it could withstand. Fiore testified 

that the bin-block wall “evolved” over time. He did not know why the wall’s design changed from 

three blocks high to four blocks high when Aaron O’Neill took over the wall task. Aaron O’Neill 

testified that he never consulted an engineer about the design of the bin-block wall or the surcharge 
44

load that would be placed on it. (Tr. 1135.) This shows actual knowledge of the violative 

condition. Because all supervisory employees knew about it during the summer of 2017, their 

knowledge is imputed to Respondent. Phoenix Roofing, Inc., 17 BNA OSHC at 1079; Am. Eng’g 

& Dev. Corp., 23 BNA OSHC at 2095 (knowledge is imputed to the employer “through its 

supervisory employee.”). 

The merits of this citation item constitute a violation of the cited standard. 

B) Characterization

The Secretary claims that this violation is properly characterized as willful. The Secretary 

argues that despite multiple warnings to management regarding the safety of the bin-block wall, 

Onekey dismissed them all in “conscious disregard” of the cited standard’s requirement and the 

hazard. (Sec’y Br. 26.) Respondent counters, arguing that:

[b]ecause geotechnical engineering and the science of surcharges is highly 

technical and not within the knowledge of most general contractors – facts admitted 

even by the Secretary’s own proposed expert – Onekey rightfully and in good faith 

relied upon the expertise of [SESI] to monitor the surcharges at the [worksite,] 

including the use and placement of a temporary retaining wall related to the 

surcharges.

(Resp’t Br. 37-38.) Onekey claims it “had no reason to believe that SESI would not adequately 

monitor the surcharge or the retaining wall and had no reason to believe that it would not notify 

Onekey of any safety concerns with either the surcharge or the retaining wall[.]” (Resp’t Br. 38.)

“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 2178, 2181 

(No. 90-2775, 2000) (citation omitted), aff'd, 268 F.3d 1123 (D.C. Cir. 2001).

[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 
45

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); see also Bianchi Trison 

Corp. v. Chao, 409 F.3d 196, 208 (3d Cir. 2005) (A willful violation of the OSH Act “constitutes 

an act done voluntarily with either an intentional disregard of, or plain indifference to, the OSH 

Act’s requirements”). 

There must be evidence that an employer knew of an applicable standard or 

provision prohibiting the conduct or condition and consciously disregarded the 

standard. Without such evidence of familiarity with the standard's terms, there must 

be evidence of such reckless disregard for employee safety or the requirements of 

the law generally that one can infer that if the employer had known of the standard 

or provision, the employer would not have cared that the conduct or conditions 

violated it. 

Williams Enters. Inc., 13 BNA OSHC 1249, 1257 (No. 85-355, 1987). 

“The state of mind of a supervisory employee ... may be imputed to the employer for 

purposes of finding that the violation was willful.” Branham Sign Co., 18 BNA OSHC 2132, 2134 

(No. 98-752, 2000); Elliot Constr. Corp., 23 BNA OSHC 2110, 2116-17 (No. 07-1578, 2012) 

(finding plain indifference when supervisor knew from prior experience and the day of the accident

that carbon monoxide would be present and yet failed to monitor for it); Adrian Constr. Co., 7 

BNA OSHC 1172, 1175 (No. 15414, 1979) (“A violation is willful if the evidence shows that the 

employer ignored an obvious and grave danger . . . ”).

Heightened Awareness

The Court finds that the Secretary has established that Respondent had a heightened 

awareness that Onekey had not determined, based on information received from someone who is 

qualified in structural design, that the bin-block wall could support the surcharge load. 29 C.F.R. 

§ 1926.701(a); see Hern Iron Works, Inc., 16 BNA OSHC at 1214 (“A willful violation is 

differentiated by heightened awareness of the illegality of the conduct or conditions...”). As 
46

discussed above, both experts agreed that the wall was not designed properly for the surcharge 

load. 

Fiore testified that he knew that the bin-block wall “evolved” as the project went on. (Ex. 

C-62 at 40.) He testified that there were several revisions of the wall and that the wall was “redone” 

multiple times when needed across the worksite between March 2017 and August 3, 2017. (Ex. 

C-62 at 35-36.) Fiore “straightened” out a previous version of the bin-block wall that appeared 

tilted and bowed to Tedone when Tedone brought up his concern.8 (Tr. 449, 452, 457-458.) 

Despite correcting one version of the wall, Fiore did not transfer knowledge about the wall to 

Aaron O’Neill when Aaron O’Neill took over directing the construction of the bin-block wall. 

Indeed, Aaron O’Neill testified that he did not know who designed the wall or how it was designed; 

he merely continued the construction of it along the length of the surcharge of Building D over the 

summer. (Tr. 1119, 1122.)

Aaron O’Neill also did not ever communicate the change in the bin-block wall’s design 

(from 3 bin blocks high to 4 bin blocks high) to Fiore. Fiore testified that he did not know why 

the wall had four courses of bin block during the summer when he had directed workers to stack 

the bin blocks only three courses high when he (Fiore) was in charge of the wall. (Ex. C-62 at 40-

41.) The lack of communication regarding the change of the wall is a concerning and telling course 

of conduct because both Fiore and Aaron O’Neill were in charge of safety and had stop-work 

authority. (Tr. 867, 1012-1014, 1025-1026.) Aaron O’Neill, as the site superintendent, reported 

to Fiore, the project manager, and Fiore reported to Finbar O’Neill. (Tr. 430, 855.) Yet, Fiore did 

not know how the bin-block wall was being revised once Aaron O’Neill began directing the work. 

8 Respondent does not deny that this safety communication between Tedone and Fiore occurred. 

(Resp’t Br. 14.)
47

The Court is not persuaded that this lack of communication should result in less than heightened 

awareness that the bin-block wall was in violation of cited standard. See United States 

v. Ladish Malting Co., 135 F.3d 484, 488 (7th Cir. 1998) (“ ‘actual knowledge and deliberate 

avoidance of knowledge are the same thing’ ” and “[b]ehaving like an ostrich supports an inference 

of actual knowledge”) (citation omitted). 

In addition to the wall changing over the summer, the surcharge of Building D also grew 

over the summer. Neither Fiore nor Aaron O’Neill consulted with any engineer about the binblock wall even though the bin-block wall’s design changed from three courses to four, and the 

surcharge loading increased over time. For these reasons, the record supports a finding that 

Onekey knew that the loading on the bin-block wall changed, and that Onekey changed the binblock wall, over the course of 2017 up until the day of the accident. Onekey did not consult with 

anyone qualified in structural design to determine whether the bin-block wall could support the 

changing surcharge load, despite one instance that the wall had to be “corrected” at one time due 

to safety concerns. Branham Sign Co., 18 BNA OSHC at 2134 (“state of mind of a supervisory 

employee ... may be imputed to the employer for purposes of finding that the violation was 

willful.”)

Based on the above, the Court finds that Onekey had a heightened awareness of the 

illegality of its conduct which is revealed by its failure to communicate changes to the wall 

construction and failure to ensure that the bin-block wall was designed to support the load placed 

upon it.

Plain Indifference

Despite this heightened awareness, Respondent acted with plain indifference toward its 

workers’ safety with respect to the bin-block wall over the course of the summer of 2017. 
48

Anderson Excavating & Wrecking Co., 17 BNA OSHC 1890, 1892-94 (No. 92-3684, 1997) (plain 

indifference found based in part on failure to provide safety program, training and protective 

equipment, combined with supervisory involvement and failure to act after notification of 

violations of the same standard at other sites) aff’d. 131 F.3d 1254 (8th Cir. 1997).

As noted earlier, Aaron O’Neill testified that it was impossible to construct Building B

with the surcharge “as designed.” (Tr. 1119-1120.) Onekey decided to cut-back the surcharge to 

allow workers to begin constructing Building B, even though cutting back the surcharge created a 

steeper slope than called for by the original design. Even to Onekey, this steeper slope seemed 

like a hazard. Indeed, according to Respondent, Onekey acted to address this obvious hazard by 

building the bin-block wall to prevent slope failure. (Resp’t Br. 37-38.) 

“[W]illfulness will be obviated by a good faith, albeit mistaken, belief that particular 

conduct is permissible. Good faith is a question of fact.” Arcadian Corp., 20 BNA OSHC 2001, 

2018 (No. 93-0628, 2004) (citations omitted). However, if an employer's measures to address a 

hazard were to maintain production rather than a genuine effort to abate the hazard, the violation 

is still willful. Coleco Indus., 14 BNA OSHC 1962, 1967-68 (No. 84-0546, 1991). 

From July 2017 through the day of the accident, Aaron O’Neill directed workers to build 

the bin-block wall along a “mountain” of soil, sloped at a near vertical angle, that towered overhead 

at least 15 feet. (Tr. 247-248; Ex. C-13.) He testified that he did so to allow work to proceed on 

the nearby Building B foundation. (Tr. 1119-1120.) 

Onekey claims that it is not knowledgeable about geotechnical matters, arguing it relied on 

SESI to monitor and bring up safety concerns regarding the bin-block wall. (Resp’t Br. 37-38.) 

As noted above, this argument is unpersuasive. Onekey knew that Quazza monitored the surcharge 

remotely using data from a surveyor and was not on-site during this time. The actions performed
49

by SESI regarding the worksite do not match up to Respondent’s claimed heavily reliant 

expectations – and they did not match up for over six months. Indeed, the bin-block wall went 

through several “revisions,” and neither Fiore nor Aaron O’Neill consulted with anyone with 

expertise in structural design regarding those revisions. As noted above, Onekey’s approach to 

the bin-block wall was all too casual given that it had never before worked with a surcharge. Even 

when Onekey deviated from the surcharge design, to facilitate concurrent construction in which 

workers were placed in harm’s way, Onekey failed to consult with anyone qualified in structural 

design regarding the bin-block wall. Onekey was plainly indifferent to its workers’ safety.

The Court finds Onekey’s willfulness arguments unpersuasive. This citation item is 

properly characterized as willful. 

Willful Citation 2, Item 2: Surcharge 

The Secretary alleges that Respondent willfully violated section 5(a)(1) of the OSH Act, 

the “general duty clause,” which requires that each employer “furnish to each of his employees 

employment and a place of employment which are free from recognized hazards that are causing 

or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). 

The Secretary alleges that Respondent violated the general duty clause when:

b) At the 1 Dutchess Avenue in Poughkeepsie, NY for the Building D soil 

surcharge, between July 25 through 28 of 2017, the employer did not protect 

Onekey, LLC employees from the hazards associated with a soil surcharge 

collapse. The employer did not maintain a slope of 45 degrees at the edge of 

the soil surcharge as per engineer design. Employees were exposed to fatal 

crushing injuries from a collapsed soil surcharge while working near the 

surcharge and constructing the concrete stacked bin-block wall.

(Citation 9-10.) 

A) Merits

To prove a violation of the general duty clause, the Secretary must establish that: (1) a 

condition or activity in the workplace presented a hazard; (2) the employer or its industry 
50

recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical harm; 

and (4) a feasible and effective means existed to eliminate or materially reduce the hazard. 

Arcadian Corp., 20 BNA OSHC at 2007. The Secretary must also show that the employer knew 

or, with the exercise of reasonable diligence, could have known that the hazardous condition 

existed at its worksite. Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1537 (No. 86-0469, 1992).

1) The Cut-Back Surcharge Presented a Hazard

To constitute a cognizable hazard under the general duty clause, a worksite condition must 

pose more than the mere possibility of harm. See, e.g., Pelron Corp., 12 BNA OSHC 1833, 1835 

(No. 82-388, 1986) (“Defining the hazard as the ‘possibility’ that a condition will occur defines 

not a hazard but a potential hazard.”); Pratt & Whitney Aircraft v. Donovan, 715 F.2d 57, 64 (2d 

Cir. 1983) (“[T]he Secretary must show more than the mere possibility of injury; he must show 

that the potential hazard presents a significant risk of harm.”) 

As discussed in the analysis of Citation 1, Item 1 (the training violation), the Court found 

that the surcharge cut back to a near-vertical slope presented a collapse and cave-in hazard to 

Onekey’s employees and subcontractors who worked nearby. In Citation 1, Item 1, this hazard 

warranted training by Onekey. For this citation item, Citation 2, Item 2, this hazard establishes 

the first prong of the general duty clause analysis. 

While Respondent argues that the Secretary did not establish that the surcharge’s steep 

slope caused the precast concrete bin-block wall to fail on the day of the accident, the relevant 

timeframe for this citation item is July 25-July 28, 2017. As noted above, pictures taken by Fiore 

on those dates are authenticated and entered into the record. See Exs. C-5, C-11, C-12. Also noted 

above, those pictures were identified by Saban-Jacobo, Paulo Madeira, and Jay Madeira as 

representative of what they saw on the worksite when they worked that summer of 2017. All three 
51

of these witnesses testified that they watched Onekey build the bin-block wall while they were on 

the worksite. (Tr. 247-248, 295-297, 318-319.) Saban-Jacobo was on the worksite for three 

months prior to the accident, and Paulo Madeira and Jay Madeira were on the worksite starting 

from about a month prior to the accident. (Tr. 240, 286, 291, 315.) Additionally, “the Commission 

has held that it is the hazard, not the specific accident that resulted in injury ... that is the relevant 

consideration in determining the existence of a recognized hazard.” Kelly Springfield Tire Co., 10 

BNA OSHC 1971, 1973 (No. 78-4555, 1982), aff’d, 729 F.2d 317 (5th Cir. 1984). 

The record shows that Onekey employees working on the bin-block wall were exposed to 

the hazard of the cut-back surcharge from July 25-28, 2017. (Tr. 107, 1085.) Specifically, Onekey 

employee Shawn Hazel worked in close proximity to the cut-back surcharge. (Tr. 1139; Exs. C11, C-12, C-62 at 104-105.) The Secretary has established that the hazard presented by the cutback surcharge, with its greater than 45-degree (one-to-one) slope, existed on Onekey’s worksite 

on July 25-July 28, 2017.

2) Onekey Recognized the Hazard

Hazard recognition “may be shown by proof that ‘a hazard . . . is recognized as such by the 

employer’ or by ‘general understanding in the [employer’s] industry.’ ” Otis Elevator Co., 21 

BNA OSHC 2204, 2207 (No. 03-1344, 2007) (quoting Kokosing Constr. Co., 17 BNA OSHC 

1869, 1873 (No. 92-2596, 1996)); see Kelly Springfield Tire Co. v. Donovan, 729 F.2d 317, 321 

(5th Cir. 1984) (“Establishing that a hazard was recognized requires proof that the employer had 

actual knowledge that the condition was hazardous or proof that the condition is generally known 

to be hazardous in the industry.”). 

“That [the employer] took some [safety] measures . . . to protect against this hazard, 

demonstrates that the hazard was recognized within the meaning of Section 5(a)(1).” Wheeling-
52

Pittsburgh Steel Corp., 10 BNA OSHC 1242, 1246 (No. 76-4807, 1981) (consolidated); Waldon 

Healthcare Ctr., 16 BNA OSHC 1052, 1061 (No. 89- 3097, 1993) (employer recognition depends 

on whether the employer actually knew that conditions created the hazard); see also Mo. Basin 

Well Serv., Inc., 26 BNA OSHC 2314, 2317- 18 (No. 13-1817, 2018) (supervisor’s recognition of 

hazard imputed to the company); Coleco Indus., Inc., 14 BNA OSHC at 1966 (hazard recognition 

established through actual knowledge of supervisor).

Respondent concedes that it directed the construction of the bin-block wall on its worksite, 

allegedly because it was concerned about slope failure of the cut-back surcharge. (Resp’t Br. 37-

38.) Finbar O’Neill and Aaron O’Neill testified that they believed that the purpose of the wall was 

to protect employees from the surcharge. (Tr. 931-932, 1120.) Finbar O’Neill said he expected 

his workers “not to go close enough to it to get themselves in harm’s way,” because “you wouldn’t 

want to go where the pile is taller than yourself.” (Tr. 1006-1007, 1009.) This, along with the 

other record evidence, shows that Onekey recognized the hazard the cut-back surcharge presented 

on its worksite during the construction of the bin-block wall on July 25-July 28, 2017.

3) The Cut-back Surcharge Was Likely to Cause Death or Serious Harm

“[T]he criteria for determining whether a hazard is “causing or likely to cause death or 

serious physical harm” is not the likelihood of an accident or injury, but whether, if an accident 

occurs, the results are likely to cause death or serious harm.” Waldon, 16 BNA OSHC at 1060. 

Here, the tragic circumstances of the accident on August 3, 2017 establish that when the cut-back

surcharge failed, it caused the nearby bin-block wall to suddenly collapse, killing one worker and 

injuring another. These facts establish that the cut-back surcharge hazard was likely to cause death 

or serious harm. The Secretary satisfied this prong of the general duty clause analysis.

4) Feasible and Effective Means Existed to Eliminate or Materially Reduce the Hazard
53

To establish the feasibility and efficacy of a proposed abatement measure, the Secretary 

must “demonstrate both that the measure[] [is] capable of being put into effect and that [it] would 

be effective in materially reducing the incidence of the hazard.” Arcadian Corp., 20 BNA OSHC 

at 2011 (citations omitted). The Secretary need only show that the abatement method would 

materially reduce the hazard, not that it would eliminate the hazard. Id. (citing Morrison-Knudsen 

Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1122 (No. 88-572, 1993)). Where an 

employer has undertaken measures to address the cited hazard, the Secretary, in establishing 

efficacy, must also show that such measures were inadequate. U.S. Postal Serv., 21 BNA OSHC 

1767, 1773-74 (No. 04-0316, 2006).

As a threshold matter, the Court finds that the bin-block wall was inadequate to address the 

hazard of soil collapse from the cut-back surcharge on its worksite. As discussed above in the 

analysis for Citation 2, Item 1, Onekey failed to consult with experts in structural design regarding 

the bin-block wall. Onekey “revised” the wall multiple times and the surcharge loading grew 

greater and greater over the summer as Onekey gradually added more dirt to the surcharge on 

Building D. None of these changes were discussed with anyone knowledgeable of structural 

design. Moreover, both experts testified that the wall was not designed to withstand the loading 

from the surcharge. (Tr. 559 (Lu), 1073 (Gardiner), 1083 (Gardiner).) These measures were 

plainly inadequate to address the hazard of the cut-back surcharge on Onekey’s worksite. U.S. 

Postal Serv., 21 BNA OSHC at 1773-74. 

The Secretary has introduced evidence of feasible and effective abatement measures that 

Onekey could have taken to address the hazard from the cut-back surcharge. In the citation, the 

Secretary listed the following abatement measures that Onekey could have implemented to address 

the hazard: 
54

• Follow engineer design

• Consult with a qualified engineer to develop a written plan/procedures for changing 

the height or slope of the surcharge

• Consult with a qualified engineer to develop written plan/procedures to determine 

when to remove employees from the danger zone when significant sighs of failure 

appear.

• Implement safeguards to protect employees when significant soil surcharge 

horizontal and/or vertical movement is observed.

• Inspect conditions of the surcharge pile.

• Training employees on the identification and reporting of unsafe conditions related 

to the surcharge soil piles.

• Establish restricted zones to ensure site safety.

(Citation 9-10.) In his brief, the Secretary argues that the “simplest ways” to feasibly abate this 

hazard were “to follow SESI’s existing surcharge design, or else to ask SESI to make a new plan 

as they did after the collapse.” (Sec’y Br. 32.) Indeed, Quazza testified how he redesigned the 

surcharge for Onekey’s worksite, and Onekey implemented the new plan after the accident. (Tr.

790-791, 794.) See SeaWorld of Fla. v. Perez, 748 F.3d 1201, 1214 (D.C. Cir. 2014) (proposed 

abatement measures feasible where cited employer “implemented many of [them] on its own”). 

Respondent’s own expert testified that “he would’ve benched the surcharge” until a suitable 

retaining wall could be built. (Tr. 1084-1085.) Arcadian, 20 BNA OSHC at 2011 (“[F]easible 

means of abatement are established if ‘conscientious experts, familiar with the industry’ would 

prescribe those means and methods to eliminate or materially reduce the recognized hazard.”) 

(citations omitted).

Respondent does not claim that any of these proposed methods are infeasible or that the 

measures would not materially reduce the hazard created by the cut-back surcharge. Chevron Oil 

Co., Cal. Co. Div., 11 BNA OSHC 1329, 1330 (No. 10799, 1983) (“The Commission has 
55

repeatedly held that the Secretary need not prove that the cited employer or his industry recognizes 

the abatement measures recommended by the Secretary.”) (citing Kan. City Power & Light Co.,

10 BNA 14 OSHC 1417, 1422 (No. 76-5255, 1982) (“[T]he recognition element of an employer’s 

duty under the general duty clause refers to knowledge of the hazard, not recognition of the means 

of abatement.”).) The Secretary established feasible measures to address the hazard presented by

the cut-back surcharge. 

5) Knowledge

Regarding knowledge, Respondent argues that its management employees with decades of 

construction experience had no knowledge “of any hazard” related to the surcharge. (Resp’t Br. 

33-34.) Onekey claims that it “relied upon SESI to inform it of any safety issues with the surcharge 

as a condition of the contract for SESI’s work at the [worksite].” (Resp’t Br. 33-34.) It claims 

that because no one from SESI, or any other contractor, expressed safety concerns regarding the 

surcharge to Onekey, it cannot be held responsible for knowledge that the slope of the surcharge 

posed a hazard. (Resp’t Br. 34.) 

These arguments are rejected. Respondent deviated from the surcharge plan that Quazza 

developed by cutting back the surcharge to a significantly steeper than a 45-degree (one-to-one) 

slope. Onekey did this without consulting Quazza, and for the purpose of allowing foundation 

work on the adjacent, nearby Building B. (Tr. 701, 1006, 1120.) As noted above, Onekey 

management officials Finbar O’Neill and Aaron O’Neill had concerns about the safety of the cutback surcharge and implemented an inadequate safety measure to address the hazard. See Jacobs 

Field Servs. N. Am., 25 BNA OSHC 1216, 1218 (No. 10-2659, 2015) (“To establish knowledge, 

the Secretary must prove that the employer knew or, with the exercise of reasonable diligence, 

should have known of the conditions constituting the violation.”). This knowledge is imputed to 
56

Onekey. Phoenix Roofing, Inc., 17 BNA OSHC at 1079; Am. Eng’g & Dev. Corp., 23 BNA OSHC 

at 2095 (knowledge is imputed to the employer “through its supervisory employee.”). Knowledge 

is established for this general duty clause violation. 

This citation item is affirmed.

B) Characterization

The Commission has affirmed a willful characterization of a violation of the general duty 

clause by focusing on whether an employer consciously disregarded its duty to provide a 

workplace free of recognized hazards. See, e.g., Arcadian Corp., 20 BNA OSHC at 2016. In 

Arcadian, the Commission held: 

A willful violation is one committed ‘with intentional, knowing or voluntary 

disregard for the requirements of the Act or with plain indifference to employee 

safety[. It] is well settled that the Secretary has a more stringent and more difficult 

burden of proof to show willfulness where the employer is charged with a violation 

of section 5(a)(1) than she does where failure to comply with a specific standard is 

concerned. The Secretary must not only show that the employer had knowledge 

that a hazardous condition existed but must also adduce evidence that the employer 

intentionally disregarded or was indifferent to employee safety with respect to the 

hazard in question.’

Id. at 2016 (citations omitted). The Commission found that the employer “consciously ignored 

the warnings and deliberately failed to shut down the reactor [that was the source of the hazard] 

even after it had been warned of the hazardous condition with previous accidents.” Id. at 2018. 

The Commission also noted that the employer “had no program to check and keep clear its weep 

hole warning system.” Id. The Commission then held that the employer’s “conscious disregard 

of [the employer’s] duty under section 5(a)(1) of the Act establishes a prima facie case of 

willfulness.” Id.

Here, Respondent intentionally deviated from the surcharge plan that Quazza developed 

by cutting back the surcharge to a significantly steeper than 45-degree (one-to-one) slope. Onekey 
57

did this without consulting Quazza, and for the purpose of facilitating foundation work on the 

adjacent, nearby Building B. (Tr. 701, 1006, 1120.) Recognizing the issue with the surcharge 

pile, Respondent built the inadequate bin-block wall, again without consulting Quazza, which 

introduced an additional crushing hazard on Onekey’s worksite. See Coleco Indus., 14 BNA 

OSHC at 1967-68 (holding that if an employer's measures to address a hazard were to maintain 

production rather than a genuine effort to abate the hazard, the violation will be found to be 

willful).

Finbar O’Neill testified that although he did not personally direct the temporary retaining 

wall construction for Building D’s surcharge in the summer of 2017, he expected his workers “not 

to go close enough to it to get themselves in harm’s way,” explaining that one should not “go 

where the pile is taller than yourself.” (Tr. 1006-1007, 1009.) Despite this recognition of the 

hazard, it was impossible to build the bin-block wall without being close to the cut-back surcharge. 

(Ex. C-21.) The subcontractors engaged in the foundation and framing work were forced to work 

close to the surcharge as that was the location of the work that had to be done. After being asked, 

“You wouldn’t purposefully put yourself in harm’s way, would you?,” Saban-Jacobo replied, “No, 

but I need the money.” (Tr. 279.) None of these workers, including Onekey employees, were 

provided protection from the cut-back surcharge wall, or even trained to identify and warned to 

avoid the hazards associated with the cut-back surcharge. On the contrary, these workers’ job

tasks necessarily placed them in the hazardous position of being within feet of the 15-foot high, 

near-vertical cut-back surcharge. This citation item is properly classified as willful.

PENALTIES

“In assessing penalties, section 17(j) of the OSH Act, 29 U.S.C. § 666(j), requires the 

Commission to give due consideration to the gravity of the violation and the employer’s size, 
58

history of violation, and good faith.” Burkes Mech., Inc., 21 BNA OSHC 2136, 2142 (No. 04-

0475, 2007). “Gravity is a principal factor in the penalty determination and is based on the number 

of employees exposed, duration of exposure, likelihood of injury, and precautions taken against 

injury.” Siemens Energy & Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005) 

(citation omitted).

OSHA Area Director Garvey testified to how the penalty for each citation item was 

calculated and proposed for this matter. (Tr. 359-367.) With regard to history, Garvey testified 

that he did not apply a reduction for history because “Onekey had never been inspected and found 

to be in compliance in the previous five years.” (Tr. 360.) Garvey also testified that he did not 

apply a good faith reduction to the penalties for any of the violations because Onekey was issued 

willful violations. (Tr. 361.) Similarly, no size reduction was applied to three of the violations 

because the violations were related to a fatality. (Tr. 361.) 

For Citation 1, Item 1 (the training violation), OSHA proposed a gravity-based penalty of 

$12,934. (Tr. 359.) This penalty took into account the high severity of the violation, given that the 

probable injury was permanent disability or death. One employee died and another was injured 

on the worksite. (Tr. 359.) OSHA found that the probability of injury was high, because of the 

frequency and duration of exposure, the proximity of workers to the hazard, the stress level, and 

whether they were trained. (Tr. 359-360.) The proposed penalty for Citation 1, Item 2 (the fall 

protection violation) is $9,977. Garvey applied a 10% reduction for size for Citation 1, Item 2 (the 

fall protection violation) because it was not related to the fatality. That citation item also reflected 

a moderate severity and greater probability because the employee was working on a narrow block 

near the excavator and surcharge pile, and if he fell, the expected injury would be a fracture. (Tr.

361-362.) 
59

OSHA’s evaluation of injury, severity, and probability was the same for Citation 2, Item 1 

(the bin-block wall) and Citation 2, Item 2 (the surcharge). No reductions were given to the 

proposed $129,336 gravity-based penalties for these willful violations. (Tr. 362-366.) Both were 

assigned high severity and greater probability, resulting high gravity, due to the number of 

employees exposed for the length of the exposure. (Tr. 366-367.) 

Respondent did not address the calculation of the amount of the proposed penalties in its 

brief. After consideration of the statutory factors, the Court agrees with the penalty amounts 

proposed by the Secretary for each citation item. The proposed penalty amounts are assessed for 

each affirmed citation item.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

All findings of fact and conclusions of law relevant and necessary to a determination of the 

contested issues have been made above. See Fed. R. Civ. P. 52(a). All proposed findings of fact 

and conclusions of law inconsistent with this decision are denied. 

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

1) Citation 1, Item 1, alleging a Serious violation of 29 C.F.R. § 1926.21(b)(2), is 

AFFIRMED and a penalty of $12,934 is ASSESSED.

2) Citation 1, Item 2, alleging a Serious violation of 29 C.F.R. § 1926.501(b)(12), 

is AFFIRMED and a penalty of $9,977 is ASSESSED.

3) Citation 2, Item 1, alleging a Willful violation of 29 C.F.R. § 1926.701(a), is 

AFFIRMED and a penalty of $129,336 is ASSESSED.

4) Citation 2, Item 2, alleging a Willful violation of section 5(a)(1) of the OSH 

Act, 29 U.S.C. § 654(a)(1), is AFFIRMED and a penalty of $129,336 is 

ASSESSED.
60

SO ORDERED.

/s/______________

Keith E. Bell

Judge, OSHRC

DATE: January 4, 2021

Washington, D.C.