United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, S.W.

 Atlanta, Georgia 30303-3104

Secretary of Labor,

 Complainant

 v. OSHRC Docket No. 20-1000

Southern Hydro Vac, LLC,

 Respondent.

Representatives:

Matthew K. McClung, Esq. 

U.S. Department of Labor, Office of the Solicitor, Nashville, TN, for Complainant

Travis W. Vance, Esq., David I. Klass, Esq. and Nicholas S. Hulse, Esq.

Fisher & Phillips, LLP, for Respondent

JUDGE: Administrative Law Judge Heather A. Joys

DECISION AND ORDER

On November 18, 2019, an employee of Southern Hydro Vac, LLC, (Southern), was 

killed when he was crushed by the closing tailgate door of a hydro vacuum truck owned and 

operated by Southern. The Birmingham Area Office of the Occupational Safety and Health 

Administration (OSHA) investigated the accident. As a result of that investigation, the Secretary 

of Labor issued Southern a citation alleging a serious violation of § 5(a)(1) of the Occupational 

Safety and Health Act of 1970 (the Act), known as the general duty clause. The Secretary alleges

Southern had failed to provide a place of employment free from the recognized hazard of an 

employee being caught between the truck’s tailgate door and the tank body of the truck while the

employee is washing out the truck. Southern timely contested the citation, bringing the matter 

before the Commission. The Secretary proposes a penalty of $13,494.00 for the violation.

The parties stipulated, and the record supports a finding, that the Commission has 

jurisdiction over this action pursuant to § 10(c) of the Act (Tr. 11). The parties also stipulated, 

and the court finds, that at all times relevant to this action, Southern was an employer engaged in 
a business affecting interstate commerce within the meaning of § 3(5) of the Act, 29 U.S.C. § 

652(5) (Tr. 11). 

The undersigned held a hearing on April 5, 2022, in Tuscaloosa, Alabama. The parties 

filed post hearing briefs on June 27, 2022. After consideration of the record and arguments of the

parties, the citation is VACATED.

STIPULATED FACTS

Prior to the hearing, the parties stipulated to the following findings of fact:

1. Respondent performs hydro evacuation services.

2. Respondent utilizes GapVax hydro vacuum trucks in its operations.

3. On November 18, 2019, Respondent performed work for customer Pike 

Electric at 5158 Old Montgomery Highway in Tuscaloosa, Alabama.

4. On November 18, 2019, Respondent’s employees, WD and AW1 worked as 

the crew on the project in Tuscaloosa, Alabama. WD drove the truck and AW 

was a passenger.

5. WD and AW performed the work in Tuscaloosa, Alabama, using 

Respondent’s hydro vacuum truck number 3064.

6. Upon completion of the hydro evacuation project in Tuscaloosa, Alabama, 

Respondent’s employees WD and AW traveled in Respondent’s hydro 

vacuum truck to a dump site in Reform, Alabama.

7. On November 18, 2019, AW was fatally injured in an accident at the Reform 

Alabama, dump site after he was caught between the tailgate door and the 

truck as the door was closing.

8. WD and AW participated in safety training on September 13, 2019.

9. During the September 13, 2019, safety meeting, employees including AW, 

were provided refresher training regarding the dangers associated with hydro 

evacuation, including those involving the rear gate and tank body.

10. As a result of the accident OSHA conducted an inspection of the worksite.

11. OSHA issued a citation and notification of penalty to Respondent as a result 

of its inspection.

1

 The employees’ initials have been used in place of their names to protect their privacy.

2
12. Respondent timely filed a notice of contest regarding the citations and 

notifications of penalty, in which it contested all issues and matters relating to 

the citation, including abatement dates and proposed penalties.

(Tr. 9-11).

BACKGROUND

Southern is in the business of performing hydro-evacuation services, using hydro vacuum

trucks to excavate around utilities (Tr. 83). The process involves using high-pressure water to 

create mud around underground utility lines which can then be vacuumed out by the truck (Tr. 

83). Once excavated, the mud is transported on the truck to a dump site for off-loading (Tr. 83). 

Southern operates 13 vacuum trucks daily (Tr. 83). The company estimates it performs the 

dumping operation 4600 times per year (Tr. 100). Until the present accident, Southern had no 

injuries associated with its process.

The Dumping Process

Each of Southern’s vacuum trucks is operated by a two-man crew. The crew leader 

operates the truck (Tr. 129). The second crew member is either a trained tech or an apprentice 

(Tr. 129). Among other tasks, the tech or apprentice is responsible for guiding the truck while the

operator drives and washing out the bed2 of the truck during the dumping process.

Jan Enlow, Southern’s field services supervisor, described the dumping process for the 

record. Upon arrival at the dump site, the tech gets out of the truck and guides the operator into 

position. The operator watches the tech in the rearview mirrors located on either side of the 

truck’s cab (Tr. 85). Once in position, the operator exits the cab in order to raise the bed of the 

truck and open the tailgate door. Both operations are done using controls located behind the cab 

on the driver’s side of the truck (Tr. 87; Exhs. R-26 and R-25). Meanwhile, the tech takes out the

hose used for washing the truck from a similar location on the passenger side of the truck (Tr. 

87). When the bed is raised and the tailgate door is opened, the collected mud flows out while the

tech rinses the bed (Tr. 102). After the tech is done rinsing the bed, he signals the operator to 

lower the bed and move the truck forward (Tr. 93, 102). The operator lowers the bed and moves 

the truck forward until the tech signals to stop (Tr. 93). The tech then hoses off the back of the 

truck to clean the seals (Tr. 97, 108-09). When he is done rinsing the back of the truck, he gives 

the operator a signal that he is leaving the area and it is “okay to close the tailgate.” (Tr. 98). 

2

 At the hearing the term “bed” was used for the part of the truck that holds the mud. In photographs it appears to be 

an enclosed tank rather than an open truck bed.

3
According to Enlow, the hand signals used are chosen by the operator and tech and may differ 

from team to team (Tr. 106). WD and AW had agreed that AW would make a “C” shape with his

hand to indicate the operator was clear to close the tailgate door (Tr. 134). The operator closes 

the tailgate door while the tech cleans himself off and puts the hose away (Tr. 99). The operator 

and the tech then get back in the cab and return to the excavation site.

The bed and tailgate door operate by hydraulics. The controls are spring loaded (Tr. 89). 

As a result, the operator must apply constant pressure to the controls for the bed and tailgate door

to move (Tr. 89). It takes approximately 30 seconds for the tailgate door to close completely (Tr. 

39; Exh. R-33). The operator cannot see the back of the truck during this process. Nor can he see 

the tech while he is replacing the hose (Tr. 104).

The Accident

In 2019, WD and AW were working for Southern on a project for the company’s client, 

Pike Electric, in Montgomery, Alabama.3 WD was the operator and AW acted as the tech. The 

two had been working together for approximately six months (Tr. 57). WD had a longer tenure 

with Southern than AW (Tr. 132-33). Both had received training with Southern on its safety and 

health program and taken the OSHA 10-hour training class (Exhs. R-6; R-7; R-14; R-15; R-16). 

Both had been subject to disciplinary actions in the past (Exhs. R-13 and R-17).

On November 19, 2019, after leaving the Pike Electric excavation site, WD and AW 

traveled to a dump site in Reform, Alabama. They had previously hauled mud to the Reform 

dump site. When they arrived at the dump site, AW directed WD to the dump area (Tr. 33). Once

the truck was in position, WD got out of the cab and raised the bed of the truck using the controls

on the side of the truck (Tr. 33). He then opened the tailgate door. Once the mud was out of the 

bed of the truck, WD got back in the cab and drove the truck forward (Tr. 33). WD waited in the 

cab while AW cleaned the back of the truck, watching in the passenger side rearview mirror for 

AW to signal him to close the tailgate door (Tr. 34). According to WD’s statement, when he saw 

AW make a “C” shape with his hand, WD got out of the cab and closed the tailgate door using 

the controls on the side of the truck (Tr. 34).

Once the tailgate door was closed, WD went back to the cab and waited for AW to 

complete his clean-up operations (Tr. 34). When AW did not return to the cab in a reasonable 

3

 No witness to the events leading up to the accident testified at the hearing. Information about the accident is taken 

from the parties’ stipulated facts and CSHO McWilliams’s testimony regarding the statement WD provided to her.

4
amount of time, WD went to the back of the truck and found AW caught between the tailgate 

door and the back of the truck (Tr. 35). AW later died of his injuries.

The Inspection

The Birmingham Area Office of OSHA initiated an investigation of the fatal accident. 

Compliance Safety and Health Officer Jennifer McWilliams conducted the investigation (Tr. 22-

24). CSHO McWilliams went to the dump site the day after the accident, where Southern’s truck 

was still located. The only individual onsite was a third-party representative of Southern. CSHO 

McWilliams conducted an opening conference over the phone. While on site that day, she took 

photographs of the truck and reviewed the documents in the truck (Tr. 25; Exhs. G-1; G-2; G-3; 

and G-4).

CSHO McWilliams conducted the remainder of the investigation off site. She 

interviewed WD several weeks later. She also observed the operation of a similar truck and took 

a video of the tailgate door being opened and closed (Tr. 62-64; Exh. R-33).

Based upon her investigation, CSHO McWilliams recommended the Secretary issue 

Southern a citation alleging a serious violation of the general duty clause. Southern timely 

contested the citation.

The Citation

The citation alleges a serious violation of the general duty clause, § 5(a)(1) of the Act. 

Section 5(a)(1) requires each employer to “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 citation 

alleges as follows:

The employer did not furnish employment and a place of employment which were

free from recognized hazards that were causing or likely to cause death or serious

physical harm to employees when they were exposed to crushing hazards:

(a) On or about 11/18/2019 - 831 Loop Road, Reform, AL 35481, employees

were exposed to caught-between and/or struck-by hazards from a GapVax hydrovacuum truck’s tailgate door while washing out the tank.

As a feasible means of abatement, OSHA proposed:

Among other methods, feasible and acceptable methods to correct this hazard

would be to verify that employees were not in the danger zone before and during

an operation to open and close the tailgate door or raise or lower the tank and

when employees are washing out the tank; and place warning or danger signs on

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the tank near the tailgate to warn employees of the crushing hazard between the

tailgate and tank.

DISCUSSION

Elements of a § 5(a)(1) Violation

To establish a violation of the general duty clause, the Secretary must show that:

 (1) a condition or activity in the workplace presented a hazard; (2) the employer

or its industry recognized the hazard; (3) the hazard was likely to cause death or

serious physical harm; and (4) a feasible means existed to eliminate or materially

reduce the hazard...The Secretary must also show that the employer knew or,

with the exercise of reasonable diligence, could have known of the hazardous

condition. Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1537 (No. 86-0469,

1992).

USH of Westwood Pembroke, Inc., No. 17-0737, 2022 WL 774272, at *2 (OSHRC March 3, 

2022).

Whether an Activity or Condition at the Site Constituted a Hazard

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

Secretary “must define the cited hazard in a manner that gives the employer fair notice of its 

obligations under the Act by specifying conditions or practices over which the employer can 

reasonably be expected to exercise control.” Otis Elevator Co., No. 03-1344, 2007 WL 3088263,

at *3 (OSHRC September 27, 2007). A condition or practice presents a hazard where 

“employees [are exposed] to a ‘significant risk’ of harm.” A.H. Sturgill Roofing, Inc., No. 13-

0224, 2019 WL 1099857, at *2 (OSHRC February 28, 2019), quoting, Beverly Enters., Inc., No. 

91-3144, 2000 WL 34012177, at *10-11 (OSHRC October 27, 2000)(consolidated)). To 

establish the existence of the hazard, the Secretary must show the “hazardous incident can occur 

under other than a freakish or utterly implausible concurrence of circumstances.” Waldon Health 

Care Ctr., No. 89-2804, 1993 WL 119662, at *11 (OSHRC April 2, 1993)(consolidated), citing 

Nat’l Realty & Constr. Co., v. OSHRC, 489 F.2d 1257, 1265 n. 33 (D.C. Cir. 1973).

The Secretary defined the hazard in this case as a caught-between or struck-by hazard 

caused by the closing tailgate door “while washing out the tank” (Tr. 37). 4 It is not “freakish or 

4

 The citation can be read to address the caught-between or struck-by hazard of the tailgate door closing for any 

reason. The Commission has long held citations are to be liberally construed. Ericson Air-Crane, Inc., No. 07-0645, 

2012 WL 762001, at *2 (OSHRC March 2, 2012). The only hazard the parties litigated, however, was that created 

by the intentional closing of the tailgate door. The Secretary never argued the hazard was created by an unexpected 

closing of the tailgate door during the washing process and presented no evidence showing how or why the tailgate 

door might unexpectedly close. Nor does the Secretary’s proposed abatement method address unexpected closing of 

the tailgate door.

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utterly implausible” an employee could be caught between the tank and the closing tailgate door. 

No physical barrier prevents the employee from entering the area while the tailgate door is being 

closed. The operator is unable to see whether an individual is in the hazardous area while 

operating the tailgate door. The accident here is evidence of the significant risk of harm posed by

such a circumstance. The conditions at the dump site5 posed a hazard.

In its post-hearing brief, Southern argues the Secretary has not established a hazard 

during the washing process because he has failed to show exposure to a hazard during normal 

operations. In so arguing, Southern relies on Peacock Engineering, Inc., No. 11-2780, 2007 WL 

3864205 (OSHRC April 27, 2017).6 Southern’s reliance on this decision is misplaced. In its 

decision, the Commission overturned the portion of the Administrative Law Judge’s decision 

that found the Secretary, who had alleged a § 5(a)(1) violation, had failed to establish exposure 

to an amputation hazard. The Commission held the judge had conflated the Secretary’s burden of

proving existence of a hazard with his burden of proving whether feasible means existed to 

materially reduce the hazard. Id. at *2. The Commission held proof of employee exposure can be

inferred when the hazard and likelihood of harm elements of a general duty clause violation are 

established. ‘“Implicit in the...elements [of hazard and likelihood of harm] is the necessity for 

establishing employee exposure to the cited hazardous condition.’” Id. at *5, quoting Grossman 

Steel & Aluminum Corp., No. 76-2834, 1978 WL 7095, at *2 (OSHRC October 18, 1978). The 

Commission found the Secretary established employee exposure through the actual exposure that

caused the amputation. Here, AW’s tragic death establishes actual exposure to the crushing 

hazard presented by the closing of the tailgate door.

Southern similarly conflates the hazard element of the general duty clause violation with 

the abatement element. “The efficacy of [the employer's] work methods in avoiding injury ... is a

separate inquiry from whether an alleged hazard was present.” Peacock Engineering, 2007 WL 

2864205, at *3. Whether Southern’s work practices prevent exposure to the alleged hazard is 

5

 There is no dispute the dump site was “a place of employment.” Both the Commission and the courts of appeals 

have consistently found that a “place of employment” includes any location where employees have been assigned 

work duties. Safeway Inc., No. 99-316, 2003 WL 1070420, at *2 (OSHRC March 12, 2003)(Rogers, separate 

opinion), aff’d 382 F.3d 1189 (10th Cir. 2004).

6

 The case citation in Southern’s post-hearing brief is incorrect. Southern uses the citation for a related Commission 

decision decided the same day but that does not address a general duty clause violation. The citation provided herein

is the citation for the decision upon which the court assumes Southern intended to rely.

7
relevant to whether the Secretary has established a feasible means of abatement that would 

eliminate or materially reduce the hazard, not the existence of the hazard.

With regard to the existence of a hazard, the Secretary’s burden is not to show “a 

‘significant risk’ of the hazard coming to fruition, only that if the hazardous event occurs, it 

would create a ‘significant risk’ to employees.” Waldon Health Care, 1193 WL 119662, at *11; 

citing Kelly Springfield Tire Co. v. Donovan, 729 F.2d 317, 322-25 (5th Cir. 1984). Although it is

not necessary for the tech to enter the hazardous area while washing out the truck, nothing 

prevents him from doing so. If the tech enters the hazardous area while the operator is closing the

tailgate door, he is exposed to a significant risk of harm, as evidenced by the accident here.

Based upon the foregoing, the undersigned finds the Secretary has established the 

existence of a hazard at Southern’s worksite that posed a significant risk of harm.

Whether the Activity or Condition was a Recognized Hazard

A recognized hazard is a practice, procedure or condition under the employer’s control 

that is known to be hazardous by the cited employer or the employer’s industry. Pelron Corp., 

No. 82-388, 1986 WL 53616, at *3 (OSHRC June 2, 1986). The Secretary did not present any 

evidence of industry recognition of the hazard, arguing Southern’s training materials establish 

Southern’s recognition of the hazard. The document upon which the Secretary relies is a “Safety 

Blast” Southern presented to its employees on September 13, 2019 (Exh. G-7). This Safety Blast 

states one of the hazards associated with vacuum trucks is a “[c]rushing hazard between rear gate

and tank body.” 

The Secretary’s singular reliance on the Safety Blast is problematic. “The Commission 

has been reluctant to rely solely on an employer’s safety precautions to find hazard recognition 

absent other ‘independent evidence.’” Mid South Waffles, Inc., d/b/a Waffle House #1283, No. 

13-1022, 1029 WL 990226, at *5 (OSHRC February 15, 2019), citing, Pepperidge Farm, Inc., 

No. 89-0265, 1997 WL 212599, at *14 (OSHRC April 26, 1997). The Secretary presented no 

other independent evidence of recognition. Nor did the Secretary provide context for the Safety 

Blast. Allen Kempson, Southern’s division operations manager, testified he administered the 

Safety Blast (Tr. 133-34). He did not expand on the nature of that training, other than to point out

the existence of the hazard caused by the pinch point between the truck’s bed and tailgate door. 

In addition to referring generally to a crushing hazard, the document reads, “When washing out 

the tank, secure lockout of rear door hatch with safety device to prevent crushing hazard.” (Exh. 

8
G-7). This is the only other reference to the crushing hazard in the document. Reading the 

document as a whole, a reasonable inference can be drawn that the hazard referenced is that 

created by the unexpected closing of the tailgate door due to failure to secure a lockout device 

rather than that created by the intentional closing of the tailgate door. 

The Secretary did not address the hazard of unexpected closing of the tailgate door. In her

testimony, CSHO McWilliams testified the hazard was “being struck by or crushed by, caught 

between that door and the tank body.” (Tr. 37) She went on to testify at length regarding the 

process by which the door is opened and closed by the hydraulic controls. She made no mention 

of an unexpected closing of the tailgate door. In his brief, the Secretary states 

Here, the evidence shows that the process that employees followed when dumping

material from the hydro vacuum trucks presented a hazard to employees. The 

driver cannot see the back of the truck while operating the hydraulic controls 

located on the driver side (Tr. 34). Techs use hand signals to communicate to the 

drivers when to open and close the tailgate, but the drivers observe these hand 

signals through side mirrors. (Tr. 104). Additionally, the truck are approximately 

44 feet long. (Tr. 106). This process provides significant opportunity for 

miscommunication. Furthermore, even if no miscommunication occurs, 

employees are still in danger if they do not clear the path of the moving tailgate as

it is closing, and drivers have no way to verify that employees are outside the 

zone of danger. 

(Secretary’s Post-Hearing Brief at pp. 3-4). The Secretary has failed to establish the Safety Blast 

addressed the hazard as he defined it. The record does not contain evidence of other training or 

work rules designed to address the hazard. There were no prior similar incidents at Southern or 

any other employer in the industry. 

The Secretary has failed to establish Southern recognized the existence of the hazard of 

an employee having his body in the hazardous area while the operator is closing the tailgate 

door. The tech stands at the back corner of the passenger side of the truck while rinsing out the 

mud (Tr. 97). He does not stand directly behind the tailgate because that would put him in the 

path of the outflowing mud (Tr. 97). He stands in the same location when hosing down the seals 

of the truck after the bed has been lowered (Tr. 98). While the operator closes the tailgate door, 

Southern’s procedures require the tech to be on the opposite side of the truck, near the cab, 

putting away the hose and other equipment (Tr. 99). There is no reason for the tech to be in the 

hazardous area while washing out the bed or while the operator is closing the tailgate door (Tr. 

99). Southern was not on notice its process created a hazard. The Secretary has failed to establish

9
the activity or conditions at Southern’s worksite, as specifically described in the Citation, was a 

recognized hazard.

Whether Feasible Means of Abatement Exist That

Would Materially Reduce the Hazard

Even if the Secretary had shown Southern recognized the alleged hazard, he failed to 

prove there is a feasible means of abatement that would eliminate or materially reduce the 

hazard. At the hearing and in his post-hearing brief, the method of abatement the Secretary 

proposed was the institution of a rule requiring the operator have all personnel within his line of 

sight while he is closing the tailgate door. Had AW been in WD’s line of sight while the WD 

operated the controls of the tailgate door, AW could not have been in the hazardous area and 

would not have been caught between the closing tailgate door and the bed of the truck. “Because 

OSHA is designated to encourage abatement of hazardous conditions themselves, however, 

rather than to fix blame after the fact for a particular injury, a citation is supported by evidence 

which shows the preventability of the generic hazard, if not this particular instance.” Champlin 

Petroleum Co. v. OSHRC, 593 F.2d 637, 642 (5th Cir. 1979). It is not enough for the Secretary to 

show his proposed abatement might have prevented the accident, he must show the methods 

undertaken by Southern to address the hazard were inadequate. 

Where “an employer has existing safety procedures, the burden is on the 

Secretary to show that those procedures are inadequate.” SeaWorld of Fla. v. 

Perez, 748 F.3d 1202, 1215 (D.C. Cir. 2014). The Secretary may do so by 

demonstrating that “there was a more effective feasible means by which [the 

employer] could have freed its workplace of the hazard.” Ala. Power Co., 13 

BNA OSHC 1240, 1243-1244 (No. 84-357, 1987) (citing Cerro Metal Prods. 

Div., Marmon Grp., Inc., 12 BNA OSHC 1821, 1822 (No. 78-5159, 1986)). 

Alternatively, the Secretary may demonstrate that an employer's existing safety 

procedures were inadequate by showing that the employer failed to properly 

communicate those procedures to its employees, failed to take steps to discover 

noncompliance with those procedures, or failed to effectively enforce those 

procedures in the event of noncompliance. See Ala. Power Co., 13 BNA OSHC at

1244 (citing Inland Steel Co., 12 BNA OSHC 1968, 1976 (No. 79-3286, 1986)).

Roadsafe Traffic Sys., Inc., No. 18-0758, 2021 WL 5994023, at *6 (OSHRC December 10, 

2021).

The Secretary presented insufficient evidence of the inadequacy of Southern’s procedures

to protect employees from being caught in the closing tailgate door during the washing out 

process. As previously discussed, there is no operational need for the tech to be in the hazardous 

area during the washing out process or while the operator closes the tailgate door. The operator 

10
does not close the tailgate door until the tech has signaled his work is complete. The tech signals 

from a location that is not in the path of the closing tailgate door. He then moves to an area 

farther from the closing tailgate door. To the extent employees follow this procedure, there is no 

exposure to the hazard of being crushed by the closing tailgate door.

The Secretary argues his proposed abatement method requiring “line of sight 

verification” of the location of the tech by the operator before he closes the tailgate door 

eliminates the potential for miscommunication regarding the tech’s location and ensures he is not

in the hazardous area. The only testimony the Secretary presented to establish the efficacy and 

feasibility of this method was that of CSHO McWilliams.7 Because she had not observed the 

operations at the dump site, CSHO McWilliams could not testify whether those operations ever 

placed the tech in the hazardous area. Consequently, she could not testify whether the proposed 

abatement reduced the hazard of the tech being in the hazardous area. Nor did the Secretary 

present sufficient evidence in his case in chief to establish the inadequacy of Southern’s safety 

procedures based upon inadequate training or oversight. 

The Secretary did not present sufficient evidence his proposed abatement was feasible. 

CSHO McWilliams testified Southern had implemented line of sight verification but did not 

identify the source of that information. The Secretary presented no other evidence regarding 

Southern’s procedures after the accident. The Secretary’s evidence is insufficient to meet the 

Secretary’s burden to establish the existence of a more effective, feasible means of abatement 

that would materially reduce the hazard.

Based upon the record as a whole, the court finds the Secretary failed to meet his burden 

to establish a violation of the general duty clause at Southern’s worksite. In so finding, the court 

is not insensitive to the fact a tragic accident occurred which may have been preventable. 

However, the court’s decision must be limited to the specific allegations contained in the 

Citation and the evidence presented. The Secretary’s evidence is insufficient to establish the 

violation as alleged. Item 1, Citation 1 is VACATED.

7

 CSHO McWilliams’s testified from memory which, by her own admission, was incomplete (Tr. 29). She testified 

she interviewed DW “a couple of weeks” after the accident (Tr. 29). She did not testify she spoke with any other 

Southern employees. She did not observe the operations at the dump site (Tr. 52). She did not investigate operations 

at any other hydro-evacuation company (Tr. 52, 61). She took no measurements of the truck or determine the sight 

lines around the truck (Tr. 61). Based upon the limitations of her investigation and her incomplete recollection, the 

court gives CSHO McWilliams’s testimony little weight. Her testimony regarding the efficacy and feasibility of the 

Secretary’s proposed abatement is given no weight. 

11
FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Fed. R. Civ. P. 52(a). 

ORDER

Based on the foregoing decision, it is hereby ORDERED: 

Items 1, Citation 1 are VACATED, and no penalty is assessed.

SO ORDERED.

/s/___________________________ 

Heather A. Joys

Dated: September 6, 2022 Administrative Law Judge, OSHRC

 Atlanta, GA 

12