UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

 

 DOCKET NOS. 14-0031 

 14-0032 

 

 

Appearances: 

Josh Bernstein, Esq. and Lindsay Wofford, Esq., Office of the Solicitor, Dallas, Texas

For Complainant

Jefferson R. Tillery, Esq. and P. J. Kee, Esq., Jones Walker, New Orleans, Louisiana

 For Respondent

Before: Administrative Law Judge Patrick B. Augustine

DECISION AND ORDER 

 (RESPONDENT’S MOTION FOR SUMMARY JUDGMENT) 

This matter comes before the Court on Respondent’s Motion for Summary Judgment to 

Enforce the Settlement Agreement or Equitably Estop Complainant (“Motion”). After reviewing 

the parties’ respective motions and memoranda in support, the Court ordered the parties to 

appear at an evidentiary hearing pursuant to Federal Rule of Evidence 104.

1

 The hearing was 

held on March 17, 2015, in San Antonio, Texas. 

I. Jurisdiction 

Jurisdiction over this action is conferred upon the Commission pursuant to section 10(c) 

of the Occupational Safety Health Act, 29 U.S.C. § 659(c), (“Act”) by Respondent filing a 

 

1. If granted, the Motion is dispositive. For this reason, in addition to providing the Court with an opportunity to 

assess credibility as it relates to the prima facie elements, the Court held an evidentiary hearing. 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

INTERNATIONAL SHIPBREAKING 

LIMITED, LLC, 

 

 Respondent.
2

Notice of Contest and Answer. The record establishes that at all times relevant to this action, 

Respondent was an employer engaged in a business and industry affecting interstate commerce 

within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5). 

II. Procedural History

The Occupational Safety and Health Administration (“OSHA”) conducted an 

investigation of International Shipbreaking Limited, L.L.C. (“Respondent”) that began on July 

16, 2013, at Respondent’s worksite located at 18501 R.L. Ostos Road, Port Of Brownsville, TX 

(Inspection No. 920962 – USS Vancouver) and on July 23, 2013 at 18501 R. L. Ostos Road, Port 

of Brownsville, TX (Inspection No. 924965 – USS Wichita). See Complaint and Citation and 

Notification of Penalty. As a result of the inspection of the USS Wichita, on December 5, 2013

OSHA issued a Citation and Notification of Penalty (“Citation”) to Respondent alleging one 

serious violation with two items with a total proposed penalty of $7,000.00. As a result of the 

inspection of the USS Vancouver, on December 5, 2013, OSHA issued a Citation to Respondent 

alleging one serious violation with five items and a total proposed penalty of $15,300.00. 

Respondent timely contested the Citation items. In its Answers to the Complaints Respondent 

asserted as an Affirmative Defense that Complainant is equitably estopped from pursing these 

actions. (Affirmative Defense No. 8). 

Respondent contends that Complainant should be equitably estopped from pursuing the 

instant litigation because Complainant abrogated the terms of a settlement agreement dated June 

27, 2013 (“Agreement”), which provided Respondent a 60-day abatement period to address 

electrical violations.2

 Before the abatement period had lapsed, Complainant conducted 

 

2. Respondent also sought enforcement of the Agreement; however, the Court denied that portion of Respondent’s 

Motion due to lack of jurisdiction. As a final order of the Commission, the “appropriate relief for enforcing that 

settlement agreement should have taken place before the Fifth Circuit Court of Appeals.” (Tr. 8). See also 29 U.S.C. 

§ 660. 
3

inspections of Respondent’s worksite, wherein Complainant identified and cited multiple 

violations of the maritime and general industry electrical standards. (Exs. J-2, J-3). Complainant 

argues that the Citations at issue were not covered by the abatement period provided for in the 

Agreement and, therefore, he should not be estopped from pursuing them. Further, Complainant 

argues that estopping him from pursuing this litigation would, in effect, be giving Respondent a 

“free ride” to violate the Act, during the abatement period. The Court has reviewed the parties’ 

respective filings, the transcript of the evidentiary hearing, and the joint exhibits submitted at the 

hearing. Based on what follows, the Court finds that Complainant breached the terms of the 

Agreement and abrogated Respondent’s statutory right to abatement. Accordingly, the Court 

finds Respondent is entitled to judgment as a matter of law. 

III. Summary Judgment Standard

Summary judgment is appropriate if the pleadings, the discovery and disclosure materials 

on file, and any affidavits show that there is no genuine issue as to any material fact and that the 

movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. The Supreme Court 

has held that a party seeking summary judgment always bears the initial responsibility of 

informing the court of the basis for its motion and demonstrating the absence of a genuine issue 

of material fact as to the issue(s) raised. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A 

fact is material only if it might affect the outcome of the case, and thus precludes the entry of 

summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

In deciding a motion for summary judgment, the Court is required to resolve all 

ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the 

nonmoving party. Id. at 255. If there is any evidence in the record from which a reasonable 

inference in favor of the nonmoving party can be drawn, summary judgment is improper. 
4

Celotex, 477 U.S. 317. Conversely, if a review of the entire record could not lead a rational trier 

of fact to find for the nonmoving party, there is no genuine issue for trial and summary judgment 

is appropriate. Matsushita Elec. Ind. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 

The judge’s function in summary judgment cases is to determine whether there are genuine, 

material, disputed issues for trial; it is not to weigh the evidence. Anderson, 477 U.S. at 249. 

The Court finds, based on the pleadings and joint exhibits, there are no genuine, material 

disputed facts. The evidentiary hearing provided the parties an opportunity to present their 

positions on how the Agreement impacted the validity of the Citations, which goes to the 

elements of the Affirmative Defense. 

IV. Statement of Undisputed Facts

A. The 2011 Inspection 

In 2011, Complainant conducted two inspections of Respondent’s shipbreaking 

operations, which resulted in the issuance of two Citations and Notifications of Penalty on 

November 22, 2011.3 (Exs. J-8, J-9). The Citation items that were issued as a result of those 

inspections alleged PPE, fall protection, fire prevention, and electrical violations, amongst 

others. Over the ensuing year-and-a-half, the parties engaged in litigation and settlement 

discussions, which ultimately resulted in the Agreement dated June 27, 2013. (Ex. J-7). 

In exchange for Complainant withdrawing all of the Citation items issued on November 

22, 2011, Respondent agreed, as is relevant to this case, to the following provisions of the 

Agreement: 

6. Respondent promises to grant Complainant access to the subject 

workplace after the abatement date for the specific and limited purpose of 

determining if the conditions described in the Citation have been corrected. 

 

3. Inspection Nos. 315488791 and 315488783. 
5

7. Respondent promises to continue its good-faith efforts to comply with the 

Occupational Safety and Health Act (the Act), 29 U.S.C. § 651, et seq.

8. Respondent promises that within sixty days of signing this Agreement it 

will: (a) institute an electrical safety check program; (b) designate a person to 

inspect outlets and the outer insulation of cords for tears, exposed wires, etc.; (c) 

have an electrician, whose certification is from an American state or territory, on 

staff; and (d) institute an “assured equipment grounding conductor program” such 

as the one found in construction standard 29 C.F.R. § 1926.404(b)(iii). At a 

minimum this program requires that electric equipment is inspected quarterly and 

that such inspections are documented. 

9. The parties agree that the specific abatement measures set forth in 

paragraph 8 of this agreement shall be considered required abatement . . . . 

(Ex. J-7). The Agreement was executed by the Solicitor’s Office and counsel for Respondent on 

behalf of their clients. Although neither Area Director Michael Rivera nor Assistant Area 

Director Antonio Fuentes signed the Agreement itself, both admitted that they had participated in 

the settlement process and proposed the language found in paragraph 8 of the Agreement. (Tr. 

43–44, 90–91; Ex. J-7, supra). The Agreement was approved by Judge John Schumacher on 

July 17, 2013. (Ex. J-10). 

B. The 2013 Inspection 

On July 15, 2013, two weeks after the parties executed the Agreement and two days prior 

to Judge Schumacher’s approval of the same, Complainant initiated the first of two new 

inspections of Respondent’s shipbreaking operations, which are the subject of the current 

litigation.

4

 According to the deposition testimony of AAD Michele Shields, these inspections 

would have been scheduled the Friday before the inspections took place, or approximately July 

11 or 12, 2013. (Tr. 185–86). According to Complainant, these inspections were conducted 

pursuant to the National Emphasis Program on Shipbreaking (“NEP”). (Ex. J-4). The NEP 

requires that “[e]ach Navy and MARAD vessel undergoing shipbreaking operations must be 

 

4. The inspection of the U.S.S. Vancouver began on July 15, 2013. (Ex. J-1). The inspection of the U.S.S. Wichita 

began on July 23, 2015. (Id.).
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inspected annually . . . .” (Id.). The Maritime Administration facilitates this requirement by 

sending a letter to Complainant, indicating that a particular vessel is designated for shipbreaking, 

the date the vessel will be arriving at one of the locations listed in the NEP, and the date the 

shipbreaking operations are expected to be complete. (Ex. J-4). In this case, Complainant was 

notified on March 14, 2014, that the Vancouver and the Wichita would be arriving at 

Respondent’s facility between April 15 and April 18, 2013. (Exs. J-5, J-6). Those letters also 

indicated that the contract for shipbreaking operations ended eleven months later, in March 2014. 

(Id.). 

As a result of the July 2013 Inspections, Complainant issued two Citations, alleging 

seven violations of the Act. (Exs. J-2, J-3). Even though the NEP has a 21-point list indicating 

the areas of emphasis for inspections conducted under the program, each of the Citation items in 

the July 2013 Inspections were based on violations of the electrical standards found in Parts 1910 

and 1915. (Exs. J-2, J-3, J-4). Electrical violations are not listed as one of the 21 items of 

“Inspection Focus” in the NEP. (Ex. J-4). During informal settlement negotiations, Respondent 

addressed its disagreement with Complainant issuing electrical citation items during the agreedupon period of abatement for previously cited electrical violations as set forth in the Agreement. 

Notwithstanding this apparent discrepancy, Complainant determined that the issuance of the 

electrical Citation items was not in error. The parties could not reach a settlement, and 

Respondent filed its Notice of Contest. 

Complainant contends that neither the Area Director nor Assistant Area Directors were 

notified that the Agreement had been executed by the Solicitor’s Office and Respondent’s 

counsel prior to the July 2013 Inspections. (Tr. 68, 93).5

 However, as noted above, both AD 

 

5. The Court finds that Complainant had knowledge of the Agreement not only on the basis set forth in the narrative 

but through agency law. The Solicitor had knowledge of the Agreement; thus, that knowledge is imputed to 
7

Rivera and AAD Fuentes had input into the settlement negotiations, going so far as to 

recommend the language contained in paragraph 8 of the Agreement. (Tr. 91–92). Further, as 

the following passage illustrates, AD Rivera knew that a settlement had been reached in June 

2013: 

Q. You’re aware that on the eve of trial, right before the trial was set, the 

government withdrew its citations, true?

A. I knew the citations were withdrawn, yes.

Q. Yet, you did not know, had no clue that the government had entered 

into this settlement agreement with your language in it until October of 2013 --

many, many, many, many months later, right? 

A. I didn't know the 60-day period. No. 

Q. That wasn’t what your lawyer asked you. Your lawyer asked you did 

you know about the settlement agreement. He pulled out Exhibit 12, and you said, 

“No, I didn't know about it.” So you only didn’t know about the 60-day period? 

You knew about everything else but the 60-day period? 

A. We had discussed in general the -- the -- paragraph 8, but no. I didn't 

know when the 60-day period was. 

Q. No, no, sir. You knew though. True, you knew in June of 2013. You 

knew then in June of 2013, International Shipbreaking and OSHA entered into a 

settlement agreement that contained the language in paragraph 8 that you were 

involved in, true? 

A. No, I didn't know when it was signed. 

Q. You knew it was signed sometime in June of 2013? 

A. I knew a -- that I was -- we had a discussion with the solicitor's office 

and I knew that the settlement had been reached -- there was a settlement that had 

been reached. Now, the particulars of the 60-day period or any of those, those I 

did not know. 

(Tr. 79–80) (emphasis added). So, while it may be the case that AD Rivera was unaware of the 

specific date when the Agreement had been signed, he was at least aware that an agreement had 

 

Complainant. Notice of an attorney is notice to the client. See Link v. Wabash R.R., 370 U.S. 626, 634 (1962) 

(“[E]ach party is deemed bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice

of which can be charged upon the attorney.’” (quoting Smith v. Ayer, 101 U.S. 320, 326 (1879)).
8

been reached, the previous citation items had been withdrawn, and that a 60-day period of 

abatement had been provided. See OSHA Field Operations Manual (“FOM”), Ch. 8, p.3 (April 

22, 2011) (“If a settlement is later requested by the employer, the Area Director will 

communicate the proposed terms to the RSOL, who will then draft and execute the agreement.”). 

As the foregoing passage illustrates, it appears that the only meaningful gap in AD Rivera’s 

knowledge was the trigger date for the running of the abatement period. This is important 

because the Agreement itself states that Respondent promises to complete the required abatement 

“within 60 days of signing this agreement.” (Ex. J-7) (emphasis added). Notwithstanding the 

foregoing, there is no question that the Area Office was aware of the Agreement prior to issuing 

the Citations on December 5, 2013, and that the conditions that formed the basis for the issuance 

of the Citations occurred within the sixty (60) day abatement period provided in the Agreement. 

(Ex. J-12). 

While the parties generally agree that the tenor of the July 2013 inspections were, to say 

the least, acrimonious, there is some debate over what was said and what the inspectors knew 

about the Agreement that had recently been executed. The Court finds that any debate over what 

the inspectors were aware of at the time of the July 2013 inspections is not material to the issue 

of whether Complainant should be estopped from pursuing the instant litigation. The decision to 

schedule the inspections, as well as to issue Citations, rested with the management of the Corpus 

Christi Area Office. 

V. Controlling Case Law 

A. Equitable Estoppel Prima Facie Elements

“[E]quitable estoppel responds to the unfairness inherent in denying the claimant some 

benefit after it has reasonably relied on the misrepresentations of the adverse party.” U.S. v. 
9

Marine Shale Processors, 81 F.3d 1329, 1348 (5th Cir. 1996). Courts have universally noted 

that “[e]quitable estoppel is a doctrine that is rarely valid against the government” and is applied 

“in only the narrowest of circumstances.” U.S. v. Bloom, 112 F.3d 200, 205 (5th Cir. 1997). 

Thus, courts have required that a party seeking to estop the United States show some sort of 

“affirmative misconduct,” an element normally not required to estop private parties.” Marine 

Shale Processors, 81 F.3d at 1349. In addition to proving affirmative misconduct, the moving 

party must also establish: (1) that the government was aware of the relevant facts; (2) that the 

government intended its act or omission to be acted upon; (3) that the party seeking estoppel had 

no knowledge of the relevant facts; and (4) reasonably relied on the government’s conduct and as 

a result of his reliance, suffered substantial injury. Robertson-Dewar v. Holder, 646 F.3d 226, 

229 (5th Cir. 2011). 

 As a preface to the Court’s analysis, as well as the ensuing discussion of the subsequent 

elements of an estoppel claim, the Court would like to point out a slight discrepancy between 

Commission case law and Fifth Circuit case law. In contrast with the five-element test laid out 

above, the Commission has applied a four-element test to a claim of estoppel against the 

government: (1) a misrepresentation by another party; (2) which the claimant reasonably relied 

upon; (3) to his detriment; and (4) affirmative misconduct. Erie Coke Corp., 15 BNA OSHC 

1561 (No. 88-611, 1992). Commission ALJs are bound by both Commission precedent and by 

the precedent of the circuit wherein the controversy arose. See Brooks Well Servicing, Inc., 20 

BNA OSHC 1286 (No. 99-0849, 2003) (“When the law of the circuit to which a case would 

likely be appealed differs from the Commission’s case law, we apply the law of that circuit . . . 

.”). In light of the possibility that this case could be appealed to the Fifth Circuit, the Court shall 

apply Fifth Circuit precedent. That said, the Court finds that elements (2), (3), and (4) of the 
10

Fifth Circuit test are essentially a breakdown of the Commission’s first element—a 

misrepresentation by another party. Accordingly, the Court’s conclusion would be the same 

under either test.

B. Settlement Agreements Are a Creature of Contract Law 

Settlement agreements “are in the nature of contracts.” Makins v. District of Columbia,

277 F.3d 544, 546 (D.C. Cir. 2002). The Court recognizes that settlement agreements are 

enforced according to “federal common law principles.” Horizon Homes, Inc., 2007 WL 

2265138 at *2 (No. 06-0095, 2007), Phillips 66 Co., 16 BNA OSHC 1332, 1336 (90-1549, 

1993). Where the language of an agreement is clear and unambiguous, its meaning must be 

determined “solely from that language.” Lumex Med. Prods., Inc., 18 BNA OSHC 2002 at *4 

(No. 97-1522, 1999) (citing Phillips 66 Co., supra). Also, where the language of a settlement 

agreement is unambiguous, its meaning is discerned within the “four corners” of the agreement. 

U. S. v. ITT Cont. Baking Co., 420 U.S. 223, 233 (1975). However, parol evidence, i.e. extrinsic 

oral or written testimony, is admissible to prove fraud, accident or mistake, even if the testimony 

contradicts the terms of a complete integration in writing.” Phillips 66 Co., 16 BNA OSHC at 

1338. 

In this matter, there are no arguments that the Agreement is ambiguous. While there is 

also no argument that the Agreement is invalid or illegal, there are allegations by Respondent 

that Complainant engaged in affirmative misconduct: (i) by entering into the Agreement, which 

provided Complainant with enhanced abatement for the violations being vacated that he could 

not have received by solely upon relying on individual citations; and (ii) when having that 

Agreement in hand, by ignoring the provisions that inured to the benefit of Respondent. While 
11

the Court finds the Agreement is valid, enforceable, and unambiguous, it will permit the 

introduction of parol evidence to determine if the Affirmative Defense will prevail.

VI. Equitable Estoppel Discussion 

A. Affirmative Misconduct

Respondent contends Complainant engaged in affirmative misconduct by breaching the 

Agreement—“that is, by promising to give [Respondent] a sixty-day abatement period to 

establish an ‘electrical safety’ program but then seeking to penalize [Respondent] for ‘electrical 

safety’ issues that allegedly existed during the sixty-day abatement period.” Respondent’s 

Memorandum in Support of its Motion for Summary Judgment at 8–9. Complainant, on the other 

hand, contends that “it was purely coincidence due to resources and scheduling that the team 

came out shortly after they signed the agreement.”6

 (Tr. 223). Contrary to Complainant’s 

argument, however, the Court finds that there are simply too many coincidences to be 

coincidental. 

“Although courts have been less than forthcoming in defining what a government official 

must do to satisfy the affirmative misconduct element of an estoppel defense, the cases support 

the conclusion that at minimum the official must intentionally or recklessly mislead the estoppel 

claimant.” Marine Shale Processors, 81 F.3d at 1350. To qualify as affirmative misconduct, a 

“party must allege more than mere negligence, delay, inaction, or failure to follow an internal 

agency guideline.” Fano v. O’Neill, 806 F.2d 1262, 1265 (5th Cir. 1987). 

In Fano, the claimant had been denied permanent resident alien status because there was 

a delay in processing his application. Fano, 806 F.2d at 1265. According to Fano, the INS 

“willfully, wantonly, recklessly, and negligently” delayed processing his application. Id. This 

 

6. This coincidence could have been rectified by Complainant not issuing the Citations once he had received 

notification that the Agreement was a Final Order of the Commission since conducting an inspection does not 

necessarily have to result in the issuance of citations.
12

allegation was premised on INS’s failure to timely process an expedited request pursuant to an 

internal agency policy. Id. at 1263. Further, Fano alleged that the INS had a “common practice 

of expediting applications such as his”, which suggested that his application was singled out for 

discriminatory treatment. Id. at 1265. Although the question of whether INS actually committed 

affirmative misconduct was not before the court—the INS had filed a motion for summary 

judgment—the court determined that Fano’s allegations were “broad enough to encompass the 

type of conduct sufficient for estoppel.” Id. at 1266. 

Although there are many more cases wherein the courts have refused to estop the 

government due to a lack of evidence regarding affirmative misconduct, those cases nonetheless 

provide contour and shape to the concept of affirmative misconduct. See Marine Shale, 81 F.3d 

at 1350 (holding that company failed to prove letter issued by government agency contained 

anything more than a negligent interpretation of the governing regulation); Bloom, 112 F.3d at 

205–206 (holding that a failure to act does not rise to level of affirmative misconduct); Ingalls 

Shipbuilding, Inc. v. Director, Office of Workers’ Compensation Prgrms, U.S. Dep’t of Labor, 

976 F.2d 934, 938 (5th Cir. 1992) (holding that Commissioner’s interpretation of his power 

under the governing statute was merely negligent—scope of governing statute had not previously 

been tested, rendering claim of affirmative misconduct unlikely); Robertson-Dewar v. Holder, 

646 F.3d at 230 (“[Petitioner] has not shown affirmative misconduct by the government that goes 

beyond mere negligence or delay. He has no evidence that the government delayed ruling on his 

application with the intent of not acting therein until after he had aged out of the statute.”). 

In this case, Complainant emphasizes that, pursuant to the NEP, he is required to perform 

inspections on every single vessel that is scheduled for shipbreaking operations. Neither the 

Court, nor Respondent for that matter, takes issue with Complainant’s obligation under the NEP. 
13

Respondent’s President, Jason Glasscock, went so far as to say that he recognized that the 

Wichita and the Vancouver would be subject to likely inspection. (Tr. 144). He also stated, 

however, that Complainant has not come out to inspect every vessel, which was confirmed by 

AAD Shields.7 (Tr. 144, 199–200). While there is no dispute that Complainant’s policy required 

inspections of each Navy and MARAD vessel, the circumstances surrounding the inspections of 

the Vancouver and Wichita call into question why: (1) they were scheduled at that particular 

time;8 (2) involved a drastic increase in the number of inspectors; and (3) those particular NEPmandated inspections, guided by a 21-point focus list (which does not include electrical), only 

yielded violations of the Part 1910 and 1915 electrical standards. 

The Vancouver and the Wichita were scheduled to arrive at Respondent’s facility on 

April 15th and 17th, respectively. (Exs. J-5, J-6). The contract for shipbreaking operations was to 

last approximately 11 months for each ship. (Id.). That means Complainant could have 

scheduled an inspection in the three months leading up to the execution of the Agreement or in 

the six months following the conclusion of the 60-day abatement period.9

 Instead, Complainant 

scheduled an inspection—pursuant to the NEP—at a time when the Area Office knew that a 

settlement had been reached and that the Agreement contained a 60-day abatement period for 

electrical safety issues. 

 

7. This testimony shows the insincerity of Complainant’s main argument in scheduling the inspections. Complainant 

argues that he must inspect every ship that is scheduled for ship breaking and thus it was necessary to inspect the 

Wichita and Vancouver when the inspections were conducted. When there is history of Complainant ignoring the 

NEP in not inspecting every ship that has come to port for shipbreaking, the Court is then perplexed as to why it 

should accept Complainant’s argument as a credible explanation of his actions. 

8. As the Area Director evidently used his discretion in the past to entirely forego inspections of ships—even 

though required by the NEP—he could have used that same discretion to honor the terms of the Agreement and 

schedule the Vancouver and Wichita inspections accordingly. 

9. Pursuant to the plain language of the Agreement, the period of abatement ran for 60 days from the signing of the 

Agreement or from June 27, 2013 to August 27, 2013. That left six whole months, between the end of August 2013 

and the beginning of March 2014, within which to complete the inspection. 
14

Regardless of whether Complainant knew about the specific contents of the Agreement at 

the time the disputed inspections took place, Complainant admits that it still would have ordered 

the inspections to take place and issued the disputed citation items. (Tr. 66). Concluding that the 

hazards cited in the July 2013 inspection were not covered by paragraph 8 of the Agreement, AD 

Rivera stated, “Well, the—the programs as they were called, the electrical safety programs 

that—that we had required in the settlement agreement were for inspection purposes. They were 

for purposes of attempting to discover electrical issues. They were not for any particular 

electrical hazards.” (Tr. 72). In other words, Complainant contends that the content of the 

Agreement’s electrical abatement provisions does not encapsulate the specific violations at issue 

here and thus did not control its decision to cite. The Court finds that this interpretation is an 

intentional misinterpretation of paragraph 8 of the Agreement in an apparent act to justify the 

actions taken in conformity therewith, which deprived Respondent of a mutually bargained-for 

right. See also 29 U.S.C. § 658(a) (“[T]he citation shall fix a reasonable time for the abatement 

of the violation.”). 

To recap, the Agreement provided that within 60 days of signing the Agreement, 

Respondent will: 

a) institute an electrical safety check program; (b) designate a person to inspect 

outlets and the outer insulation of cords for tears, exposed wires, etc.; (c) have an 

electrician, whose certification is from an American state or territory, on staff; and 

(d) institute an “assured equipment grounding conductor program” such as the 

one found in construction standard 29 C.F.R. § 1926.404(b)(iii). At a minimum 

this program requires that electric equipment is inspected quarterly and that such 

inspections are documented. 

(Ex. J-7). Complainant contends that the foregoing is not applicable to the citation items issued 

as a result of the July 2013 inspection because they only address inspection-related issues and do 

not encompass specific violations of Parts 1910 and 1915. 
15

Complainant cites to a number of cases for the proposition that “[a]batement requiring 

Respondent to complete programmatic abatement measures does not exempt Respondent from 

citations for actual electrical hazards.” Sec’y Response to Resp’t Motion for Summary Judgment

at 6. In Alden Leeds v. OSHRC, cited by Complainant, the Third Circuit was presented with the 

issue of whether “the 33 infractions cited in 1995 may properly be penalized as a ‘failure to 

abate’ the violations cited in 1993, where none of the 13 specific instances of improper storage 

listed in the 1993 citation was cited in the 1995 notification but all of the infractions listed on 

both occasions related to the improper storage of oxidizers.” 298 F.3d 256, 260 (3d Cir. 2002). 

Ultimately, the court held that, because the language of the citation items referred to discrete 

“violations”, the 1993 citations did not give the respondent adequate notice that it would be 

subject to an FTA notification if it did not correct the more general categories of improper 

storage practices. Id. at 263. 

Clearly, citation items alleging a specific hazard are different from items alleging a 

violation of an inspection requirement, which is designed to identify and prevent the occurrence 

of such hazards. The Commission has held that the presence of a specific hazard does not, in and 

of itself, establish a failure to inspect. See, e.g., Martin Construction, Inc., 21 BNA OSHC 2187 

(No. 06-0700, 2007) (ALJ); Century Steel Erectors, Inc., 13 BNA OSHC 1484 (No. 86-1509, 

1987). Accordingly, Complainant alleges that the “reverse” is true; namely, that “the existence 

of a safety program does not guarantee that no violative conditions will exist on the site.” Sec’y 

Response to Resp’t Motion for Summary Judgment at 7. That the presence of a specific hazard 

does not, by itself, prove a failure to inspect is not surprising—it is an evidentiary issue regarding 

the quantum of proof required to establish an inspection violation. Complainant is also correct 

that the presence of a safety program is not a guarantee of a violation-free workplace. However, 
16

Complainant would also be hard-pressed to say that a properly implemented electrical inspection 

program does not serve to reduce the incidence of hazards—else why would such requirements 

be included in the Agreement, the focus of which was specific electrical hazards (amongst 

others) identified during the 2011 inspections? 

The Court elects to read and give plain meaning to the clear and unambiguous language 

of paragraph 8 as it appears in the Agreement. Undoubtedly, the abatement measures contained 

in paragraph 8 are broad and were intended by the parties to be so broad. This interpretation 

gives credence to the testimony of Mr. Rivera, that he bargained for, and received, abatement far 

in excess of what is allowed by the standards for shipbreaking. (Ex. J-7 at ¶ 8). The “assured 

equipment grounding conductor program” is a construction standard and, thus, inapplicable to 

maritime activities. This much was admitted by AD Rivera—“Well, an assured equipment 

conducting—conductor program isn’t required, so I wouldn’t have allowed the citation.” (Tr. 

73). The broad scope of paragraph 8 also explains why Respondent agreed to implement farreaching and comprehensive abatement measures—Glasscock estimated that the cost to 

implement the proposed abatement was roughly 1.25 million dollars—in exchange for a 60-day 

abatement period and Complainant vacating the 2011 citation items. (Tr. 115; Ex. J-7). Given 

the breadth of the abatement provisions, the Court finds that the only reasonable interpretation is 

that paragraph 8 of the Agreement is applicable to electrical violations generally. 

For example, the “assured equipment grounding conductor program” requires, at a 

minimum: (a) a written description of the program; (2) designation of a competent person; (3) 

cord sets, attachment caps, plugs and receptacles of cord sets, and any equipment connected by 

cord and plug shall be visually inspected for damage or defects before each day’s use, and any 

such defective equipment shall be taken out of service; (4) the timing and type of tests that shall 
17

be performed on all cord sets; and (5) that such tests shall be recorded. 29 C.F.R. § 

1926.404(b)(1)(iii). In essence, this is a reiteration of, and expansion upon, the other three 

abatement provisions in paragraph 8 of the Agreement, which require an electrical safety check 

program, a designated person to inspect outlets and insulation, and the appointment of a qualified 

electrician. (Ex. J-7). 

If such expansive inspection, testing, and out-of-service requirements were put in place to 

address specific electrical hazards discovered in the first set of inspections, then how can the 

abatement provisions of the Agreement be interpreted in any other way but to address 

prospective electrical hazards? The 2011 inspections unveiled multiple specific hazards 

resulting from violations of electrical standards, including: 

• Flexible cords with missing/broken insulation, exposing bare copper conductors in 

violation of 1910.303(b)(1); 

• Inoperative ground fault circuit interrupter receptacles and incomplete conduit in 

violation of 1910.303(b)(2); 

• Improperly marked utility boxes in violation of 1910.303(f)(2); 

• Conductors connected to outlet in reverse order, creating shock hazard in violation of 

1910.304(a)(2); 

• Flexible electrical cord with 110-volt plug without ground prong in violation of 

1910.304(g)(5); 

• Failure to effectively close unused openings in electrical boxes in violation of 

1910.305(b)(1)(ii); 

(Exs. J-8, J-9). These violations, with the possible exception of those issued pursuant to 

1910.303(b)(1), which is an examination provision, all address specific electrical hazards.10 

In lieu of requiring specific abatement of the identified electrical hazards, Complainant 

bargained for the implementation of a comprehensive electrical program, which is clearly 

 

10. Though it should be noted that 1910.303(b)(1) was cited in both the 2011 and 2013 inspections. (Exs. J-2, J-8). 
18

designed to uncover any electrical hazard in the first instance. In that respect, Complainant has 

taken inconsistent positions with respect to the effect of paragraph 8. On one hand, such broadreaching, inspection-focused abatement provisions were viewed as sufficient to abate specific 

hazards found in the 2011 inspections. On the other, Complainant argues that those same 

abatement provisions are too broad to apply to the violations identified in July 2013, even though 

in many respects the 2013 violations were similar to the 2011 violations in terms of the hazards 

presented. (Exs. J-2, J-3). The former position comports with the language of paragraph 6 of the 

Agreement, which states, “Respondent promises to grant Complainant access to the subject 

workplace after the abatement date for the specific and limited purpose of determining if the 

conditions described in the Citation have been corrected.” (Ex. J-7) (emphasis added). In other 

words, if Complainant viewed the broad-based, inspection-focused abatement measures as 

sufficient to abate the specific conditions described in the 2011 Citations, then he is, at the least, 

being disingenuous when he claims that those same measures do not apply with equal force to 

the specific hazards alleged in the 2013 Citations. See Kiewit Western Co., 16 BNA OSHC 1689, 

1694 (No. 91-2578, 1994) (“[T]he remedial purpose of the Act does not give license to disregard 

. . . plain meaning . . . . The Secretary should not be permitted to rely on the purpose of the Act 

to require what may have been intended but was not clearly stated . . . .”). 

Complainant counters that “we were charging them with instituting a method to—to 

inspect electrical equipment. But it was not and—and it—it did not relieve them of their 

responsibility to correct hazards on their work site.” (Tr. 77). This was echoed by Complainant’s 

counsel, who repeatedly characterized Respondent’s argument as a request for a “free ride”. (Tr. 

76, 77, 147). Respondent does not claim, nor does the Agreement imply, that it was entitled to a 

free ride or that the abatement provisions somehow relieved them of their obligations under the 
19

Act.11 In fact, in the section of the Agreement addressing abatement, Respondent agreed to both 

grant Complainant access to the workplace after the abatement period to determine if the 

conditions in the Citation had been corrected12 and to “continue its good-faith efforts to comply 

with the [Act].” (Ex. J-7). For what other reason would such a provision be placed in the 

Agreement but to reaffirm Respondent’s responsibility to correct hazards and comply with the 

Act during the period of abatement? Given the expense involved and the comprehensive nature 

of the abatement, the 60-day period could hardly be classified as a free ride.13 Further, the 

implementation of the abatement provisions listed in paragraph 8 of the Agreement not only 

requires inspection of electrical equipment but also mandates its repair or removal from service if 

deficiencies or damage is identified. See 29 C.F.R. § 1926.404(b)(1)(iii). (Ex. J-7). It stands to 

reason that if a condition of abatement is the implementation of a comprehensive electrical 

program, then a certain amount of time will be required not only to implement the plan itself, but 

to address the hazards at which the plan is targeted.14 (Tr. 115–16). 

 

11. As a side note, the Court is concerned with Complainant’s characterization of the abatement period as a free 

ride. The abatement period is a statutory right. See 29 U.S.C. § 658(a) (statute requires that citation shall fix a 

“reasonable time for abatement of the violation”); see also 29 C.F.R. § 1903.19 (“Abatement means action by an 

employer to comply with a cited standard or regulation or to eliminate a recognized hazard identified by OSHA 

during an inspection.”). Further, to the extent that Complainant perceives this period of time as a free ride of sorts, it 

could have implemented interim requirements to ensure the safety of Respondent’s employees. In fact, Complainant 

stopped just short of this by including a provision that required Respondent to “continue its good faith efforts to 

comply with the [Act].” 

12. With respect to this provision of the Agreement, Complainant’s counsel bemoaned that paragraph 6 was the 

result of “poor lawyering” and should not have been included. (Tr. 216). Whether that is the case does not change 

the provision’s import—Respondent bargained for and agreed to a 60-day abatement period. 

13. In providing Respondent 60 days to abate, Complainant has defined the reasonable time for abatement to occur, 

which is afforded to Respondent by statute. Providing a reasonable time for abatement to be accomplished, 

therefore, is not a free ride, as alleged by Complainant. 29 U.S.C. § 658(a). This much is clear when read with 

Respondent’s obligation set forth in paragraph 7 of the Agreement, which required Respondent to abate hazards that 

it discovered during its abatement period. Setting forth the timeframe for abatement is within the discretion the Area 

Director, who chose to exercise that discretion through the provisions of the Agreement. The Area Director had the 

authority to do so under the FOM, Ch. 3, p. 8-1. 

14. Further, to the extent that Respondent failed to abate within the time allowed by the Agreement, Complainant 

has the power to issue a failure-to-abate notice (FTA), which imposes a penalty of $7,000 for each day during which 

the failure or violation continues. 29 U.S.C. § 666(d). 
20

The Court is also troubled by the number of inspectors allocated to the inspection of the 

Vancouver and the Wichita. The 2011 inspections involved two ships, two inspectors, and 

resulted in a wide range of violations pursuant to the NEP. (Tr. 155; Exs. J-8, J-9). The 2013 

inspections involved the same number of ships, six inspectors, and, though pursuant to the NEP’s 

21-point Inspection Focus, resulted only in electrical violations.15 (Exs. J-1, J-2, J-3). 

Complainant contends that the threefold increase in inspectors was due to the need for training 

some of the CSHOs that were new to the office. (Tr. 200).16 According to Glasscock, during his 

time as a consultant and with Respondent, he had never seen that many inspectors at one time. 

(Tr. 124–25). 

The fact that Complainant conducted an inspection—purportedly pursuant to the NEP—

that resulted in only electrical violations further supports the Court’s conclusion that Respondent 

acted recklessly, if not intentionally, in scheduling the inspection in close proximity to the 

signing of the Agreement and subsequently issuing only electrical citation items that were clearly 

covered by the abatement provision. The 2013 Inspections had three times as many inspectors to 

cover the same 21-point Inspection Focus list on the same number of ships as the 2011 

Inspections and only managed to find violations of the electrical standards, which, as has already 

been stated, is not a specified point of focus for the NEP program. (Ex. J-4). 

Compared to the case law discussed above, this case does not involve a delay in 

processing an application, an understandable misinterpretation of a previously untested statute or 

regulation, nor does it involve Complainant’s failure to act in accordance with a self-generated 

 

15. As previously established, the NEP has set forth a 21-point Inspection Focus, which constitutes part of a 

comprehensive NEP inspection. The Court wonders how a comprehensive inspection as required by the NEP could 

be accomplished in only one day for each vessel. (J-2, J-3). In 2011, when OSHA issued Respondent three citations 

consisting of 14 items, the inspection took place from May 26, 2011 through November 18, 2011. 

16. Since the Vancouver and Wichita were in port until March 2014, the Court finds there was sufficient time for 

the Area Director to schedule training for these new employees over the course of that timeframe versus sending 

them in all at once to locate electrical violations. The Court questions how comprehensive the training could have 

been when all that was looked at and cited as violations were electrical. 
21

enforcement policy. See Marine Shale, 81 F.3d at 1350; Bloom, 112 F.3d at 205–206; Ingalls 

Shipbuilding, Inc., 976 F.2d at 938; Robertson-Dewar v. Holder, 646 F.3d at 230; see also Fano, 

806 F.2d at 1265, supra. Complainant knew that the 2011 Citations had been vacated, that a 

settlement had been reached in the 2011 cases, that Respondent had a 60-day abatement period 

covering electrical standards, and nevertheless conducted inspections and issued citations limited 

to the sole issue addressed in the abatement provisions—electrical. Whether through the 

scheduling of the inspection, or issuance of the citations, Complainant targeted a discrete subset 

of violations that were clearly covered under the terms of the comprehensive abatement 

provisions of the Agreement. Complainant acted recklessly, if not intentionally, in depriving 

Respondent of a mutually bargained-for right to reasonable abatement. By characterizing this 

right as a “free ride” or as somehow absolving Respondent of its statutory obligations, 

Complainant displays a certain animus that undermines its claims of coincidence.

As the Supreme Court stated in Heckler, estoppel may be appropriate when the “public 

interest in ensuring that the Government can enforce the law free from estoppel [is] outweighed 

by the countervailing interest of citizens in some minimum standard of decency, honor, and 

reliability in their dealings with the Government.” 467 U.S. at 60. Were the Court to accept 

Complainant’s arguments, it would be tacitly approving Complainant’s view that an abatement 

period is nothing more than a free ride, which undermines not only an agreed-upon right in this 

case, but a right that is recognized in the Act itself. The Court declines this invitation and finds 

that Complainant committed affirmative misconduct. 

B. Complainant was Aware of Relevant Facts 

As to the relevant facts of which Complainant was aware, the Court finds that there are a 

couple that are germane to the present analysis. First, as established above, the Court finds 
22

Complainant was aware that a settlement had been reached in June and that the terms included 

comprehensive electrical abatement and a 60-day abatement period. Second, Complainant was 

also aware that two ships—the Vancouver and the Wichita—were scheduled for shipbreaking 

operations at Respondent’s facility starting in April 2013. (Exs. J-5, J-6). Third, Complainant 

was aware that it had the authority to schedule an inspection of the Wichita and Vancouver at 

any time, pursuant to the NEP. These facts, while relevant, were also known to Respondent. 

Glasscock admitted that Complainant had the authority to come in to inspect at any time. (Tr. 

144). 

What Complainant knew, and Respondent did not know, however, is that Complainant 

had no intention of complying with the plain meaning of the abatement provisions contained in 

the Agreement. Instead, as testified to by AD Rivera and AAD Shields, they did not view the 

comprehensive electrical abatement program, with its attendant 60-day abatement period, as 

encapsulating specific violations of the electrical standards—as opposed to inspection or testing 

violations. (Tr. 77, 194). This was reflected not only in the decision to inspect Respondent 

notwithstanding AD Rivera’s knowledge that a settlement had been reached, but also 

Complainant’s decision to cite Respondent pursuant to those specific electrical standards after 

Complainant received a copy of the Agreement and its attendant abatement language.

Along those same lines, the Court finds that Complainant intended to inspect the 

Vancouver and Wichita during the sixty day abatement period.

17 His rationale for doing so 

 

17. At the hearing, the Area Director testified that he was prohibited under section 17(f) of the Act and 29 C.F.R. § 

1903.6 from providing advanced notice of inspections; thus, the reason Respondent could not be advised of the 

intentions of Complainant to inspect the Wichita and Vancouver. While this testimony is true, it is not a complete 

and accurate statement of the authority of the Area Director in providing notice. The FOM recognizes that there 

may be occasions when advanced notice is necessary to conduct an effective investigation. The FOM recognizes 

that these occasions are narrow exceptions to the statutory provision against advanced notice. The FOM vests with 

the Area Director or his designee the authority to provide advanced notice in four identified instances. Three of the 

instances identified in the FOM could have been used as the basis for notifying Respondent of the intention of 

Complainant to inspect the Vancouver and Wichita during the 60 day abatement period. See FOM, Ch. 3, p. 3-4.
23

included the previously discussed interpretation of the Agreement, as well as his claim that he

had to do an inspection during that timeframe because the NEP required each ship scheduled for 

ship breaking to be inspected and due to scheduling issues. These arguments fail the 

reasonableness test. First, while the NEP requires inspections of every ship scheduled for ship 

breaking, as previously noted, Complainant could have done so from April 17, 2013 until June 

27, 2013, and from August 27, 2013 until March 2014. Complainant did not have to inspect 

during the abatement period to comply with the NEP. In fact, Complainant had nearly ten 

months while the Vancouver and Wichita were in port to address any scheduling issues or 

conflict. Also, there have been past instances where the Area Director did not (or was unable to) 

comply with the NEP’s requirement that every ship scheduled for ship breaking be inspected. 

The Court finds that this element has been satisfied. 

C. Complainant Intended its Act or Omission to be Acted Upon

Complainant, in the Agreement, agreed that Respondent would have 60 days to 

implement the agreed-upon abatement. The Agreement was reached after months of litigation 

and settlement discussions and was designed to bring Respondent into compliance with the 

maritime, general industry, and, to a limited extent, construction electrical requirements. See 

Marine Shale Processors, 81 F.3d at 1351 (“Although the district court made no findings as to 

intent, the fact that LDEQ issued its letter in the context of negotiations allegedly designed to 

bring MSP into compliance with RCRA’s storage regulations suggest that LDEQ intended for 

MSP to rely on the letter.”). This was not merely a letter or some off-hand remark by a CSHO; it 

was a formal Agreement, negotiated by the parties, that lays out the respective obligations and 

 

However, doing so would have likely resulted in Respondent not entering into the Agreement which provided 

Complainant more comprehensive abatement than it could ever get relying solely on the specific citations 

themselves. Thus, Complainant had good reason to not want Respondent to know their intentions to inspect during 

the abatement period. 
24

rights of both Complainant and Respondent. Indeed, paragraph 9 of the Agreement describes the 

consequences of noncompliance, which solidifies the Court’s determination that Complainant 

intended that Respondent would act in accordance with the Agreement’s provisions. (Ex. J-7). 

The Court finds that this element has been satisfied.

D. Respondent Had No Knowledge of Relevant Facts 

As noted above, there are many facts that were available to both parties regarding the 

inspections, citations, and agreement at issue. What Respondent did not know, indeed could not 

have known, was that Complainant would interpret the Agreement in such a way as to render 

moot the inclusion of a 60-day abatement period. The following colloquy between Glasscock 

and Respondent’s counsel is illustrative: 

Q. So I guess my – my next question would be if you knew that OSHA had 

this belief that they could come in within the 60-day period of time and still 

cite you for certain electrical violations, would you have even entered into 

this agreement? 

A. It would have been of no benefit to me. 

(Tr. 116). In other words, Respondent did not know that Complainant interpreted the abatement 

provisions of the Agreement such that it could issue electrical citations during the abatement 

period. If that were the case, as stated by Glasscock, Respondent would not have entered the 

Agreement in the first place. There is nothing in the Agreement, the Act, or case law to support 

Complainant’s strained interpretation of the abatement provisions. In fact, as described above, 

the plain language of the Agreement, when coupled with the Act’s recognition of a statutory 

right to abatement, compels the opposite conclusion. As such, there was nothing available to 

Respondent to place it on notice of Complainant’s interpretation. Further, as discussed in 

Section VI.B, supra, the Court also finds that Respondent was also unaware of Complainant’s 

intent to schedule an inspection during the abatement period. Though Respondent may have 
25

been aware of the possibility of an inspection as a general proposition, based on the language of 

the Agreement and terms of the NEP (which does not include electrical), it could not have 

known that an inspection targeted at electrical violations would take place during the abatement 

period. Accordingly, the Court finds that Respondent had no knowledge of the relevant facts. 

E. Respondent Reasonably Relied on Complainant’s Representations to its 

Detriment

“When a private party is deprived of something to which it was entitled of right, it has 

surely suffered a detrimental change in its position.” Heckler, 467 U.S. at 62. However, it is not 

enough for Respondent to merely suffer a detrimental change in position. The Court must also 

determine that it was reasonable for Respondent to rely on the representations of Complainant. 

As stated by the Supreme Court: 

It is not merely the possibility of fraud that undermines our confidence in the 

reliability of official action that is not confirmed or evidenced by a written 

instrument. Written advice, like a written judicial opinion, requires its author to 

reflect about the nature of the advice that is given to the citizen, and subjects that 

advice to the possibility of review, criticism, and reexamination. The necessity for 

ensuring that governmental agents stay within the lawful scope of their authority, 

and that those who seek public funds act with scrupulous exactitude, argues 

strongly for the conclusion that an estoppel cannot be erected on the basis of the 

oral advice that underlay respondent’s cost reports. 

Id. at 65. See also Erie Coke, 15 BNA OSHC 1561 at *10 (noting that a party is less justified in 

relying on oral, as opposed to written, advice). Further, “a citizen’s first defense to 

misstatements from a government official regarding the scope and applicability of a particular 

law is self-help, that is, her own research to discover the applicable legal principles.” Marine 

Shale Processors, 81 F.3d at 1350. 

There are a number of reasons why Respondent’s reliance was reasonable. First, 

Complainant represented to Respondent, in a written Agreement, that Respondent would have 60 

days to implement a comprehensive electrical program. This was not the oral advice of a CSHO 
26

or even a letter from an agency representative acting outside the bounds of his authority.18 See, 

e.g., Erie Coke, 15 BNA OSHC 1561 at *10; Ingalls Shipbuilding, Inc., 976 F.2d 934. The 

Agreement and the provisions contained therein were the product of lengthy negotiations and 

reflects the considered judgment of both parties. Second, given the comprehensive nature of the 

abatement, the size of the worksite, and the cost involved, it was reasonable for Respondent to 

assume that it had bargained for and received 60 days to implement the “required abatement.” 

(Tr. 115–16, 152; Ex. J-7). Third, there is no statute, standard, or principle of law that would 

have alerted Respondent to Complainant’s strained and unreasonable interpretation of the 

Agreement’s abatement provisions. See Heckler, 467 U.S. at 65–66 (“[T]he regulations 

governing the cost reimbursement provisions of Medicare should and did put respondent on 

ample notice of the care with which its cost reports must be prepared . . . . Yet respondent 

prepared those reports on the basis of an oral policy judgment by an official who, it should have 

known, was not in the business of making policy.”). The Act not only grants employers the right 

to a “reasonable time for the abatement of the violation”, but it also provides employers the 

opportunity to litigate the reasonableness of the abatement proposed in a Citation. See 29 U.S.C. 

§§ 658(a), 659(c). Respondent obtained, in the form of a written Agreement, a period of time to 

abate, which the Act provides. To the extent that Respondent was allowed to complete the 

required abatement within the period of time provided, it would have complied with its 

obligations under the Agreement. Finally, as stated by Glasscock, Respondent did not believe it 

was receiving a “free ride” or that it would not be inspected at all; rather, Respondent believed it 

would receive the benefit of its bargain with Complainant—a reasonable amount of time to 

implement the required, comprehensive electrical abatement. There was simply no objective 

 

18. In fact, the Area Director is specifically vested with the authority to enter into legally binding settlement 

agreements. See FOM, Ch. 8. 
27

evidence—whether through the agreement, the law, or otherwise—to suggest that Respondent’s 

reliance on Complainant’s representations was unjustified. 

The Court also finds that Respondent suffered a detriment by relying on Complainant’s 

representations. As noted above, Respondent allocated significant funds ($1.25 million) and 

resources to implement the agreed-upon abatement. Respondent also agreed to implement 

construction-based standards into its comprehensive electrical program even though construction 

standards do not apply to Respondent’s worksite. (Ex. J-7). Notwithstanding Respondent’s 

efforts, and the reasonable assumption that it had 60 days to abate, Complainant initiated a 

purported NEP inspection two weeks after the Agreement was signed. This inspection was 

performed with three times the number of inspectors that came in 2011 and, as illustrated by the 

citations that were issued, focused solely on electrical violations. Respondent’s right to a 

reasonable period of abatement is enshrined in the Act and was memorialized in the parties’ 

Agreement. This was disregarded by Complainant when he initiated the targeted inspections in 

July 2013 and again when he decided to issue the Citations. As such, Respondent was, 

“deprived of something to which it was entitled of right . . . .” Heckler, 467 U.S. at 62. 

VII. Conclusion 

The Court has found the Agreement is unambiguous. There is no doubt in the Court’s 

mind that the Agreement reflects the settlement reached by the parties. Paragraph 8 sets forth the 

comprehensive electrical safety abatement, which Complainant expected Respondent to 

implement. To ensure that the comprehensive steps in paragraph 8 were considered abatement—

so that if Respondent did not give Complainant what he wanted the Agreement could be 

enforced at the Court of Appeals—paragraph 9 made clear that paragraph 8 was considered 

“required abatement”. Only after the abatement date set forth in paragraph 8 had passed, 
28

paragraph 6 then provided Complainant with the right to access Respondent’s workplace to 

verify abatement.19 And finally, during this period of time, pursuant to paragraph 7, Respondent 

promised to use its good faith efforts to comply with the Act. By its ruling, the Court is doing 

nothing more than recognizing the plain terms of the Agreement through the doctrine of 

equitable estoppel. 

As noted above, the Supreme Court has stated that estoppel may be appropriate when the 

“public interest in ensuring that the Government can enforce the law free from estoppel [is] 

outweighed by the countervailing interest of citizens in some minimum standard of decency, 

honor, and reliability in their dealings with the Government.” 467 U.S. at 60. Complainant 

maintains that “it was purely coincidence due to resources and scheduling that the team came out 

shortly after they signed the agreement.” (Tr. 223). The Court has found otherwise. 

Among the coincidences claimed by Complainant: (1) an inspection scheduled two 

weeks after the Agreement was signed, even though AD Rivera was aware of the settlement; (2) 

a threefold increase in the number of inspectors as compared to previous inspections; and (3) 

every citation item related to the inspection of the Vancouver and Wichita was issued pursuant to 

an electrical standard, even though the NEP has a 21-point “Inspection Focus” list, which does 

not include electrical hazards amongst the “identified hazards and workplace activities” in the 

NEP. These “coincidences”, when coupled with Complainant’s patently unreasonable 

interpretation of the Agreement’s abatement provisions and his repeated characterization of the 

abatement period as a “free ride”, illustrate that Complainant recklessly, if not intentionally, 

misrepresented its intent to abide by the terms of the Agreement. In so doing, Complainant has 

 

19. As previously stated, Complainant’s counsel stated that the inclusion of this paragraph was “bad lawyering”. 

Under the FOM, the Solicitor is charged with drafting the Agreement. Regardless of whether the inclusion of this 

provision does, in fact, constitute bad lawyering, that does not justify ignoring the clear mandates of the Agreement. 

See, FOM, Ch. 8, p.3. (The Area Director will communicate the proposed terms of the settlement to the RSOL, who 

will then draft and execute the Agreement). 
29

fallen short of any standard of decency, honor, or reliability in its dealings with Respondent, no 

matter how minimal. 

In light of the foregoing, Complainant shall be estopped from pursuing the abovecaptioned cases. Accordingly, each of the Citations found in Docket Nos. 14-0031 and 14-0032 

are hereby VACATED.

SO ORDERED. 

 /s/ Patrick B. Augustine 

Date: June 23, 2015 Patrick B. Augustine

Denver, Colorado Judge, OSHRC