UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

 

 DOCKET NO. 19-0007 

 

 

Appearances:

Tara Stearns, Esq., Veronica Melendez, Esq., U.S. Department of Labor, Office of the Solicitor, San Francisco, CA

 For Complainant

Eugene McMenamin, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Costa Mesa, CA 

 For Respondent

Before: Administrative Law Judge Brian A. Duncan

DECISION AND ORDER

Procedural History

On October 31, 2018, OSHA Compliance Safety and Health Officer (“CSHO”) Todd 

Brady was conducting trench and excavation worksite inspections, pursuant to OSHA’s national 

emphasis program, on Camp Pendleton in California. (Tr. 19, 40, 43). He was accompanied by a 

new CSHO, Adrian Miranda. (Tr. 40). Upon arriving, they drove by a work crew at an 

excavation site next to one of the main roads leading in/out of Camp Pendleton. (Tr. 41, 84-86). 

They proceeded to check-in at the Naval Facilities Engineering Command Office to notify the 

Base Safety Officer of their presence, then returned to the excavation site to conduct an 

inspection. (Tr. 42). Based on information and observations gathered during the inspection, 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

REYES CONSTRUCTION, INC.

 

 Respondent.
2

CSHO Brady concluded that Respondent committed four violations of various trenching and 

excavation regulations. 

As a result, Complainant issued a Citation and Notification of Penalty, alleging four 

serious violations of the Occupational Safety and Health Act with a total proposed penalty of 

$16,296.00. Respondent filed a timely notice of contest. This brought the matter before the 

Occupational Safety and Health Review Commission pursuant to Section 10(c) of the Act. A 

trial was conducted on October 24, 2019 in San Diego, California. Four witnesses testified at 

trial: (1) CSHO Todd Brady, Las Vegas Area OSHA Office; (2) Michael Gomez, Construction 

Craft Laborer employed by Respondent; (3) Omar Alvarado, Leadman/Acting Foreman 

employed by Respondent; and (4) Joe Reyes, General Superintendent employed by Respondent. 

(Tr. 31, 162, 188, 247). Both parties submitted post-trial briefs for the Court’s consideration. 

Jurisdiction & Stipulations

The parties stipulated the Commission has jurisdiction over this proceeding pursuant to 

Section 10(c) of the Act and that, at all times relevant to this proceeding, Respondent was an 

employer engaged in a business and industry affecting interstate commerce within the meaning 

of Sections 3(3) and 3(5) of the Act, 29 U.S.C. § 652(5). (Tr. 17-18). See Slingluff v. OSHRC, 

425 F.3d 861 (10th Cir. 2005). The parties also stipulated to other factual matters, which were 

read into the record. (Tr. 17-18). 

Factual Background

Respondent was hired by CDM Constructors to locate and excavate around a leaking 

underground water pipe on Camp Pendleton on October 30, 2018. (Tr. 17, 52, 125). As CSHO 

Brady approached the excavation site on October 31, 2018, he saw an employee climbing out of 

the excavation using a ladder that was inside a silver trench shield (a/k/a trench box). (Tr. 44; 
3

Ex. C-1, pp. 5, 13, 18). Omar Alvarado was serving as the crew’s acting foreman and designated 

competent person at the time because Respondent’s superintendent, Joe Reyes, was not at the 

site. (Tr. 47-48, 191, 206, 266). Respondent had three employees on site during OSHA’s 

inspection: acting foreman Omar Alvarado, and laborers Michael Gomez and Albert Evans. (Tr. 

52, 55, 164, 187). There were two trench boxes in the excavation, one green and one silver. (Tr. 

48-50; Ex. C-1, pp. 1, 17). The excavation was 8 feet deep, 26 feet long, and the side walls of 

the excavation were vertical. (Tr. 49, 55, 62, 217; Ex. C-1, pp. 9, 10, 12). It was undisputed that 

the soil in the excavation was Type B or C soil.1 (Tr. 59, 272). During the inspection, CSHO 

Brady observed 12-inch, 17-inch, and 29-inch gaps between the vertical walls of the excavation 

and the green trench box; an open end of the green trench box adjacent to a vertical soil wall; and 

a 4 1⁄2 foot section of missing shield wall in the bottom of the silver trench box. (Tr. 49-50, 60-64, 

84; Ex. C-1, pp. 7, 13). 

During on-site discussions, Alvarado and Gomez acknowledged to CSHO Brady that 

they had been in both trench boxes before OSHA arrived. (Tr. 52-54). Superintendent Reyes 

also acknowledged that once the leaking pipe was located, the work plan was for Alvarado and 

Gomez to enter the excavated trench to dig around the pipe. (Tr. 274-275, 282; Ex. C-7, p. 1). 

As a result of his investigation, CSHO Brady recommended, and Complainant approved, 

the issuance of the following proposed violations of the Act. 

 

Discussion

1 See 29 C.F.R. §1926, Subpart P, Appendix A. CSHO Brady concluded the excavation consisted of Type B soil; 

while Superintendent Reyes classified it as Type C soil. (Tr. 59, 272). The record also established that the 

excavation was near a heavily used, multi-lane road, and contained previously disturbed soil as evidenced by the 

existing water pipe. (Tr. 84-86, 270-272). Either soil type would require the implementation of one of the 

acceptable employee protection methods identified at 29 C.F.R. §1926.652. In this case, Respondent chose to use 

trench shields, as discussed in §1926.652(g).
4

Citation 1, Item 1a 

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

29 C.F.R. §1926.651(k)(2): Where the competent person found evidence of a 

situation that could result in possible cave-in, indications of failure of protective 

systems, hazardous atmospheres, or other hazardous conditions, exposed 

employees were not removed from the hazardous area until the necessary 

precautions have been taken to ensure their safety: 

Vicinity of Vandergrif Blvd. and El Camion Real, Camp Pendleton, California: 

An employee locating and preparing a water line for repair in a trench 

approximately 8 feet deep was without an adequate protective system on the north 

end of the trench. 

Citation and Notification of Penalty at 6.

The cited regulation provides: 

Where the competent person finds evidence of a situation that could result in a 

possible cave-in, indications of failure of protective systems, hazardous 

atmospheres, or other hazardous conditions, exposed employees shall be removed 

from the hazardous area until the necessary precautions have been taken to 

ensure their safety. 29 C.F.R. §1926.651(k)(2). 

Citation 1, Item 1b 

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

29 C.F.R. §1926.652(a)(1): Each employee in an excavation was not protected 

from cave-ins by an adequate protective system designed in accordance with 

paragraph (b) or (c) of this section:

Vicinity of Vandergrif Blvd. and El Camion Real, Camp Pendleton, California: 

An employee locating and preparing a water line for repair in a trench 

approximately 8 feet deep was without an adequate protective system on the north 

end of the trench. 

Citation and Notification of Penalty at 7.

The cited regulation provides: 

Protection of employees in excavations. (1) Each employee in an excavation shall 

be protected from cave-ins by an adequate protective system designed in 

accordance with paragraph (b) or (c) [shield systems] of this section except 

when: [exceptions not applicable in this case]. 29 C.F.R. §1926.652(a)(1). 
5

Citation 1, Item 1c 

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

29 C.F.R. §1926.652(g)(1)(ii): Shields were not installed in a manner to restrict 

lateral or other hazardous movement of the shield in the event of the application 

of sudden lateral loads: 

Vicinity of Vandergrif Blvd. and El Camion Real, Camp Pendleton, California: 

An employee locating and preparing a water line for repair in a trench 

approximately 8 feet deep was without an adequate protective system on the north 

end of the trench. 

Citation and Notification of Penalty at 8.

The cited regulation provides: 

Shield systems – (1) General...(ii) Shields shall be installed in a manner to 

restrict lateral or other hazardous movement of the shield in the event of the 

application of sudden lateral loads. 29 C.F.R. §1926.652(g)(1)(ii).

 All three of the above violations relate to the green trench box in the excavation and were 

grouped by Complainant for penalty purposes. (Tr. 83; Ex. C-1). Accordingly, the Court will 

also analyze them as a group. 

The Standards Applied and Were Violated

The parties stipulated that 29 C.F.R. §1926.651 and 652 applied to the worksite at issue. 

(Tr. 18). The Court will begin with the alleged violation discussed in Item 1(b). The end of the 

green trench box was open and adjacent to a vertical soil wall. (Tr. 84; Ex. C-1, p. 1). To 

protect an employee inside the green trench box, CSHO Brady explained that the soil wall at the 

open end needed to be sloped back to a compliant angle for the soil type, or a trench box end cap 

needed to be installed. (Tr. 84). Neither action was taken. Therefore, the cited regulation was 

violated. With regard to Item 1(c), large gaps (12”, 17”, and 29”) between three of the green 

trench box walls and the vertical soil walls allowed for lateral movement of the trench box in the 

event of a soil wall collapse. (Tr. 92). Failure to protect the trench box from the possibility of 
6

such lateral movement violated the cited regulation. With regard to Item 1(a), the acting foreman 

and competent person, Alvarado, failed to take corrective action when the green trench box was 

openly and obviously missing protection from the vertical soil wall on one end (lack of sloping

of soil/lack of trench box end cap) and had large gaps between the box and the soil wall on three 

sides. (Tr. 91; Ex. C-1, p. 1). Alvarado’s failure to correct these conditions, and his failure to 

prohibit employees from entering the green trench box, constituted a violation of the cited 

regulation. 

Respondent’s Employees Were Exposed to the Hazard 

To establish exposure under Commission precedent, the Secretary must show 

Respondent’s employees were actually exposed to the violative condition or that it was 

“reasonably predictable by operational necessity or otherwise (including inadvertence), that 

employees have been, are, or will be in the zone of danger.” Fabricated Metal Prods., 18 BNA 

OSHC 1072, 1074 (No. 93-1853, 1997). See also Oberdorfer Industries, Inc., 20 BNA OSHC 

1321 (“The zone of danger is determined by the hazards presented by the violative condition that 

presents the danger to employees which the standard is designed to prevent.”). 

Unlike the silver trench box (discussed below for Citation 1, Item 2), CSHO Brady did 

not witness any of Respondent’s employees in the green trench box. (Tr. 128). At trial, 

Respondent’s employees and supervisors presented inconsistent testimony about their entry into 

the green trench box before OSHA’s arrival. Gomez and Alvarado initially testified at trial that 

none of Respondent’s employees ever entered the green trench box on 10/30 or 10/31. (Tr. 180, 

223). When asked how the crew wrapped a chain around (and under) a green pipe located in the 

excavation (at the corner of the green trench box), without someone getting in the excavation, 

Gomez and Alvarado claimed they laid at top of excavation and looped the chain around and 
7

under the pipe. (Tr. 183-185, 236; Ex. C-1, p. 6). However, CSHO Brady testified that Gomez 

admitted to him during the inspection that he entered both the green and silver trench boxes – the 

silver box on the day of the inspection (10/31), and the green box the day before (10/30). (Tr. 52-

53, 89, 94). Alvarado also admitted to CSHO Brady during the inspection that Respondent’s 

employees had been in both trench boxes. (Tr. 54, 55). At trial, Alvarado was impeached by his 

pre-trial deposition testimony, wherein he admitted that both he and Gomez climbed into the 

green trench box on ladders to unhook chains from each corner. (Tr. 227, 245). Alvarado 

attempted to explain the contradictions between in his trial testimony and his deposition 

testimony about he and Gomez entering the green trench box on ladders by saying: “I got 

confused.” (Tr. 247). Superintendent Reyes later confirmed, despite Alvarado’s inconsistency, 

that it would have been necessary for Respondent’s employees to stand on a ladder inside the 

green trench box to disconnect the chain/hook from each corner. (Tr. 253, 264-265). 

Alvarado also testified that no hand-digging around the pipe was done by any employee 

at this worksite. (Tr. 195). When asked how the pipe in the bottom of the excavation was so 

clean and fully exposed on the top and sides, he claimed it was all done by backhoe scoop. (Tr. 

229; Ex. C-1, pp. 2, 12, 17). Alvarado testified that on other jobs, plastic pipe (as was the type in 

this case) is often hand-dug by shovel to completely expose it, but claimed that did not happen 

here, nor did the backhoe scrape off the top of the pipe. (Tr. 228-230; Ex. C-1, pp. 2, 12, 17). 

The Court notes that the green pipe was very clean, dirt-free and fully exposed on three sides.2

 

(Ex. Ex. C-1, pp. 2, 12, 17. The cleanliness and full exposure of the pipe by backhoe scoop only 

is also suspect considering the testimony that the backhoe operator could not clearly see into the 

bottom of the excavation. (Tr. 181, 230). 

2 Superintendent Reyes also discussed past practices of vacuuming off the top of pipe at other worksites, referred to 

as “potholing”, but never testified that such action was taken at this location. (Tr. 255-256). 
8

Superintendent Reyes’ testimony was also inconsistent. He testified at one point that he 

told employees not to enter the green trench box. (Tr. 253-254). He later acknowledged that 

Alvarado and Gomez were authorized to enter the green trench box, that they needed to enter by 

ladder to disconnect chains on each corner, and also to dig out the pipe by hand once it was 

located. (Tr. 265, 274-275, 282; Ex. C-7, p. 1). Based on inconsistencies in Gomez’s, 

Alvarado’s, and Reyes’ testimony, the Court credits CSHO Brady’s testimony over theirs in 

those instances where they are contradictory. 

Even if Respondent’s employees only entered the green trench box on a ladder, the Court 

agrees with CSHO Brady’s conclusion that standing on a ladder inside a deficient trench box still 

exposed employees to hazardous conditions. (Tr. 99, 146). In case of a soil wall collapse at the 

open end of the box, or a shift of the box due to the gaps between the trench box walls and the 

excavation walls, the employee could easily be knocked off the ladder into the collapsing soil. 

(Tr. 99-100). The Commission has long-recognized that employee exposure to a hazardous 

condition may be established by showing “that it is reasonably predictable either by operational 

necessity or otherwise (including inadvertence), that employees have been, are, or will be in the 

zone of danger.” Nuprecon LP, 23 BNA OSHC 1817, 1819 (No. 08-1307, 2012). See also

Secretary v. Honey Creek Contracting Co., 1998 WL 138687 (OSHRC ALJ, March 9, 1998) 

(employees using ladder in trench box exposed to unsafe excavation). Complainant established 

employee exposure to the violative conditions in Citation 1, Items 1(a), 1(b), and 1(c). 

Respondent Had Knowledge of the Violation 
9

To prove this element, Complainant must show Respondent knew or, with the exercise of 

reasonable diligence, could have known of the violation. Dun-Par Engineered Form Co., 12 

BNA OSHC 1962, 1965 (No. 82-928, 1986). The key is whether Respondent was aware of the 

conditions constituting a violation, not whether it understood that the conditions violated the Act. 

Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079–80 (No. 90-2148, 1995). Complainant can 

prove knowledge of a corporate employer through the knowledge, actual or constructive, of its 

supervisory employees. Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993). If 

a supervisor is, or should be, aware of the noncomplying conduct of a subordinate, it is 

reasonable to charge the employer with that knowledge. See Mountain States Tel. & Tel. Co. v. 

OSHRC, 623 F.2d 155, 158 (10th Cir. 1980). 

Respondent’s knowledge of the violative conditions is not in serious dispute. Alvarado, 

Respondent’s acting foreman and competent person, was at the excavation with Gomez at all 

relevant times. In fact, the record establishes that Alvarado and Gomez both entered the green 

trench box on a ladder. (Tr. 227, 245). Because Alvarado was acting as the supervisor at the 

time, his knowledge is properly imputed to Respondent. Accordingly, Complainant established 

actual employer knowledge of the violative conditions. 

The Violation Was Serious

A violation is “serious” if there was a substantial probability that death or serious 

physical harm could have resulted from the violative condition. 29 U.S.C. § 666(k). 

Complainant need not show that there was a substantial probability that an accident would 

actually occur; he need only show that if an accident occurred, serious physical harm could 

result. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984). If the possible 

injury addressed by a regulation is death or serious physical harm, a violation of the regulation is 
10

serious. Mosser Construction, 23 BNA OSHC 1044 (No. 08-0631, 2010); Dec-Tam Corp., 15 

BNA OSHC 2072 (No. 88-0523, 1993). 

If soil collapsed at the open, unprotected end of the trench box (Item 1, 1b), an employee 

on a ladder inside the box could have been seriously injured. Likewise, if the box shifted 

laterally as a result of a soil collapse, an employee on ladder inside the box could have been 

seriously injured. (Tr. 93). Alvarado’s failure to correct these obvious non-compliant 

conditions, and failure to prohibit employee entrance into the excavation, as the competent 

person, could have resulted in serious employee injuries. Complainant described various types 

of possible injuries that could result: broken bones, engulfment, suffocation, and even death. 

(Tr. 88). Accordingly, the violations were properly characterized as serious. 

Based on the discussion above, the Court finds Complainant established violations of 29 

C.F.R. §§ 1926.651(k)(2); 652(a)(1); and 652(g)(1)(ii) as described in Citation 1, Items 1(a), 

1(b), and 1(c). 

Citation 1, Item 2

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

29 C.F.R. §1926.652(g)(2): Excavations of earth material to a level no greater 

than 2 feet (.61m) below the bottom of a shield was permitted:

Vicinity of Vandergrif Blvd. and El Camion Real, Camp Pendleton, California: 

An employee was exposed to cave-in hazards while locating and preparing a 

water line for repair in a trench approximately 8 feet deep where the trench box 

bottom was 4.5 feet above the bottom of the trench. 

Citation and Notification of Penalty at 9.

The cited regulation provides: 

Additional requirement for shield systems used in trench excavations. 

Excavations of earth material to a level not greater than 2 feet (.61 m) below the 

bottom of a shield shall be permitted but only if the shield is designed to resist the 

forces calculated for the full depth of the trench, and there are no indications 
11

while the trench is open of a possible loss of soil from behind or below the bottom 

of the shield. 29 C.F.R. §1926.652(g)(2). 

The Standard Applied and Was Violated

Citation 1, Item 2 relates only to the silver trench box at this worksite. (Tr. 83). The 

parties stipulated that 29 C.F.R. §1926.651 and 652 applied to the worksite at issue. (Tr. 18). 

The cited regulation allows up to 2 feet of excavation under the bottom edge of a trench box 

under certain conditions. In this case, however, 4 1⁄2 feet of the paneling on the bottom of the 

silver box was missing, resulting in more than half of the bottom portion of trench box wall 

being unprotected. (Tr. 62-63; Ex. C-1, p. 13). Respondent, through Reyes and Alvarado,

acknowledged that they ordered the silver trench box with the lower sections of panels missing 

on one side, so that it could sit over some of the pipe in the ground. (Tr. 199, 262, 281; Ex. C-1, 

p. 13). Respondent’s failure to protect the bottom 4 and 1⁄2 feet of the silver trench box from the 

vertical soil wall violated the cited regulation. 

Respondent’s Employee Was Exposed to the Violative Condition 

Gomez was observed climbing out of the silver trench box by a ladder as OSHA arrived 

to conduct its inspection. (Tr. 44, 95, 116, 121). Gomez acknowledged at trial that he was 

climbing out of the silver trench box from a ladder when OSHA arrived on Oct. 31. (Tr. 164). 

Gomez testified that he had been disconnecting a hook from the trench box. (Tr. 165, 170-171, 

174). He denies ever stepping off the ladder into the bottom of the box. (Tr. 170). However, 

when CSHO Brady looked in the bottom of the silver trench box, he observed boot-shaped 

imprints in the soil.3 (Tr. 68-69, 76; Ex. C-1, p. 3). 

3 Complainant attempted to introduce a photograph enhanced by something called a “Neofilter” at trial, which 

purportedly better depicted the soil impressions. However, no foundation was laid to explain how Neofilter worked, 

and Respondent’s objections to the enhanced photograph were sustained. (Tr. 72-77). CSHO Brady’s testimony that 

he personally observed the footprint impressions was received into evidence. (Tr. 76-77).
12

And once again, even if employees entered the silver box only on a ladder, the Court 

agrees with CSHO Brady’s conclusion that standing on a ladder inside a deficient trench box still 

exposed employees to a hazardous condition. (Tr. 99, 146). If a soil collapse occurred at the 4 1⁄2 

feet of unprotected bottom wall of the box, the employee could easily be knocked off the ladder 

and into the collapsing soil. (Tr. 99-100). 

Gomez’s testimony that he was wearing a harness and lanyard attached to a steel plate on 

the ground approximately twenty-five feet away from the excavation does not eliminate the 

violation. Wearing fall protection equipment, such as a harness and lanyard, is not one of the 

proscribed and acceptable means of protection from excavation hazards. (Tr. 175-177). 

Respondent had Actual Knowledge of the Violative Condition

Reyes specifically ordered the silver trench box with the bottom 4 1⁄2 feet of paneling 

removed. (Tr. 262). In addition, Alvarado, Respondent’s acting foreman, specifically instructed 

Gomez to enter the silver trench box on the ladder to unhook a chain and pin. (Tr. 203). As 

supervisor, his knowledge is properly imputed to Respondent. See Mountain States Tel. & Tel. 

Co., 623 F.2d at 158. 

The Violation was Properly Characterized as Serious

The missing 4 1⁄2 foot lower section of the silver trench box subjected Respondent’s 

employees to the possibility of serious injuries if the soil collapsed into the bottom half of the 

excavation, including broken bones, engulfment, suffocation, and death. (Tr. 88, 98). CSHO 

Brady opined that the likelihood of soil falling off vertical walls and coming into the bottom of 

the box was increased due to the vibrations from vehicle traffic on the adjacent busy road. (Tr. 

95; Ex. C-1, p. 16). Alvarado agreed that soil cave-in was a possibility due to the excavation’s 
13

proximity to the road. (Tr. 219). Accordingly, the violation was properly characterized as 

serious. 

Based on the discussion above, the Court finds Complainant established a violation of 29 

C.F.R. § 1926.652(g)(2) as described in Citation 1, Item 2. 

Penalties

In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act 

requires the Commission give due consideration to four criteria: (1) the size of the employer’s 

business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the 

employer’s prior history of violations. Gravity is the primary consideration and is determined by 

the number of employees exposed, the duration of the exposure, the precautions taken against 

injury, and the likelihood of an actual injury. J.A. Jones Construction Co., 15 BNA OSHC 2201 

(No. 87-2059, 1993). It is well established that the Commission and its judges conduct de novo

penalty determinations and have full discretion to assess penalties based on the facts of each case 

and the applicable statutory criteria. Valdak Corp., 17 BNA OSHC 1135 (No. 93-0239, 1995); 

Allied Structural Steel, 2 BNA OSHC 1457 (No. 1681, 1975). 

Citation 1, Items 1a, 1b, and 1c were grouped by Complainant for penalty purposes. An 

$8,148.00 penalty was proposed for the three violations. As to Citation 1, Item 2, Complainant 

proposed a second penalty of $8,148.00. The record does not contain specific evidence of the 

lengths of time Alvarado and Gomez were in the green trench on the ladders, nor the length of 

time Gomez was in the silver trench on the ladder, but the evidence suggests the duration of 

exposure was fairly short. The Court also recognizes and acknowledges Respondent’s good faith 

attempts at using trench boxes to protect employees, even if the conditions of the boxes were not 

fully compliant.
14

Respondent is a small employer with less than 100 employees. (Tr. 89, 99). Therefore, 

when calculating the proposed penalties, Complainant applied a 30% size-based reduction. (Tr. 

89, 99). Complainant also applied a 10% penalty reduction since Respondent had no OSHA 

violations within the past 5 years. (Tr. 89, 99). 

Based on the totality of the circumstances discussed above, the Court will assess a 

penalty of $4,500.00 for grouped Citation 1, Items 1a, 1b, and 1c; and $4,000.00 for Citation 1, 

Item 2.

Order

 Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED

that:

1. Citation 1, Item 1a, 1b, and 1c are AFFIRMED as serious violations, and a grouped 

penalty 

of 4,500.00 is ASSESSED; and

2. Citation 1, Item 2 is AFFIRMED as a serious violation, and a penalty of $4,000.00 is 

ASSESSED.

 /s/ Brian A. Duncan Date: July 6, 2020 Judge Brian A. Duncan

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