United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

 Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET No. 17-0639

KIMBLE COMPANY, d/b/a/ Kimble 

Sanitary Landfill,

Respondent.

APPEARANCES:

For the Complainant:

Adam Lubow, Esq.

Office of the Solicitor

U.S. Department of Labor

Cleveland, Ohio

For the Respondent:

Tod T. Morrow, Esq.

Morrow & Meyer LLC

Canton, Ohio

BEFORE: William S. Coleman

Administrative Law Judge

DECISION AND ORDER

The Respondent, Kimble Company (Kimble), operates a sanitary landfill in Dover, Ohio. 

On November 10, 2016, a wheeled front-loader operating on the landfill struck and killed a Kimble 

employee who was on foot. Kimble’s timely report of the fatality to the Occupational Safety and 

Health Administration (OSHA), and OSHA’s subsequent investigation and inspection, resulted in 

OSHA issuing to Kimble a one-item serious citation alleging that on the day of the fatality Kimble 
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had violated section 5(a)(1) of the Occupational Safety and Health Act of 1970. 29 U.S.C. §§ 651-

678 (OSH Act). Section 5(a)(1), which is commonly known as the “general duty clause,” requires 

that each employer “furnish to each of his employees employment and a place of employment 

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

physical harm to his employees.” 29 U.S.C. § 654(a)(1).

The citation alleges that on the day of the fatality Kimble violated section 5(a)(1) in the 

following manner:

[E]mployee(s) at the Kimble Company were permitted to walk through 

areas where earth moving equipment, compactors, tippers, dump trucks, 

and semi-tractors with end-dump trailers were operating. These 

conditions exposed employees to the hazardous zones caused by 

maneuvering/dumping operations of such equipment and vehicles. 

Employees were thereby exposed to struck-by/crushed-by hazards from 

nearby equipment operation.

The citation then set forth the means that the Secretary alleged would abate the described hazard, 

as follows: 

Among other methods, one feasible and acceptable abatement method 

to correct this is to 

1. Appoint a dedicated spotter/observer to monitor, direct, and 

coordinate all movement at the face of the landfill

2. Develop and implement procedures to ensure employees are not 

in the danger zone where vehicles are maneuvering/dumping

3. Ensure equipment operators are adequately trained on new 

procedures to safely operate in this environment.

Kimble timely contested the citation and thereby invoked the jurisdiction of the 

Occupational Safety and Health Review Commission (Commission) pursuant to section 10(c) of 

the OSH Act. 29 U.S.C. § 659(c). The Commission docketed the matter on April 13, 2017, and 

the Secretary thereafter filed his formal complaint pursuant to Commission Rule 34(a), 29 C.F.R. 

§ 2200.34(a), wherein the Secretary re-alleged the allegations set forth in the citation. The 
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Commission’s Chief Judge assigned the matter to the undersigned for hearing and decision. The 

hearing was conducted in Cleveland, Ohio, on April 19, 2018. Post-hearing briefing was 

completed on August 2, 2018. 

The dispositive issues for decision are as follows: 

• Did Kimble establish that the Mine Safety and Health Act (Mine Act), 30 U.S.C. 

§§ 801–962, preempts application of the OSH Act to the cited landfill operations 

pursuant to section 4(b) of the OSH Act?

Decision: No. Kimble did not establish that the OSH Act was preempted. 

• Did the operations at Kimble’s landfill on the day of the fatality constitute 

“construction work,” so that certain construction industry standards (codified at 29 

C.F.R. Part 1926) supplanted the application of section 5(a)(1) to the cited hazard?

Decision: No. The landfill operations did not constitute “construction work.”

• Did the Secretary prove by a preponderance of the evidence that Kimble’s means 

of addressing struck-by hazards at the landfill were inadequate or that there were 

additional or more effective feasible means by which Kimble could have eliminated 

or materially reduced the hazard?

Decision: No. The Secretary did not meet his burden of proving this element 

of a section 5(a)(1) violation.

Because the Secretary did not meet his burden of proof, the sole citation item must be

vacated.

FINDINGS OF FACT

Except where the following findings indicate that the evidence was insufficient to establish 

a certain fact, the following facts were established by at least a preponderance of the evidence:

OSH Act Coverage and Mine Act Preemption

1. Kimble maintains a workplace at 3596 State Route 39 NW, in Dover, Ohio, where it

owns and operates both a sanitary landfill and a mine. The landfill at this business address is the 

only landfill that Kimble operates, but Kimble operates multiple mines at other locations. (Ex. C-
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7, p. 1; T. 131). Kimble is engaged in a business that affects interstate commerce. (Answer, ¶¶ II 

& III). 

2. Kimble operates the landfill pursuant to permitting under federal, state and local

environmental and public health laws and regulations. (T. 111-113, 118; Ex. C-7, p. 5). 

3. Kimble has about 250 employees. Kimble designates its employees as working in 

various “divisions” of the company, and Kimble regarded the “mining” and the “landfill” 

operations to constitute different divisions within the company. (Ex. R-4, p. 8; T. 181). About 22 

workers are assigned to Kimble’s landfill operation. (T. 109-110). Kimble employs about 100

other workers in non-landfill operations at the same business address as the landfill. Kimble 

employs about 125 more workers at four other locations. (Ex. C-7, p. 1; T. 109-110). 

4. The mine that Kimble owns and operates at the same business address as the landfill

has been assigned “metal/non-metal mine number 33-00089” by the federal Mine Safety and 

Health Administration (MSHA). (T. 10, 105-106, 131; Stipulation ¶ 2; Ex. R-2). The evidentiary 

record regarding the activities at mine number 33-0089 is very thin. The materials mined at mine 

number 33-00089 include “construction aggregates, clays and shales.” (T. 105-06, 109, 131-32). 

The parties have stipulated that mine number 33-00089 occupies a “portion” of the tract of land 

on which the landfill is co-located, but there is no evidence as to precisely what “portion” of the 

tract that is. (T. 10; Stip. ¶ 2). There is similarly no evidence as to precisely what the footprint of 

the “mine site” is relative to the footprint of the “landfill site.” The whole of the evidence fails to 

establish by a preponderance that there is any overlap in the footprints of the mine and the landfill. 

(T. 10, 105-106, 192; Stipulation ¶ 2).
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5. The workplace fatality on November 10, 2016 that precipitated OSHA’s investigation 

occurred at the landfill and involved employees, equipment and vehicles that were engaged solely 

in landfill operations and not engaged in any mining operations. (T. 10-11, 54, 105-106).

6. Kimble timely reported the workplace fatality to OSHA. Kimble did not report the 

fatality to the MSHA. (T. 10, 54; Stip. at ¶¶ 3, 4, 5; Ex. C-8, p. 6).

7. Kimble maintains records of workplace injuries and illnesses that arise out of its landfill 

operations on OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and on OSHA Form 

300A (Summary of Work-Related Injuries and Illnesses). For injuries or illnesses related to its 

operation of mine number 33-00089, Kimble maintains separate injury and illness records that are

required by MSHA. (Ex. C-10; T. 55-56, 221-22). 

8. Kimble had most recently trained the employee who was killed on November 10, 2016

(the decedent) on its “OSHA Personal Protective Equipment Policy” about six months earlier (T. 

198-200; Exs. R-5 & R-6) and had provided other training to the decedent and other employees 

who worked at the landfill on matters covered by OSHA standards. (See, e.g., T. 176, 178; Exs.

R-8 & R-9 [containing documentation that Kimble provided training on, inter alia, machine 

guarding, hazard communication, housekeeping, confined spaces, electrical hazards]). Kimble 

also trained the decedent and other employees who worked at the landfill on MSHA subjects, but 

in Kimble’s view much of this training was pertinent to OSHA subjects as well. (T. 121, 173, 175-

179, 191-192; Exs. R-8 & R-9).

Landfill Operations as “Construction Work”

9. Before the landfill opened for operations, the area where solid waste would be 

deposited was excavated, then a clay and polyethylene liner system was installed, and then a piping 

system for the drainage of leachate was installed. (T. 110-111). Upon the landfill becoming 
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operational, solid waste began to be deposited in active “cells,” where the waste would be 

compacted along with soil that is added to it. Over time, multiple cells would be established

outward and upward on top of each other “in successive layers.” (T. 76, 111). 

10. As layers of cells are established over time, it is necessary from time to time to install 

methane gas extraction wells and associated piping to move the gases that are generated within the 

closed cells to an on-site processing plant. (T. 111). There is no evidence that any component of 

a gas extraction system was in the process of being installed or built on the day of the fatality.

There is likewise no evidence that any of the vehicles or equipment on the landfill that day were 

involved in the installation or building of any gas extraction system.

11. On the day of the fatality, the only operation at the landfill in which moving vehicles 

and equipment were involved was the ongoing landfill operation of waste movement and 

compaction. (T. 60, 171). These operations were not an integral and necessary part of any 

construction work. To the extent that these operations were in the nature of construction activities, 

those activities were ancillary to the operation of the landfill and did not constitute construction 

work. 

Struck-by Hazard at Landfill

12. The fatal accident occurred on the landfill. For the purposes of this decision, different 

areas of the landfill are defined as follows: 

a. Landfill. The “landfill” is the entire footprint of the landfill. 

b. Working face. The “working face” is the part of an active cell in the landfill in 

which waste and cover soil is in the process of being deposited and compacted by 

bulldozers and other heavy equipment called compactors. (T. 113, 115-116, 148).
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c. “Front” of the working face. The front of the working face is the margin of the 

working face that abuts the “tipping area” (defined next). The linear distance of the “front” 

of the working face at any given time varies, but it can be up to 200 feet long. (T. 116, 

169). (The record does not indicate what the length of the working face was on the day of 

the fatality).

d. “Tipping” or “tipper” area. The “tipping” or “tipper” area abuts the “front of 

the working face” (defined immediately above). (T. 119, 169). In the tipping area, large 

self-powered hydraulic platforms called “tippers” are oriented so that one end of each 

tipper abuts the front of the working face. (T. 114). “End-dump” trailers loaded with solid 

waste are moved onto the tippers, and once in place, the tipper’s hydraulic mechanism 

elevates one end of the tipper to create an incline that slopes toward the working face. The 

incline causes the solid waste inside the trailer to slide out the end of the trailer and onto 

the working face by force of gravity. (T. 39-40, 80-81, 114-115). The end-dump trailers 

appear to be the same size as the trailers hauled by semi-trucks that are common on the

nation’s highways. (T. 186-187; see photos in Exs. C-1 & R-13). Because the footprint of 

the working face changes over time, the tippers must be repositioned about every seven 

days. (T. 170). The location of the tipping area thus changes when such repositioning 

occurs. 

e. Approach area. The “approach area” is where dump trucks, tractor-trailers, and 

other vehicles approach the tipping area to deliver waste to the landfill. The approach area

ends where the tipping area begins. (T. 113-115, 134-135).

f. Sides of the working face. The margins of the working face of the landfill that

are not abutted by the tipper area constitute the “sides” of the working face. Vehicles and 
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equipment involved in delivering, moving and compacting waste do not operate in the 

vicinity of the sides of the working face. (T. 149-150, 163).

g. Fence line. Environmental and health regulations require that Kimble maintain

a fence whose purpose is to prevent litter from blowing off the grounds of the landfill. (T. 

32-33, 118). Kimble uses plastic fencing material for its fence line, because that kind of 

fencing material is more easily repositioned as weather conditions and the configuration of 

the working face require. The location of the fence at any given time, and the fence’s

relative distance from the front of the working face, varies depending on wind conditions 

and other factors, but the fence can be set up as near as twenty feet from where bulldozers 

and other heavy equipment are operating on the landfill. (T. 118-120). 

13. The locations of the “working face,” the “tipping area,” the “approach area,” the 

“front” and “sides” of the working face, and the “fence line” are impermanent. They change over 

time as successive layers of cells are completed in the course of ongoing regular operations of the 

landfill. (T. 117-119, 149). 

14. Kimble recognized that the movement of the vehicles and equipment on the landfill 

exposes employees who would be on foot in such areas to struck-by hazards that could cause 

serious injury or death. (T. 147-149).

15. Kimble prohibited workers from being on foot in the working face of the landfill. (T. 

155, 120, 123, 113).

16. Kimble permitted landfill employees to be on foot in the tipping area and in the 

approach area of the landfill at times when vehicles and equipment were operating in those areas, 

but only when an employee’s presence in those areas was necessary for the employee to perform 

necessary duties. (T. 147-149).
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17. Kimble has a safety program to protect workers on foot from struck-by hazards, 

which includes the following specific measures:

a. Kimble’s vehicles and equipment are equipped with backup alarms. (T. 166).

b. Kimble posts signs and notices that warn of the presence of moving vehicles 

and equipment. (T. 98).

c. Kimble requires all landfill employees to wear high-visibility vests in addition 

to other personal protective equipment. (T. 77-79, 98, 179-182). 

d. Kimble’s work rules and practices require that when a worker must be on foot

in an area where vehicles and equipment are operating in order to perform essential duties, 

the worker must maintain awareness and exercise caution with a view toward staying clear 

of the operating vehicles and equipment by (1) proceeding carefully and alertly when on 

foot and to mind what the vehicles and equipment are doing, and (2) making and 

maintaining eye contact with the equipment operators and obtaining the operator’s 

acknowledgment before approaching equipment. (T. 34, 77-79, 96-98, 123, 126, 146-47, 

181-182).

18. Kimble succeeded in indoctrinating its employees on its safety rules and practices 

through initial training for new employees, and through continuing training and emphasis 

thereafter. (T. 182-83). New employees at the landfill receive a 4-hour training orientation that 

includes OSHA subjects such as lockout/tagout, confined space, hazard communication, 

hazardous waste operations, personal protective equipment, and awareness of surroundings. (T. 

176). New employees at the landfill also complete two 24-hour MSHA training programs—one 

of the programs pertains to “metal/non-metal” mines and the other program pertains to coal mines. 

(T. 177-179). This MSHA training includes much training that is pertinent to OSHA standards. 
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(T. 121). After this initial new-employee training, landfill employees attend weekly and monthly 

safety talks on topics relevant to the working conditions in the landfill. (T. 179-181; Exs. R-2, R6, R-8, R-9). Kimble communicates its rules and safe practices for working around moving 

equipment in its initial and annual training sessions, and the subject is covered in some of the 

monthly and weekly safety meetings as well. (T. 146-148, 181-182). Supervisors at the landfill 

emphasize certain “cardinal” safety rules and practices with frequent reminders. For example, 

nearly every day the foreman for the landfill operations reminded landfill workers to “stay away 

from the working face,” in order to “make sure that they have awareness of what’s going on and 

talk to the operators.” (T. 126, 155-56).

19. Kimble’s landfill workers were familiar with these rules and practices, and they knew 

what they had to do (and what they had to refrain from doing) to comply with these rules and 

practices. Kimble successfully imbued in its workforce an ethic of safety and compliance with its

work rules and practices. (T. 181-83). Both the decedent and the operator of the loader received 

and understood the training and guidance Kimble provided on keeping safe from struck-by 

hazards. (T. 197-205; Exs. R-2, R-5, R-6, R-7, R-8, R-9). 

20. Kimble exercised reasonable diligence in discovering incidents of noncompliance 

with its safety rules and practices. (T. 128-29, 144, 150, 183-84). 

21. Kimble is reasonably diligent in enforcing its safety rules and practices by utilizing 

progressive discipline that includes verbal warnings and on-the-spot corrections, notifying next 

level supervisors in the event of repeated violations, issuance of written reprimands, and imposing 

probation and suspensions. (T. 150-51, 154, 184-85, 198, Ex. R-4). 
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22. The decedent had worked at the Kimble landfill for 17 years, and in that time Kimble 

had not imposed any written discipline on him. (T. 185). Kimble reasonably regarded the decedent 

to have been an exemplary and safety-minded employee. (T. 185, 189-90). 

23. The decedent’s principal job at the landfill was to collect litter that had accumulated 

along the fence line and to put that litter in plastic bags for eventual deposit in the working face. 

The decedent had other duties in addition to this principal duty (T. 157, 165), but he was not 

performing any of those other duties on the afternoon that he was killed. (T. 33, 160).

24. There are different ways by which the bags of litter that a worker such as the decedent 

and others would have gathered along the fence line may be transported and deposited in the 

working face. 

a. The worker who had collected and bagged the litter could pile the bags near the 

fence line and then summon the front-loader to come to that pile. Upon arriving at the pile, 

the operator of the front-loader would set the brake and the worker who was on foot would 

put the bagged trash in the loader’s bucket, all the while maintaining communication with 

the operator of the loader. After all the bags had been put in the bucket, the loader would 

transport the bagged trash to the working face. This authorized procedure entails the frontloader traveling to the location of the piled bags near the fence line for the purpose of 

collecting the bagged trash; the procedure does not entail a worker traversing the landfill 

to wherever the loader might happen to be at any given time in order to put bagged trash 

in the loader’s bucket. (T. 153-54).

b. At the end a shift, a worker who had collected and bagged the litter could take 

the bags to a location on the side of the working face and toss the bags into the working 

face from that location. Depositing the bags onto the working face from a location along
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the side of the working face does not expose a worker to struck-by hazards from moving 

equipment, because the equipment does not operate in the vicinity of the side of the 

working face. (T. 120-121, 147, 149-150, 163, 167). The worker could transport the bags 

to the side of the working face at the end of the worker’s shift either by loading the bags of 

waste onto a small truck and then driving the truck to a location on the side of the working 

face, or simply by carrying the bagged litter by hand and walking it to the side of the 

working face to deposit the bagged litter in the working face. (T. 158-159). 

c. The worker who had collected the bagged litter could place the bags about 20 

to 30 feet away from the fence line to where other equipment could access them and sweep 

them onto the working face. (T. 119-120).

25. On the day of the fatality, the fence line was set up about 150 yards from the front of 

the working face. (T. 158-160). The decedent’s supervisor last observed the decedent collecting 

litter in the vicinity of the fence line about an hour before he was killed. The supervisor left the 

landfill to go to a dental appointment soon after that observation, and he was not on the grounds

when the decedent was killed. (T. 161).

26. A Kimble employee was operating a front-end loader (also “front loader” and 

“loader”) in the tipping area and the approach area near the tippers shortly before 4:00 p.m. on 

November 10, 2016, when he backed it up in the approach area and struck and killed the decedent. 

(T. 186). The loader struck the decedent at a point that was less than 100 feet from the tippers, 

although the record contains no measurement of the precise distance.1 (Exs. R-13; Ex. C-6, p. 6; 

Ex. C-7, pp. 2-3 & 6; T. 211-214).

 

1 The whole of the photographic and testimonial evidence permits the reasonable inference 

that the strike happened less than 100 feet from the tippers. There is reliable evidence that the 

decedent’s body was about the same distance from the tippers as was the cab of a tractor-trailer 
13

27. The loader that struck the decedent is accurately depicted in the photograph in Exhibit 

C-1 at the page numbered “24 of 28.” Typically, only one loader operates at the landfill at any 

given time, and it operates principally near the tippers. The loader’s primary function is to move 

previously dumped waste to a position where a bulldozer and the compactors can more easily 

spread it uniformly over the working face and compact it into place. (T. 116). 

28. The loader was equipped with a fully functioning audible back-up alarm, and its rearview mirrors were in place. (T. 166; C-7, pp. 4-5). Just before the loader struck the decedent, its 

operator checked the loader’s rear mirrors as was his practice. (Ex. C-7, p. 3). The operator never 

saw the decedent. He did not become aware that the loader had struck the decedent until moments 

after the fact, after another worker discovered the body and frantically alerted him. (Ex. C-3, p. 5). 

29. No one witnessed the loader strike the decedent. It is unknown why the decedent had 

decided to be where he was when he was struck, or what he was doing or was intending to do in 

that location. (Ex. C-7, p. 2). It was uncharacteristic for the decedent to be in the area where he 

was struck (T. 162), and it was not necessary for him to be in that location in order to perform

essential assigned duties. (T. 160). 

30. The last person to see the decedent alive was another worker (Glen Butler), who is 

employed by a subsidiary company of Kimble. (T. 140). Butler had driven a semitruck and enddump trailer onto the landfill, and he had backed the trailer up to a tipper in preparation for it to be 

moved onto the tipper. Butler was not in a position to see the loader strike the decedent because 

he was on foot tending to the trailer, and the trailer was situated between him and the spot where 

 

that had been backed up to one of the tippers in preparation for the trailer to be backed onto the 

tipper. (Ex. C-7, pp. 2-3; Ex. R-13; T. 212-214; Ex. C-7, p. 6). 
14

the decedent was struck. After returning to the other side of the trailer, Butler saw the decedent’s 

lifeless body in the approach area and frantically alerted the loader’s operator.

31. Butler told police that a few minutes before he discovered the decedent’s body, he 

had been in the cab of his semi-truck (which was facing away from the tippers) and had noticed 

the decedent about 20 yards further back from his location in the cab (i.e., further away from the 

tippers). Butler told police that he observed the decedent “picking up some stuff off the ground” 

and that “there was a front end loader sitting there” and that the decedent “was putting the stuff in 

the bucket” of the loader. (Ex. C-3, p. 6; Ex. C-6, pp. 2-3). The evidence is insufficient to establish 

precisely what Butler observed the decedent doing at this time.2 However, if the decedent was 

placing bagged trash in the loader’s bucket at this time, that activity would have been contrary to 

the authorized procedures described in ¶ 24, supra.

32. The decedent did not assure that the loader’s operator was aware of his presence. The 

decedent did not make eye contact or otherwise communicate with the operator of the loader 

regarding his intended actions at any time before or during the time that the decedent positioned 

himself in the part of the approach area where he was exposed to being struck by the loader. (Ex. 

C-3). The operator expressed his shock and dismay that the decedent had not done so, telling 

investigating police that “anyone who is on foot and near heavy machines ... is supposed to get 

the driver’s attention and stay clear of the machines.” (Ex. C-3, p. 5). In the minutes before the 

 

2 The Secretary did not present testimony of either Butler or the operator of the loader. The 

evidentiary record of what both Butler and the loader’s operator reported to the police as having 

seen and remembered is set forth in their written statements that are part of the police report 

received in evidence at Exhibit C-3. Those statements and that police report are spare and 

undeveloped, and they beg many questions that apparently were never put to either Butler or the 

operator of the loader.

The operator’s seat for the loader faces toward the loader’s bucket (See photo at Ex. 1, p. 

24 of 28). The record provides no indication why the loader’s operator apparently failed to see 

what Butler saw—the decedent putting “some stuff” in the loader’s bucket.
15

loader struck him, the decedent was in violation of Kimble’s rule and practice that required 

employees on foot to make and maintain eye contact with operators of equipment and vehicles 

posing a struck-by hazard.

33. When the loader struck the decedent, the decedent was not required to be where he 

was in order to perform essential job duties. (T. 160). At the time the loader struck him, the 

decedent was violating Kimble’s work rule and practice not to be on foot around such equipment 

if it was not necessary in order to perform one’s essential duties. (Ex. C-7, p. 4; T. 160, 162).

34. At the time the loader struck him, the decedent was not wearing the high-visibility 

vest that Kimble required that he wear. This was very unusual—the decedent was known for 

always wearing his vest. (T. 162, 189-91). The record does not disclose where the decedent had 

put his vest, but because he was struck near the end of his workday, some surmised that he might 

have removed his vest preliminary to leaving work. (T. 103). At the time the loader struck him, 

the decedent was violating Kimble’s rule and practice that landfill workers wear a high visibility 

vest while on the landfill.

35. Up to the time of the fatality here, there had not been a struck-by incident at Kimble’s 

landfill for the approximately sixty years that Kimble has operated a landfill. (T. 109, 126-127).

DISCUSSION

The Commission obtained jurisdiction of this matter under section 10(c) of the OSH Act

upon Kimble’s timely contest of the citation and proposed penalty. 29 U.S.C. § 659(c). Kimble 

has employees and is engaged in a business affecting interstate commerce, and it thus meets the 

OSH Act’s definition of “employer.” 29 U.S.C. § 652(5). 

OSH Act Preemption by Mine Act 

Section 4(b)(1) of the OSH Act provides in part: “Nothing in this Act shall apply to working 

conditions of employees with respect to which other Federal agencies ... exercise statutory 
16

authority to prescribe or enforce standards or regulations affecting occupational safety or health.” 

29 U.S.C. § 653(b)(1). Kimble contends that the Mine Safety and Health Act (Mine Act), 30 

U.S.C. §§ 801–962, which is administered by the Mine Safety and Health Administration (MSHA)

within the Department of Labor, preempts OSHA’s regulation of the cited struck-by hazard at the 

landfill by operation of section 4(b)(1) of the OSH Act.

The Commission evaluates an employer's argument that OSHA's authority is preempted 

under section 4(b)(1) by considering: (1) whether the other federal agency has the statutory 

authority to regulate the cited working conditions; and (2) if the agency has that authority, whether 

the agency has exercised it over the cited conditions by issuing regulations having the force and 

effect of law. JTM Indus., Inc., 19 BNA OSHC 1697, 1699 (No. 98-0030, 2001). 

A section 4(b)(1) claim of preemption is an affirmative defense, for which the burden of 

proof rests with the employer. Idaho Travertine Corp., 3 BNA OSHC 1535, 1536 (No. 1134, 

1975); Tidewater Pac. Inc., 17 BNA OSHC 1920, 1923 (No. 93-2529, 1997), rev’d in part on 

other grounds, 160 F.3d 1239 (9th Cir. 1998). 

The issue of whether the Secretary erred in determining that certain activity at a worksite 

on which a mine is located is regulated by OSHA and not by MSHA involves a complex question 

of law and fact. Marshall v. Northwest Orient Airlines, Inc., 574 F.2d 119, 122 (2d Cir. 1978)

(observing that “a determination of [section 4(b)(1)] preemption requires an inquiry into complex 

issues of law and fact”). For Kimble to meet its burden of proof on this complex question, it was 

incumbent on Kimble to develop an evidentiary record sufficient to support the conclusion that the 

Secretary’s determination that the Mine Act did not apply was unreasonable. See Sec’y of Labor 

v. Cranesville Aggregate Cos., Inc., 878 F.3d 25 (2d Cir. 2017) (applying Chevron framework to 

Secretary’s determination that the OSH Act and not the Mine Act applied to hazards alleged to be 
17

present at a workplace that was co-located on the same grounds on which there was a mine, and 

upon close scrutiny of a fully developed evidentiary record on that issue, concluding at Chevron

“step two” that the Secretary’s determination was reasonable).

The spare evidentiary record respecting the nature and extent of the operation of Kimble’s 

mine number 33-00089 is addressed in ¶ 4 of the Findings of Fact, supra. Kimble’s argument in 

its post-hearing brief in support of preemption by the Mine Act is as thin as the evidentiary record 

is spare. The entirety of that argument is as follows:

Kimble submits that it complied with all pertinent requirements 

under the Act, including the general duty clause and specific 

construction safety standards. It also complied with all applicable 

MSHA standards. Indeed, Kimble’s safety program was geared 

toward MSHA compliance, because the landfill was located within 

the confines of a mine. Indeed, there is no dispute that Kimble’s 

landfill operations are occasionally subject to inspections by MSHA 

officials. (Tr. 191-192).

Kimble submits that under the facts of this case, OSHA’s 

jurisdiction was preempted. See 29 U.S.C. § 635(b)(1) [sic]. As 

noted above MSHA enforces safety rules pertaining to work around 

heavy earth moving equipment. Kimble should not be subject to the 

whims of OSHA’s general duty clause when it has complied with 

applicable MSHA standards that more closely address the hazards 

in the landfill.

There is no evidentiary support for Kimble’s assertion that “MSHA enforces safety rules 

pertaining to work around heavy earth moving equipment” around the landfill. And the only 

evidence that Kimble cites in support of its argument that the landfill “was located within the 

confines of the mine” and that the landfill was “occasionally subject to inspections by MSHA 

officials” is the following direct examination testimony of Kimble’s safety director (T. 192):

Q: Okay. Does MSHA inspect the landfill area?

A: They occasionally drive through but it's not nearly an inspection 

as you would expect, if they were on a mine site.

Q: Okay. More thorough on the mine site?
18

A: That's correct.

Q: Why does MSHA have jurisdiction of the landfill?

A: The landfill is on an IM 9 permit, so they have jurisdiction over 

that, as well.

This testimony is not corroborated or augmented by any other documentary or testimonial 

evidence. That testimony, standing alone, is insufficient to support a finding or conclusion that 

the Secretary unreasonably determined that the OSH Act (and not the Mine Act) applied to struckby hazards at the landfill. Kimble’s preemption argument is rejected.

Preemption by Construction Industry Standards

Kimble contends that certain OSHA construction industry standards, codified at 29 C.F.R. 

Part 1926, apply to struck-by hazards at the landfill, so that those standards preempt application of 

the general duty clause to the cited hazard. See Con Agra, Inc., 11 BNA OSHC 1126, 1145 (No. 

81-2606, 1983) (noting “that specific, promulgated standards will preempt the general duty clause, 

but only with respect to hazards, conditions or practices expressly covered by the specific 

standards”).

The construction industry standards prescribed in Part 1926 apply to “every employment 

and place of employment of every employee engaged in construction work.” 29 C.F.R. 

§ 1910.12(a). The term “construction work” as used in section 1910.12(a) “means work for 

construction, alteration, and/or repair, including painting and decorating.” 29 C.F.R. § 1910.12(b).

“Part 1926 applies ... to employers who are actually engaged in construction work or who 

are engaged in operations that are an integral and necessary part of construction work.” Snyder 

Well Serv., Inc., 10 BNA OSHC 1371, 1373 (No. 77-1334, 1982). “Activities that could be 

regarded as construction work should not be so regarded when they are performed solely as part 

of a nonconstruction operation.” BJ-Hughes, 10 BNA OSHC 1545, 1547 (No. 76-2615, 1982); 
19

see also Royal Logging Co., 7 BNA OSHC 1744, 1750 (No. 15169, 1979) (concluding that even 

though a logging operation involved some roadbuilding, that roadbuilding was “ancillary to and 

in aid of [the logging company’s] primary nonconstruction function to cut and deliver logs”), aff’d

645 F.2d 822 (9th Cir. 1981). Similarly, the mere use of equipment that is often used in 

construction work does not transform non-construction work to “construction work.” BJ-Hughes,

10 BNA OSHC at 1547 (rejecting Secretary’s argument that Part 1926 applied because the 

equipment involved was typically used in construction). 

Kimble contends that Part 1926 applies to all operations at the landfill, including the 

movement and compaction of waste and soil as was occurring on the day of the fatality, because 

those activities are in furtherance of the construction of a landfill. 

There is no evidence to support the conclusion that anything in the nature of “construction 

work,” such as the installation of methane gas extraction systems (T. 110-112), was occurring at 

the landfill on the day of the fatality. Similarly, there is no evidence that the vehicles and heavy 

equipment that were operating on the landfill at the time of fatality were engaged in any activity 

other than the movement and compaction of waste and soil. 

Kimble argues that the solid waste itself (as well as the soil used to cover the waste in the 

active cell at the end of daily operations) was in the nature of “building material” out of which the 

cells of the landfill are “constructed,” and thus the depositing and compaction of that material in 

the cells involved the construction of those cells. (Resp’t Br. 23-24). This argument is rejected. 

To the extent that the creation of the completed cells of the landfill could be deemed to be 

“construction” of those cells, any such construction is ancillary to Kimble’s primary nonconstruction function of operating a landfill, so that this activity does not itself constitute 

“construction work” to which Part 1926 would apply. Royal Logging Co. at 1750.
20

The Commission’s decision in Woolston, 15 BNA OSHC 1114 (No. 88-1877, 1991), does 

not dictate a contrary conclusion. In Woolston, OSHA cited an employer for violations of Part 

1926 for conditions involving a trench excavation that had been dug in the course of constructing

a methane gas venting system at a landfill. See also EMCON/OWT, Inc., No. 04-1406, 2006 WL 

168534 (O.S.H.R.C.A.L.J. Jan. 17, 2006) (involving citation alleging violations of Part 1926’s 

excavations standard issued to a contractor that was installing a gas collection system at a landfill).3 

In contrast to both Woolston and EMCON/OWT, the heavy equipment operating on the Kimble 

landfill on the day of the fatality was not engaged in the construction of a methane gas venting or 

collection system, or the construction of anything else. Rather, at the time of the fatality, the 

vehicles and equipment that were operating on the landfill were simply engaged in the process of 

depositing and compacting solid waste in an active cell. That activity is simply the operation of a 

landfill, as the president of Kimble indicated frequently in the course of his testimony. (E.g., T. 

109, 122-23, 113, 135). Kimble was not engaged in any “construction work” as defined in section 

1910.12(b).

Kimble’s argument that certain standards in Part 1926 preempt application of the general 

duty clause is rejected. 

Citation 1, Item 1: General Duty Clause

The Fatality Occurred in the Landfill’s Approach Area

As described in ¶ 26 of the Findings of Fact, the fatality occurred in the “approach area” 

of the landfill. That finding of fact is at odds with testimony that the Secretary presented in his 

 

3 Although the Secretary alleged violations of Part 1926 in both Woolston and 

EMCON/OWT, Inc., the employers in those cases appeared not to contest the application of Part 

1926 to the cited activities, and thus the issue of whether Part 1926 applied appears not to have 

been adjudicated in either of those cases. The two cases demonstrate only that in the past the 

Secretary has determined that certain activities that had taken place at a landfill constituted 

construction work.
21

case-in-chief, which was that the decedent was on the “working face” when he was struck and 

killed. (T. 33-37, 57, 96-97). That testimony was flawed, and it misidentified the actual area of 

the landfill in which the fatality occurred.

The Secretary’s sole witness—the industrial hygienist (IH) who conducted the 

investigation that preceded the issuance of the citation—seems to have mistakenly understood the 

landfill’s “working face” to include any area where heavy equipment was operating. (See, e.g., T. 

33-37, 96-97). Defined in such a way, the “working face” would include the “approach area,” as 

that area is defined in ¶ 12 of the Findings of Fact. This was a profound misunderstanding, and it 

appears to have resulted in the IH misinterpreting what the Kimble employees were attempting to 

communicate to her during her investigatory interviews of them. When the IH interviewed Kimble 

employees and they used the term “working face,” they were using that term as it is defined in ¶ 12

of the Findings of Fact, and they were not intending to communicate to the IH that the “approach 

area” is a part of the landfill’s “working face.” (T. 113, 115-116, 148). 

This conclusion regarding the IH’s misunderstanding becomes apparent upon scrutinizing 

her testimony. Kimble employees told the IH that Kimble had a rule prohibiting employees being 

on foot in the “working face,” (e.g., T. 34, 64) and at the hearing Kimble’s witnesses confirmed 

that Kimble does indeed have such a rule. (E.g., T. 155). As the president of Kimble convincingly 

testified, “there's no good reason to walk into the working face where the bulldozers and 

compactors are running back and forth” moving and compacting waste and soil on the surface of 

an active cell. (T. 120, 123, 113). So, while the IH was accurate in testifying that Kimble had a 

rule against walking through the “working face” (T. 34, 58), she was inaccurate in testifying that 

the decedent was violating that rule at the time he was struck and killed. (T. 35). Consistent with 

her misunderstanding, she further erroneously testified that one way the fatality could have been 
22

avoided would have been for Kimble to have enforced (or in other words, to have prevented the 

decedent from violating) its rule prohibiting employees from being on foot in the working face. 

(T. 59). But, contrary to the IH’s deep misunderstanding, the clear and convincing evidence is that 

Kimble did not have a rule prohibiting employees from being on foot in the approach area, where 

the decedent was struck and killed. (T. 153, 158, 186; Ex. R-13). 

Proof of Section 5(a)(1) Violation

To establish a violation of the general duty clause, the Secretary must prove 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 causing or likely to cause death or serious physical harm; 

and (4) a feasible and effective means existed to eliminate or materially reduce the hazard. 

Peacock Eng’g, Inc., 26 BNA OSHC 1588, 1589 (No. 11-2780, 2017). In addition, “the Secretary 

must also show the employer knew or, with the exercise of reasonable diligence could have known 

of the hazardous condition.” PSP Monotech Indus., 22 BNA OSHC 1303, 1305 (No. 06-1201, 

2008). 

Kimble concedes the presence of the first three enumerated elements (Resp’t Br. 15; see 

also Resp’t Reply Br. 4), and ¶ 14 of the Findings of Fact establishes those elements of the 

Secretary’s burden of proof. 

Kimble challenges the sufficiency of the evidence on the fourth enumerated element, and 

thus the dispositive issue is whether the Secretary carried his burden to prove that a feasible and 

effective means existed to eliminate or materially reduce the hazard.4In order to establish this 

 

4 Kimble also (1) disputes that the Secretary proved that it had knowledge of the hazardous 

condition, and (2) asserts the affirmative defense of unpreventable employee misconduct. (Resp’t 

Br. 24-28). As indicated in the final subsection of the Discussion, resolution of the sufficiency of 

the evidence on the fourth enumerated element of a violation of section 5(a)(1) in favor of Kimble 

resolves these two issues in Kimble’s favor as well. 
23

fourth enumerated element of a section 5(a)(1) violation, the Secretary “must specify the proposed 

abatement measures and demonstrate both that the measures are capable of being put into effect 

and that they would be effective in materially reducing the incidence of the hazard.” Beverly

Enters., 19 BNA OSHC 1161, 1190 (No. 91-3144, 2000) (consolidated).

In a case such as this, where an employer has undertaken measures to address a hazard, the

Secretary must establish that the employer’s measures were inadequate. U.S. Postal Serv., 21 

BNA OSHC 1767, 1773-1774 (No. 04-0316, 2006); SeaWorld of Fla., LLC v. Perez, 748 F.3d 

1202, 1215 (D.C. Cir. 2014) (noting that in a matter involving an alleged violation of section 

5(a)(1), “[w]hen an employer has existing safety procedures, the burden is on the Secretary to 

show that those procedures are inadequate”). Commission precedent suggests two similar ways 

that the Secretary may establish that an employer’s existing safety procedures were inadequate—

by demonstrating either (1) “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), or (2) that there were “specific additional measures” 

required to abate the hazard. Pelron Corp., 12 BNA OSHC 1833, 1836 (No. 82-388, 1986)

(emphasis added). In order to prove the former, the Secretary must show that “conscientious 

experts, familiar with the industry would prescribe those means and methods to eliminate or 

materially reduce the recognized hazard.” Arcadian Corp., 20 BNA OSHC 2001, 2011 (No. 93-

0628, 2004), quoting Pepperidge Farm, Inc., 17 BNA OSHC 1993, 2032 (No. 89-0265, 1997). In 

order to prove the latter, the Secretary must show that “knowledgeable persons familiar with the 

industry would regard additional measures as necessary and appropriate in the particular 

circumstances existing at the employer’s worksite.” Inland Steel Co., 12 BNA OSHC 1968, 1970-
24

71 (No. 79-3286, 1986), citing Cerro Metal Products Div., Marmon Grp., Inc., 12 BNA OSHC at 

1822–23; see also Pelron Corp., 12 BNA OSHC at 1835 (noting that the Secretary must “prove 

additional measures that would have materially reduced the risk of harm that conscientious safety 

experts familiar with the industry would take into account in prescribing a safety program”).

Even if the Secretary fails to establish that specified alternative or additional measures 

would be feasible and effective in materially reducing an identified hazard, the Secretary may 

nevertheless establish that an employer’s existing safety program was inadequate to protect its 

employees from exposure to the hazard under section 5(a)(1) by showing that the employer failed 

to have done any of the following: (1) established work rules designed to prevent exposure, (2) 

properly communicated those rules to its employees, (3) taken steps to discover noncompliance 

with the rules, and (4) effectively enforced its rules in the event of noncompliance. Ala. Power 

Co., 13 BNA OSHC at 1244, citing Inland Steel Co., 12 BNA OSHC at 1976.

Alternative or Additional Effective Feasible Means

to Eliminate or Reduce the Struck-by Hazard

In describing “one feasible and acceptable abatement method to correct” the struck-by 

hazard at the landfill, the citation set forth three enumerated measures (quoted verbatim at the 

outset of this decision), which may be summarized as: (1) use a dedicated spotter; (2) prohibit foot 

traffic in areas where vehicles and equipment are in operation; and (3) train equipment operators 

on “new procedures to safely operate in this environment.”

5

 

5 The text of the citation is somewhat ambiguous as to whether the Secretary was proposing 

each of the three enumerated measures as a stand-alone means to abate the hazard, or whether the 

Secretary intended the three enumerated means to be viewed collectively as a single feasible means 

to abate the hazard. The ambiguity was not addressed at the hearing, but the Secretary expressly 

adopted the latter interpretation in his post-hearing Reply Brief. (Sec’y Reply Br. 2).
25

(1) Dedicated Spotter

The Secretary failed to present sufficient evidence to establish that “knowledgeable persons 

familiar with the industry would regard” having a dedicated spotter to control movement on the 

landfill to be “necessary and appropriate in the particular circumstances existing at the employer's 

worksite.” Inland Steel Co., 12 BNA OSHC at 1970-71. 

The Secretary’s sole witness was the industrial hygienist (IH) who conducted the 

inspection and investigation that preceded the issuance of the citation. The IH’s inspection of 

Kimble’s workplace was the first time that she had inspected a landfill, and she had no prior special 

knowledge or experience with landfills or landfill operations. (T. 22). Her credentials and 

experience do not accord her with the status of either a “knowledgeable person familiar with the 

industry” or a “conscientious safety expert familiar with the industry.” Inland Steel Co., 12 BNA 

OSHC at 1970-71; Arcadian Corp., 20 BNA OSHC at 2011.

As part of her investigation, the IH obtained a publication titled “Handbook of Landfill 

Safety” that had been prepared by a trade association named “Solid Waste Association of North 

America” (SWANA), of which Kimble is a member. (T. 49, 53; Ex. C-6, pp. 1-3). The record 

does not indicate whether the IH reviewed the entire handbook, but only a six-page excerpt of the 

handbook that is titled “Traffic and Spotter Safety” was offered and received in evidence. The 

focus of the excerpt pertains to the use of a “spotter” to direct the vehicles that are driven by the 

customers of a landfill who might be unfamiliar with the layout and operations of the landfill they 

are patronizing. (Ex. C-6, pp. 1-3). Nothing in the excerpt suggests that the use of a spotter in that 

type of landfill environment is universally necessary. 

The type of vehicular traffic that the excerpt of the handbook contemplates is significantly 

different from the vehicular traffic present on Kimble’s landfill. All of the equipment and most of 

the vehicles operating at the Kimble landfill are operated by Kimble employees. The few vehicles 
26

that are not operated by Kimble employees are operated by professional drivers who regularly 

deliver waste to the landfill and who are familiar with the layout and the operation of Kimble’s 

landfill. (T. 132-35). Nothing in the excerpt indicates that use of a dedicated spotter in the 

vehicular environment present at the Kimble landfill is universally recommended or even 

necessarily appropriate. And while there is evidence that Kimble had used a spotter at this landfill

decades earlier, that utilization had occurred when the vehicular traffic at the landfill more closely 

resembled the non-professionally driven traffic that is contemplated by the excerpt. (T. 123-126, 

132-135).

The Secretary also introduced into evidence four training modules, apparently endorsed by 

SWANA, which bear the following titles: “The Basics of Spotter Safety,” “The Basics of Landfill 

Safety,” “Equipment Safety—Loader,” and “Spotter Safety—Communicating with Drivers.” (Ex. 

C-6, pp. 4-74; T. 49). Nothing in these training materials suggests that spotters, who typically 

would be on foot in the vicinity of moving vehicles and heavy equipment, ought to be utilized 

universally at all landfills. Of the training materials that pertain directly to safety considerations 

in the use of spotters, those materials focus on the protection of the spotters themselves from 

struck-by hazards. The types of precautions that the training materials recommend for protection 

from struck-by hazards include measures that Kimble hasimplemented at its landfill. For example, 

captions in “The Basics of Spotter Safety” module include the following: “Stay Alert, Stay Alive,” 

“Communication,” “Be Visible,” “Eye Contact,” Hand Signals,” “Body Language,” and “Personal 

Protective Equipment.” (Ex. C-6, pp. 9-12). If these training materials tend to show anything, it 

is that Kimble’s measures to protect workers on foot against struck-by hazards were consistent 

with safety practices within the landfill industry. Cf. Beard-Poulan, A Div. of Emerson Elec. Co., 
27

7 BNA OSHC 1225, 1229 (No. 12600, 1979) (noting that compliance with section 5(a)(1) “may 

require methods of protection of a higher standard than industry practice”).

In contrast to the Secretary’s evidence, Kimble’s president, who has decades of experience 

in the landfill industry, testified without contradiction that the industry had trended “away from 

the idea of having a spotter,” which was due in part to the industry’s reaction to some fatal stuckby incidents involving spotters at other landfills. (T. 126). Kimble’s concern for spotter safety,

and the diminished non-professionally driven vehicular traffic at its landfill, had caused Kimble to 

cease using a spotter many years before the fatality here. (T. 109, 126, 134-136). The testimony

of Kimble’s president was the only evidence presented from a person knowledgeable with the 

landfill industry that bore on the question of whether employing a dedicated spotter at Kimble’s 

landfill was “necessary and appropriate in the particular circumstances existing at” Kimble’s 

landfill. Inland Steel Co., 12 BNA OSHC at 1970-71. 

The evidence was insufficient to establish that use of a dedicated spotter at the landfill was 

necessary and appropriate in the particular circumstances existing at the landfill to eliminate or 

materially reduce the struck-by hazards there.

(2) Prohibit Foot Traffic

The Secretary has similarly failed to present sufficient evidence that conscientious experts

familiar with the industry would proscribe foot traffic in the vicinity of operating vehicles and 

equipment as a means or method to eliminate or materially reduce the struck-by hazard at the 

landfill. Inland Steel Co., 12 BNA OSHC at 1970-71; Arcadian Corp., 20 BNA OSHC at 2011. 

While the IH testified that Kimble could have “established a zone system to indicate that on certain 

days, heavy machinery could only move in one area while pedestrians could only walk in a 

different area” (T. 59), other evidence presented during the Secretary’s case-in-chief corroborated 

Kimble’s position that it is impossible to operate Kimble’s landfill without allowing employees to 
28

be on foot to perform certain essential job functions in the vicinity of operating equipment in the 

tipper area and in the approach area. The IH confirmed in her testimony that prohibiting Kimble 

employees from being on foot in the “tipper area” and the “approach area” would not be possible 

in the operation of this landfill, and that such areas could not reasonably be regarded as “no-go 

zones” for employees on foot. (T. 82-83). The Secretary has not proven that a work rule

prohibiting foot traffic in the vicinity of operating equipment and vehicles in the tipper area and 

the approach area of the landfill was feasible or would be prescribed by conscientious experts 

familiar with the industry to reduce or eliminate the struck-by hazard at Kimble’s landfill. 

(3) Training on New Procedures

The third enumerated measure for abatement identified in the citation (training equipment 

operators on “new procedures”) does not describe what those “new procedures” would be, and no 

evidence was presented regarding precisely what that training would entail. Consequently, for 

purposes of this decision, the content of the additional training contemplated by this proposed

abatement measure is presumed to relate to any new procedures that would have resulted from 

implementation of enumerated items (1) and (2). Proceeding upon that presumption, the 

disposition of the first two enumerated measures is necessarily dispositive of the third enumerated 

measure.

(4) Shutdown Sensors

In addition to the three enumerated abatement measures set forth in the citation, the 

Secretary presented evidence and argued in his post-hearing briefs that another alternative or 

additional feasible means to abate the hazard would be to install “shut-down sensors on its 

equipment.” (T. 59; Sec’y Br. 14). This measure was not specified in the citation and it was not 

tried by consent of the parties, so it is not properly considered. See Ala. Power Co., 13 BNA 

OSHC at 1246 (refusing to consider a means of abatement argued by the Secretary because it “was 
29

not raised in the pleadings nor was it tried by the consent of the parties”) citing McWilliams Forge 

Co., 11 BNA OSHC 2128 (No. 80-5868, 1984).

Even if this measure was considered on its merits, the evidence presented would be found 

insufficient to establish that it was either feasible or would materially reduce the hazard. The 

testimony of the IH was the only evidence presented on this measure, the entirety of which was as 

follows: “[T]he employer could have ... install[ed] shut-down sensors on equipment, which would 

shut down the equipment if someone got too close.” (T. 59). This brief and conclusory testimony 

is far from sufficient to establish that installation of “shut-down sensors” was feasible, or that such 

installation would have materially reduced the hazard in the context of the particular circumstances 

existing at Kimble’s landfill.

Adequacy of Kimble’s Measures

As described earlier, the Secretary may establish that an employer’s existing safety 

program was inadequate to protect its employees from exposure to a hazard under section 5(a)(1) 

by showing that the employer failed to have done any of the following: (1) established work rules 

designed to prevent exposure, (2) properly communicated those rules to its employees, (3) taken 

steps to discover noncompliance with the rules, and (4) effectively enforced its rules in the event 

of noncompliance. Ala. Power Co., 13 BNA OSHC at 1244, citing Inland Steel Co., 12 BNA 

OSHC at 1976. The Findings of Fact at ¶¶ 15-21 underlie the determination that Kimble’s safety 

program was not shown to be deficient in any of these respects. 

The Secretary argues that Kimble did not exercise reasonable diligence in taking steps to 

discover violations of its work rules. In support of that argument, the Secretary refers several times

in his post-hearing briefs to the IH’s cross-examination testimony that an unidentified Kimble 

employee had told her that “on a light day” at the landfill the employee would observe the decedent 
30

walking bags of litter to the face of the landfill four to five times. (Sec’y Br. 4, 12, 16; Sec’y Reply 

Br. 5). That cross-examination testimony was as follows:

Q: .... You would agree that it’s not typical for [the decedent] to 

carry bags of garbage into the working face of the landfill?

A: I would not agree with that statement.

Q: You would agree that there were non-management folks that 

you spoke to that told you that it was not typical for [the decedent] 

to be walking bags of garbage into the face of the landfill?

A: I received statements both that it was relatively uncommon and 

I also received statements that it was very common and happened 

multiple times per day.

Q: Okay. And very common is your characterization of that; 

correct?

A: The characterization I received that I recall from the interview 

was four to five times on a light day.

Q: Okay. And was that with someone who had knowledge or a 

basis for making that statement?

A: They had visually observed it themselves, according to their 

statement.

(T. 91-92). 

Counsel for Kimble did not move to strike this cross-examination testimony on the ground 

that Kimble had not been provided copies of unredacted written statements of the unidentified 

employees that the IH described. Such a contemporaneous objection, if it had been made at trial, 

would have been meritorious and properly sustained under the rationale of Massman-Johnson 

(Luling), 8 BNA OSHC 1369, 1376 (No. 76-1483, 1980) (prescribing a procedure that requires the 

Secretary to provide to the respondent, following the completion of a witness’s direct examination, 

a copy of that witness’s prior written statement that the Secretary had previously withheld from 

the respondent pursuant to the informer’s privilege).

6

 Notwithstanding the absence of an objection 

 

6 The Secretary did not offer in evidence any of the written statements of Kimble employees 

that the IH had secured in the course of her investigation. Prior to the hearing, the Secretary had 
31

at trial, Kimble appropriately makes multiple arguments in its post-hearing briefs that the crossexamination testimony quoted above is not probative. (Resp’t Br. 12 n.4, 21; Resp’t Reply Br. 7-

8). Cf. Monroe Drywall Constr., Inc., 24 BNA OSHC 1111, 1113 (No. 12-0379, 2012) (finding 

that Commission judge erred in failing to accord unobjected to hearsay testimony its “natural 

probative weight”). 

The Secretary argues that the IH’s cross-examination testimony quoted above shows that 

Kimble did not effectively take steps to discover violations of its work rule that employees not be 

on foot in the working face, because that testimony establishes that the decedent typically violated 

the rule multiple times every day. The Secretary’s argument is rejected for a variety of reasons. 

First, as discussed above in connection with the IH’s apparent misunderstanding of the term 

“working face,” the factual predicate of the argument is flawed—while Kimble had a rule 

prohibiting workers from being on foot in the working face, Kimble did not have a rule that 

prohibited workers from being on foot in the approach area or tipping area. The IH’s 

understanding of what any unidentified employee told her is quite possibly affected by her 

misunderstanding of the term “working face.” 

 

disclosed to Kimble’s counsel redacted versions of some employee statements. Those redacted 

statements were contained in a proposed hearing exhibit that was provided to Kimble prior to the 

hearing, and which was pre-marked as Secretary’s Exhibit C-5. However, none of those redacted 

statements were specifically referenced in any testimony, and none were offered or received in 

evidence at the hearing. 

In the parties’ joint pre-hearing statement dated March 13, 2018, the Secretary indicated 

that at the hearing he might offer in evidence “[u]nredacted statements of [Kimble’s] nonmanagement employees, to be provided on completion of an employee’s direct testimony.” The 

initial disclosure of such unredacted statements would be in accordance with the procedure that 

the Commission prescribed in Massman-Johnson (Luling), 8 BNA OSHC 1369, 1376 (No. 76-

1483, 1980). But the Secretary did not present the testimony of any of those employees, so the 

Secretary did not provide Kimble with unredacted versions of the redacted statements that had 

been assembled in pre-marked Exhibit C-5.
32

Second, one unidentified employee told the IH that it was “relatively uncommon” for the 

decedent to be on the “working face,” but some other unidentified employee (the employee whose 

statement the IH apparently credited) purportedly indicated to her that it was “very common and 

happened multiple time per day.” (T. 92). Such a significant divergence in the content of the two 

statements is reason alone to question the reliability of one or the other or both statements, absent 

some indicia of reliability for crediting one statement over the other. 

Along these same lines, assuming without deciding that the record establishes all the 

foundational requirements for the statement of the unidentified employee whose statement the IH 

appeared to credit to be deemed non-hearsay evidence under Fed. R. Evid. 801(d)(2)(D) as a 

statement of a party-opponent,

7

the record fails established that the statement issufficiently reliable 

to support a finding of fact.8 The evaluation of the reliability of an employee’s statement that is 

admissible under Rule 801(d)(2)(D) was addressed in Regina Constr. Co., 15 BNA OSHC 1044, 

1048 (No. 87-1309, 1991):

Although [statements of an opposing party] under Rule 

801(d)(2)(D) are not inherently reliable, there are several factors that 

make them likely to be trustworthy, including: (1) the declarant does 

not have time to realize his own self-interest or feel pressure from 

 

7

See Med. Ctr. at Elizabeth Place, LLC v. Atrium Health Sys., 817 F.3d 934, 944 (6th Cir. 

2016) (noting that an “anonymous statement may be admissible under Rule 801(d)(2) in certain 

circumstances that demonstrate sufficient indicia of reliability as to the authenticity of the 

statement”) citing Davis v. Mobil Oil Expl. & Prod. Se., Inc., 864 F.2d 1171, 1174 (5th Cir.1989).

8 Colorable arguments have been made in matters decided by other Commission judges 

that the content of statements of employees whose identities the Secretary has chosen not to reveal 

pursuant to the informer’s privilege should not be received in evidence under Rule 801(d)(2)(D). 

See Armstrong Steel Erectors, Inc., No. 97-0250, 1997 WL 765160 at *4 n.6 (O.S.H.R.C.A.L.J.

Dec. 22, 1997) (declining to address similar objection because the Secretary was not relying on 

the objected to testimony); Meer Corp., No. 95-0341, 1997 WL 235621 at *7 (O.S.H.R.C.A.L.J. 

May 5, 1997) (“Because it is a recurring subject of debate in OSHA hearings, a few words should 

be said concerning unidentified employee informants as a source of admissions against the 

employer”). The Commission itself, however, appears not to have had occasion to address the 

issue.
33

the employer against whom the statement is made; (2) the statement 

involves a matter of the declarant's work about which it can be 

assumed the declarant is well-informed and not likely to speak 

carelessly; (3) the employer against whom the statement is made is 

expected to have access to evidence which explains or rebuts the 

matter asserted.

None of the three enumerated factors described in Regina Construction weighs in favor of finding 

the statement of the unidentified employee whose statement the IH credited to be inherently 

reliable or trustworthy. There is scant information bearing on the first two enumerated factors, 

and because the identity of the declarant is unknown to Kimble, Kimble has no apparent means by 

which to explain or to rebut what the IH testified that the employee had said to her. The statement 

of that unidentified Kimble employee regarding the frequency with which the employee observed 

the decedent walking bags of trash to the working face is insufficiently reliable and probative to 

support a finding of fact by a preponderance of the evidence.

Elsewhere during her direct examination, the IH stated her view that Kimble knew of the 

hazardous condition, and that Kimble had not effectively communicated its work rules to the 

decedent:

Q: Did management know of the hazard?

A: Yes.

Q How?

A: [The decedent’s supervisor] stated he had observed [the 

decedent] walking through the working face of the area, working 

face of the landfill, and that he had verbally reminded [the decedent]

on multiple occasions, each morning, in fact, to avoid walking 

through that area.

* * * *

Q: Was the rule [not to walk in the working face] effectively 

communicated?

A: No, not effectively.

Q: Was it communicated?

A: It was communicated.
34

Q: In what manner?

A: [The decedent’s supervisor] stated that he had verbally

reminded [the decedent] each morning to avoid walking through the 

working face of the area but it was not effective communication, 

because [the decedent] had repeatedly violated this rule.

(T. 63-64).

Later in her testimony, the IH clarified that she did not understand the decedent’s 

supervisor to have told her that he had orally admonished or reprimanded the decedent each 

morning for having been violating the rule against being on foot in the working face, or that the 

supervisor had indicated to her that he believed the decedent routinely violated that rule. (T. 73, 

94-95). And in his own testimony, the decedent’s supervisor convincingly confirmed that these

oral warnings were simply daily safety reminders that it was his practice to communicate to 

employees. (T. 156). The IH’s testimony that the decedent “had repeatedly violated this rule” 

appears to be based upon the previously described statement of the unidentified Kimble employee 

that the decedent typically walked bags of trash to the working face “four to five times on a light 

day.” (T. 92). As discussed previously, that purported statement is given no weight, so the IH’s 

testimony bootstrapping that statement is similarly given no weight.

The Secretary argues that Kimble’s work rules and practices to prevent struck-by incidents 

are inadequate to prevent exposure to the hazard, asserting that a work rule that “amorphously 

tell[s] pedestrians to avoid where heavy machinery operated” is not an effective work rule (Sec’y 

Br. 15), and that Kimble’s “vague description of assigned work area and general allowance of 

some pedestrian presence on the working face did not fully address the hazards.” (Sec’y Reply 

Br. 1-2). These critiques of Kimble’s work rules do not demonstrate that they were inadequate. 

In Alabama Power, the Commission observed:

[G]eneral admonitions to employees to avoid a hazard or to act in a 

safe manner do not afford adequate guidance. On the other hand, a
35

safety rule is not inadequate merely because it requires employees 

to exercise a certain degree of judgment and discretion. In

determining whether a work rule is sufficiently specific to protect

employees, the nature of the hazard and the overall circumstances 

of the work operation must be considered. In certain situations a 

specific and detailed safety rule may be necessary, whereas in other 

situations such detail may be impractical, and it may be necessary 

to rely on employee judgment.

13 BNA OSHC at 1244 (citations omitted). Here, the loci of the salient areas of Kimble’s landfill 

are in near constant flux. Similar to the hazard that was addressed in Alabama Power (involving 

dump trucks delivering coal to coal pile at a power plant), Kimble’s rules and practices were 

“sufficiently specific considering the fluid and dynamic nature of the work environment.” Id. 

Kimble’s rule that workers stay clear of areas where equipment was operating unless an 

employee’s presence in such an area was necessary to perform assigned duties, and the rule that 

workers make and maintain eye contact with equipment operators if an employee had to be present 

in an area where equipment was operating, were sufficiently specific and detailed to directly 

address the struck-by hazards at the landfill. The importance of complying with these rules was 

regularly emphasized, and Kimble’s employees understood them. (Findings of Fact ¶¶ 18-19). As 

in Alabama Power, there is no evidence that the landfill workers, including the decedent, had 

difficulty in applying these rules in the fluid environment of the landfill. Id. at 1244 (noting that 

there was “no evidence to show that employees could not evaluate the proper clearance distance 

for any particular dumping operation”). 

While it is indeed the goal of the OSH Act to prevent the first accident, Kimble’s record of 

having no struck-by incidents in the previous sixty years of operating the landfill bears some 

relevance to the assessment of the effectiveness and adequacy of Kimble’s safety program over 

time. Cf. Ala. Power at 1246 (noting that the employer “had experienced no injuries during at least 

a 24-year period prior to the fatality,” and that the “Secretary presented no evidence from which 
36

we can conclude that [the employer] should have more effectively protected its employees from 

the hazard”).

Commission precedent states that in a matter involving an alleged violation of section 

5(a)(1) in which the failure of an employee to follow a work rule has led to the employee’s death, 

the record must indicate that “demonstrably feasible measures would have materially reduced the 

likelihood that such misconduct would have occurred.” Cerro Metal Prod. Div., Marmon Grp., 

Inc., 12 BNA OSHC 1821, 1822 (No. 17-5159, 1986), quoting Nat’l Realty & Constr. Co. v. 

OSHRC, 489 F.2d 1257, 1267 (D.C. Cir. 1973). On this record, the decedent’s violation of 

multiple work rules and practices that he and other workers had a long record of following is 

simply inexplicable. There is no evidence that conscientious experts, familiar with the landfill 

industry, would take that misconduct into account in prescribing a safety program. See Nat’l 

Realty & Constr. Co., 489 F.2d at 1266 (“Hazardous conduct is not preventable if it is so 

idiosyncratic and implausible in motive or means that conscientious experts, familiar with the 

industry, would not take it into account in prescribing a safety program”). The decedent’s death

was tragic and horrible, but the Secretary has not proven that the tragedy occurred at a workplace 

where the employer had failed to meet requirements of section 5(a)(1) of the OSH Act. 

Employer Knowledge & 

Unpreventable Employee Misconduct

The factors for determining whether an employer’s existing safety program is inadequate

to protect its employees from exposure to a hazard under section 5(a)(1) (as described in Alabama 

Power at 1244, quoted above) are essentially identical to the factors for determining both (1) 

whether an employer had constructive knowledge of a section 5(a)(1) violative condition, PSP 

Monotech Indus., 22 BNA OSHC 1303, 1306 (No. 06-1201, 2008) (describing factors to be 

considered in determining whether an employer had constructive knowledge of alleged section 
37

5(a)(1) hazardous condition), and (2) whether a section 5(a)(1) violative condition was the result 

of unpreventable employee misconduct. Burford’s Tree, Inc., 22 BNA OSHC 1948, 1951-52 (No. 

07-1899, 2010) (ruling that the Secretary’s proof that the employer had constructive knowledge of 

a condition that violated section 5(a)(1) had effectively disproved the defense of unpreventable 

employee misconduct), aff’d, 413 F. App’x 222 (11th Cir. 2011) (unpublished).

The Secretary does not argue, and the evidence does not establish, that Kimble had actual 

knowledge of the hazardous condition. (Sec’y Br. 12). As discussed above, the Secretary failed 

to prove that Kimble’s safety program for addressing the hazard cited in the citation was 

inadequate under the test described in Alabama Power at 1244. That failure of proof is similarly 

dispositive as to whether the Secretary proved that Kimble had constructive knowledge of the 

hazardous condition.

Moreover, the affirmative findings set forth Findings of Fact ¶¶ 17-21 establish all of the 

elements of the affirmative defense of unpreventable employee misconduct. S.J. Louis Constr., 

25 BNA OSHC 1892, 1900 n.24 (No. 12-1045, 2016) (evaluating employer’s safety program for 

adequacy involves same factors for evaluating constructive knowledge and the defense of 

unpreventable employee misconduct). 
38

ORDER

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

accordance with Fed. R. Civ. P. 52(a). If any finding is in actuality a conclusion of law or any 

legal conclusion stated is in actuality a finding of fact, it shall be deemed so, any label to the 

contrary notwithstanding. 

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that

Item 1 of Citation 1, alleging a violation of section 5(a)(1) of the OSH Act, 29 U.S.C. § 654(a)(1),

is VACATED.

/s/

WILLIAM S. COLEMAN

Administrative Law Judge

Date: April 8, 2019