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 Nos. 18-1287 & 18-1288

FIRST MARINE, LLC, 

Respondent. 

ON BRIEFS:

Joseph M. Berndt, Attorney; Heather R. Phillips, Counsel for Appellate Litigation; 

Edmund C. Baird, Associate Solicitor of Labor for Occupational Safety and Health; Seema 

Nanda, Solicitor of Labor; U.S. Department of Labor, Washington, DC

For the Complainant

Tashwanda Pinchback Dixon, Attorney; Balch & Bingham LLP, Atlanta, GA 

 For the Respondent 

Carl Marshall, Attorney; Ryan A. Hahn, Attorney; The Miller Law Firm, Paducah, KY 

For the Respondent 

DECISION

Before: ATTWOOD, Chairman and LAIHOW, Commissioner. 

BY THE COMMISSION:

First Marine, LLC owns and operates a shipyard in Calvert City, Kentucky. Following a 

fatal explosion at the shipyard, the Occupational Safety and Health Administration conducted an 

inspection and issued First Marine five citations. Two of the citations alleged a total of eighteen 

safety violations (No. 18-1287) and the remaining three citations alleged a total of seventeen health

violations (No. 18-1288). The parties settled all but four serious safety violations, five serious

health violations, and three willful health violations. The settled items were severed from each 

case (No. 20-0178) and the remaining items were consolidated for hearing and disposition. 
2 

Following a hearing, Administrative Law Judge John B. Gatto vacated the four remaining 

safety violations, vacated six of the health violations, and affirmed the two remaining health 

violations, characterizing one as serious and one as willful. The only citation item at issue on 

review is the willful health violation (Citation 2, Item 2 (No. 18-1288)), which alleges that First 

Marine failed to “ensure that each employee that enters a confined or enclosed space and other 

areas with dangerous atmospheres is trained to perform all required duties safely.” 29 C.F.R. 

§ 1915.12(d)(1). For the following reasons, we affirm the violation and recharacterize it as serious. 

BACKGROUND

At the time of the explosion, First Marine had been working for about a month to repair 

and rebuild the William E. Strait, a large inland river towboat that was struck by a barge and then 

sank in the Mississippi River. The William was transported to First Marine’s shipyard for repair

where it was initially in dry dock and then placed into the Tennessee River and moored for further 

repair. At the time, some of the boat’s doorways and windows had not yet been repaired and 

remained open to the outside, including those in the upper engine room.1 Because the weather 

was cold and wintry, workers engaged in repairing the boat had covered these openings with plastic 

tarps and welder’s blankets to retain heat and prevent the wind from blowing in. Diesel heaters 

were also used to provide heat for workers onboard, and a subcontractor working for First Marine 

had placed a propane heater in the lower engine room.2 

Shipyard operations at the time of the incident were overseen by First Marine 

superintendent Ronald Thorn. Other First Marine supervisors present at the shipyard included 

David Byrum, the dry dock foreman who oversaw the company’s welders; Curtis Jones, the head 

electrician; and Robert Miller, a carpentry crew manager. In addition to its own employees 

performing welding, cutting, electrical, and carpentry work on the William, First Marine contracted 

with numerous subcontractors to perform additional work, including Rupke Blasting and Painting, 

which provided workers to pressure wash and paint water tanks, and Thermal Control and 

1 The upper engine room is located on the boat’s main deck. It has exterior doorways on the 

starboard and port sides of the vessel with three interior doorways leading to the generator room, 

the control room, and a hallway to the galley. The upper engine room also has several exterior 

window openings. 

2 The lower engine room, located on the bottom deck of the vessel, was accessible to workers by 

a stairway located in the middle of the upper engine room’s floor. The lower engine room does 

not have any windows and is surrounded by bulkheads. 
3 

Fabrication, which provided workers to install insulation. First Marine employees, as well as those 

of subcontractors, used multiple potentially hazardous substances, including propane, propylene, 

diesel, kerosene, and compressed oxygen to fuel equipment and heaters while working onboard 

the William. 

On January 19, 2018, workers, including First Marine employees, arrived at the shipyard 

around 7:00 a.m. Upon boarding the boat, most of them, including head electrician Jones, 

immediately noticed a gas odor that they had not typically smelled. No atmospheric testing was 

conducted at this time or at any point before the explosion occurred. Some of the workers moved 

aside the materials covering the openings in the upper engine room to ventilate the area. About 

ten to fifteen minutes after Jones boarded the boat, he and two members of his crew initiated a 

search of the lower engine room to determine the source of the gas odor. Jones testified that he 

assumed the smell was coming from a propane tank he observed Rupke workers changing on the 

heater that the subcontractor had placed in the lower engine room. According to Jones, fans he 

had previously wired between the lower and upper engine rooms were running on the port and 

starboard sides to ventilate the area. A First Marine employee also set up fans to ventilate a 

compartment in the forward section of the boat, known as the “deck locker,” after smelling gas in 

that area.

Work commenced on the William, including work in the lower engine room and work 

involving welding and cutting that required the use of gas and compressed oxygen. At 

approximately 9:15 a.m., an explosion occurred on the boat, killing three workers, including a First 

Marine employee working in the deck locker and injuring several others.3

 

DISCUSSION

Under the citation item at issue, the Secretary alleges a willful violation of 29 C.F.R. 

§ 1915.12(d)(1), which requires employers to “ensure that each employee that enters a confined or 

enclosed space and other areas with dangerous atmospheres is trained to perform all required duties 

safely.” Specifically, the Secretary claims that First Marine allowed its employees “to enter 

3 The cause of the explosion and where it originated is not known, and the parties stipulated that 

OSHA did not determine the type of gas that exploded or its source as part of its investigation. 

The United States Coast Guard and Kentucky State Police both investigated the incident and were 

not able to determine the explosion’s cause. Nonetheless, the cause of the explosion is irrelevant 

here, as it has no bearing on the training violation at issue on review. 
4 

confined and enclosed spaces to perform work, such as but not limited to, pulling electrical wire, 

plumbing, pipe fitting, and arc welding and cutting with a torch, without training [them] on the 

hazards of confined and enclosed spaces, exposing [them] to atmospheric, fire, and explosion 

hazards.” 

To prove a violation, “the Secretary must show by a preponderance of the evidence that (1) 

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

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

of the condition with the exercise of reasonable diligence.” Astra Pharm. Prods., Inc., 9 BNA 

OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in pertinent part, 681 F.2d 69 (1st Cir. 1982). Only 

the noncompliance element of the alleged violation and its willful characterization are at issue on 

review.4

 

A. Noncompliance

“To establish noncompliance with a training standard, the Secretary must show that the 

employer failed to provide instructions that a reasonably prudent employer would have given in 

the same circumstances.”5 Trinity Indus., Inc., 20 BNA OSHC 1051, 1063 (No. 95-1597, 2003) 

(affirming training violation alleged under § 1915.12(d)), aff’d, 107 F. App’x 387 (5th Cir. 2004) 

(unpublished); accord W.G. Fairfield Co., 19 BNA OSHC 1233, 1235 (No. 99-0344, 2000) (when

interpreting general safety program standards, the Commission considers “whether a ‘ “reasonable 

person” examining the generalized standard in light of a particular set of circumstances, can 

determine what is required . . . .’ ”), (quoting R&R Builders, Inc., 15 BNA OSHC 1383, 1387 (No. 

88-282, 1991), aff’d, 285 F.3d 499 (6th Cir. 2002); Northwood Stone & Asphalt Inc., 16 BNA 

4 In its petition for discretionary review, as well as in both of its review briefs, First Marine argues 

that the judge erred in finding the cited training standard applied. We decline to address this issue. 

See S. Scrap Materials Co., 23 BNA OSHC 1596, 1599 n.1 (No. 94-3393, 2011) (“Although the 

parties briefed Citation 2, Item 40, as requested, we decline to review the judge’s disposition of 

this item.”); 29 C.F.R. § 2200.92(a) (“The issues to be decided on review are within the discretion 

of the Commission.”). 

5 The Sixth Circuit is a relevant circuit here, as First Marine’s shipyard is in Kentucky. See 29 

U.S.C. § 660(a) (“Any person adversely affected or aggrieved by an order of the 

Commission . . . may obtain . . . review . . . in any United States court of appeals for the circuit in 

which the violation is alleged to have occurred or where the employer has its principal office, or 

in the Court of Appeals for the District of Columbia Circuit . . . .”); see Kerns Bros. Tree Serv., 18 

BNA OSHC 2064, 2067 (No. 96-1719, 2000) (Commission generally applies law of the circuit 

where it is probable a case will be appealed). 
5 

OSHC 2097, 2099 (No. 91-3409, 1994) (affirming training violation based on finding that 

reasonably prudent employer would have trained employees on common overhead power line

hazards), aff’d, 82 F.3d 418 (6th Cir. 1996) (unpublished). If the employer rebuts the allegation 

of a violation “by showing that it has provided the type of training at issue, the burden shifts to the 

Secretary to show some deficiency in the training provided.” Am. Sterilizer Co., 18 BNA OSHC 

1082, 1086 (No. 91-2494, 1997); see Atl. Battery Co., 16 BNA OSHC 2131, 2176-77 (No. 90-

1747, 1994). 

The judge found noncompliance based on the testimony of five First Marine employees

present on the day of the explosion—Mathew McCoy, Jerry Price, Manuel Macario Garcia, Victor 

Pineda, and B.K. According to the judge, their testimony demonstrated that they lacked “a firm 

grasp of proper safety procedures.” The judge rejected testimony from three First Marine 

supervisors—Thorn, Byrum, and Miller, who all claimed that they had adequately trained 

employees—on the grounds that the company provided no documentation of such training as

required by a separate OSHA shipyard provision. See 29 C.F.R. § 1915.12(d)(5) (“The employer 

shall certify that the training required by paragraphs (d)(1) through (d)(4) of this section has been 

accomplished.”). The judge also stated that “[a]s management personnel who still work for First 

Marine, the supervisors are motivated to close ranks and declare First Marine provided the required 

training.” 

On review, First Marine acknowledges that many of its employees testified that they had 

not been formally trained, but also claims that these “employees consistently testified that they 

were trained to perform their jobs safely” through informal, on-the-job training. The company 

asserts that “when asked more specific questions about their knowledge and training of gas odors 

and shipyard hazards, it was clear that employees understood and appreciated the dangers 

associated with the smell of gas.” In response, the Secretary contends that noncompliance is 

proven not only by employee testimony but by the actions of employees on the day of the incident, 

including the smoking of cigarettes “on a vessel that smelled of gas, particularly in a space that 

was actively having the smell of gas vented out of it.” The Secretary asserts that “First Marine did 

not train its employees on even the most basic principles of working safely in these areas – e.g., 

what to do when they encountered signs of a gas leak or First Marine’s safety protocols when there 

is a potential gas leak on a vessel.” According to the Secretary, “[a] reasonably prudent employer 

would, at a minimum, have provided training on these basic principles in the same circumstances.” 
6 

We find that the record establishes noncompliance with the cited training provision. As 

the judge found, five First Marine employees who were present on the day of the explosion

affirmatively testified that First Marine had not provided them with training about hazards they 

may encounter at the shipyard including those associated with enclosed spaces and dangerous 

atmospheres. See Trinity Indus., 20 BNA OSHC at 1064 (affirming § 1915.12(d)(2)(ii) violation 

based on employees’ testimony that they were not specifically trained on the health effects of 

Tectyl and rejecting claim that their general awareness of hazard avoidance sufficed to inform 

them of the specific health effects). 

McCoy, a carpenter, stated that he had not been trained in what to do if he smelled gas 

while on a vessel and did not think the smell present on the boat the morning of the explosion was 

dangerous or important. Price, also a carpenter but with prior experience as a welder, stated that 

his supervisor had not provided him with training on shipyard hazards and that he had not attended 

any First Marine safety meetings before the explosion. Like McCoy, Price said that despite the 

smell of gas, he had no safety concerns that morning; he continued to smoke a cigarette while 

boarding the boat after talking about the smell with another worker. Garcia, an electrician, testified 

that he was not trained on confined or enclosed spaces or what to do if he smelled gas, but that

morning the smell of gas in the lower engine room was “a little stronger than usual,” so he went 

looking for the source with head electrician Jones, then returned to work. Pineda, an electrician 

who worked alongside Garcia, testified that he was also not trained in shipyard hazards but knew 

to tell his supervisor if he smelled gas. That morning, he joined Jones and Garcia in searching for 

the odor’s source before continuing to work in the lower engine room. Finally, B.K., a welder 

who was injured in the explosion, claimed that he was not trained by the company on the hazards 

associated with using propylene or compressed oxygen in confined spaces and did not know if he 

was working with propane or propylene. B.K. explained that after smelling gas in the deck locker 

that morning, he set up and ran three fans in the area for about thirty minutes to try to get the smell 

of gas out. He also acknowledged that during this time, he and another First Marine employee 

(who died from injuries he sustained in the explosion) smoked cigarettes close to where he had 

just smelled gas.6 

6 One First Marine employee who was not present on the day of the explosion testified that he had 

received safety training from the company. Adam Leroy, a First Marine welder, stated that when 

he started with the company in 2017, he was trained on working in confined spaces through hands-
7 

In addition to this testimony, the conduct of these employees on the day of the explosion

further demonstrates that they lacked sufficient training on the fire and explosion hazards 

associated with gas. Indeed, in some instances, they failed to tell a supervisor about the odor or 

otherwise determine that the space or atmosphere was safe before resuming their work, and three 

employees, including B.K. and Price, smoked cigarettes in the very area where they had smelled

gas. See CMC Elec. Inc. v. OSHA, 221 F.3d 861, 866 (6th Cir. 2000) (finding employees were not 

trained to understand electrocution hazard as evidenced in part by their confusion in improperly 

performing the task, as well as the lack of specific instruction they received). 

We also find that the testimony from First Marine supervisors Thorn, Byrum, and Miller, 

who claimed that employees were adequately trained on the hazards posed by dangerous 

atmospheres and confined and enclosed spaces, does not rebut the credible testimony from these

five employees.

7

 Notably, the supervisors’ testimony lacks sufficient detail as to what safety 

information was purportedly conveyed to employees about these known hazards and therefore, 

does not refute the more specific testimony of the five employees who said they lacked training 

and/or were unable to identify such hazards. Miller, the carpentry supervisor, testified that he 

provided informal one-on-one safety and compliance training to his crew, but his description of 

the training shows it was primarily focused on work practices. He explained that if his crew had 

concerns about the smell of gas, he “would hope” they would immediately notify him and he would 

have “taken action,” but he never said whether he had in fact instructed them to do so. Thorn, the 

on learning while paired with an experienced employee. The judge stated that he was not 

discrediting Leroy’s testimony about the training he received but also noted that “Leroy did not 

work on the William after the vessel left dry dock.” We find that even if Leroy’s testimony is 

credited, it does not alter or outweigh the collective testimony of the five employees who said they 

had not been trained on these hazards. 

7 As noted, the judge essentially discredited the supervisors’ testimony due to what he viewed as 

their purported motivation to “close ranks.” While the Commission typically defers to a judge’s 

demeanor-based credibility findings, the judge’s finding here is not demeanor-based. See E.R. 

Zeiler Excavating Inc., 24 BNA OSHC 2050, 2057 (No. 10-0610, 2014) (appropriate for 

Commission to defer to judge’s demeanor-based credibility findings when supported by the 

record). In addition, discrediting their testimony entirely is inconsistent with the record given that, 

as discussed below, at least one employee (B.K.) corroborated testimony from his supervisor that 

daily work meetings were held in the boat’s breezeway. Thus, while we disagree with the judge’s 

wholesale rejection of this testimony, we find that the supervisors’ testimony is simply outweighed 

by the testimony of the five employees whose statements and actions demonstrate their safety 

training was lacking. 
8 

shipyard superintendent, testified that weekly safety meetings were held and that employees were 

trained on-the-job by pairing new employees with experienced employees. Like Miller, Thorn 

stated that employees should stop work and report the smell of gas to their supervisor, but he did 

not say whether this instruction was ever communicated to employees.8 See Pressure Concrete 

Constr. Co., 15 BNA OSHC 2011, 2016 (No. 90-2668, 1992) (rejecting employer’s argument that 

dangerous conditions “were obvious and that a reasonable employee would be aware of the dangers 

and act accordingly [because] that contention erroneously places the burden on employees to be 

more aware and alert than their employer, and an employer cannot assume that its employees will 

all observe certain dangers and understand the significance of what they see”). 

While testimony from Byrum, First Marine’s dry dock supervisor who oversaw the welding

crew, suggests that he made some effort to instruct his crew about torch hose safety at meetings 

he held in the boat’s breezeway, the instructions he described giving employees focused more so

on work practices than safety.

9

 Indeed, B.K., a member of his crew, confirmed that such meetings 

were held with welders almost every day and during these meetings “they would just tell us what 

to do.” In any event, the sufficiency of any safety instructions Byrum provided is undermined by 

testimony from B.K., who made clear that he lacked training on the hazards of compressed oxygen 

and did not even know whether he was working with propane or propylene. And, as noted, B.K.

acknowledged smoking in the area where fans were running to vent the gas odor on the morning 

of the explosion. 

Jones, the only First Marine supervisor onboard the William the morning of the explosion, 

acknowledged that it was his responsibility to ensure employees worked safely and he had the 

8 Thorn further testified that First Marine had hired an outside company to provide employee 

training on torch safety and how to use gas lines in a safe manner, but he did not state whether this 

occurred prior to the explosion, nor did he identify which employees, other than himself, 

participated. We note that when asked about the training they received from First Marine, none of 

the employees mentioned this particular training. 

9

 Byrum also testified that the training he provided employees was not documented. According to 

Thorn, however, the company had sign-in sheets from the breezeway meetings Byrum held and 

had provided them to its counsel, but these documents are not in the record. Although, as noted, 

the judge relied on First Marine’s presumed failure to document its training as a basis for affirming 

the violation at issue here given that such documentation is required under a separate shipyard 

provision (29 C.F.R. § 1915.12(d)(5)), First Marine was not cited for a violation of that provision. 

As such, we reject the judge’s reliance on this testimony and do not consider it here in analyzing 

noncompliance with the provision that was actually cited. 
9 

authority to correct any employee working unsafely. But neither party questioned him about the 

training he gave the employees under his supervision. Likewise, while the Secretary correctly

points out that Jones “did not stop work, evacuate the vessel, or contact the Shipyard 

superintendent” on the morning of the explosion, he does not argue that Jones himself lacked 

sufficient training, and the record is silent on any training First Marine provided him (or any other 

supervisor).10 Jones’ testimony, therefore, neither supports finding that First Marine failed to 

provide sufficient training nor refutesthe testimony of the five employees who testified they lacked 

training. 

In sum, the weight of the evidence establishes that First Marine failed to provide training 

that met the requirements of § 1915.12(d)(1). Accordingly, we agree with the judge that the 

Secretary has established noncompliance and affirm the violation. 

B. Characterization and Penalty

“ ‘A willful violation is differentiated by heightened awareness of the illegality of the 

conduct or conditions and by a state of mind of conscious disregard or plain indifference.’ ” Stark 

Excavating, Inc., 24 BNA OSHC 2215, 2222 (No. 09-0004, 2014) (consolidated) (quoting Hern 

Iron Works, Inc. 16 BNA OSHC 1206, 1214 (No. 89-433, 1993)). “This state of mind is evident 

whe[n] the employer was actually aware, at the time of the violative act, that the act was unlawful,” 

or when the employer “possessed a state of mind such that if it were informed of the standard, it 

would not care.” Id. (quoting AJP Constr., Inc. v. Sec’y of Labor, 357 F.3d 70, 74 (D.C. Cir. 

2004)); see also A.E. Staley Mfg. Co. v. Sec’y of Labor, 295 F.3d 1341, 1351 (D.C. Cir. 2002) 

(stating that “conscious disregard” and “plain indifference” are two “alternative” forms of 

willfulness); Active Oil Serv., Inc., 21 BNA OSHC 1184, 1188 (No. 00-0553, 2005) (“conscious 

disregard of . . . the safety and health of employees” reflects willfulness). The Sixth Circuit has 

stated that a willful violation is action “taken knowledgeably by one subject to the statutory 

10 Jones testified that he had been trained in 2011 by a previous employer as a “competent person” 

under OSHA’s shipyard standard but was not designated by First Marine to serve in that capacity 

at the shipyard. See 29 C.F.R. § 1915.4(o) (defining “competent person” as one “who is capable 

of recognizing and evaluating employee exposure to hazardous substances or to other unsafe 

conditions and . . . specifying the necessary protection and precautions to be taken to ensure the 

safety of employees as required by the particular regulation under the condition to which it 

applies”). Byrum had also been previously trained as a competent person, but he too was not 

designated to serve as one at the shipyard. Thorn and another supervisory employee served as the 

shipyard’s competent persons. 
10 

provisions in disregard of the action’s legality;” conduct is willful if it is “conscious, intentional, 

deliberate, and voluntary.” Nat’l Eng’g & Contracting Co. v. Herman, 181 F.3d 715, 721 (6th Cir. 

1999) (citations omitted); see also Chao v. Greenleaf Motor Exp., Inc., 262 F. App’x 716, 719 (6th 

Cir. 2008) (unpublished). 

For the following reasons, we find the Secretary has failed to establish that First Marine 

acted with either intentional disregard or plain indifference and therefore, reverse the judge’s 

conclusion that the training violation is properly characterized as willful. 

Intentional/Conscious Disregard 

Although the judge did not explicitly find that the Secretary established intentional 

disregard in affirming the violation as willful, the Secretary argues on review that First Marine had 

a heightened awareness of the cited provision’s training requirement yet consciously disregarded 

that obligation because employees were allowed to continue working aboard the William on the 

day of the explosion even after a gas odor was detected. In response, First Marine claims it 

“reasonably believed the employees expected to work in confined spaces, enclosed spaces, and 

dangerous atmospheres had received sufficient training to do so safely.” 

We find the Secretary has not established that First Marine consciously disregarded the 

cited provision. The company does not dispute that it was aware of the standard’s training 

obligation—although the company’s safety manual does not directly reference or incorporate the 

cited provision, such training is identified in the manual as required and the testimony from First 

Marine’s supervisors discussed above makes clear they were aware of this requirement.

11 The 

record, however, lacks evidence that First Marine was actually aware that its training was 

insufficient. See Envision Waste Servs., LLC, No. 12-1600, 2018 WL 1735661 at *6 (OSHRC, 

Apr. 4, 2018) (finding violation not willful when “it is not clear that the safety manager ever 

indicated to the CO that, prior to OSHA’s inspection of the facility, he was cognizant of his failure 

11 First Marine has a Safety and Health Manual, which includes a Hot Work section stating: “The 

Supervisor or Safety Manager is responsible for training and implementation of the outlined 

procedures.” Similarly, the Fire Safety Plan in the manual states: “The Supervisor is responsible 

for training employees and implementation of the outlined procedures.” The manual 

“encourage[s]” employees “to report hazards and unsafe conditions in the workplace to their 

supervisor” and provides that a supervisor will take prompt and appropriate action to determine if 

a hazard exists and to correct a hazard. The Hot Work and Fire Safety Plan sections of the manual 

also provide requirements for hot work issues such as ventilation, testing, and permits. 
11 

to provide training in 2011 to the particular employees at issue here”); MJP Constr. Co., 19 BNA 

OSHC 1638, 1648 (No. 98-0502, 2001) (“[A]n employer’s prior history of violations, its 

awareness of the requirements of the standards, and its knowledge of the existence of violative

conditions are all relevant considerations in determining whether a violation is willful in 

nature.”), aff’d, 56 F. App’x 1 (D.C. Cir. 2003) (unpublished). 

First Marine had four experienced supervisors at the shipyard who had all completed 

competent person training. In addition, as the company points out, Thorn, Byrum, and Miller all 

testified that they believed employees had been sufficiently trained through various means, 

including weekly safety meetings, daily work meetings with welders, and on-the-job instruction. 

While we find their testimony is insufficient to rebut the evidence establishing the company’s 

noncompliance, there is nothing in the record to suggest that any of these supervisors, and therefore 

First Marine, were actually aware that the company’s training obligation was not being met. Cf. 

Active Oil Serv., Inc., 21 BNA OSHC 1092, 1099 (No. 00-0482, 2005) (finding willful violation 

based on evidence that supervisor was aware of training requirement and had no basis for believing 

employee was trained yet assigned untrained employee role of confined space entry supervisor). 

Indeed, the Secretary does not point to any evidence, such as a prior OSHA citation or an external 

audit, that would have put First Marine on notice that its training was deficient. See A.J. McNulty 

& Co., Inc. v. Sec'y of Labor, 283 F.3d 328, 338 (D.C. Cir. 2002) (“[P]rior citations for identical 

or similar violations may sustain a violation's classification as willful.”); A.E. Staley Mfg. Co., 19 

BNA OSHC 1199, 1205 (Nos. 91-0637 & 91-0638, 2000) (affirming willful violation of hazardous 

communication training standard based on finding that employer had heightened awareness of duty 

to train and knowledge of widespread presence of hazardous substance from prior audit reports), 

aff’d, 295 F. 3d 1341 (D.C. Cir. 2002). 

In sum, the Secretary has introduced no evidence that First Marine was aware of any 

deficiencies in its training such that it demonstrated a conscious disregard of the cited requirement. 

See Gen. Motors Corp., 22 BNA OSHC 1019, 1043-44 (No. 91-2834E, 2007) (consolidated) 

(concluding Secretary did not establish willful characterization because even though employer 

“was keenly aware of the LOTO standard and its requirements,” the record lacked evidence that

employer “appreciated its procedure was deficient”); Trinity Indus., Inc., 20 BNA OSHC at 1068 

(finding training violation not willful because “the Secretary introduced no evidence that 

[employer] knew that its training program failed to comply with OSHA standards or that 
12 

[employer] would have failed to correct deficiencies in its program had it known of the duty to do 

so); Am. Wrecking Corp. v. Sec’y of Labor, 351 F.3d 1254, 1264 (D.C. Cir. 2003) (“Mere 

negligence or lack of diligence is not sufficient to establish an employer’s intentional disregard for 

or heightened awareness of a violation.”). 

Plain Indifference 

In affirming the violation as willful, the judge concluded that First Marine acted with plain 

indifference to employee safety based on supervisor Jones’ “lack of urgency when he detected gas 

onboard the William” and “First Marine’s choice of [Deron] Conaway as [its] safety director.”12 

According to the judge, “[i]ndifference to employee safety is manifested in the behavior of 

Jones . . . who shrugged off responsibility to stop work or notify Thorn or another First Marine 

management official that a pervasive odor of gas was present aboard the William.” The judge 

concluded that had Jones been properly trained, “he would have responded to the pervasive strong 

gas odor with more diligence.” As for safety director Conaway, the judge found that he “was illequipped for the position” and the company had failed to provide him with training, safety 

documentation, or a description of his responsibilities and authority as safety director. 

Accordingly, the judge concluded that “[i]t is clear employee safety was not a paramount concern 

for First Marine.” 

On review, First Marine argues that Jones’ response on the day of the explosion was 

consistent with his training because he smelled gas only in the lower engine room, was not aware 

that any other employees outside the lower engine room smelled gas, and he and two other 

employees attempted to identify the source of gas and believed they had done so when Jones saw 

the propane tank being changed out in the lower engine room. In addition, First Marine points out 

that Jones knew fans were running in that area to ventilate the space and thus, “[w]hile one can 

debate whether Jones made the proper choices that day, the choices he made” do not demonstrate 

a plain indifference to employee safety or the requirements of § 1915.12(d)(1).13 Finally, First 

12 The judge also relied on testimony from Thorn, who acknowledged on direct examination that 

First Marine’s hot work procedures were not being followed on the morning of the explosion but 

stated on cross-examination that he had previously tested the entire vessel twice and deemed it 

safe for hot work. Contrary to the judge, we read this testimony as not pertaining to the lack of 

training, so we do not rely on it. 

13 First Marine also claims that in his willful analysis, the judge inappropriately relied on testimony 

from Thermal Control employees who, First Marine contends, have an incentive to exaggerate or 
13 

Marine disputes the judge’s finding that Conaway was not trained appropriately for his position as 

safety director. 

We agree with First Marine. The gravamen of the violation here is a failure to train, not a 

failure to respond to the conditions present prior to the explosion. While Jones’ response on the

day of the explosion may have been deficient, it does not establish that Jones or First Marine was 

plainly indifferent to the cited training requirement. In fact, as previously noted, the Secretary has 

made no connection between Jones’ conduct that day and either his training or the training he 

provided to employees he supervises. In any event, as First Marine points out and the Secretary 

does not dispute, Jones did take some action in response to the gas odor. He and two members of 

his crew went looking for the source of the odor shortly after boarding the boat and knew that 

ventilation fans were running in the area. And as Jones testified, he believed the odor was limited 

to the lower engine room and that the source was Rupke’s propane tank. In short, while Jones 

could have done more to ensure the work area was safe, the actions he did take are inconsistent 

with a finding of plain indifference. Burkes Mech., Inc., 21 BNA OSHC 2136, 2141 (No. 04-475, 

2007) (finding LOTO violation not willful when “an adequately trained foreman would have 

known to lock out the conveyor before allowing employees to work underneath it[,] [b]ut 

[employer’s] failure to adequately train its employees does not on this record rise to the level of 

plain indifference in order to establish a willful violation of § 1910.261(b)(1)”); see Branham Sign 

Co., 18 BNA OSHC 2132, 2135 (No. 98-752, 2000) (failure to monitor employee use of safety 

equipment amounts to a lack of diligence that supports a finding of constructive knowledge, not 

plain indifference).

 Additionally, as noted, First Marine had a safety manual that required training employees, 

and the company held weekly safety meetings, daily work meetings with welders that periodically 

covered torch hose safety, and in some instances paired up less experienced employees with more 

experienced employees for on-the-job instruction. Again, while First Marine’s training efforts 

were deficient, the Secretary has failed to provide sufficient evidence that the company was plainly 

indifferent to the standard’s training requirement. See AJP Constr., Inc., 357 F.3d 70, 74 (D.C. 

misstate the truth because they have filed civil lawsuits against the company. The judge cited their 

testimony in finding that Jones’ lack of urgency in responding to the gas odor lulled workers on 

the boat into a false sense of safety. As discussed below, we find Jones’ actions that day do not 

rise to the level of plain indifference and therefore do not rely on this testimony. 
14 

Cir. 2004) (plain indifference can be established by showing employer “possessed a state of mind 

such that if it were informed of the standard, it would not care”); Greenleaf Motor Express, Inc., 

21 BNA OSHC 1872, 1875 (No. 03-1305, 2007) (noting distinction between mere negligence and 

willfulness), aff’d, 262 F. App’x. 716 (6th Cir. 2008) (unpublished); cf. Anderson Excavating & 

Wrecking Co., 17 BNA OSHC 1890, 1892-94 (No. 92-3684, 1997) (plain indifference found based 

on failure to provide employees with means essential for compliance—including safety program, 

training, and protective equipment— as well as supervisory involvement in the violation and 

apparent failure to take remedial action after recent receipt of two other citations for violations of 

same standard at other sites), aff’d, 131 F.3d 1254 (8th Cir. 1997).

Finally, we reject the judge’s finding that Conaway’s appointment as safety director is 

evidence of indifference to employee safety. The record supports First Marine’s claim that at the 

time of OSHA’s inspection, Conaway was transitioning into the role of safety director—while it 

is apparent from his testimony that he was not yet up to speed on First Marine’s safety program at 

the time of the explosion, Conaway was performing walkaround inspections and making some 

effort to monitor safety at the shipyard. And although he had not previously worked as a safety 

official in a professional capacity, he was not, as the Secretary alleges, entirely without safety 

training given that he had earned a Bachelor of Science degree in occupational safety and health. 

The record also shows that the company took affirmative steps to prepare Conaway for the 

position, which included hiring an insurance company specializing in shipyards to audit the 

William and point out hazards to him. And he was not the only individual charged with safety 

responsibilities at the shipyard, as all of First Marine’s supervisors also had safety responsibilities 

and several had competent person training. . 

In sum, we find the Secretary has not established that First Marine—in failing to comply 

with the cited training requirement—acted with a willful state of mind. See E.R. Zeiler Excavating, 

Inc., 24 BNA OSHC at 2053 (violation not willful when record is insufficient on key 

issues); George Campbell Painting Corp., 17 BNA OSHC 1979, 1983 (No. 93-0984, 1997) 

(same); Access Equip. Sys., Inc., 18 BNA OSHC 1718, 1727-28 (No. 95-1449, 1999) (same). 

Penalty 

The judge assessed the proposed penalty of $129,336 for the violation he affirmed as 

willful. Specifically, he found that First Marine was not entitled to any reduction in penalty for 

size, history, or good faith, and that the gravity of the violation was high. See Mosser Constr., 
15 

Inc., 23 BNA OSHC 1044, 1047 (No. 08-0631, 2010) (citing 29 U.S.C. § 666(j) penalty factors). 

First Marine does not dispute that the violation should be recharacterized as serious if affirmed 

and neither party addresses penalty on review.14 See 29 U.S.C. § 666(k) (violation is serious when

there is “substantial probability that death or serious physical harm could result” from the 

hazardous condition at issue). Under these circumstances, we affirm the violation as serious and 

see no basis to disturb the judge’s analysis of the penalty factors. Accordingly, given our 

recharacterization of the violation as serious, we assess a penalty of $12,934. 

SO ORDERED.

/s/ 

Cynthia L. Attwood 

Chairman

/s/ 

Amanda Wood Laihow 

Dated: April 6, 2023 Commissioner

14 Indeed, a failure to instruct employees on the hazards of confined or enclosed spaces and other 

areas with dangerous atmospheres could, and potentially did in this instance, cause fatal and other 

serious injuries to employees. See Pressure Concrete Constr., Co., 15 BNA OSHC at 2018 

(characterizing failure to train violation under § 1926.21(b)(2) as serious when a worker was killed 

because it was “abundantly clear that the consequences of [the employer’s] failure to instruct its 

employees could result in serious harm”). 
UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant, 

v. OSHRC Docket Nos.

 18-1287 & 18-1288

FIRST MARINE, LLC,

1

Respondent. 

DECISION AND ORDER

Attorneys and Law firms 

Matt S. Shepherd, Schean G. Belton, Megan A. Carrick, Attorneys, Office of the Solicitor, U.S. 

Department of Labor, Nashville, TN, for Complainant. 

Tashwanda Pinchback Dixon, Attorney, Balch & Bingham LLP, Atlanta, GA, Ryan A. Hahn, Carl 

Marshall, Attorneys, The Miller Law Firm, Paducah, KY, for Respondent. 

 

JUDGE: John B. Gatto, United States Administrative Law Judge. 

I. INTRODUCTION

This case centers on the ill-fated William E. Strait (the William), an inland river towboat. 

In 2015, barges pushed by another towboat on the Mississippi River struck the William as she 

pushed barges destined for New Orleans down the Mississippi River, causing the William to sink 

just south of Memphis, Tennessee. Three salvage crews working together raised the William on 

February 7, 2016 and transported her to a shipyard on the Tennessee River in Calvert City, 

Kentucky, which was owned and operated by the Respondent, First Marine, LLC. First Marine 

and its subcontractors began repairing and rebuilding the William, which was first in dry dock and 

then moored to the shipyard dock string on the Tennessee River. 

1 The Court issued an order granting the motion of James A. Lang, I, James A. Lang, II, Tyler C. 

Wedeking, Thomas E. Wilkerson, and Zachery W. Ford to withdraw as intervenors in this action. 
2 

On the morning of January 18, 2018, an explosion ripped through the William, killing three 

workers, and seriously injuring several others. The United States Department of Labor, through its 

Occupational Safety and Health Administration (“OSHA”), investigated the accident, along with 

the Kentucky State Police and the United States Coast Guard. None of the authorities investigating 

the explosion, including OSHA, were able to determine definitively the cause of the explosion.2 

According to signed statements provided to OSHA, most of the surviving workers aboard 

the William that morning reported they had smelled gas when they boarded at approximately 7:00 

a.m. Because the work aboard the William required the use of propane and propylene, as well as 

diesel fuel in portable heaters, it was not unusual to smell whiffs of gas, but the odor was noticeably 

stronger that morning. After a cursory search by several of the workers to find the source of the 

smell, everyone proceeded with their assigned tasks. 

OSHA opened its investigation on January 23, 2018, and Compliance Safety and Health 

Officers3 Patrick Whavers and Matthew Amick conducted interviews, took photographs, and 

examined the wreckage of the William. Based on their investigation, they recommended the 

Complainant Secretary of Labor issue both Health and Safety citations to First Marine for 

violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651- 678 (the Act). 

On July 17, 2018, the Secretary issued4 separate Health and Safety citations to First Marine. 

In the Safety citations (Docket No. 18-1287), the Secretary alleged 17 violations of the safety 

standards and one violation of section 5(a)(1) of the Act, commonly known as the “general duty” 

clause. In the Health citations (Docket No. 18-1288), the Secretary alleged 17 violations of the 

health standards. First Marine timely contested both the Health and the Safety citations and the 

2 The Secretary’s theory is the explosion originated in the deck locker, where propylene flowed through 

a gas hose allegedly left there overnight (Compl’t’s Br., p.1). First Marine contends the ignition source of 

the explosion was a propane-fueled portable heater allegedly being used improperly by a subcontractor’s 

employees in the center potable water tank on the lower deck of the towboat (Resp’t’s Br., p, 10; see also

Ex. R-9, pp. 2-3). 

3 A “Compliance Safety and Health Officer” is “a person authorized by the Occupational Safety and 

Health Administration, U.S. Department of Labor, to conduct inspections.” 29 C.F.R. §1903.22(d). 

4 The Secretary of Labor has assigned responsibility for enforcement of the Act to OSHA and has 

delegated his authority under the Act to the Assistant Secretary for Occupational Safety and Health, who 

heads OSHA. See Order 8-2020, Delegation of Authority and Assignment of Responsibility to the Assistant 

Secretary for Occupational Safety and Health, 85 Fed. Reg. 58393 (Sept. 18, 2020), superseding Order No. 

1–2012, 77 Fed. Reg. 3912 (Jan. 25, 2012). The Assistant Secretary has redelegated his authority to 

OSHA’s Area Directors to issue citations and proposed penalties. See 29 C.F.R. §§ 1903.14(a) and 

1903.15(a). The terms “Secretary” and “OSHA” are used interchangeably herein. 
3 

Secretary subsequently filed formal complaints5 with the Commission seeking Orders affirming 

the citations. The two cases were subsequently consolidated for trial and disposition. The parties 

settled most of the cited items.6

 Remaining at issue from the Safety citations are Citation 1, Items 

1, 4, 10, and 11, alleging “serious”7 violations of the Act. Remaining at issue from the Health 

citations are Citation 1, Items 4a, 4b, 5, 6, and 7, alleging serious violations of the Act, and Citation 

2, Items 1, 2, and 3, alleging “willful” violations of the Act. 

The parties stipulate the Commission has jurisdiction over this action, and First Marine is 

a covered employer under the Act (Answer, ¶¶ I & II; J. Pretrial Order, ¶ 4; see also id. Attach. C 

¶¶ 1, 2; Tr. 45). Based on the stipulations and the record evidence, the Court concludes the 

Commission has jurisdiction over this proceeding under section 10(c) of the Act, and First Marine 

is a covered employer under section 3(5) of the Act. 29 U.S.C. §§ 659(c), 652(5). The Court held a 

bench trial in Paducah, Kentucky8 and the parties subsequently filed post-trial briefs. Pursuant to 

Commission Rule 90, after hearing and carefully considering all the evidence and the arguments 

of counsel, the Court issues this Decision and Order, which constitutes its final disposition of the 

proceedings under section 12(j) of the Act.

9

 29 U.S.C. § 661(j). For the reasons indicated infra, the 

Court VACATES all the remaining items of Safety Citation 1 and VACATES all the remaining 

5 Commission Rule 30(d) provides that “[s]tatements in a pleading may be adopted by reference in a 

different part of the same pleading or in another pleading or in any motion. A copy of any written instrument 

which is an exhibit to a pleading is a part thereof for all purposes.” 29 C.F.R §2200.30(d). Attached to the 

complaints and also adopted by reference were the citations, which were “a part thereof for all purposes.” 

6 On January 30, 2020, the parties filed a Joint Notification of Partial Settlement and pursuant to 

Commission Rule 10, 29 C.F.R. § 2200.10, the settled citation items were severed from the original cases 

and were disposed of in a new case under Docket No. 20-0178. 

7 The Act contemplates various grades of violations of the statute and its attendant regulations—“willful”; 

“repeated”; “serious”; and those “determined not to be of a serious nature” (the Commission refers to the 

latter as “other-than-serious”). 29 U.S.C. § 666. 

8 Twenty-five witnesses testified at the trial. Eleven of the witnesses (including carpenters, electricians, 

welders, and supervisors) were working for First Marine the day of the explosion. Four witnesses had been 

working for subcontractor Thermal and Fabrication; one witness had been working for subcontractor 

Rupke’s Blasting and Painting; two witnesses had been working for subcontractor Hutco, and one witness 

had worked for subcontractor Wise Staffing. These nineteen witnesses were either aboard the William or 

nearby on the dock string when the vessel exploded on January 18, 2018. Two management officials from 

Western Rivers Boat Management Inc. (the owner of the William) testified, as did an expert in forensic fire 

and explosion investigations hired by First Marine. An investigator for the Kentucky State Police testified, 

as well as the two Compliance Safety and Health Officers that investigated the explosion.

9 All arguments not expressly addressed have nevertheless been considered and rejected. If any finding 

is in truth a conclusion of law, or if any stated conclusion is in truth a finding of fact, it shall be deemed so.
4 

items of the Health citations except Citation 1, Item 7 and Citation 2, Item 2, which are 

AFFIRMED, with penalty ASSESSMENTS of $12,934 and $129,336 respectively. 

II. BACKGROUND

Western Rivers Boat Management Inc. (Western Rivers) owns and operates towing vessels. 

The vessels push barges on the Mississippi River and its tributaries (Tr. 1138, 1143). Western 

Rivers bought an inland river towboat in 2012 and renamed her the William E. Strait. The towboat 

had three decks and was approximately 200 feet long and 45 feet wide. Two engines provided her 

with 7,200 horsepower (Tr. 1144). On December 14, 2015, as the William was pushing barges 

down the Mississippi River near Memphis, Tennessee, a barge being pushed by another towboat 

struck her on the starboard stern. The William began to take on water and eventually sank (Tr. 

1150). 

Western Rivers initiated a salvage operation but suspended it due to the rising river and 

recommenced salvage on January 25, 2016, after the river dropped. A salvage crew first pumped 

off approximately 80,000 gallons of diesel fuel that remained aboard (Tr. 1155). Because the 

William was a large towboat, Western Rivers hired three salvage companies to lift her (Tr. 1154). 

The salvage crews placed a weave of large cables underneath the bow and the stern of the towboat 

and used five derrick cranes to raise her. In addition to the damage sustained by the vessel during 

the sinking, the weave of cables further damaged the bow and the stern of the towboat as the cranes 

lifted her (Tr. 1157). 

Western Rivers submitted a transit plan for the William to the United States Coast Guard 

and towed her to First Marine’s shipyard on the Tennessee River in Calvert City, Kentucky, where 

she was placed in dry dock on February 14, 2016 (Tr. 1159-61). After clearing the buildup of sand 

and sediment that had accumulated in the vessel, workers partially disassembled her by cutting out 

sections of the vessel, including the hull, to remove the engines and gearboxes. First Marine 

subsequently removed the William from dry dock and moored her to the dock string10 at First 

Marine’s shipyard in December 2017 (Tr. 1165-67, 1171). 

First Marine contracted with several subcontractors to perform work on the William: Hutco, 

a temporary staffing agency, provided welding and cutting workers; Rupke Blasting and Painting 

10 The dock string comprises a series of barges permanently moored on the Tennessee River. Vessels are 

moored to the dock string and workers access vessels from the individual barges of the dock string. The 

barges are connected to the riverbed by spuds (long poles) which allow the barges to float up and down 

with the vessels, but not back and forth (Tr. 616, 658, 1406, 1448). 
5 

(Rupke)11 provided workers to pressure wash and paint water tanks; and Thermal Control and 

Fabrication (Thermal) provided workers to install insulation. Wise Staffing, a temporary staffing 

agency, also provided laborers for the project. First Marine itself had two welding and fitting crews 

on the day shift, supervised by David Byrum and Brandon Carter (Tr. 843-44). 

In mid-January of 2018, Calvert City, Kentucky, experienced chilly temperatures, and 

wintry weather. Snow had fallen the night of January 18, and snow and ice remained on First 

Marine’s dock and the surfaces of the William the morning of January 19 (Tr. 241, 461). The upper 

engine room of the towboat is located on the main deck. It has exterior doorways on the starboard 

and port sides of the vessel, and three interior doorways leading to the generator room, the control 

room, and a hallway to the galley. The upper engine room also has several exterior window 

openings (Ex. R-1). On January 18 and 19, 2018, doors and window glass were not installed in the 

openings in the upper engine room. Workers had covered the openings with plastic tarps and 

welder’s blankets to contain what heat there was in the room and to prevent wind from blowing in 

(Tr. 61-63, 98-99, 127, 137, 182). 

The lower engine room of the William is located on the bottom deck of the vessel. Workers 

access the lower engine room from the upper engine room by using a stairway located in the middle 

of the upper engine room floor (Ex. R-1). The two levels are not separated by a door or doors—

the stairway is open at its top and bottom. A Thermal employee stated the stairway area is “just 

open really. You can see pretty good down there” from the upper engine room (Tr. 100). 

Rupke, the company hired to provide pressure washing and painting services, had placed a 

portable forced-air Remington heater (also known as a salamander) fueled by propane in the lower 

engine room of the William on January 18 and 19, 2018 (Tr. 243; see also Ex. R-12, p. 35). The 

heater was positioned at the bottom of the stairway and was visible from the upper engine room 

(Tr. 99, 186-87, 246, 371). 

On January 19, 2018, First Marine employees and subcontractor employees were working 

aboard the William. Most of the workers had arrived at the shipyard before 7:00 a.m. and were 

aboard the towboat by 7:15 a.m. Most of the workers who boarded the towboat immediately 

noticed a gas odor, and one or two of them attempted to trace its origin (Tr. 66, 102-03, 139). 

Workers moved the plastic aside from the doorways and window openings to air out the upper 

11 The company’s name also appears as Rupcke in some exhibits and case documents. The Court uses the 

spelling that appears in the trial transcript. 
6 

engine room and, First Marine electrician Manuel Macario Garcia testified he could feel air 

movement when the plastic was moved from the openings (Tr. 192-93, 197-98, 211, 282-84, 302, 

313-14, 347-49, 368, 373). “Not all of [the upper engine room] was tarped up and you can feel the 

cold coming through.” (Tr. 372.) 

Rupke’s supervisor directed Rupke employee Zachary Ford to replace the propane tank 

connected to the portable heater with a new propane tank to determine if the old tank was the 

source of the gas smell (Tr. 243-45, 249).12 Ford disconnected the old tank and carried it to his 

supervisor’s truck parked on the dock. He retrieved “a brand-new tank that had a blue plug in the 

tank” from the truck, reboarded the vessel, and carried it to “the bottom deck of the boat at the 

bottom of the stairs, and . . . hooked it up and turned it back on and started the heater back up. It 

was just a process of elimination[.]” (Tr. 246.) At approximately 9:15 a.m., an explosion erupted, 

killing a First Marine fitter and two Hutco welders, and seriously injuring several other employees 

(Tr. 813).13 

III. ANALYSIS

The fundamental objective of the Act is to prevent occupational deaths and serious injuries. 

Whirlpool Corp. v. Marshall, 445 U.S. 1, 11 (1980). The Act “establishes a comprehensive 

regulatory scheme designed ‘to assure so far as possible safe and healthful working conditions’ for 

‘every working man and woman in the Nation.’ ” Martin v. Occupational Safety and Health 

Review Comm'n (CF&I Steel Corp.), 499 U.S. 144, 147 (1991) (quoting 29 U.S.C. § 651(b)). “The 

Act charges the Secretary with responsibility for setting and enforcing workplace health and safety 

standards.” Id. To achieve this purpose, the Act imposes two duties on an employer, a general duty 

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

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

employees,” 29 U.S.C. § 654(a)(1), and a specific duty to “comply with occupational safety and 

12 Expert witness Michael Schulz explained that propane and propylene are odorless gasses. 

Manufacturers add mercaptans to the odorless gases as a “safety strategy . . . so that leaks can be detected. 

. . . Mercaptans are described as what’s called a high odor impact material. . . . [T]hey’ve often been 

described by chemists as the stinkiest material liquid, gas or solid in the world. Biggest smell for the smallest 

amount.” (Tr. 1289.)

13 Several of the injured workers testified at the trial, which began approximately two years after the 

explosion. Some of them continued to suffer from the effects of the blast and were in noticeable physical 

discomfort as they testified. One of the workers described his injuries: “Liver, my lungs and my spleen. 

Broke all my ribs in the front. Broke them all in the back, plus my backbone. Broke my arm. Messed my 

shoulder up. Broke my leg, my knee right above the kneecap.” (Tr. 70.) 
7 

health standards promulgated under this Act.” Id. § 654(a)(2). Thus, each employee must “comply 

with occupational safety and health standards and all rules, regulations, and orders issued pursuant 

to this Act which are applicable to his own actions and conduct.” Id. § 654(b). 

Pursuant to that authority, the standards at issue in this case were promulgated. See 29 

U.S.C. § 665. Meanwhile, the Commission is assigned to carry out adjudicatory functions under 

the Act and serves “as a neutral arbiter and determine whether the Secretary's citations should be 

enforced over employee or union objections.” Cuyahoga Valley Ry. Co. v. United Transp. Union, 

474 U.S. 3, 7 (1985) (per curiam). Thus, Congress vested the Commission with the “adjudicatory 

powers typically exercised by a court in the agency-review context.” CF&I Steel Corp., 499 U.S. 

at 151. 

A. THE SAFETY CITATION (CASE NO. 18-1287) 

1. Alleged General Duty Clause Violation

Under the law of the Sixth Circuit where this case arose,14 for alleged violations of the 

general duty clause, the Secretary must demonstrate that: “(1) A condition or activity in the 

workplace presented a hazard to employees; (2) The cited employer or the employer's industry 

recognized the hazard; (3) The hazard was likely to cause death or serious physical harm; and (4) 

A feasible means existed to eliminate or materially reduce the hazard.” Nelson Tree Servs., Inc. v. 

Occupational Safety & Health Review Comm'n, 60 F.3d 1207, 1209 (6th Cir. 1995). 

Citation 1, Item 1

In Citation 1, Item 1, the Secretary alleges on January 18 and 19, 2018, First Marine 

committed a serious violation of the general duty clause by exposing employees on the William to 

the hazard of asphyxiation, when “a carbon monoxide producing propane forced air heater was 

used in the lower engine room.”15 (Compl. Ex. A p. 6 of 25.) The Court notes although the citation 

14 Under the Act, an employer may seek review in the court of appeals in the circuit in which the violation 

occurred, the circuit in which the employer’s principal office is located, or the District of Columbia Circuit. 

29 U.S.C. § 660(a). The Secretary may seek review in the circuit in which the violation occurred or in which 

the employer has its principal office. 29 U.S.C. § 660(b). “[I]n general, ‘[w]here it is highly probable that 

a Commission decision would be appealed to a particular circuit, the Commission has ... applied the 

precedent of that circuit in deciding the case—even though it may differ from the Commission's 

precedent.’” Dana Container, Inc., 25 BNA OSHC 1776, 1828 n.10 (No. 09-1184, 2015), aff’d, 847 F.3d 

495 (7th Cir. 2017). This case arose in Kentucky, located in the Sixth Circuit, where First Marine also has 

its principal office. Therefore, the Court applies the precedent of the Sixth Circuit in deciding the case, 

where it is highly probable that a Commission decision would be appealed. 

15 Whavers recommended the Secretary cite First Marine for “the use of a forced air propane heater in an 

enclosed space.” (Tr. 934) (emphasis added). However, the Secretary did not include the term “enclosed 
8 

alleged the violation occurred on January 18 and 19, 2018, the testimony regarding the location 

and use of the heater at issue relates almost entirely to the events of January 19, the day of the 

explosion. The Court concludes the record regarding the location and use of the heater on January 

18 is insufficient to establish that its condition presented a hazard. Thus, the Court restricts its 

analysis to the alleged violation on January 19, 2018. 

Did a Workplace Condition or Activity Present a Hazard to Employees? 

As evidence of an asphyxiation hazard, the Secretary relies on the heater’s User’s Manual 

& Operating Instructions, which warns, “Never use the heater in enclosed spaces[.]” (Ex. C-5, p. 

1.) The Secretary argues the lower engine room was an “enclosed space” and the use of the heater 

in it established the presence of an asphyxiation hazard. The maritime standards define the term 

“enclosed space” as “any space, other than a confined space, which is enclosed by bulkheads and 

overhead. It includes cargo holds, tanks, quarters, and machinery and boiler spaces.” 29 C.F.R. § 

1915.4(q). A “confined space” is “a compartment of small size and limited access such as a double 

bottom tank, cofferdam, or other space which by its small size and confined nature can readily 

create or aggravate a hazardous exposure.” 29 C.F.R. § 1915.4(p). 

First Marine does not dispute the cited heater was fueled by propane and was in use in the 

lower engine room on January 18 and 19, 2018. However, First Marine argues the lower engine 

room “was not an enclosed space ”and therefore, the Secretary failed to establish the use of the 

heater presented an asphyxiation hazard (Resp’t’s Br., p. 62). First Marine argues that the 

definition of an “enclosed space” cannot be expanded to encompass a three-sided compartment 

with a stairway on the fourth side that opens to a large upper room. Whavers conceded the area 

where the heater was located had bulkheads (or walls) on three sides, but the stairway leading to 

the upper engine room was located on the fourth side. The area above the stairway was not enclosed 

but opened into the larger upper engine room (Tr. 975-76; see also Ex. R-2). The record also 

establishes workers had pushed the plastic tarps aside at the doorways and window openings to 

space” in the alleged violative description of the citation, but rather, elected to include it only in the 

paragraph addressing abatement. A “workplace hazard cannot be defined in terms of a particular abatement 

method.” Otis Elevator Co., 21 BNA OSHC 2204, 2207 (No. 03-1344, 2007). First Marine failed to object 

at trial that the evidence of the enclosed space was not within the issues raised in the pleadings, and at trial 

the parties litigated the issue of whether the lower engine room was an enclosed space. “When an issue not 

raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects 

as if raised in the pleadings.” Fed. R. Civ. P. 15. Therefore, the Court concludes the issue of whether the 

portable heater was used in an “enclosed space” was tried by consent of the parties.
9 

allow outside air to circulate in the engine rooms (Tr. 1181). The Court therefore concludes, as 

established by the record, that the lower engine room was not an enclosed space within the meaning 

of the maritime standards.16

Further, the heater’s User’s Manual allows for an exception to its prohibition on indoor 

use of the heater: “INDOOR USE PERMITTED ONLY FOR: The temporary heating of 

adequately ventilated buildings or structures under construction, alteration, or repair!” (Ex. C-5, 

Bates page 000480.) Whavers agreed that on January 18 and 19, 2018, the William was under 

construction, alteration, or repair (Tr. 970). The Secretary shifted ground at the trial to contend 

that even if the lower engine room was not an enclosed space, the upper engine room was not 

adequately ventilated because the door and window openings of that room were covered with 

plastic to shield against the wind and freezing temperatures. Thus, the Secretary’s assertion that 

“[u]nless fresh air was being pumped into the space (which there is no evidence of), the space is 

exactly the type of space where the heater should not be used.” (Compl’t’s Br., pp. 60-1, n. 39.) 

The Court finds no merit in this argument. The record is replete with undisputed testimony that 

the plastic tarps on the upper engine room door and window openings had been moved aside to air 

out the upper engine room once workers detected the gas odor (Tr. 192-93, 197-98, 211, 282-84, 

302, 313-14, 347-49, 368, 372-73).17 

16 The Secretary claims post-explosion photographs of the area where the heater was located the morning 

of January 19, 2018, “are the best evidence” that the heater was being used in an enclosed space, which 

according to the Secretary, is corroborated by Whavers’ testimony the heater was being used in a 

compartment “off to the side of the [lower] engine room,” which sits below the water line. (Compl’t’s Br., 

p. 60) (citing Tr. 971-72; Ex. C-23, Ex. C-24, Ex. C-25). The Court finds no merit in this argument. The 

Court does not find persuasive and therefore does not credit the testimony of Whavers with respect to the 

location of the heater prior to the explosion since he observed the location of the heater after the explosion. 

Rupke employee Ford testified the heater was at the bottom of the stairway when he replaced the propane 

tank connected to it (Tr. 246). Multiple employees also testified they observed the heater at the foot of the 

stairway before the explosion (Tr. 99, 186-87, 246, 371). The eyewitness testimony is corroborated by the 

testimony of Michael Schulz, a forensic fire and explosion investigator and analyst called as an expert 

witness by First Marine. He inspected the William on January 22, 2018, three days after the explosion, 

found the Remington heater at issue and examined it (Tr. 1332-33). Schulz testified he did not find the 

Remington heater at the base of the stairs where workers testified it had been used, but “closer towards the 

aft of the vessel.” (Tr. 1302.) Schulz opined the dislocation resulted from “the explosion dynamics” that 

propelled objects “away from the stairs because of the pressure wave coming from” the explosion (Tr. 

1302). The Court credits the testimony of Schulz and the eyewitnesses and finds the heater was at the 

bottom of the stairway before the explosion. 

17 The Secretary also asserts in his post-trial brief that the size of an outside air opening required for 

adequate ventilation of the 125,000 BTU heater would be 3.6 square feet (Compl’t’s Br., p. 60, n. 39). 

However, the Secretary provided no measurement or calculations as to how he concluded 3.6 square feet 

was required, cited to no evidence in the record establishing the actual size of the outside air openings, and 
10

Since the Secretary relied on the User’s Manual & Operating Instructions of the cited 

heater to set the parameters of the heater’s safe use, he has failed to establish First Marine permitted 

the heater to be used improperly, either by operating it in an enclosed space or by operating it 

without adequate ventilation. The Court therefore concludes the Secretary failed to establish use 

of the Remington heater presented an asphyxiation hazard in the workplace and Item 1 must be 

vacated. 

2. Alleged Violation of Occupational Safety and Health Standards

To establish a prima facie violation of applicable occupational safety and health standards, 

the Secretary must show by a preponderance of the evidence that “ ‘(1) the cited standard applies 

to the facts, (2) the requirements of the standard were not met, (3) employees had access to the 

hazardous condition, and (4) the employer knew or could have known of the hazardous condition 

with the exercise of reasonable diligence.’ ” Mountain States Contractors, LLC v. Perez, 825 F.3d 

274, 279 (6th Cir. 2016) (internal citation omitted). 

Applicability of the Shipyard Employment Standards 

Except for the alleged general duty clause violation, all of the remaining citations and items 

in dispute in both cases involve alleged violations of various standards found in Part 1915—

Occupational Safety and Health Standards for Shipyard Employment (Shipyard Standards), 29 

C.F.R., Part 1915, which, except where otherwise provided, “shall apply to all ship repairing, 

shipbuilding and shipbreaking employments and related employments.” 29 C.F.R. § 1915.2(a).18

Since First Marine was in the process of repairing or rebuilding the William at the time of the 

explosion, the Court concludes the specifically cited Shipyard Standard in each citation item 

applies unless a specific “applicability” provision applies, where the Court will separately address 

the first prong of the Mountain States test as it relates to that specific “applicability” provision. 

offered no evidence of how the actual ventilation was inadequate since the plastic tarps on the upper engine 

room door and window openings had been moved aside to air out the upper engine room once workers 

detected the gas odor. 

18 “Shipyard employment” means “ship repairing, shipbuilding, shipbreaking and related employments.” 

29 C.F.R. § 1915.2(i). “Ship repair” and “ship repairing” mean “any repair of a vessel including, but not 

restricted to, alterations, conversions, installations, cleaning, painting, and maintenance work.” 29 C.F.R. 

§ 1915.2(j). “Shipbuilding” means “the construction of a vessel including the installation of machinery and 

equipment.” 29 C.F.R. § 1915.2(k). “Related employment” means “any employment performed as an 

incident to or in conjunction with ship repairing, shipbuilding or shipbreaking work, including, but not 

restricted to, inspection, testing, and employment as a watchman.” 29 C.F.R. § 1915.2(m). 
11

Citation 1, Item 4 

In Citation 1, Item 4 the Secretary alleges First Marine committed a serious violation of § 

1915.74(c)(2), a vessel access provision, on January 19, 2018 when a ramp was not provided to 

access the vessel. More specifically, the Secretary asserts First Marine violated this standard when 

the “William was tied to the dock in a manner that would allow it to float away from the dock 

creating a space of approximately 2 feet that an employee could fall through between the deck and 

dock.” (Compl. Ex. A p. 10 of 25.) The Shipyard Standards mandate that with respect to access to 

barges and river towboats, either a ramp or a safe walkway shall be provided “[u]nless employees 

can step safely to or from the wharf, float, barge, or river towboat[.]” 29 C.F.R. § 1915.74(c)(2).19

“When a walkway is impracticable, a substantial straight ladder, extending at least 36 inches above 

the upper landing surface and adequately secured against shifting or slipping, shall be provided.” 

29 C.F.R. § 1915.74(c)(2). “When conditions are such that neither a walkway nor a straight ladder 

can be used, a Jacob's ladder . . . may be used.” Id. 

Did First Marine Meet the Requirements of the Standard?

First Marine moors vessels in its shipyard to a dock string, a series of barges tied together 

to provide a walking and working surface on the river. After First Marine moved the William from 

dry dock and moored her with her starboard side next to the dock string barge, workers could board 

the towboat either by stepping from the dock string barge to the deck of the towboat or walking 

down a set of stairs to the main dock (Tr. 406-04, 1449).20 First Marine did not provide a ramp or 

walkway for access between the dock string barge and the towboat (Tr. 959). Handrails line the 

edge of the dock string. Workers accessed the William by passing through a gateway in the 

handrails on the dock string barge to which the vessel was moored (Ex. R-10, Bates page 001538). 

19 A ramp must be provided in conformity with § 1915.74(c)(1), which provides: “Ramps for access of 

vehicles to or between barges shall be of adequate strength, provided with side boards, well maintained and 

properly secured.” 29 C.F.R. § 1915.74(c)(1). A walkway must be provided in conformity with § 

1915.74(a)(7), which mandates that “[i]f the foot of the gangway is more than one foot away from the edge 

of the apron, the space between them shall be bridged by a firm walkway equipped with railings, with a 

minimum height of approximately 33 inches with midrails on both sides.” 29 C.F.R. § 1915.74(a)(7). A 

Jacob's ladder must “be of the double rung or flat tread type ... shall be well maintained and properly 

secured[,]” and “shall either hang without slack from its lashings or be pulled up entirely.” 29 C.F.R. § 

1915.74(d). 

20 First Marine electrician Victor Pineda explained the stairs lead to “the carpenter shop, and you can take 

a right and you can get on the boat that way, too.” (Tr. 407.) 
12

Hutco supervisor Gregory Voss fabricated a metal step and attached it to the edge of the 

towboat next to the gate on the dock string barge so workers could step on it as they boarded the 

vessel (Tr. 658-59; see also Ex. C-11, Ex. C-12). Voss fabricated the step in response to the 

inclement weather. “Normally, we wouldn’t use a step on a sunshiny day, but it was snowing. It 

had been snowing, icing up, and . . . because the boat was tilted in the water, it was actually real 

slippery, and so we put the step there and leveled it off, so you weren’t stepping onto something 

that was slick.” (Tr. 661.) 

As indicated supra, the cited standard requires the employer to provide a ramp or safe 

walkway “[u]nless employees can step safely to or from the . . . river towboat.” The Secretary 

contends the fabricated step was insufficient to allow employees to step safely between the dock 

and the towboat. Thus, the Secretary asserts in the citation that access to and from the towboat was 

not safe because the way the towboat was secured to the dock string “would allow it to float away 

from the dock creating a space of approximately 2 feet that an employee could fall through between 

the deck and the dock.” No evidence in the record supports this claim that workers were exposed 

to a gap between the William and the dock string as wide as 2 feet. 

Welder B.K. had worked for First Marine for “a couple of years” at the time of the 

explosion (Tr. 459). He stated the towboat generally was drawn in “tight” to the dock string unless 

another boat passed, creating a wake. In that event, he would “[w]ait a second or jump across. . . . 

If it was a problem, you could go to your manager and they would tighten the line.” (Tr. 514.) He 

estimated he had seen the towboat drift 12 or 13 inches from the dock string (Tr. 534). Deron 

Conaway, First Marine’s safety director, testified in a deposition that he had observed the towboat 

drift “as much as 18 inches or more” from the dock string (Tr. 897). 

James A. Lang I of Thermal testified he remembered the towboat was “snugged up to the 

dock” the day of the explosion (Tr. 80). His son, James A. Lang II estimated any gap between the 

dock string and the towboat was “six or seven inches probably” (Tr. 107.) Tyler Wedeking, also 

of Thermal, stated the towboat “was pulled up tight against the . . . dock string. There [were] 

always gaps, but you just stepped across.” (Tr. 199.) First Marine carpenter Matthew McCoy and 

First Marine electrician Manuel Macario Garcia stated they had no trouble stepping over the gap, 

and it caused them no safety concerns (Tr. 330, 374). Hutco supervisor Gregory Voss, who 

fabricated the step for the towboat, testified he had seen gaps “maybe up to about six inches.” (Tr. 

661.) 
13

Whavers recommended the Secretary cite First Marine for a violation because “depending 

on the action on the river due to vessel traffic or wind, the William would move away from the 

dock.” (Tr. 944.) He experienced this condition himself as he boarded the towboat during his 

inspection. “[W]hen I stepped onto the vessel it was a gap of about 10 inches. There was no 

handhold when you stepped down to the [fabricated step]. . . . So, when you step down, you step 

directly onto the top of the platform, and we had nothing to hold onto.” (Tr. 944.) Whavers 

described the hazard created by the absence of a ramp or walkway. “The hazard is that if there is 

a wake while you’re stepping from the dock to the vessel, you can receive a knee or ankle injury. 

If the gap is such that it’s large enough for a person to pass, you could actually fall between the 

barge and the dock to water. And that’s a potential crushing or drowning hazard.” (Tr. 945.) 

However, Whavers admitted that none of the employees he spoke with during his inspection told 

him they encountered difficulty boarding or disembarking from the towboat (Tr. 944). 

Jason Strait, one of the managers of the family-owned Western Rivers, testified that he 

believed Whavers’s perception of access to the William was skewed based on his observations of 

the towboat following the explosion. 

[W]e had to move the boat after the explosion. It was tied off. It was in a good spot. 

We had a breakaway [of barges] from a fleet that's unrelated to our facility upriver 

and some barges had come down the river. Well, there's multiple tugs running back 

and forth grabbing these barges, moving things around. It was just an unusual 

amount of traffic which made that boat come a little looser to its moorings. And 

when Mr. Whavers got there that's how he [saw] it. Any normal operation is not 

that way and we would have pulled it tight. 

(Tr. 1450.) Strait testified that workers could support themselves on the handrails and swinging 

gate as they stepped from the dock string barge to the William. “[T]he handrails that you see [in 

photographic Exhibit R-10, Bates page 001538,] that are running vertical along the side are there, 

but also the gate itself is used as a handrail. . . . It swings both ways, and when it swings it actually 

stops at a 90-degree angle. That way you can hang on to it, lean on it when you’re accessing that 

point.” (Tr. 1409-10.) 

First Marine focuses on the conditional clause that opens the cited standard: “Unless 

employees can step safely to or from the wharf, float, barge, or river towboat,” then a ramp or

walkway is required. First Marine argues guidance for determining whether employees can step 

safely to or from the towboat is provided by § 1915.74(a)(7), which is referred to in the cited 

standard. The Court agrees. 
14

The well-established rule of statutory construction is that “each part or section 

should be construed in connection with every other part or section so as to produce 

a harmonious whole.” 2A Sutherland Statutory Construction § 46.05 (5th ed. 

1992). . . . See also General Motors Corp., Electro–Motive Div., 14 BNA OSHC 

2064, 2066 & n. 8, 1991 CCH OSHD ¶ 29,240, p. 39,165 & n. 8 (No. 82–630, 

1991) (statutes should be construed so as to avoid conflict between them). 

Morrison-Knudsen Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1107 (No. 88-0572, 

1993). Section 1915.74(c)(2) explicitly incorporates § 1915.74(a)(7), which requires the employer 

to provide a walkway “[i]f the foot of the gangway is more than one foot away from the edge of 

the apron[.]” 29 C.F.R. § 1915.74(a)(7). The Court concludes that since a walkway is only required 

if the gangway falls short by more than a foot, employees “can step safely to or from” a vessel if 

the gap is one foot or less. 

Here, except for Conaway and B.K., the workers who testified about the gap between the 

dock string barge and the William gave estimates that were less than 12 inches. B.K. estimated the 

gap to be 12 or 13 inches. The higher number exceeds the one-foot criterion by only an inch. The 

Court has no basis for determining which of B.K.’s estimates of 12 or 13 inches is more accurate. 

His testimony is an insufficient basis for finding the gap he observed exceeded one foot. 

Conaway’s testimony he observed an 18-inch gap is an outlier. He did not state in his deposition 

testimony the date he observed a gap that wide, and at trial he did not remember observing such a 

gap (Tr. 896). Item 4 of the Safety Citation alleges the violation of § 1915.74(c)(2) occurred “[o]n 

or about January 19, 2018.” There is no evidence showing Conaway’s observation of an 18-inch 

gap between the dock slip barge and the towboat occurred during the cited timeframe. 

Further, Whavers recommended the Secretary cite First Marine for violating § 

1915.74(c)(2) based on his own observations of the altered conditions of the shipyard that existed 

after the explosion. However, no workers boarded the William the day of his inspection and 

therefore no workers were exposed to any violative condition existing when Whavers made his 

observations. Finally, the addition of the fabricated step and the installation of the handrails and 

swinging gate on the dock slip barge demonstrate additional measures were in place to aid workers 

in stepping safely to and from the towboat. The Court concludes the Secretary has failed to 

establish a violation of § 1915.74(c)(2) and Item 4 must be vacated.
15

Citation 1, Item 10 

In Citation 1, Item 10 the Secretary alleges First Marine committed a serious violation of 

§ 1915.503(b)(2)(ii), a shipyard fire protection provision, from January 17 to January 19, 2018, 

when it failed to “make sure that unattended fuel gas and oxygen hose lines or torches were in 

enclosed spaces for no more than 15 minutes[.]” (Compl. Ex. A p. 19 of 25.) The cited standard 

mandates the employer must make sure that “[n]o unattended charged fuel gas and oxygen hose 

lines or torches are in enclosed spaces for more than 15 minutes[.]” 29 C.F.R. § 1915.503(b)(2)(ii) 

(emphasis added).

Does the Cited Standard Apply to the Facts?

 For the cited standard to apply to the facts, the unattended fuel gas and oxygen hose lines 

or torches had to be in “enclosed spaces.” The deck locker of the William is located on her forward 

lower deck (Ex. R-1). When the tugboat is operational, the deck locker is a storage space for 

supplies and equipment (Tr. 478.) The compartment was approximately 21 feet long and 7 feet 

wide (Ex. C-32, p. 1) The room had four walls, but the overhead had not been completed, “just the

framework for the main deck.” (Tr. 479.) There were two openings in the overhead. One opening 

was rectangular, measuring approximately 5 feet, 8 inches by 6 feet, 6 inches. The other opening 

was circular (for the capstan) and measured approximately 21⁄2 feet in diameter (Ex. C-32, p.1). 

The capstan opening was covered with plywood, and the rectangular opening was covered by 

boards when they were not being used to hand material down to the First Marine employees (Tr. 

480-81). 

The Secretary contends the deck locker was an enclosed space. The Secretary cites 

Offshore Shipbuilding, Inc., 18 BNA OSHC 2169 (No. 97-257, 2000), in support of his position 

that the openings in the deck locker overhead do not preclude finding the compartment was an 

enclosed space. He contends that in Offshore Shipbuilding, the Commission held “a ballast tank, 

measuring ‘12 feet by 13 feet by 19 feet’ to be an ‘enclosed space,’ even though ‘[i]t had three 

openings: two 18-22-inch diameter holes in the deck for access, and a hole approximately 10 feet 

by 18 inches running horizontally approximately 4 feet above the floor of the tank.’” (Compl’t’s 

Br., p. 54.) Thus, according to the Secretary, “[t]he forward compartment where [the fitter] and 

[B.K.] were working is an enclosed space. The space was enclosed by walls and overhead. . . . The 

fact that there may have been two or three partially uncovered openings in the ceiling does not 

transform the space into something other than an enclosed space.” (Compl’t’s Br., p. 64, n. 10.) 
16

First Marine disagrees. It argues, 

Both open areas above the lower forward hold remained open while [B.K.] and [the 

fitter] worked below, except for when they would loosely place boards over the 

openings because it had gotten too cold or so they could safely walk across the area. 

(Tr. 480-81.) Even then, the boards had gaps between them, which prevented them 

from creating even a makeshift ceiling. (Id.) In other words, at no time on January 

19, 2018 was the lower forward hold closed in by a ceiling. 

(Resp’t’s Br., p. 32.) 

The Secretary mischaracterizes the Commission’s holding in Offshore Shipbuilding. 

Commissioner Visscher dissented on the issue of the ballast tank being classified as an enclosed 

space at the time of the inspection. 

The judge found that the ballast tank was “an enclosed space, rather than a confined 

space” and the majority agrees with the judge. I agree that the ballast tank when 

completed would meet the standard's definition of an enclosed space. 

The record does not show, however, that the ballast tank was enclosed when [the 

employee] was welding deck plates on it before he was removed from this job. As 

the compliance officer testified, the deck plates [the employee] was welding made 

up the top of the tank, and he was in the process of “welding himself in; in other 

words, enclosing it as he went.” Though the record is not entirely clear, the 

strongest inference to be made is that [the employee] had not completed the process 

of “enclosing himself in” before he was removed from the job. The compliance 

officer herself agreed that “a lot” of the top of the tank had been open when [the 

employee] began welding that morning, and another employee was assigned to 

complete this welding job after [the employee] was removed. 

Offshore Shipbuilding, 18 BNA OSHC at 2179 (emphasis in original). Contrary to the Secretary’s 

characterization, a footnote by the majority makes clear the parties did not litigate the issue of 

whether the ballast tank was an enclosed space.

Commissioner Weisberg notes that the position advanced by Commissioner 

Visscher in his dissent, namely that the ballast tank did not become an enclosed 

space until after the employee had completed the process of “enclosing himself in,” 

was neither raised nor argued by the company. Moreover, the company’s expert 

witnesses testified that it was an enclosed space.

Id. at 2180 n. 4. 

The Court concludes Offshore Shipbuilding does not support the Secretary’s argument that 

openings in a vessel compartment’s overhead do not affect its classification as an enclosed space. 

Further, as the Court concluded supra, the maritime standards define the term “enclosed space” as 

“any space, other than a confined space, which is enclosed by bulkheads and overhead. It includes 
17

cargo holds, tanks, quarters, and machinery and boiler spaces.” 29 C.F.R. § 1915.4(q). As 

commonly defined, “enclose” means “surround or close off on all sides.” The New Oxford 

American Dictionary (2d ed. 2005) (emphasis added). Two large openings in the overhead means 

the space is not closed off on its top side. When the plywood and the boards are removed from the 

openings, the deck locker is not an enclosed space. 

However, the issue is not so clear when the plywood and boards are in place over the 

openings. First Marine is creative in its interpretation of the testimony when it claims B.K. and the 

fitter “would loosely place boards over the openings because it had gotten too cold or so they could 

safely walk across the area.” (Resp’t’s Br., p. 32) (citing Tr. 480-81). “Even then, the boards had 

gaps between them, which prevented them from creating even a makeshift ceiling.” (Id.) (citing 

id.). However, the cited testimony never mentions “loosely,” “cold,” “safely walk[ing],” or 

“gaps.” Contrary to First Marine’s argument, B.K. did not testify there were gaps between the 

boards but testified that the opening was “completely covered up.”21 

The Secretary is alleging B.K. and the fitter discovered gas flowing from a gas hose when 

they arrived at the deck locker the morning of January 19. At that time, presumably the openings 

were covered because B.K. and the fitter had not yet started receiving the angle iron pieces lowered 

through the openings. The Court concludes the deck locker was an enclosed space when the two 

overhead openings were covered with plywood and boards.22 Because the allegation is that an 

unattended gas hose in the deck locker had gas flowing through it overnight, the Court concludes

the cited standard applies in those circumstances. 

21 Q.: Was anything covering that [capstan] hole on the morning of the accident? 

B.K.: Yes, plywood. 

Q.: Okay. Now, I'd like to talk about the hole -- the six by eight foot hole was anything covering that 

on the morning of the accident? 

B.K.: Yes. Two by twelves. 

Q.: Okay. Was the hole completely covered up? 

B.K.: Yes. 

Q.: You indicated previously that you set up some fans in order to ventilate that space? 

B.K. Yeah. 

Q.: Did you move the boards in order to set up the fans? 

B.K. Yeah, that's what held the fans up there the boards. I moved it back and slid it back so to hold the 

fans. 

Q.: Okay. You actually used the boards to hold the fans in the space? 

B.K.: Right. Yeah. 

(Tr. 480-81) 

22 The Court finds the deck locker was not an enclosed space when the openings in the overhead were 

not covered by plywood and boards. 
18

Did First Marine Meet the Requirements of the Standard?

The Secretary relies on B.K.’s signed witness statement given to Whaver and his deposition 

testimony where he stated the fitter left his gas hose in the deck locker overnight and propylene 

was flowing through it when they arrived at the deck locker the next day, as evidence the standard 

was violated. (Compl’t’s Br., pp. 64-5) (citing Tr. 471, 536-537). Hutco superintendent Voss also 

testified the fitter informed him that morning that “he believed the night shift had left his torch 

hose on, and it filled the bow up with a gas leak.” (Tr. 363.) This corresponds with B.K.’s OSHA 

statement and his deposition testimony. It is possible B.K. and the fitter, who went directly to the 

deck locker after boarding the towboat, assumed the strong gas odor they smelled as they 

descended the deck locker steps was coming from the deck locker, and they assumed a gas hose 

was left on. At that time, they were not aware the strong odor of gas was prevalent in other areas 

of the vessel. 

At trial, B.K. recanted his previous statements, which had been taken shortly after the 

accident and while he was still taking pain medication and “wasn’t right.” He testified at trial that 

he had turned off the gas at the manifold on January 18th, prior to quitting work. (Tr. 490, 536, 

537, 538). B.K. was seriously injured in the explosion on January 19, 2018. It is not surprising his 

memory of that day is confused. It is apparent he changed his testimony on several key points from 

the dates he provided his OSHA statement and deposition testimony to the time he testified at the 

trial. B.K. appeared anxious and easily suggestible during his trial testimony. The Court therefore 

does not credit his testimony where it cannot be corroborated. 

B.K.’s testimony is corroborated by video evidence that appears to show him turning off 

the gas and disconnecting the hose at 3:37 p.m. on January 18, the day before the explosion (Ex. 

R-35). B.K.’s testimony is also corroborated by Voss’s testimony that Hutco employees ended 

their shift after the First Marine employees ended theirs every day and there was no night shift 

crew working on the vessel, and that he would have noticed a torch hose connected to the manifold 

the evening of January 18, 2018, as he finished his shift and he did not observe one (Tr. 670-71, 

694). 

As indicated supra, the cited standard mandates the employer must make sure that “[n]o 

unattended charged fuel gas and oxygen hose lines or torches are in enclosed spaces for more than 

15 minutes[.]” 29 C.F.R. § 1915.503(b)(2)(ii) (emphasis added). OSHA interprets a charged fuel 

line to mean “any line that is connected to the manifold and filled with gas.” Fire Protection in 
19

Shipyard Employment, 69 FR 55677 (Sept. 15, 2004). The Secretary’s evidence rests on B.K.’s 

witness statement and deposition testimony, which he recanted at the trial, and on superintendent 

Voss’s testimony that the fitter informed him welders on the night shift left the gas hose on 

overnight. However, several gaps appear in this evidence. 

Superintendent Thorn and supervisor Voss stated the night shift welding crew did not work 

that night. And the record appears to show B.K. turned off the gas at the manifold at the end of his 

shift on Thursday, January 18. Hutco foreman Voss stated there was no torch hose connected to 

the manifold when he ended his shift after B.K. and the fitter had left for the day on January 18, 

2018 (Tr. 670-71, 694). If the gas hose was left in the deck locker, it was not a “charged line” when 

B.K. and the fitter ended their shift that day. If gas was flowing through the hose when B.K. and 

the fitter arrived in the deck locker shortly after 7:00 on Friday morning, there is no evidence the 

gas had been turned on for more than 15 minutes. The Court concludes the Secretary has failed to 

establish a violation of § 1915.503(b)(2)(ii) and Item 10 must be vacated. 

Citation 1, Item 11 

In Citation 1, Item 11 the Secretary alleges First Marine committed a serious violation of 

§ 1915.503(b)(2)(iv) from January 17 to January 19, 2018, by failing to ensure employees rolled 

back disconnected oxygen and propylene hose lines to the supply manifold or to open air. (Compl. 

Ex. A p. 20 of 25.) The cited standard provides in relevant part that the employer must make sure 

that “[a]ll disconnected fuel gas and oxygen hose lines are rolled back to the supply manifold or 

to open air to disconnect the torch[.]” 29 C.F.R. § 1915. 503(b)(2)(iv). 

Did First Marine Meet the Requirements of the Standard?

In his witness statement and in his deposition testimony, as well as his trial testimony, B.K. 

established that the fitter removed his torch cutter from the torch hose while he was inside the deck 

locker. (Tr. 490, 492-94.) Thus, the Secretary argues B.K. testified without contradiction that his 

co-worker disconnected his cutting torch inside the deck locker at the end of each shift. According 

to the Secretary, this action violated the cited standard, which requires the employer to ensure 

employees disconnect torches at the manifold or in open air. First Marine argues that 

“disconnecting a torch in the lower forward hold is not a violation of this standard because the 

space was open to the air.” (Tr. 69). The Court finds no merit in First Marine’s position. 

As commonly defined, “open air” means “a free or unenclosed space outdoors.” The New 

Oxford American Dictionary (2d Ed. 2005) (emphasis added). A ship’s compartment with two 
20

openings in the overhead is not in open air. First Marine also claims B.K. said the fitter removed 

his torch in the deck locker only in his OSHA statement “while he was under the influence of 

medication” and in his deposition testimony, “which was likely a result of [B.K.] reviewing his 

statement prior to the deposition.” (Resp’t’s Br., p. 70.) This is incorrect. B.K. reaffirmed his 

OSHA statement and deposition testimony at the trial. When asked how he knew the fitter removed 

the torch while he was in the deck locker, B.K. stated, “It was his personal torch. He took it home 

every night” (Tr. 494.) B.K. stated he had observed him previously removing the torch in the deck 

locker. B.K. had worked with the fitter for at least a month on the William and was familiar with 

his work practices. The Court concludes the Secretary has established that First Marine failed to 

meet the requirements of the cited standard.

Did Employees Have Access to the Hazardous Condition? 

B.K. and the fitter both worked in the deck locker where the torch was disconnected from 

the gas hose. The Court concludes the Secretary has established employees were exposed to a fire 

or explosion hazard. 

Did First Marine Know of the Hazardous Condition?

As indicated supra, to establish a prima facie violation, the Secretary must show by a 

preponderance of the evidence that First Marine “knew or could have known of the hazardous 

condition with the exercise of reasonable diligence.” Mountain States Contractors, 825 F.3d at 

279. The Secretary does not allege First Marine had actual knowledge of the violation, but rather, 

argues First Marine could have known of the hazardous condition with the exercise of reasonable 

diligence. According to the Secretary, B.K. “testified that [the fitter] did this every day. And there 

is proof that the employees regularly left their lines inside vessels. Thus, First Marine should have 

known that employees were not rolling their lines back to open air before removing their torches.” 

(Compl’t’s Br., p. 68.)

The Court concludes there is insufficient evidence to show constructive knowledge of the 

violation on the part of First Marine. B.K. and the fitter worked alone in the deck locker. There is 

no evidence of how long it took the fitter to remove his torch each day (but it was presumably done 

quickly). Nothing in the record indicates a First Marine supervisor ever saw the fitter remove his 

torch in the deck locker or had reason to know he was doing so. “Absent evidence showing how 

long the violative condition existed, we are unable to evaluate whether a reasonably diligent 

inspection by the foreman ... would have informed [the company] of the deceased employees 
21

failure[.]” Thomas Indus. Coatings, Inc., 23 BNA OSHC 2082, 2086 (No. 06-1542, 2012). See, 

also, Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2196-97 (No. 90-2775, 2000) (concluding 

that in the absence of any evidence indicating how long the violative conditions had been in 

existence, we are unable to evaluate whether [the employer] could have known of them even if it 

had been reasonably diligent in inspecting its equipment”), aff'd, 268 F.3d 1123 (D.C. Cir. 2001); 

Ragnar Benson, Inc., 18 BNA OSHC 1937, 1940 (No. 97-1676, 1999) (concluding that 

constructive knowledge was not shown where lack of evidence of violation's duration precluded 

Commission from determining whether employer could have known of conditions with exercise 

of reasonable diligence). Thus, the Court concludes the Secretary has not established First 

Marine’s knowledge of the violative conduct and Item 11 must therefore be vacated.

B. THE HEALTH CITATION (CASE NO. 18-1288)

Citation1, Items 4a, 4b, 5 

and

Citation 2, Item 123

In Citation 1, Item 4a, the Secretary alleges First Marine committed a serious violation of 

§ 1915.12(a)(1)(ii) when it “did not ensure that spaces and adjacent spaces that contain or have 

contained combustible or flammable liquids or gases24 were visually inspected25 and tested by a

competent person to determine the atmosphere's oxygen content prior to initial entry into the space 

by an employee.” (Compl. Ex. A p. 14 of 25.) More specifically, the Secretary alleges on or about

January 19, 2018, First Marine exposed employees to “asphyxiation hazards” when it allegedly 

“required employees to enter spaces to perform work . . . and did not ensure a competent person 

tested the atmospheres of the space to determine the oxygen content prior to initial entry into the 

space by employees[.]”26 (Id.) The cited standard provides the employer shall ensure that “[s]paces 

23 The Court groups these citations and items together since the analysis and disposition is the same for 

each.

24 Aboard the William, workers used propane, propylene, diesel, and kerosene in their equipment and 

heaters. These substances are flammable and combustible. The heaters produced carbon monoxide, a toxic 

gas (Tr. 1041-42). Thus, the space where the work was being performed contained “combustible or 

flammable liquids or gases” and “liquids, gases, or solids that are toxic, corrosive or irritant.” 

25 A “visual inspection” is “the physical survey of the space, its surroundings and contents to identify 

hazards ...” 29 C.F.R. § 1915.11(b). 

26 Although only the introductory paragraph of Item 4a alleges First Marine failed to ensure spaces were 

“visually inspected” and tested, the Secretary does cite in his brief to the deposition of First Marine’s Rule 

30(b)(6) witness that admitted a “competent person did not visually inspect or test any of the spaces on the 

William in the 12-hour period prior to the explosion.” (See Compl’t’s Br., p. 69; Ex. C-35, p. 21) (emphasis 
22

and adjacent spaces that contain or have contained combustible or flammable liquids or gases” are 

“visually inspected and tested by a competent person to determine the atmosphere's oxygen content 

prior to initial entry into the space by an employee[.]” 29 C.F.R. §1915.12(a)(1)(ii) (emphasis 

added). 

In Citation 1, Item 4b, the Secretary alleges First Marine committed a serious violation of 

§ 1915.12(c)(1)(ii) on or about January 19, 2018, by exposing employees to “inhalation hazards” 

when it allegedly “allowed employees to enter spaces to perform work” and “did not ensure a 

competent person tested to determine air concentration of toxics ... prior to initial entry into the 

space by employees[.]” (Compl. Ex. A p. 15 of 25.) The cited standard provides the employer shall 

ensure that “spaces or adjacent spaces that contain or have contained liquids, gases, or solids that 

are toxic, corrosive or irritant are ... [t]ested by a competent person prior to initial entry by an 

employee to determine the air concentration of toxics, corrosives, or irritants within the space.” 29 

C.F.R. §1915.12(c)(1)(ii) (emphasis added). 

Both Items 4a and 4b require testing (and also a visual inspection with Item 4a) by a 

competent person prior to “initial entry.” The Secretary contends compliance is required “prior to 

entry” by employees. (Compl’t’s Br., p. 70.) And it was clear at trial that the Secretary interpreted 

the requirements to mean testing every day before workers entered the indicated spaces, or as the 

Secretary asserts in his post-trial brief, “prior to employees entering the space,” which “was not 

done on the day of the accident.” (Id. p. 71.) “Entry” means “the action by which a person passes 

through an opening into a space.” 29 C.F.R. § 1915.11(b). The Secretary’s position is contrary to 

the plain language of the cited provisions, which do not require compliance prior to “entry,” but 

rather, require compliance prior to “initial entry.” 

Although “initial entry” is not defined in the Shipyard Standards, it is defined in its 

preamble. Where “the language of the standard is susceptible of different meanings, the preamble 

is the best and most authoritative statement of the Secretary's legislative intent.” Healy Tibbitts 

Builders, Inc., No. 15-1069, 2020 WL 5934209, at *3 (OSHRC Sept. 30, 2020). The preamble 

addresses the issue of “initial entry” at length and indicates “for the purposes of this rule, the term 

‘initial entry’ is interpreted by OSHA to mean the first entry into a space.” Confined and Enclosed 

Spaces and Other Dangerous Atmospheres in Shipyard Employment (Preamble), 59 FR 37816-01 

added). Therefore, even if Item 4a was unartfully drafted, the issue of visual inspections was tried by 

consent.
23

at 37832 (July 25, 1994) (emphasis added).27 The Court therefore rejects the Secretary’s trial 

interpretation that the “initial” entry must be met “each workday or shift.” The Court concludes 

that to prove a violation the Secretary must establish First Marine failed to visually inspect and/or 

test prior to the “initial entry,” meaning prior to the “first entry into a space.” 

In Citation 1, Item 5, the Secretary alleges First Marine committed a violation of 

§1915.12(b)(1)(i)28 on January 19, 2018, by “exposing employees to fire and explosion hazards” 

when it permitted “employees to enter spaces to perform work . . . and did not ensure a competent 

person visually inspected the spaces for the presence of combustible or flammable liquids prior to 

initial entry into the space by employees[.]”(Compl. Ex. A p. 16 of 25) (emphasis added.) The 

cited standard mandates that the employer shall ensure that spaces and adjacent spaces that contain 

or have contained combustible or flammable liquids or gases are “inspected visually by the 

competent person to determine the presence of combustible or flammable liquids.” 29 C.F.R. § 

1915.12(b)(1)(i). Therefore, even though the cited standard does not by its express language, limit 

the visual inspections to prior to “initial entry,” the Secretary has only charged First Marine with 

an alleged violation prior to “initial entry,” and the Court therefore limits its analysis to the initial 

entry.

29 

In Citation 2, Item 1, the Secretary alleges First Marine committed a testing violation of 

§1915.12(b)(1)(ii) on January 19, 2018, by “exposing employees to fire and explosion hazards” 

when it permitted “employees to enter spaces to perform work . . . where flammable gas was 

present, filling the space and adjacent spaces, and did not ensure a competent person tested to 

27 This does not mean an employer can test spaces once and never again concern itself with potentially 

dangerous atmospheres in its workplace. Retesting is required under § 1915.15 (Maintenance of Safe 

Conditions) when conditions change. For example, § 1915.15(e) provides: “After a competent person has 

conducted a visual inspection and tests required in §§ 1915.12, 1915.13, and 1915.14 of this part and 

determined a space to be safe for an employee to enter, he or she shall continue to test and visually inspect 

spaces as often as necessary to ensure that the required atmospheric conditions within the tested space are 

maintained.” However, the Secretary has not cited First Marine for violations under the relevant retesting 

provisions of § 1915.15 (Maintenance of Safe Conditions).

28 In Citation 1, Item 5, the Secretary alleges a “serious” violation of § 1915.12(b)(1)(i) and in Citation 

2, Item 1 alleges a “willful” violation of § 1915.12(b)(1)(ii). Subparagraphs (1)(i) and (1)(ii) are connected 

by the conjunction “and.” Therefore, to comply with § 1915.12(b)(1), First Marine must meet the 

requirements of both subparagraphs (i) and (ii). Therefore the Court analyzes the cited subparagraphs 

together. 

29 “In the hierarchy of law, language is king. Words matter in constitutions, treaties, statutes, rules, cases, 

and contracts.” Pottinger v. City of Miami, 805 F.3d 1293 (11th Cir. 2015). Here, the Secretary could have 

moved to amend the citation language to track the language of the standard but he elected not to. 
24

determine the concentration of flammable vapors and gases prior to initial entry into the space by 

employees[.]” (Compl. Ex. A p. 19 of 25) (emphasis added). The cited standard provides that the 

employer shall ensure that spaces and adjacent spaces that contain or have contained combustible 

or flammable liquids or gases are tested by a competent person prior to entry by an employee to 

determine the concentration of flammable vapors and gases within the space. 29 C.F.R. § 

1915.12(b)(1)(ii) (emphasis added). Again, although the cited standard does not limit the testing 

to “initial entry,” Since the Secretary has only charged First Marine with an “initial entry”

violation, the Court again limits its analysis to the initial entry.

30

Did First Marine Meet the Requirements of the Standards? 

Ronald Thorn, First Marine’s designated Competent Person, tested the atmosphere of the 

William twice: once when First Marine “first started working on the boat,” (in February of 2016) 

and again after First Marine “had gotten the mud and stuff out of the vessel,” which was “months 

prior” to the date of the explosion (Tr. 831-32.) Those tests occurred before First Marine moved 

the William from dry dock and moored it on the Tennessee River in December 2017. Thorn 

admitted First Marine did not test the atmosphere on the William prior to hot work being performed 

on January 19, 2018 (Tr. 828). Jason Strait, First Marine’s designated Rule 30(b)(6) witness,31 also 

admitted First Marine did not conduct any testing in the 12-hour period before the explosion on 

January 19, 2018, and admitted no testing was done for weeks prior to the explosion (Ex. C-35, 

pp. 20-21, 52; Tr. 1454). 

By their express terms, or pursuant to the Secretary’s limitation in his charges, each of 

these citations and items require a violation at the “initial entry.” However, the Secretary offered 

no evidence to establish when the “initial entry” occurred, meaning when the “first entry into the 

space” occurred. The salvage crews raised the William on February 7, 2016, and began transporting 

her on February 8, and arrived at First Marine’s drydock on February 14, 2016. After finishing the 

cleanup, which involved removing the sediment, mud, and sand from the interior of the vessel and 

the hull, First Marine and its subcontractors began repairing and rebuilding the towboat. The main 

engines and gearboxes were removed in March of 2016. The gearboxes were reinstalled in January 

of 2017, and the engines were reinstalled in April of 2017. Clearly, the “initial entry” was not when 

30 See footnote 29. 

31 “The named organization must designate one or more officers, directors, or managing agents, or 

designate other persons who consent to testify on its behalf; and it may set out the matters on which each 

person designated will testify.” Fed. R. Civ. P. 30(b)(6). 
25

the explosion occurred “on or about January 19, 2018.” Therefore, the Court concludes the 

Secretary has failed to establish First Marine did not meet the requirements of the cited standards 

since he failed to prove when the “initial entry” occurred and further, failed to prove the alleged 

violations occurred prior to that unknown date of “initial entry.” Therefore, Citation 1, Items 4a, 

4b, and 5 and Citation 2, Item 1 must be vacated. 

Citation 1, Item 632

In Citation 1, Item 6, the Secretary alleges First Marine committed a serious violation of § 

1915.12(f) on January 19, 2018, by “exposing both site employees and contractors to asphyxiation, 

fire, and explosion hazards” when it permitted “contract employees to enter confined and enclosed 

spaces to perform work . . . without ensuring that all available information on the hazards, safety 

rules, and emergency procedures regarding confined and enclosed spaces or other dangerous 

atmospheres they would encounter was exchanged[.]” (Compl. Ex. A p. 17 of 25.) The cited 

standard provides that each employer whose employees work in “confined and enclosed spaces or 

other dangerous atmospheres” shall “ensure that all available information on the hazards, safety 

rules, and emergency procedures concerning those spaces and atmospheres is exchanged with any 

other employer whose employees may enter the same spaces.” 29 C.F.R. §1915.12(f). 

Does the Cited Standard Apply to the Facts?

For the cited standard to apply, First Marine had to have employees that worked in either 

(a) confined and enclosed spaces or (b) other dangerous atmospheres. However, the Secretary did 

not include the term “dangerous atmospheres” in the alleged violative description of Citation 1, 

Item 6. Therefore, the Court concludes since the issue of dangerous atmospheres was not within 

the issues raised in the pleadings, and it was not tried by the parties’ express or implied consent, 

the Secretary may not rely on it to establish applicability. Fed. R. Civ. P. 15(b). 

As to confined spaces, there is no evidence any First Marine employees were working in 

confined spaces on January 19, 2018. As to enclosed spaces, the only evidence of First Marine 

employees possibly working in an enclosed space on January 19, 2018 is when B.K. and the First 

Marine fitter first entered the deck locker and the plywood and boards may still have been covering 

the overhead openings. However, the record does not establish when the plywood and boards were 

removed on January 19, 2018. The record does reflect that by the time of the explosion the deck 

32 Citation 1, Item 5 alleging a serious violation of § 1915.12(b)(1)(i) is addressed with Citation 2, Item 

alleging a willful violation of § 1915.12(b)(1)(ii). 
26

locker was not an enclosed space since B.K. and the fitter were performing hot work on angle iron 

that had been handed down through the overhead openings. There is also no evidence any of the 

subcontractors’ employees entered the lower forward hold where the First Marine employees were 

working. Therefore, the Court concludes the Secretary has failed to establish the cited standard 

applied to the facts and Citation 1, Item 6 must be vacated.

Citation 1, Item 7

In Citation 1, Item 7, the Secretary alleges First Marine committed a serious violation of § 

1915.14(a)(1)(i) when “[h]ot work was performed within, on, or immediately adjacent to spaces 

that contain or have contained combustible or flammable liquids or gases before those spaces were 

tested and certified by a Marine Chemist or a U.S. Coast Guard authorized person as ‘Safe for Hot 

Work’.” (Compl. Ex. A p. 18 of 25.) More specifically, the Secretary alleges on January 19, 2018, 

First Marine “required employees to perform hot work such as arc welding and cutting with a torch 

in the space below the deck locker where a flammable gas leak occurred without the space and 

adjacent spaces being tested and certified by a Marine Chemist or a U.S. Coast Guard authorized 

person as ‘Safe for Hot Work.’” (Id.) 

The cited standard provides that each employer “shall ensure that hot work is not performed 

in or on . . . confined and enclosed spaces and other dangerous atmospheres, boundaries of spaces 

or pipelines” that are “[w]ithin, on, or immediately adjacent to spaces that contain or have 

contained combustible or flammable liquids or gases” until “the work area has been tested and 

certified by a Marine Chemist or a U.S. Coast Guard authorized person as ‘Safe for Hot Work’.” 

29 C.F.R. §1915.14(a)(1)(i). Again, the Secretary did not include the term “dangerous 

atmospheres” in the alleged violative description of Citation 1, Item 7. However, the Court 

concludes the issue was tried by the parties’ express or implied consent. Therefore, the Secretary 

may rely on it to establish a violation.. Fed. R. Civ. P. 15(b). 

Did First Marine Meet the Requirements of the Standard?

“Hot” work means “any activity involving riveting, welding, burning, the use of powderactuated tools or similar fire-producing operations.” 29 C.F.R. § 1915.11(b). B.K. and the fitter 

were performing hot work since it is undisputed they were welding and cutting in the deck locker 

on January 19, 2018. These activities constituted hot work within the meaning of the maritime 

standards. (Tr. 477-78). The preamble distinguishes between spaces that have contained 

flammable liquids or gases and those that have not: 
27

If hot work is to be performed, confined and enclosed spaces and dangerous 

atmospheres are classified in two groups. If the spaces contain or have contained 

flammable liquids or gases or if the spaces are adjacent to such spaces, then a 

Marine Chemist or Coast Guard authorized person must test and certify the space 

as safe for hot work. Other types of confined and enclosed spaces and hazardous 

atmospheres must be tested for safety by a competent person before hot work is 

allowed.

Preamble, 59 FR 37816-01 at 37818. OSHA sets out the rationale for § 1915.14(a)(1) in the 

preamble:

The Marine Chemist Certificate can only be issued when conditions within and 

adjacent to spaces which have contained a flammable or combustible gas or 

material have been cleaned and inspected and found to be safe (gas free). Moreover, 

the certificate specifies other requirements for entry and work such as ventilation, 

fire watch placement, and personal protective equipment, and requires a competent 

person to reinspect and test the space as directed in order to maintain the conditions 

of the Marine Chemist certificate. Similarly, the competent person cannot grant 

permission for hot work in those locations that he or she is allowed to test and 

certify until the conditions are safe for hot work. In addition, both the Marine 

Chemist and the competent person are required to produce written certifications 

that must be posted, as required in §§1915.14(a)(2) and 1915.7(d) (1) and (2) 

respectively. As added protection, the Marine Chemist requires a competent person 

to recheck the space to ensure that conditions do not change. If there is a change in 

the space, the competent person must stop work and recall the Marine Chemist to 

recertify that the space is safe for hot work before work can restart.

Id. at 37844. 

The Secretary contends First Marine was required to have a Marine Chemist or U.S. Coast 

Guard authorized person certify the deck locker before B.K. and the fitter began welding and 

cutting in it. First Marine admits neither a Marine Chemist nor a U.S. Coast Guard authorized 

person tested and certified any spaces on the William as “Safe for Hot Work.” (Ex. C-35, pp. 10-

11, 47-48.) Nonetheless, First Marine contends the deck locker and other compartments on the 

William did not contain and had not contained combustible or flammable liquids or gases. 

First Marine argues the deck locker and adjacent spaces were free of combustible or 

flammable liquid or gas due to the thorough cleaning and refurbishing done to the William since it 

had arrived at the shipyard. However, First Marine’s position ignores the change in the condition 

of the deck locker and other areas of the vessel that workers discovered when they boarded the 

towboat at approximately 7:00 a.m. on January 19, 2018. The odor of gas was pervasive throughout 

the William that morning. It so alarmed B.K. and the fitter that they notified superintendent Voss 
28

of the smell and began to ventilate the space. Not every witness testified he smelled gas the 

morning of January 19, 2018, when he boarded the William, but most of the workers did. For those 

workers, the odor was distinctive and markedly different from the usual gas odors on the vessel.33

A “dangerous atmosphere” means “an atmosphere that may expose employees to the risk 

of death, incapacitation, impairment of ability to self-rescue (i.e., escape unaided from a confined 

or enclosed space), injury, or acute illness.” 29 C.F.R. § 1915.11(b) (emphasis added). First Marine 

also argues a “dangerous atmosphere” did not exist in the deck locker on January 19, 2018, because 

it showed no sign of explosion or fire damage after the explosion. Schulz testified his examination 

of the deck locker compartment showed there was “no evidence that any gas made it forward and 

accumulated into the forward hold.” (Tr. 1323.) The Court finds no merit in this argument since 

Schulz’s assessment was made post-explosion. Section 1915.14(a)(1)(i) is not concerned with 

whether a combustion hazard existed at the time hot work was performed—it is designed to trigger 

testing before hot work is performed when the potential for a combustion hazard exists, based on 

awareness the space contained or has contained combustible gas. 

 The Commission has focused on the word may in the definition, noting “[t]he emphasis is 

on the potential for a hazardous condition to occur, not on the existence of a hazardous condition.” 

Offshore Shipbuilding, 18 BNA OSHC at 2173. Thus, “under the definition of ‘dangerous 

atmosphere,’ the Secretary need establish only that there is the potential for a hazardous condition 

to occur in a location[.]” Id. Therefore, contrary to First Marine’s position, the Secretary is not 

required to show a hazardous condition existed on January 19 aboard the William for § 

1915.14(a)(1)(i) to apply, but only that a potential for a hazardous condition existed. The Court 

33 A Thermal employee smelled an odor like “[g]as and oil,” and stated he had not detected an odor like 

that before on the towboat (Tr. 66). Another Thermal employee detected the odor and developed “a bad 

headache,” and stated, “[E]verybody else on our crew felt the same way. . . . But we just thought it was just 

another smell.” (Tr. 102-03.) A third Thermal employee noticed “a very heavy” gas odor as soon as he 

entered the upper engine room. “[I]t was very disturbing to smell it.” (Tr. 140.) A fourth Thermal employee 

detected the odor when he entered the upper engine room. “[I]t reeked like rotten eggs. . . . I know what 

propane smells like.” (Tr. 190.) A First Marine electrician smelled gas in the lower engine room, where he 

had never smelled it before (Tr. 347-49). Another First Marine electrician also caught a whiff of gas in the 

lower engine room. “[I]t was just something that you don’t usually smell.” (Tr. 389.) A First Marine 

carpenter stated a co-worker warned him, “Don’t light a cigarette. Do you smell that gas? It’s strong.” (Tr. 

422.) An employee of Wise Staffing told OSHA, “The smell was very potent, felt like a smack in the face.” 

(Tr. 302.) Several other workers aboard the William that morning stated they either smelled a strong gas 

odor or heard their co-workers say they smelled it upon boarding the vessel at approximately 7:00 a.m. (Tr. 

464, 562, 604, 637-39, 674-75, 689-90, 776-77 79). 
29

concludes the pervasive odor of gas on the vessel that morning, especially in the deck locker, 

alerted workers to the potential presence of a combustion hazard, i.e., a dangerous atmosphere. 

First Marine argues the “smell of gas alone does not indicate that gas is present. . . . 

Particularly given that people smell things differently, there is no linear relationship with the 

strength of the smell of gas and the actual presence of gas in the atmosphere. . . . It is also 

undisputed that smelling ‘gas’ on the [William] or any vessel is commonplace in a shipyard, 

particularly when there is hot work being done.” (Resp’t’s Br., pp. 34-35.) In support of this 

position, First Marine cites Schulz’s opinion that “[t]here is no correlation between smelling the 

gas and whether the condition or atmosphere in the space you’re smelling it is dangerous or not.” 

(Tr. 1290.) 

The Court finds no merit in First Marine’s argument. Schulz also testified mercaptans are 

added to odorless gases “as a safety strategy . . . so that leaks can be detected or . . . propane or 

propylene that is somewhere where it’s not supposed to be.” (Tr. 1289.) Thus, propane and 

propylene manufacturers obviously add mercaptans to the gases because they present combustion 

hazards. Adding mercaptans to odorless gases would serve no purpose if the intent were not to 

warn people of the presence of the gases. The strong odor of gas on the William the morning of 

January 19, 2018, indicated the deck locker or its immediately adjacent spaces contained 

combustible or flammable gases. The gas odor establishes there was a potential that a hazardous 

condition existed. The Court therefore concludes the Secretary has proven a dangerous atmosphere 

existed in the deck locker, and First Marine failed to ensure a Marine Chemist or a U.S. Coast 

Guard authorized person tested and certified the deck locker as “Safe for Hot Work” on January 

19, 2018, before B.K. and the fitter performed welding and cutting work in the space. Thus, the 

Secretary has proven First Marine failed to meet the requirements of the cited standard.

Did Employees Have Access to the Hazardous Condition? 

 B.K. and the fitter both performed hot work in the deck locker the morning of January 19, 

2018. They were exposed to a combustion hazard. Therefore, the Secretary has proven employee 

access to the hazardous condition. 

Did First Marine Know of the Hazardous Condition?

As indicated supra, in the Sixth Circuit the Secretary must establish First Marine “knew of 

the hazardous condition or could have known through the exercise of reasonable diligence.” 

Mountain States, 825 F.3d at 279 (citation omitted). “The knowledge of a supervisor or foreman, 
30

depending on the structure of the company, can be imputed to the employer.” (Id.) “In cases 

involving negligent behavior by a supervisor or foreman which results in dangerous risks to 

employees under his or her supervision, such fact raises an inference of lax enforcement and/or 

communication of the employer's safety policy.” Brock v. L.E. Myers Co., High Voltage Div., 818 

F.2d 1270, 1277 (6th Cir. 1987). 

The Secretary contends there were four First Marine supervisors who had actual knowledge 

of the strong gas odor aboard the William the morning of January 19, 2018: Gregory Voss, Henry 

Scott, Deron Conaway, and Curtis Jones. Their knowledge, the Secretary argues, should be 

imputed to First Marine. However, the Court concludes three of the four supervisors identified by 

the Secretary are problematic when it comes to imputing their knowledge to First Marine. 

Voss was employed by Hutco as a foreman at First Marine’s shipyard (Tr. 625-26). He 

described Hutco as “a labor-finder” for “any type of construction that needs employees.” (Tr. 628.) 

There is ample evidence in the record that, despite his employment by Hutco, Voss had supervisory 

authority over First Marine employees B.K. and the fitter.34 Voss himself appeared to consider 

himself in the chain of command for First Marine. When counsel for First Marine asked who his 

supervisor was at the shipyard, Voss first replied, “That would be [First Marine superintendent] 

Ronnie Thorn.” (Tr. 665.) 

First Marine foreman David Bynum supervised B.K. and the fitter when the William was 

in dry dock. Once the vessel moved to the dock string, Bynum stated in his deposition, Voss 

supervised their work (Tr. 709-10). This deposition testimony aligns with statements he gave to 

OSHA during its investigation that Voss supervised First Marine employees B.K. and the fitter on 

January 19, 2018: 

34 Robert Miller, First Marine’s carpenter superintendent, stated in his deposition that Voss supervised 

“First Marine guys that worked in his group,” and Miller regarded Voss as their supervisor (Tr. 611). In his 

deposition, Miller stated he instructed Brad Stafford, a carpenter employee of Wise Staffing, to report 

carpentry-related issues to him and “[a]s far as all other issues on the vessel, vessel management at the time, 

he would report to or notify Greg Voss.” (Tr. 312-13.) Henry Scott, First Marine’s supervisor of laborers, 

was asked who was acting as supervisor on the William the day of the explosion. He replied, “I thought it 

was Greg Voss.” (Tr. 778.) In his deposition testimony, First Marine superintendent Ronnie Thorn stated 

that Greg Voss was the supervisor of B.K. and the fitter “[a]t the time of the accident.” (Tr. 817.) He said 

that after the William moved from dry dock to the water, Voss supervised B.K. and the fitter, and he had 

“the authority to fire them if they did something wrong.” (Tr. 821.) He also had authority to discipline them 

(Tr. 822-23). At the trial, Thorn altered his characterization of Voss’s authority. “I simply asked [him] to 

keep an eye on our guys, no more than I would have asked one of the other experienced guys to check in 

on them from time to time.” (Tr. 820.) Thorn testified First Marine no longer asks Hutco to “provide a 

supervisor with their crew. We manage those employees ourselves.” (Tr. 865.)
31

On the day of the accident on the William I had two employees who worked for me 

who were working on the boat, but they were not working directly under me that 

day. . . . The person on the ship who was overseeing them was Greg Voss. . . . At 

the time of the accident Greg was the lead man over the project on the boat. . . . 

Greg works for Hutco and had his own crew on the boat and was directing the work 

they were doing on the boat. And since he was over there directing the work they 

were doing, he was supervising the two First Marine employees who were on the 

boat as well.

(Ex. C-7; Bates page 000652; Tr. 716-17.) Bynum attempted to walk back his prior statements at 

trial, stating Voss “was just asked to keep an eye on [B.K. and the fitter]. He wasn’t really there to 

tell them what to do.” (Tr. 746.) The Court credits the statements Bynum gave to OSHA during its 

investigation, which were more reliable since they were much closer in time to the accident than 

his statements at trial. 

It is apparent supervisors and workers for both First Marine and its subcontractors 

considered Voss to have supervisory authority over subordinate employees, including First Marine 

employees, working aboard the William on January 19, 2018. Their statements to OSHA and their

deposition testimony reflect their understanding of his status more accurately than their trial 

testimony where they appear to have been coached on this issue. The Court concludes the Secretary 

has established Voss was a supervisor, and he had actual knowledge of the gas odor aboard the 

vessel on January 19, 2018.35 However, the Court concludes the Secretary has not established 

Voss was a supervisor employed by First Marine. 

Imputation of a supervisor’s knowledge rises only to the supervisor’s employer. As the 

Eleventh Circuit has held, and the Court agrees, the rationale for imputation of knowledge is that 

the supervisor acts as an agent of the employer. 

“When a corporate employer entrusts to a supervisory employee its duty to assure 

employee compliance with safety standards, it is reasonable to charge the employer 

35 The morning of January 19, 2018, Voss boarded the William a little after 7:00 (Tr. 632). Between 7:15 

and 7:30, he encountered the fitter for First Marine who was working with B.K. in the deck locker (Tr. 

635). Voss stated the fitter “told me that he believed the night shift had left his torch hose on, and that it 

filled the bow up with a gas leak.” (Tr. 636.) Then a painter told Voss he smelled gas in the engine room. 

Voss stated, “I started walking around to see if I could smell it,” because “that was the second time that I’d 

heard somebody mention gas.” (Tr. 638.) Voss testified he smelled gas “briefly at one point, but it was just 

like a residual smell that you would smell on a daily basis” while he was standing on the bow (Tr. 638-39.) 

Voss went to the deck locker to check on First Marine employees B.K. and the fitter. “I asked them if they 

had checked their torch and torch hose. They told me they did and they weren't leaking. Nor could I smell 

it. They had already start[ed] cutting and they were smoking cigarettes, so I didn't worry about it anymore. 

I walked back out and just assumed that it was gas just when they was lighting up the torch.” (Tr. 641-42.) 
32

with the supervisor's actual or constructive knowledge of noncomplying conduct of 

a subordinate.” Mountain States[Tel. and Tel. Co. v. OSHRC], 623 F.2d [155,] 158 

[(10th Cir. 1980)]. It is reasonable to do this because a corporate employer can, of 

course, only act through its agents—as several of the above-cited cases have 

recognized—and the supervisor acts as the “eyes and ears” of the absent employer. 

That makes his knowledge the employer's knowledge. 

ComTran Grp., Inc. v. U.S. Dep't of Labor, 722 F.3d 1304, 1317 (11th Cir. 2013). Here, the 

Secretary does not dispute that Hutco was Voss’s employer. As such, Voss was not an agent of 

First Marine, and he was not acting as the “eyes and ears” of First Marine. Therefore, the Court 

declines to impute Voss’s knowledge to First Marine. 

Deron Conaway 

Conaway is First Marine’s Safety Director. In his deposition testimony, Conaway stated 

he did not remember whether he boarded the William the morning of the explosion (Tr. 894-95). 

However, Voss saw Conaway aboard the William the morning of January 19, 2018, between 8:00 

and 8:30, talking to First Marine employee Henry Scott in the generator room (Tr. 656-658, 679). 

Conaway was also seen by carpenter Brad Stafford that morning. In his statement to OSHA, 

Stafford stated, “I do remember seeing Deron walk on the vessel on the day of the accident prior 

to the event occurring. I don’t know what he was doing. I do know he walked on a couple of 

times.” (Tr. 302.) Hutco electrician Samuel Gutierrez also saw Conaway on the William the 

morning of January 19, 2018, between 8:15 and 8:20 (Tr. 565): “He was in a hurry. He went into 

one door. He went to the boat and went out another door that’s at the back.” (Tr. 565.) “He went 

through the engine room and he passed to the door on the other side.” (Tr. 567.) 

At the trial, Conaway changed his testimony and denied he was on the vessel that morning. 

“I did not board that boat. I said before that I did not recall. If I had been on that boat, I’m sure I 

would have recalled it. . . . I’m saying today that I still have no recollection of being on that boat, 

and that I feel that I would recall being on that boat if I had been on the boat that day.” (Tr. 895.) 

The Court credits the testimony of the three witnesses who stated they saw Conaway on the 

towboat the morning of the explosion. They were matter of fact in their demeanor and evinced no 

hesitation or uncertainty in their testimony. There is no evidence of an ulterior motive or motives 

that would prompt Voss, Stafford, and Gutierrez to lie about seeing Conaway that morning. 

Conaway, in contrast, was nervous and defensive on the stand. His recantation of his deposition 

testimony appeared rehearsed. And, unlike the three witnesses who saw him on the vessel, he had 
33

a reason to lie about his presence that morning since his knowledge of a violative condition as First 

Marine’s Safety Director can be imputed to First Marine. The Court does not credit Conaway’s 

trial testimony on this point.

Nonetheless, the Court concludes Conaway’s presence on the William on January 19, 2018, 

is insufficient to establish employer knowledge of the gas odor permeating the vessel that day. 

There is no evidence Conaway smelled gas while he was aboard the towboat and no witnesses 

testified they informed him of the odor or observed other workers inform him. Voss stated he saw 

Conaway speaking with Scott and he thought Conaway might have been looking for the source of 

the odor, but he could not be certain. At trial, Scott was evasive when asked about encountering 

Conaway on the towboat that morning. 

Scott: I was sent to find somebody. 

Q.: Okay. Who were you sent to find? 

Scott: I don't remember who I was sent to find. 

Q.: Okay. Was it Deron Conaway? 

Scott: No.

(Tr. 775.) 

Q.: Did you ever find the person that you were looking for? 

Scott: Eventually. 

Q.: Okay. And how do you know? 

Scott: Because after the accident, the entire crew was accounted for. 

Q.: Okay. But it's my understanding you -- as you sit here today, you don't know 

who that was that you went looking for? 

Scott: Am I positive? No, I'm not. 

Q.: Okay. Who do you think it is? 

Scott: I think it was a guy named Dominick. 

Q.: Okay. Fair enough. 

Scott: But that's -- I don't know for sure. 

Q.: Understand. On the day of the accident, did you see Deron Conaway on the 

William? 

Scott: I don't remember.

(Tr. 777-78.) The Court concludes the record does not establish by a preponderance of the evidence 

that Conaway had knowledge of the gas odor on the William the morning of January19, 2018. 

Henry Scott

At the time of the explosion Scott was employed by First Marine as a general laborer (Tr. 

769-70). However, he had identified himself as a “leadman, general laborer” in his statement to 

OSHA in May of 2018 (Ex. C-4; Tr. 771). At trial, he stated First Marine did not have leadmen. 
34

When asked how he knew this, he stated, “I’ve been specifically told that I was not a leadman.” 

(Tr. 781.) However, Voss identified Scott as First Marine’s “clean-up guy or their lead man,” (Tr. 

657-58) and as a “foreman or a lead man.” (Tr. 680.) The morning of January 19, 2018, Scott was 

aboard the William. About 7:30, he met the First Marine fitter, who told him “not to go down to 

the lower deck locker because they were ventilating it because gas was smelled.” (Tr. 776.) Scott 

also smelled the gas odor (Tr. 777). 

Scott’s situation is the converse of Conaway’s. Conaway was undoubtedly a supervisor, 

but the record is insufficient to establish he had knowledge of the gas odor. Scott knew of the gas 

odor, both because the First Marine fitter informed him of it and because he himself could smell 

it. However, the record is insufficient to establish Scott was a supervisor the day of the explosion. 

Whether his actual title was leadman is of secondary importance to his actual responsibilities. “The 

Commission has long recognized that ‘an employee who has been delegated authority over other 

employees, even if only temporarily, is considered to be a supervisor’ for the purpose of 

establishing knowledge.” Am. Eng'g & Dev. Corp., 23 BNA OSHC 2093, 2095 (No. 10-0359, 

2012) (quoting Access Equip. Sys., 18 BNA OSHC 1718, 1726 (No. 95-1449, 1999)). “In deciding 

whether an employee qualifies as a supervisor, ‘[i]t is the substance of the delegation of authority 

that is controlling, not the formal title of the employee having this authority.’” (Id.) (quoting Dover 

Elevator Co., 16 BNA OSHC 1281, 1286 [] (No. 91-862, 1993). 

Here, there is evidence of Scott’s subordinate role the day of the explosion. Prior to being 

dispatched to look for “Dominick,” he had been sent to collect shovels from the tool room (Tr. 

774-75). Stafford would tell Scott the orders for the day and Scott would relay them to the other 

laborers (Tr. 782). There is no evidence of Scott exercising any authority over another employee. 

The Court concludes the record does not support the Secretary’s assertion that Scott was a 

supervisory employee, such that his knowledge could be imputed to First Marine. Therefore, the 

Court declines to impute Scott’s knowledge to First Marine. 

Curtis Jones 

 Finally, Jones is First Marines’ supervisor of electricians and he supervised three First 

Marine employees at the time of the explosion (Tr. 788-90). He boarded the William at 

approximately 7:15 the morning of January 19, 2018, and went to the lower engine room, where 

he smelled gas (Tr. 794). He had never detected an odor like that on the William. He discussed it 

with two of the First Marine electricians (Tr. 795). He described what happened next. 
35

Sat there and two Hutco guys was up there at the front of the engine, and I asked 

my guys to ask them -- because I didn't know if they spoke any English or not -- to 

ask them if they smelled gas also. They said yes that they know about it and that 

they was telling Greg Voss about it, which was their supervisor. Then after that, I 

looked around the engine room. Didn't see any kind of hoses or torches or anything 

in the engine room. . . . [A]s I was leaving the engine room after I didn't find 

anything, I seen where the Rupke guys were changing out a propane tank or 

working on a heater up there at the hold by the steps. And I assumed that was it, so 

I moved on up to the second deck. 

(Tr. 795.) 

When asked why he did not take any action in response to the odor of gas in the lower 

engine room, Jones replied, “Because Greg Voss is more qualified than I am about the gas. I don’t 

really mess with gas that much. And I figured he had it under control.” (Tr. 798.) Jones was aware 

workers, including First Marine employees B.K. and the fitter, were performing hot work on the 

vessel (Tr. 792-93).

First Marine argues Jones’s knowledge of the gas smell was limited to the lower engine 

room and he properly deferred responsibility for addressing the issue to Gregory Voss.36

Mr. Jones was the only First Marine supervisor on the boat that morning. Although 

he smelled gas in the lower engine room, he reasonably believed he found the 

source of the gas to be the changing out of a propane tank on a heater. (Tr. 795-

796, 798.) Given the amount of ventilation in the lower engine room and based on 

his competent person training, Mr. Jones did not believe what he smelled was strong 

enough to investigate further. (Id.) He also knew that the Hutco welders were going 

to report the smell to their supervisor, Mr. Voss. (Tr. 795.) After Mr. Jones left the 

lower engine room, neither he nor the electricians smelled the gas again, nor did 

anyone report to Mr. Jones that they smelled gas. (Tr. 679.) 

(Resp’t’s Br., p. 45.) The Court finds no merit in First Marines’ position. 

Jones smelled an unusually strong gas odor aboard the William and discussed it with 

several employees. He learned Hutco’s employees planned to notify Voss of the odor. Jones did 

not check other areas of the towboat to determine the scope of the gas odor or follow up with Voss 

to learn what his response to the situation would be. Therefore, Jones failed to exercise reasonable 

diligence in investigating and addressing the atypical gas odor, which was a general topic of 

36 First Marine attempts to use Voss as a sword and a shield on the issue of employer knowledge. It relies 

on his status as a Hutco employee to deflect imputation of knowledge, but argues Jones appropriately 

abdicated his responsibility to deal with the situation to Voss (who took no steps to halt work or conduct 

testing). 
36

conversation that morning. Jones is employed by First Marine; he is a supervisor of electricians; 

he smelled the gas odor aboard the William the morning of January 19, 2018; and he knew First 

Marine employees were performing hot work that day. The Court imputes his actual knowledge 

of the gas odor to First Marine. Therefore, the Court concludes the Secretary has established First 

Marine knew of the dangerous atmosphere aboard the William the morning of January 19, 2018. 

Thus, under § 1915.14(a)(1), First Marine was required to have a Marine Chemist or a U.S. 

Coast Guard authorized person certify the spaces where hot work was to be performed as “Safe 

for Hot Work” before the work proceeded. First Marine failed to do so, exposing B.K. and the 

fitter to the hazard of combustible gas. Therefore, Citation 1 , Item 7 must be affirmed. 

Characterization of the Violation 

The Secretary characterized the violation of § 1915.14(a)(1) as serious. A serious violation 

is established when there is “a substantial probability that death or serious physical harm could 

result [from a violative condition] . . . unless the employer did not, and could not with the exercise 

of reasonable diligence, know of the presence of the violation.” 29 U.S.C. § 666(k). Here, two 

employees were exposed to the hazard of combustible gases in a space that had not been certified 

as “Safe for Hot Work.” The violation is properly characterized as serious.

Citation 2, Item 2

In Citation 2, Item 2, the Secretary alleges First Marine committed a willful violation of § 

1915.12(d)(1) when it “did not ensure that each employee entering a confined or enclosed space 

or other areas with dangerous atmospheres was trained to perform all required duties safely.” 

(Compl. Ex. A p. 20 of 25.) More specifically, the Secretary alleges on January 19, 2018, First 

Marine exposed “employees to atmospheric, fire, and explosion hazards” when it “allowed

employees to enter confined and enclosed spaces to perform work ... without training the 

employees on the hazards of confined and enclosed spaces[.]” (Id.) The cited standard mandates 

the employer “shall ensure that each employee that enters a confined or enclosed space and other 

areas with dangerous atmospheres is trained to perform all required duties safely.”37 29 C.F.R. §

1915.12(d)(1).

37 Section 1915.12(d)(2) lists the training that is required. It requires the employer ensure that each 

employee who enters a confined space, enclosed space, or other areas with dangerous atmospheres is trained 

to: “(i) Recognize the characteristics of the confined space; (ii) Anticipate and be aware of the hazards that 

may be faced during entry; (iii) Recognize the adverse health effects that may be caused by the exposure to 

a hazard; (iv) Understand the physical signs and reactions related to exposures to such hazards; (v) Know 
37

Did First Marine Meet the Requirements of the Standards?

Matthew McCoy is a carpenter for First Marine. He did not attend a trade school and had 

not worked at other shipyards before First Marine hired him (Tr. 305). When he started with First 

Marine, he received safety training in the carpentry shop but was not trained in shipyard hazards 

(Tr. 306). He testified Robert Miller, First Marine’s carpenter supervisor, did not provide training 

in atmospheric hazards or what to do if he smelled gas aboard a vessel (Tr. 320). He smelled gas 

the morning of January 19, 2018, and discussed it with other workers, but he was not aware it was 

potentially dangerous (Tr. 321). 

Manuel Macario Garcia is an electrician for First Marine. He received an associate degree 

from West Kentucky Community Technical College. First Marine is the first shipyard for which 

he has worked (Tr. 340). He did not receive training in shipyard hazards when he began work at 

First Marine (Tr. 341). He smelled gas the morning of January 19, 2018. Macario stated his 

supervisor, Curtis Jones, had talked to him about dangerous atmospheres but did not tell him what 

to do if he smelled gas (Tr. 365). 

Victor Pineda is also an electrician for First Marine (Tr. 378). He attended trade school for 

carpentry and graduated in 2017. First Marine was his first place of employment after his 

graduation. He received no training in shipyard hazards when he began working at First Marine 

(Tr. 379). He was not trained in hazards associated with confined and enclosed spaces (Tr. 381). 

He smelled gas when he boarded the William on January 19, 2018 (Tr. 389). The only instruction 

he received if he smelled gas was to inform his supervisor (Tr. 402).

Jerry Price is a carpenter for First Marine. He had previously worked at other shipyards 

(Tr. 412-13). His supervisor Robert Miller did not provide training to him in shipyard hazards or 

in working in confined and enclosed spaces or dangerous atmospheres (Tr. 414-15). He had not 

been instructed what to do if he smelled gas in the workplace (Tr. 422, 430-31). Price smelled gas 

when he boarded the towboat the morning of January 19, 2018 (Tr. 421). He testified regarding 

his response to the odor. 

Q.: You said that when you first got on the boat, you and Brad Stafford talked about 

the smell of [gas] . . . And he said, "Don't light a cigarette." Was that like in a 

joking manner? 

Price: I'm assuming it was because I was smoking one. 

what personal protective equipment is needed for safe entry into and exit from the space; (vi) Use personal 

protective equipment; and (vii) Where necessary, be aware of the presence and proper use of barriers that 

may be needed to protect an entrant from hazards.” 29 C.F.R. § 1915.12(d)(2). 
38

Q.: Did you put your cigarette out? 

Price: No. 

Q.: Did you have any safety concerns that day working on the boat? 

Price: No. 

Q.: What about any other day? 

Price: No. 

Q.: So, the smell of gas didn't alert you at all that morning? You didn't think you 

needed do anything about it, sir? 

Price: No.

(Tr. 432-33.) 

Price was asked if knew what confined and enclosed spaces are. He responded, “I’m 

somewhat aware more so now than what I was. But before, no.” (Tr. 439.) At the time of the trial, 

Price still had no understanding of the definition of a dangerous atmosphere. 

Q.: Do you understand what a dangerous atmosphere is? 

Price: I don't think I understand the full meaning of it, dangerous atmosphere. 

Q.: What was your meaning of dangerous atmosphere? . . . What is your definition 

of a dangerous atmosphere? 

Scott: Well, I've so learned that it's asbestoses [sic] and it could be, there again, a 

number of things. 

(Tr. 439.) 

B.K. worked as a welder for First Marine. He had worked at another shipyard (Tr. 460-61). 

As previously noted, B.K. smelled a strong odor of gas when he boarded the towboat the morning 

of January 19, 2018, and he set about ventilating the deck locker. When asked what he and the 

fitter were doing as they ventilated the space, he responded, “Standing around smoking cigarettes.” 

(Tr. 474.) B.K. testified First Marine did not provide training to him on the hazards associated with 

propylene or compressed oxygen (Tr. 499). When he worked previously at the James Marine 

shipyard, he had been instructed to perform hot work only if “Safe for Hot Work” documentation 

was posted outside the space. First Marine did not provide him with this instruction (Tr. 500). He 

stated the First Marine welders would have safety meetings in the morning before boarding the 

towboat. “Yeah, they would just tell us what to do. And basically, everybody knew what, you 

know, don’t leave nothing in the hold. Stuff like that.” (Tr. 509.) B.K. testified that after he had 

ventilated the deck locker, he checked for the odor of gas by sniffing with his nose low in the 

room. He stated the space “didn’t smell. Lit a cigarette and nothing happened.” (Tr. 528.) 

Adam Leroy works as a welder for First Marine (Tr. 1387). He testified he received training 

in confined spaces when he started working at First Marine. “Just proper ventilation and like as far 
39

as being in the hold, the hazards to be aware of, like your torch being in there while you’re on 

break and things like that.” (Tr. 1394.) He was trained to visually inspect confined spaces when he 

approached them, “looking for WD-40 cans, greasy rags, things like that, anything that could be 

flammable.” (Tr. 1395) He was told to alert his supervisor if he smelled “anything unusual” while 

working (Tr. 1395). Leroy worked on the William while it was in dry dock. He did not work on 

the vessel once it was moved to the Tennessee River (Tr. 1399). 

Miller, the supervisor of First Marine’s carpentry crew, has worked for First Marine since 

2011(Tr. 599-600). He was not aboard the William at the time of the explosion but was in First 

Marine’s carpentry shop on the barge string next to the vessel (Tr. 602). Miller testified if his crew 

members smelled gas on the towboat, “They should immediately notify me. That’s what I would 

hope. . . . I would [have] immediately taken action, either, you know, called the shipyard 

superintendent—we’d have done something.” (Tr. 618.) He stated he had told his crew this and 

had provided one-on-one safety and competency training to his crew members (Tr. 618). 

 Byrum, First Marine’s dry dock foreman, supervises welders and fitters (Tr. 704). In the 

statement he gave to OSHA on March 13, 2018, Byrum indicated, “All employees who work on 

the boats here at the facility may be required to enter a confined space and perform work. The 

work may include hot work such as cutting and grinding.” (Tr. 718-19.) When asked if First Marine 

had provided him with training in confined and enclosed spaces. He responded it had not, but it 

“didn’t have to.” (Tr. 719.) Byrum believes on-the-job training is more effective than classroom 

training. 

[I]f you ever been [in] a classroom you see a lot of people don't give a toot about 

being in that classroom, don't give -- they wouldn't be able to tell you 10 minutes 

after the class what you talked about. . . . Side-by-side is the best training anyone 

can have.

(Tr. 731-32.) Byrum did not document any of the training he provided to employees (Tr. 759). But 

he explained the protocol to be followed if one of his crew smelled gas on a vessel. 

Q.: Now, if any of the employees working on your crew of welders and fitters were 

to smell anything unusual on a vessel including gas, what are they supposed to do? 

Byrum: Remove the source -- all sources of gas. Whether it be one, two, four it 

doesn't matter. Remove all of them, find the source and ventilate. 

Q.: And if you were aware of gas being inside a vessel, would you speak to Ronnie 

Thorn about this? 

Byrum: Absolutely. 
40

Q.: And would Ronnie Thorn have to okay a vessel before you would be allowed 

to board back on and perform work? 

Byrum: He and I would make that discussion, yes. 

Q.: And if employees working on your crew were to smell something unusual 

including gas on a vessel, how do they know they're supposed to come to you? 

Byrum: Because I tell them to.

(Tr. 737-38.) Byrum testified if an employee had told him he smelled gas on the William, “[The 

explosion] probably never would have happened. . . . Because I would have shut the job down, 

turn[ed] off all power sources and shut the job down.” (Tr. 750.) 

Scott worked for First Marine as the supervisor of laborers at the time of the trial (Tr. 

769).38 Scott smelled gas the morning of January 19, 2018. He did not report it to anyone (Tr. 784). 

Scott had received safety training when he worked for another employer, but First Marine did not 

provide him with any safety training (Tr. 785). 

 Jones, First Marine’s supervisor of electricians, began working for First Marine in 2015 

(Tr. 788). Prior to working for First Marine, he received training as a shipyard competent person 

from a Marine Chemist (Tr. 791). As noted previously, Jones smelled gas when he boarded the 

William on January 19, 2018. He discussed it with other employees, briefly looked for the source 

of the odor, and then turned his attention to other matters when he learned the employees planned 

to inform Voss of the odor (Tr.794-96, 798). Jones testified he observed welders working in 

confined spaces on the William in the days leading up to the explosion (Tr. 802). 

Ronald Thorn is First Marine’s superintendent. He began working for First Marine in May 

of 2013 (Tr. 811). Thorn admitted First Marine was not following the safety procedures set out in 

its Safety and Health Manual (Ex. C-9; Tr. 829-30, 833). He claimed First Marine trained its 

employees in shipyard safety. When asked if this training was documented, Thorn replied, “I’m 

sure there is some documents somewhere.” (Tr. 833.) He agreed with Byrum that on-the-job 

training is superior to classroom training (Tr. 846). He stated it was possible some First Marines 

are functionally illiterate and will not benefit from classroom training (Tr. 847). Thorn testified he 

held weekly safety meetings for First Marine and subcontractor employees (Tr. 847-48). He stated 

38 In the section addressing Citation 1, Item 7 of the Health Citation, the Court notes there is a question 

of whether Scott was a leadman at the time of the explosion. First Marine promoted him to the position of 

supervisor between the time of the explosion and the start of the trial (Tr. 773). The Court groups Scott with 

First Marine’s supervisors for the purpose of analyzing this item. 
41

First Marine trained its employees in confined and enclosed spaces safety (Tr. 848). Thorn 

explained First Marine’s ideal response to the detection of a gas odor aboard a vessel. 

Q.: If First Marine employees smell anything unusual on a vessel including gas, 

what are they supposed to do? 

Thorn: Stop work. 

Q.: And what should happen next? 

Thorn: They should report it to their supervisor. 

Q.: And then if it were reported to you, what would you do? 

Thorn: I would [get] everyone off the vessel and shut all the gas lines and figured 

out what was going on. 

Q.: And what -- before you allowed everybody to come back to work is there 

something you would do? 

Thorn: Oh, yeah, the competent person or myself would sniff the vessel. 

(Tr. 853-54.) 

Conaway, First Marine’s safety director, started in that position in August of 2017 

(approximately five months before the explosion) (Tr. 883). He has a Bachelor of Science degree 

from Murray State University in Occupational Safety and Health (Tr. 886). Conaway stated First 

Marine originally hired him because of his “background in purchasing and sales as a purchasing 

agent for the shipyard.” (Tr. 900.) He agreed most of his working time before the explosion was 

“devoted to [his] role in purchasing.” (Tr. 902.) 

Conaway admitted that when he began working as safety director, his safety knowledge 

“was very limited. So, a really rigorous detailed inspection was not something that I was qualified 

to do.” (Tr. 885.) The defensive tenor of his testimony is captured in the following excerpt: 

Q.: [D]o you have the authority to correct employees if you see them doing 

something unsafe? 

Conaway: You asked me that before. Nothing has ever been stated explicitly what 

my authority is. I told you before, I just do it. I correct action. 

Q.: Okay. When you were hired back in August 15 of 2017, did you replace the 

prior safety man? 

Conaway: I wasn't aware I was replacing anyone. 

Q.: Was there a safety man employed by First Marine when you were hired? 

Conaway: I don't recall. I'm not aware of one. 

Q.: At some point before you came on board, was there a safety man employed by 

First Marine? 

Conaway: I'm not aware. 

Q.: You don't know if the company has ever had a safety man?

Conaway: Well, people can wear many hats, can't they? So, I don't know if there 

was somebody that was responsible for safety. 
42

(Tr. 885-86.) 

First Marine is the first shipyard at which Conaway has worked. He did not “undergo any 

type of training” when he began working at First Marine (Tr. 886). He conceded he did not feel 

qualified to work as a safety professional in January of 2018 (Tr. 887). Despite being First Marine’s 

safety director, he was unaware of safety training provided by his employer. 

Q.: [W]ere the employees who went to work on the William on January the 19th, 

2018, trained to work in confined and enclosed spaces? 

Conaway: Prior to the accident, I was not specifically aware of any training in 

confined spaces. 

Q.: What about enclosed spaces? 

Conaway: Prior to the accident, I wasn't aware of any specific training. 

Q.: Prior to the accident, were you aware if First Marine was documenting any 

training that was being performed at the shipyard? 

Conaway: I was not aware.

Q.: Prior to the accident, were employees trained on the requirements of First 

Marine's safety and health program? 

Conaway: I was not aware. 

Q.: You didn't do any such training? 

Conaway: No, sir. To qualify, I had given some safety talks, some morning 

briefings prior to the accident. It wasn't a matter of routine. It was as I saw an 

opportunity. 

(Tr. 893.) Conaway testified he conducts safety inspections, safety meetings, and new-hire 

orientation (Tr. 884). In his safety meetings, he would speak to employees 

about housekeeping; slips, trips, and falls and things like that; PPE.” (Tr. 902.) 

First Marine’s Safety and Health Manual 

First Marine had a Safety and Health Manual onsite the day of the explosion but it did not 

distribute copies to its employees. Conaway testified First Marine did not provide him with a copy 

of the manual but he “was made aware that there was one in the office. We did have a manual in 

the office and I knew it was there.” (Tr. 886.) At the time of the explosion, Conaway was “working 

on” reading the manual, but stated, “I wouldn’t say I had read it in its entirety, no.” (Tr. 886-87.) 

The Safety and Health Manual includes First Marine’s Fire Safety Plan, which requires a 

competent person to inspect spaces each shift where hot work is scheduled to be performed : 

The Supervisor is responsible for training employees and implementation of the 

outlined procedures. 

. . . 

First Marine, LLC conducts hotwork utilizing various means of welding, jointing, 

metal fusing, and pipe connection. 
43

. . . 

Hotwork aboard any vessel in the facility is also inspected, authorized, and 

monitored by a First Marine, LLC employee who is a Shipyard Competent Person, 

or by a Marine Chemist. This survey will take place at a minimum of each shift, or 

more frequently as necessary if conditions change at the work-site.

(Ex. C-9, Bates page 000858.) 

Of the six First Marine non-supervisory employees who testified, only Leroy stated he had 

received the training required by § 1915.12(d). The other five employees stated consistently First 

Marine did not train them in confined and enclosed space and dangerous atmosphere safety (Tr. 

320, 341, 379, 414-15, 500). Each of these employees smelled gas aboard the William on January 

19, 2018, but was not aware of the potential hazard it signified. Price and B.K. smoked cigarettes 

as they smelled the gas odor (Tr. 432-33, 474). B.K. assumed the ventilation he placed in the deck 

locker worked because he “[l]it a cigarette and nothing happened.” (Tr. 528.) At time of the trial, 

Price thought a dangerous atmosphere involved asbestos (Tr. 439). 

First Marine supervisors Byrum and Thorn touted on-the-job training over classroom 

training, but the testimony of the five subordinate employees indicate they either received no onthe-job training or the training they did receive was inadequate. The lack of training extends also 

to the supervisors. Miller stated his employees should have immediately informed him they 

smelled gas and he would have acted (Tr. 618). Byrum testified he would have shut down work 

on the vessel if he had been told of the gas odor (Tr. 750). Thorn stated he would have ordered 

everyone off the vessel and shut down all gas lines (Tr. 853-54). Yet supervisor Jones, who was 

on the vessel and smelled the gas himself, took none of these actions. He relied on Voss to respond 

to the situation (Voss also took no action). 

Safety director Conaway was not aware of any training provided to employees regarding 

confined and enclosed spaces or dangerous atmospheres. He did not know if training was 

documented (Tr. 893). Thorn believed there were “some documents somewhere” documenting 

safety training, but none were adduced at trial (Tr. 833).39 Thorn admitted First Marine did not 

follow the procedures set out in its own Safety and Health Manual (Tr. 829-30, 833). 

The Court credits the testimony of McCoy, Macario, Pineda, Price, and B.K that First 

Marine did not provide them with safety training in confined and enclosed spaces and dangerous 

39 Section 1915.12(d)(5) provides, “The employer shall certify that the training required by paragraphs 

(d)(1) through (d)(4) of this section has been accomplished.”
44

atmospheres.40 It was clear from their testimony that at the time of the trial they did not have a 

firm grasp of proper safety procedures. First Marine’s supervisors claim they provided adequate 

training, but First Marine adduced no documentation to back up this claim. As management 

personnel who still work for First Marine, the supervisors are motivated to close ranks and declare 

First Marine provided the required training. The Secretary has established First Marine failed to 

meet the requirements of § 1915.12(d).

Did Employees Have Access to the Hazardous Condition? 

The untrained employees were required to work in confined and enclosed spaces and in 

dangerous atmospheres at First Marine’s shipyard. Their lack of knowledge regarding the proper 

procedures to follow and the hazards presented in the spaces and atmospheres exposed them to 

potential physical harm or death. The preamble explains that § 1915.12(d) “is requiring employers 

to ensure that employees who must enter confined or enclosed spaces or other dangerous 

atmospheres are trained to perform their duties safely.” Preamble, 59 FR 37816-01, at 17839. “This 

provision is intended to ensure that employees are familiar with the duties imposed by final revised 

Subpart B so that the work practices they use will conform to the standard and will protect them 

from hazards posed by these spaces.” Id. The Secretary has established First Marine’s employees 

had access to the hazard of being inadequately trained in safely working in confined and enclosed 

spaces and dangerous atmospheres. 

Did First Marine Know of the Hazardous Condition? 

While not binding precedent, the Court agrees with the Tenth Circuit that employer 

knowledge of the violative condition “will almost invariably be present where the alleged violative 

condition is inadequate training of employees.” Compass Env't, Inc. v. Occupational Safety & 

Health Rev. Comm'n, 663 F.3d 1164, 1168 (10th Cir. 2011). Thus, the Commission has held to 

establish noncompliance with a training standard, the Secretary must show that the cited employer 

“failed to provide the instructions that a reasonably prudent employer would have given in the 

same circumstances.” N & N Contractors, Inc., 18 BNA OSHC 2121, 2125 (No. 96–0606, 2000). 

See, also, Capform, Inc., 19 BNA OSHC 1374 (No. 99–0322, 2001); Baker Tank Co., 17 BNA 

OSHC 1177 (No. 90–1786, 1995). Here, First Marine’s own safety manual states it is the 

40 The Court does not discredit the testimony of Leroy. It is possible his supervisor provided him with 

adequate training when he was hired. However, Leroy did not work on the William after the vessel left dry 

dock. 
45

responsibility of supervisors to train their crew members in confined and enclosed spaces and 

dangerous atmosphere safety. The supervisors knew they were not providing the required training

and their knowledge is imputed to First Marine. Therefore, the Secretary has established First 

Marine knew of the hazardous condition. Thus, the Court concludes the Secretary has established 

First Marine violated § 1915.12(d)(1) and Citation 2, Item 3 must be affirmed.

Characterization of the Violation 

The Secretary alleges violation was willful. The Sixth Circuit has held “that a willful 

violation is action ‘taken knowledgeably by one subject to the statutory provisions in disregard of 

the action's legality.’” Nat'l Eng'g & Contracting Co. v. Herman, 181 F.3d 715, 721 (6th Cir. 1999)

(quoting Empire–Detroit Steel Div. v. Occupational Safety and Health Review Comm'n, 579 F.2d 

378, 383 (6th Cir.1978)). “A willful violation occurs where the employer is ‘conscious’ of the 

requirements of a rule and ‘nonetheless ... consciously continues’ in its contrary practice.” Id.

(quoting Donovan v. Capital City Excavating Co., 712 F.2d 1008, 1010 (6th Cir.1983)). “Conduct 

is willful if it is ‘intentional, deliberate, and voluntary.’” Id. (quoting id.) 

First Marine knew it was required to provide safety training in confined and enclosed 

spaces and dangerous atmospheres. This requirement is incorporated in its safety manual. It knew 

its employees are routinely required to enter confined and enclosed spaces and dangerous 

atmospheres are common in shipyard employment. Its supervisors, to whom First Marine 

delegated the responsibility of training the employees, knew they were not providing the training. 

Thorn conceded First Marine was not following its own safety procedures. The Court concludes 

First Marine demonstrated plain indifference to employee safety. This is evident in supervisor 

Jones’s lack of urgency when he detected gas aboard the William and First Marine’s choice of 

Conaway as safety director. 

Thorn, Miller, and Bynum, who were not on the William the morning of January 19, 2018, 

testified to the rapid, forceful action they would take if they knew a strong gas odor was detected 

aboard the vessel.41 Their hypothetical decisive action contrasts with supervisor Jones’s mild 

response to the odor. His lack of urgency lulled other workers into a false sense of safety. A 

Thermal employee stated he was not worried about the gas odor. He believed if workers were 

41 The Court does not credit the testimony of these three supervisors that they would have shut down 

work, evacuated the vessel, and performed testing. The Court ascribes their testimony to a combination of 

Monday morning quarterbacking and toeing the company line. 
46

permitted to stay on the vessel, it was safe. “I figured if it was something to be concerned about, 

they wouldn’t let us on the boat.” (Tr. 69.) Another Thermal employee testified everyone in his 

crew detected the odor when they boarded the vessel, but no one directed them to stop work or 

leave. “[T]hey didn’t act like there was even a problem.” (Tr. 103.) A third Thermal employee 

stated he stayed aboard the towboat despite smelling gas because he “figured if it was a big 

problem nobody would be on the boat.” (Tr. 214.) Had Jones himself been adequately trained he 

would have responded to the pervasive strong odor of gas with more diligence. 

First Marine originally hired Conaway for his background as a purchasing agent. He 

conceded he did not feel qualified to work as a safety director when First Marine promoted him to

that position. First Marine did not provide Conaway with safety training, other than to let him 

know there was a copy of its safety manual in the office, which Conaway was still working his 

way through at the time of the explosion. Despite being the safety director of a shipyard, Conaway 

was not familiar with OSHA’s § 1915 maritime standards (Tr. 888). Conaway was uncertain of 

his own authority in correcting employees since First Marine had not informed him of the scope 

of his authority (Tr. 885-86). 

Indifference to employee safety is manifested in the behavior of Jones, as a First Marine 

supervisor, who shrugged off responsibility to stop work or notify Thorn or another First Marine 

management official that a pervasive odor of gas was present aboard the William. Indifference to 

employee safety is also manifested by First Marine’s hiring of Conaway as its safety director. It is 

evident to the Court, as it was self-evident to Conaway, that he was ill-equipped for the position. 

Once Conaway was in the position, First Marine did not provide him with training, safety 

documentation, or a description of his responsibilities and authority as safety director. It is clear 

employee safety was not a paramount concern for First Marine. The Court concludes First Marine 

committed a willful violation of § 1915.12(d)(1). 

Citation 2, Item 3

In Citation 2, Item 3, the Secretary alleges First Marine committed a willful violation of § 

1915.14(b)(1) on January 19, 2018, for “exposing employees to fire and explosion hazards” when 

it permitted “employees to perform hot work . . . in an enclosed space with a dangerous atmosphere 

below the deck locker, where flammable gas was present, without the space being tested to assure 

it contained no concentration of flammable vapors equal to or greater than 10 percent of the lower 

explosive limit[.]” (Compl. Ex. A p. 21 of 25.) The Cited Standard provides: 
47

Hot work is not permitted in or on the following spaces or adjacent spaces or other 

dangerous atmospheres until they have been tested by a competent person and 

determined to contain no concentrations of flammable vapors equal to or greater 

than 10 percent of the lower explosive limit: 

(i) Dry cargo holds, 

(ii) The bilges,

(iii) The engine room and boiler spaces for which a Marine Chemist or a Coast 

Guard authorized person certificate is not required under paragraph (a)(1)(i) of this 

section.

(iv) Vessels and vessel sections for which a Marine Chemist or Coast Guard 

authorized person certificate is not required under paragraph (a)(1)(iv) of this 

section, and 

(v) Land-side confined and enclosed spaces or other dangerous atmospheres not 

covered by paragraph (a)(1) of this section. 

29 C.F.R. § 1915.14(b)(1).

Does the Cited Standard Apply to the Cited Condition?

Section 1915.14(b)(1) requires the employer to test for concentrations of flammable vapors 

equal to or greater than 10 percent of the lower explosive limit before it permits hot work to be 

performed in a dry cargo holds; bilges; the engine room and boiler spaces for which a Marine 

Chemist or a Coast Guard authorized person certificate is not required under paragraph (a)(1)(i) of 

this section; vessels and vessel sections for which a Marine Chemist or Coast Guard authorized 

person certificate is not required under paragraph (a)(1)(iv) of this section; and land-side confined 

and enclosed spaces or other dangerous atmospheres not covered by paragraph (a)(1) of this 

section. 

In Item 3, the Secretary identifies the space at issue as the deck locker but does not specify 

which of the five subsections of § 1915.14(b)(1) applies. The deck locker does not meet the 

definitions of any of five subsections. The deck locker is designed to store tools and equipment 

needed on the towboat when it is operational. It is not a cargo hold or a bilge, as listed in 

subsections (i) and (ii) of the cited standard. The other three subsections identify areas “for which 

a Marine Chemist or a Coast Guard authorized person certificate is not required under paragraph 

(a)(1)(i) of this section.” The Secretary cited First Marine for a violation of §1915.14(a)(1)(i) in 

Citation 1, Item 7 of the Health Citation for failing to have a Marine Chemist or a Coast Guard 

authorized person certify the deck locker as “Safe for Hot Work.” According to the terms of §§ 

1915.14(a) and (b), if § 1915.14(a) applies to the cited condition, then § 1915.14(b) cannot. The 

Court concluded supra § 1915.14(a)(1)(i) applied to the cited condition in Item 7 and affirmed the 
48

violation. Therefore, the Court concludes § 1915.14(b) does not apply here and Item 3 must be 

vacated.42

IV. PENALTY DETERMINATION

“[T]he Commission has authority ‘to assess all civil penalties ... giving due consideration 

to the appropriateness of the penalty with respect to the size of the business of the employer being 

charged, the gravity of the violation, the good faith of the employer, and the history of previous 

violations.” Dunlop v. Rockwell Int'l, 540 F.2d 1283, 1296 (6th Cir. 1976) (quoting 29 U.S.C. s 

666(j)). “Gravity of violation is the key factor.” (Id.) “Gravity . . . is based on the number of 

employees exposed, duration of exposure, likelihood of injury, and precautions taken against 

injury.” Siemens Energy & Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00- 1052, 2005) 

(citation omitted). “The other factors are concerned with the employer generally and are 

42 In addition, Citation 2, Item 3 of the Health Citation is duplicative of Citation 1, Item 7 of the Health 

Citation.

Violations are duplicative where the abatement of one violation necessarily results in the 

abatement of the other. See Flint Eng'g & Constr. Co., 15 BNA OSHC 2052, 2056-57 (No. 

90-2873, 1992). The Commission has also found that violations are duplicative where they 

require the same abatement conduct, see J.A. Jones Constr. Co., 15 BNA OSHC 2201, 

2207 (No. 87-2059, 1993); where they involve substantially the same violative 

conduct, see Cleveland Consol., Inc., 13 BNA OSHC 1114, 1118 (No. 84-696, 1987); or 

where they involve the same abatement. E. Smalis Painting Co., 22 BNA OSHC 1553, 

1561 (No. 94-1979, 2009) (citing Capform, Inc., 13 BNA OSHC 2219, 2224 (No. 84-0556, 

1989), aff'd, 901 F.2d 1112 (5th Cir. 1990)). Violations are not duplicative where they 

involve standards directed at fundamentally different conduct, J.A. Jones Constr., 15 BNA 

OSHC at 2207, or where the conditions giving rise to the violation are separate and 

distinct. H.H. Hall Constr. Co., 10 BNA OSHC 1042, 1046 (No. 76-4765, 1981). Here, the 

inquiry falls within the category of duplicative violations that may involve the same 

abatement. Capform, 13 BNA OSHC at 2224. 

N. E. Precast, LLC, Nos. 13-1169 & 1170, 2018 WL 1301480, at *5 (OSHRC Feb. 28, 2018). 

The standard cited here requires the competent person to test a space to determine it contains “no 

concentrations of flammable vapors equal to or greater than 10 percent of the lower explosive limit.” 

Section 1915.14(a)(1) requires a Marine Chemist or a U.S. Coast Guard authorized person certify the space 

as “Safe for Hot Work.” Section 1915.11(b) provides, 

Safe for Hot Work" denotes a space that meets all of the following criteria:

. . . 

(2) The concentration of flammable vapors in the atmosphere is less than 10 percent of 

the lower explosive limit[.]

The abatement required by Citation 1, Item 7 of the Health Citation results in the abatement of 

Citation 2, Item 3 of the Health Citation. The two items are therefore duplicative.
49

considered as modifying factors.”' Natkin & Co. Mech. Contractors, 1 BNA OSHC 1204, 1205 

n.3 (No. 401, 1973). 

First Marine employs approximately 300 employees (Tr. 955). Therefore, it is not entitled 

to a reduction in the penalties based upon its size. Since OSHA had previously cited First Marine 

for violations of the Act (Tr. 956), it is also not entitled to a reduction in the penalties based upon 

a lack of history of penalties. The Court also concluded First Marine is not entitled to a credit for 

good faith since any basis for finding good faith is diminished by First Marine’s “failure to 

adequately prepare and train” its employees, “which demonstrates a lack of good faith.” MEI 

Holdings, Inc., 18 BNA OSHC 2025, 1029 (No. 96-740, 2000). See also Gen. Motors, 22 BNA 

OSHC 1019, 1057 (Nos. 91-2834E & 91-2950, 2007) (giving no credit for good faith when 

management tolerated and encouraged hazardous work practices).

The Court concludes that with Citation No 1, Item 7 of the Health Citation, the gravity of 

this violation is high. Failure to have a Marine Chemist certify a space that contains a dangerous 

atmosphere prior to the performance of hot work as “Safe for Hot Work” exposed employees to 

combustion hazards. Giving due consideration to the appropriateness of the penalty with respect 

to the size of the business of the employer being charged, the gravity of the violation, the good 

faith of the employer, and the history of previous violations, the Court concludes a penalty of 

$12,934 is appropriate. The Court concludes that with Citation 2, Item 2 of the Health Citation, 

the gravity of this violation is also high. First Marine failed to train employees in safe procedures 

when working in confined and enclosed spaces and dangerous atmospheres. Without this training, 

the employees were deprived of crucial information that could protect them from serious physical 

harm or death. Giving due consideration to the appropriateness of the penalty with respect to the 

size of the business of the employer being charged, the gravity of the violation, the good faith of 

the employer, and the history of previous violations, the Court concludes a penalty of $129,336 is 

appropriate. Accordingly, 

VI. ORDER 

IT IS HEREBY ORDERED THAT the remaining cited items of the Safety Citations are 

VACATED and the remaining cited items of the Health Citations are VACATED except Citation 

1, Item 7 and Citation 2, Item 2, which are both AFFIRMED, with penalty ASSESSMENTS of 

$12,934 and $129,336 respectively. 
50

SO ORDERED. 

/s/

First Judge John B. Gatto 

Dated: April 19, 2021 

Atlanta, GA