Some personal identifiers have been redacted for privacy purposes

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

 DOCKET NO. 15-0558

 

Appearances:

Leigh Burleson, Esq. & Evert H. Van Wijk, Esq., Office of the Solicitor, U.S. Dept. of Labor, Kansas City, Missouri

For Complainant

Gary W. Auman, Esq & Douglas S. Jenks, Esq., Dunlevey, Mahan & Furry, Dayton, Ohio

For Respondent

Before: Administrative Law Judge Brian A. Duncan

DECISION AND ORDER

Procedural History

This matter is before the United States Occupational Safety and Health Review 

Commission (“Commission”) pursuant to Section 10(c) of the Occupational Safety and Health 

Act of 1970, 29 U.S.C. § 651 et seq. (“the Act”). On September 23, 2014, Respondent’s 

employees were preparing to sandblast and paint a pressure vessel at a facility owned by 

Boardman, LLC.

1

 During the course of their preparations, the pressure vessel became unstable 

and fell off its supports, fatally crushing one of Respondent’s employees. The next day, the 

Occupational Safety and Health Administration (“OSHA”) conducted an inspection at the 

 

1. Boardman is a pressure vessel and tank manufacturer. Boardman hired Respondent to sandblast and paint a 

specified number of vessels, which was primarily performed at the Boardman manufacturing facility. 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

F & H COATINGS, LLC, 

 

 Respondent.
2

Boardman facility. (Tr. 69). As a result of that inspection, OSHA issued a Citation and 

Notification of Penalty (“Citation”) to Respondent. The Citation alleges a single, serious 

violation of the Act’s General Duty Clause, with a proposed penalty of $7,000.00. Respondent 

timely contested the Citation. A trial was conducted in Wichita, Kansas on March 29–30, 2016. 

The parties each submitted post-trial briefs for consideration.

Nine witnesses testified at trial: (1) Sergeant John Ryan of the Wichita Police 

Department; (2) Ryan Hodge, OSHA Assistant Area Director for Wichita;2(3) Michael Moon, 

OSHA Assistant Area Director; (4) Robert Patrick, former supervisor for Respondent; (5) 

Michael Emmett, Respondent’s Safety Director; (6) Jeff Mills, Boardman Plant Superintendent; 

(7) Keith Farish, Boardman Project Manager; (8) Max McMillan, former quality control 

inspector for Boardman; and (9) Brian Hope, OSHA’s designated expert. 

Jurisdiction

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

to Section 10(c) of the Act. (Tr. 22). The parties also stipulated that, at all times relevant to this 

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

commerce within the meaning of Sections 3(3) and 3(5) of the Act, 29 U.S.C. § 652(5). (Tr. 22).

See Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005). 

Stipulations3

1. F & H Coatings, LLC, uses goods, equipment, and materials shipped from outside the 

state of Kansas; 

2. F & H Coatings, LLC, is engaged in a business affecting commerce; 

 

2. At the time of the inspection, AAD Hodge was acting as a Compliance Safety and Health Officer (CSHO). 

3. The following stipulations were read into the record at the beginning of the trial. (Tr. 22–24). 
3

3. The Occupational Safety and Health Review Commission has jurisdiction over this 

matter;

4. F & H Coatings is a full-service professional industrial and commercial painting 

contractor;

5. [redacted] was employed by F & H Coatings, LLC, on September 23, 2014; 

6. Robert Patrick was F & H Coatings, LLC’s site supervisor on September 23, 2014; 

7. Boardman utilized a crane to place the vessel onto a set of two pipe racks; 

8. Robert Patrick was supervising [redacted] at the time of the accident on September 23, 

2014; 

9. On/or about September 23, 2014, F7 H Coatings was performing work at Boardman 

LLC, at Boardman located at 3400 North Broadway, Wichita, Kansas, which work involved the 

blasting and painting of a pressure vessel;

10. The pressure vessel at issue was manufactured by Boardman LLC;

11. The pipe racks were positioned North to South while the vessel was positioned East to 

West; 

12. An incident occurred on September 23, 2014 at the Boardman facility wherein the vessel 

came off of the pipe racks and fell onto [redacted], an employee of F & H Coatings; 

13. The incident on September 23, 2014 resulted in the death of [redacted];

14. The racks upon which the vessel was placed did not break or collapse;

15. Robert Patrick, Jarod Bina and [redacted] were the only three employees from F & H 

Coatings working at the Boardman facility at the time the incident occurred;

16. The vessel at issued was located inside of a containment area on the Boardman property;
4

17. Aside from [redacted], Robert Patrick was the only other person in the containment area 

at the time of the incident and was the only eyewitness to the incident involving [redacted].

Background

In 2014, Respondent contracted with Boardman, LLC to sandblast and paint six pressure 

vessels that were fabricated in Boardman’s manufacturing facility. (Tr. 312; Ex. R-11). Due to 

the size of the vessels, most of the sandblasting and painting took place at Boardman’s facility; 

however, in the past, some smaller vessels were taken to Respondent’s facility to be painted. (Tr. 

312–13). The vessel at issue in this case was sandblasted and painted at Boardman’s facility. 

Prior to beginning sandblasting and painting, Respondent brought pipe racks to 

Boardman’s facility and told Boardman employees that these racks would be used to support the 

vessels during sandblasting and painting. (Tr. 77–78, 82, 211, 267; Exs. R-4, R-5). The pipe 

racks were literally pieces of 8-inch diameter, round pipe that were welded together to create 

what were essentially metal sawhorses. (Tr. 37; Exs. C-9; R-5). For each rack, there was one 

horizontal pipe for the crossbeam; two, shorter vertical pipes, which served as legs; and two pipe 

sections that served as the feet. (Id.). The racks also had chains and pins at the end of the cross 

beams, which were designed to prevent smaller gauge pipe from rolling off. (Tr. 174, 252; Exs. 

R-5, R-6). Much like sawhorses, the pipe racks were placed a certain distance apart, with the 

crossbeams running parallel to one another. (Tr. 149–50). The vessel at issue was placed on top 

of the racks with a crane by a Boardman employee; only authorized Boardman employees were

allowed to operate the crane. (Tr. 23, 103, 119; Ex. R-9). 
5

Boardman did not use pipe racks. (Tr. 291). Instead, Boardman primarily used what are 

known as rollers, which cradle the vessels between two sets of wheels.4(Tr. 97, 270–71, 342; Ex. 

C-11 at F6, F7). Those wheels were then used to rotate the vessel, which allowed Boardman to 

weld or otherwise attach implements to the vessel. (Tr. 273). As compared to Respondent’s pipe 

racks, the rollers maintained four points of contact with the vessel. (Tr. 273).

According to Robert Patrick, who was responsible for safety and quality control on this 

particular job, Respondent did not have specifications, documented procedures, or training for 

setting vessels on the pipe racks. (Tr. 150). Instead, Patrick testified that the body of the vessel 

had to be resting “dead-center” of the racks’ crossbeams and that the racks had to be placed an 

unspecified distance apart, depending on the length of the vessel. (Tr. 147–149). With respect to 

how the vessel was placed on the racks, Patrick testified that Boardman placed the racks and set 

the vessel on the racks using the crane. (Tr. 201). Once the vessel was placed on the racks, 

Patrick testified that he would “visually check it and then I would purposely try to move it” to 

ensure it was centered and stable. (Tr. 156). Without any other metric to rely upon, Patrick 

testified that he relied on his experience, though he did admit that he could not recall a single, 

specific instance in that time where a vessel was improperly placed on pipe racks, wobbled, or 

otherwise presented a problem. (Tr. 156–57). 

On the day of the accident, Respondent’s crew, which included Robert Patrick and

[redacted], arrived at Boardman’s facility around 10:30 a.m. (Tr. 194). When Patrick and 

[redacted] arrived, other F & H employees were busy setting up an enclosure around the vessel, 

which had already been placed on the pipe racks by Boardman employee Dustin Johnson. (Tr. 

77–78, 194). This particular vessel was 16-feet long, weighed approximately 12,000 pounds, 

 

4. The orientation of the rollers was similar to that of the pipe racks—spaced apart in such a way to allow one end 

of the vessel to sit in one set of rollers and the other end of the vessel to sit in another. 
6

and had various valves protruding from it, including a manway entrance, which, on its own, 

weighed nearly 2,200 pounds. (Tr. 37, 160, 256; Ex. R-7). As was his practice, Patrick 

performed a Pre-Work Job Hazard Analysis (PWJHA), including the aforementioned visual 

inspection and associated attempt to move (by pushing on it) the vessel from its perch on the 

pipe racks to ensure it was stable. (Tr. 145–47). 

After performing the PWJHA, Patrick and [redacted] began prepping the vessel to be 

sandblasted. (Tr. 161). [redacted] began by partially entering the vessel (body half-way in, feet 

on the ground) to hang up lights. (Tr. 162). Around that time, Patrick testified that he heard a 

noise, at which time he saw the racks flip upwards and the vessel rolling off. (Tr. 163). Patrick 

attempted to stop the vessel from rolling and yelled at [redacted] to get out of the way, but the 

force of the 12,000-pound tank pushed him backwards. (Tr. 166). [redacted] was still inside of 

the manway when the vessel fell, fatally crushing him under its weight. (Tr. 86, 125). 

Complainant was notified of the accident on September 23, 2014, and sent CSHO Ryan 

Hodge to conduct an inspection. (Tr. 68). During the course of his inspection, CSHO Hodge 

reviewed the scene of the accident and interviewed employees of both Respondent and 

Boardman. (Tr. 70). At the conclusion of the inspection, Hodge recommended the issuance of a 

single-item citation of the general duty clause, 29 U.S.C. § 654(a)(1), because Respondent’s 

employees were “exposed to struck-by hazards in that the pressure vessel was not placed on a 

work rack which prevented unintentional movement.” Citation and Notification of Penalty at 6. 

The Citation was issued on March 17, 2015. Respondent contested the violation, which brought 

this matter before the Commission. 

Applicable Law
7

To establish violation of the general duty clause, Complainant must prove, by a 

preponderance of the evidence, that: (1) a condition or activity in the workplace presented a 

hazard; (2) the employer or industry recognized the hazard; (3) the hazard was likely to cause 

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

materially reduce the hazard. See Waldon Healthcare Center, 16 BNA OSHC 1052 (No. 89-

2804, 1993); 29 U.S.C. § 654(a)(1). Complainant must also prove that Respondent knew, or 

with the exercise of reasonable diligence, could have known, of the violative condition. Tampa 

Shipyards, 15 BNA OSHC 1533, 1535 (Nos. 86-360, 86-469, 1992). 

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

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

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

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

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

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

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

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

Discussion

Citation 1, Item 1

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

OSH ACT of 1970 Section 5(a)(1): The employer did not furnish employment and a 

place of employment which were free from recognized hazards that were causing or 

likely to cause death or serious physical harm to employees in that employees were 

exposed to struck by hazards: 

On or about September 23, 2014, at the jobsite located at 3400 N. Broadway, Wichita, 

KS: Employees engaged in pressure vessel sandblasting and painting activities were 

exposed to struck-by hazards in that the pressure vessel was not placed on a work rack 

which prevented unintentional movement.
8

Among other methods, one feasible and acceptable abatement method to correct his 

hazard is to utilize a work rack which is designed to cradle the pressure vessel in order to 

prevent displacement.

Citation and Notification of Penalty at 6.

A Condition in the Workplace Presented a Hazard

“[H]azards must be defined in a way that apprises the employer of its obligations, and 

identifies conditions or practices over which the employer can reasonably be expected to 

exercise control.” Pelron Corp., 12 BNA OSHC 1833 (No. 82-388, 1986) (citing Davey Tree, 

11 BNA OSHC 1898, 1899 (No. 77-2350, 1984)). “A safety hazard at the worksite is a 

condition that creates or contributes to an increased risk that an event causing death or serious 

bodily harm to employees will occur.” Baroid Div. of NL Indust., Inc., 660 F.2d 439, 444 (10th 

Cir. 1981). 

In this case, it is not difficult to conclude that a hazard existed. At its most basic, the 

condition involved elevating an incredibly heavy object, placing it on a set of racks, allowing 

work to be performed on it, and not accounting for the possibility that the object might fall. 

Here, the object was a twelve-thousand-pound vessel,

5 which was cylindrical in shape and 

equipped with a protruding manway that extended 29-inches from the side of the vessel and

constituted more than one-sixth of the total weight. (Tr. 54, 256; Ex. R-7). Based on the height of 

the pipe racks’ legs, the vessel was elevated approximately two-and-a-half feet above the ground 

and placed on rounded crossbeams, which meant that the point of contact between the cylindrical 

body of the vessel and the cylindrical crossbeam was quite small. (Tr. 80; Exs. R-4, R-8). 

 

5. Sergeant Ryan remarked that the weight of the vessel was approximately that of “four Honda Accords stacked on 

top of each other.” (Tr. 37). 
9

Finally, Respondent’s employees worked on the vessel, as was their routine practice, without 

securing it against unexpected movement. (Tr. 202).

Patrick testified that on the day of the accident, he performed a number of pre-work 

checks to ensure that the placement of the vessel and the subsequent work were not hazardous. 

As noted above, he assessed whether the vessel was placed “dead center” of the crossbeams by 

looking at it and made sure it would not move by pushing on it. There was no method for these 

assessments, no training, and no rules, other than what Patrick termed his “experience”. 

Unfortunately, Patrick also testified that he has never observed, or at least could not recall, a 

vessel that had been improperly placed on a rack, thus calling into question whether his 

experience is a useful barometer of stability. As part of his assessment, Patrick determined that 

the vessel’s legs, which were made of angle iron, would lay flat on one of the pipe racks and 

prevent the vessel from rolling. (Tr. 149; Ex. R-7). He also determined that the legs would also 

prevent the weight of the 2200-pound manway, which was offset to the side of the vessel, from 

causing the vessel to shift. (Tr. 149, 256). Again, this determination was not based on any 

methodology or calculation; in fact, at one point during this testimony, Patrick admitted that he 

did not know how much either the vessel or the manway weighed and stated, “I’m not an 

engineer or anything.” (Tr. 148, 214).

Notwithstanding Respondent’s assertions that there was no hazard, the fact that Patrick 

was insistent that the vessel needed to be “dead center” and that he purported to ensure that the 

vessel would not move by pushing on it certainly seems to indicate that Respondent perceived 

one.

6

 Indeed, Patrick himself admitted that if the vessel were off center, then it could roll. (Tr. 

213). In that respect, the only thing preventing the vessel from rolling was Patrick’s eyeball 

assessment of both the proper placement of the racks and the vessel upon them, during which he 

 

6. This will be discussed in more detail below.
10

also claims to have considered the weight displacement imposed by the manway (even though he 

did not know how much it weighed) by assuming that the flat v. cylindrical shape of the attached 

legs would be capable of holding the remaining portion of the vessel in place. 

Respondent argues that Complainant cannot prove that a hazard existed because he 

cannot establish how the accident occurred. Instead, Respondent contends that the accident was 

a “freakish and unforeseeable event.” Resp’t Br. at 13. This argument is problematic on a 

number of counts. According to the Commission, “There is no mathematical test to determine 

whether employees are exposed to a hazard under the general duty clause. Rather, the existence 

of a hazard is established if the hazardous incident can occur under other than a freakish or 

utterly implausible concurrence of circumstances.” Waldon, 16 BNA OSHC 1052 (citing

National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1265 n. 33). While no definitive 

answer was given as to how the vessel came off of the racks, Complainant does not have to 

prove the cause of a particular accident in order to establish that a condition violated the Act. See 

Williams Enters. Inc., 13 BNA OSHC 1249 (No. 85-355, 1987) (“We have many times held . . .

that the cause of an accident is not necessarily relevant to whether a standard was violated.”). 

Indeed, “it is the hazard, not the specific incident that resulted in injury . . . that is the relevant 

consideration in determining the existence of a recognized hazard.” Kelly Springfield Tire Co., 

10 BNA OSHC 1970 (No. 78-4555, 1982), aff’d 729 F.2d 317 (5th Cir. 1984). It is also true, 

however, that an accident may demonstrate that a condition presents a hazard to employees. See 

Coleco Industries, Inc., 14 BNA OSHA 1961, 1964 (No. 84-546, 1991).

In this case, it is irrelevant whether the vessel rolled, slipped, or slid off of the racks; 

rather, as noted above, “[a] safety hazard . . . is a condition that creates or contributes to an 

increased risk that an event causing death or serious bodily harm to employees will occur.” 
11

Baroid Div. of NL Indust., Inc., 660 F.2d at 444. The placement of a six-ton, cylindrical object on 

top of round metal pipes, with only visual observation and a shove to ensure stability, certainly

increased the risk of serious harm to those employees assigned to perform work on the elevated 

object.7 In recognition of this, Patrick admitted that death is one of the possible consequences of 

an unstable or poorly set tank. (Tr. 172). Further, that such a possibility could result from a 

simple oversight regarding the tank’s placement on the racks or an incorrect assumption about 

the ability of the vessel’s legs to counterbalance the weight of the protruding, two-thousandpound manway indicates that a hazardous incident was far more likely than a “freakish or utterly 

implausible concurrence of circumstances.” Waldon, 16 BNA OSHC 1052 (citing National 

Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1265 n. 33). As such, the Court finds that 

Complainant established the existence of a hazard. 

Respondent Recognized the Hazard

According to the Commission, a hazard is recognized when either the cited employer or 

its industry recognizes the risk of harm from the cited conditions. See Arcadian Corp., 20 BNA 

OSHC 2001, 2008 (No. 93-0628, 2004). Based on what follows, the Court finds that Respondent 

recognized the risk of harm associated with elevating and working on a 12,000-pound, round 

pressure vessel, supported only by pipe racks, which was otherwise unsecured. The Court 

grounds its decision on three bases: (1) Patrick’s pre-work checks; (2) the chain and pin 

restraints used for smaller gauge pipe; and (3) the obvious nature of the hazard. 

 

7. By way of illustration, the Court has identified a number of standards in the Act that address the hazard of 

elevated objects and unintentional movement. See, e.g., 29 C.F.R. § 1926.305(c) (“Blocking. When it is necessary 

to provide a firm foundation, the base of the jack shall be locked or cribbed. Where there is a possibility of slippage 

. . . a wood block shall be placed between the cap and the load.”); id. § 1926.1404(h)(6)(ii) (“Where there is 

insufficient information to accurately identify the center of gravity, measures designed to prevent unintended 

dangerous movement resulting from an inaccurate identification of the center of gravity must be used.”); id. § 

1910.244(a)(2)(iii) (“After the load has been raised, it shall be cribbed, blocked, or otherwise secured at once.”).
12

With respect to the pre-work checks (PWJHA), Respondent states that it consists of three 

parts: defining the steps of the work to be completed; identifying the hazards associated with 

those steps; and identifying steps to mitigate those hazards. Resp’t Br. at 26. Further along in 

that same section, Respondent notes that Patrick “visually inspect[ed] the pressure vessel on the 

pipe racks to ensure it was not off center . . . ‘just to make sure that it wasn’t going to move.’” Id.

at 26–27. Patrick then attempted to move the 12,000-pound vessel to “make sure it’s stable.” 

(Tr. 154). In the end, Patrick concluded that there was no hazard and that it was safe to work. 

(Tr. 145).

Respondent contends that merely because it performs pre-work safety analyses does not 

mean that it recognized a hazard. Indeed, the Commission has held that “[w]hile an employer’s 

safety precautions alone do not establish that the employer believed that those precautions were 

necessary for compliance with the Act . . . precautions taken by an employer can be used to 

establish hazard recognition in conjunction with other evidence.” Beverly Enters., Inc., 19 BNA 

OSHC 1161 (Nos. 91-3144 et al., 2000) (emphasis added) (citing Wheeling-Pittsburgh Corp., 16 

BNA OSHC 1218 (No. 89-3389, 1993); Waldon, 16 BNA OSHC at 1061–62). In other words, 

simply because such precautionary measures may be insufficient in and of themselves to prove 

recognition, they are nonetheless relevant. Here, Respondent’s supervisor utilized multiple 

methods to ascertain the stability of the pressure vessel: eyeballing its location on the racks, 

ensuring that the flat portions of the angle iron legs were placed on one of the racks, and pushing 

on it to see whether it would move. All of these steps were targeted at mitigating a hazard; 

namely, the possibility that the vessel could become unstable. See St. Joe Minerals Corp. v. 

OSHRC, 647 F.2d 840, (8th Cir., 1980) (imputing knowledge of supervisory personnel to 

employer); Peter Cooper Corps., 10 BNA OSHC 1203 (No. 76-596, 1981) (same). Clearly, 
13

placing an awkwardly shaped, incredibly heavy object on elevated crossbeams creates, or at the 

very least contributes to, an increased risk of being struck by the vessel should it roll, slip, shift, 

fall, or slide. See Baroid Div. of NL Indust., Inc., 660 F.2d at 444, supra. Respondent clearly 

recognized this increased risk, and sought to counteract it through various pre-work measures

designed to ensure stability. 

Respondent’s pre-work checks were not the only evidence indicating that Respondent 

recognized the pipe rack set-up was hazardous. Each of the pipe racks in question came 

equipped with a set of chains and pins. (Exs. R-4, R-5, R-6). These chains and pins, which were 

attached to the end of the pipe racks, were designed to prevent smaller-gauge pipe (“two- to 

twelve-inch round”) from rolling off the pipe racks during work projects. (Tr. 174, 252). 

Although the risk of injury was significantly reduced when sandblasting or painting smaller

diameter pipe, the recognized hazard is still the same: round objects placed on convex,8round 

surfaces have a tendency to move. Even though Respondent recognized the need for, and 

actually took, precautions against unintentional movement when the pipes being handled were 

small, it disregarded those precautions when dealing with a similarly elevated 12,000-pound, 

cylindrical vessel. 

In support of its argument on this issue, Respondent cites Kinsley Construction, Inc., 21 

BNA OSHC 1372 (2005) (ALJ), wherein the judge held that it is not sufficient to merely allege 

that “something could go wrong.” While that is true, the facts of Kinsley show that Respondent’s 

reliance is misplaced. In Kinsley, a front-end loader was transporting a large rock to a dump 

truck. In order to place the rock in the dump truck, the tailgate on the truck had to be removed, so 

the operator put the loader in idle, placed the bucket on the ground, and curled the bucket up into 

 

8. Concave surfaces, on the other hand, such as the rollers in use and available at the Boardman facility, counteract 

that tendency. (Tr. 273). This will be addressed in greater detail below in the section regarding feasibility. 
14

the closed position to prevent the rock from falling forward. At some point while the employees 

were removing the tailgate, the rock fell, striking one employee and fatally injuring the other. 

In Kinsley, the Secretary attempted to illustrate the obviousness of the hazard, by 

analogizing the conditions of working near a load, which was on the ground and curled up in a 

bucket nearly 15-20 feet away, to working under a load held in the air. The Court held that, 

“[u]nlike a suspended load, there is no evidence to suggest that it was ‘obvious and glaring’ that 

the rock would flip over and roll toward the truck and endanger employees 15-20 feet away, 

especially since it was rolled up with the center of gravity away from the employees.” Id. at *4. 

The Court also rejected the Secretary’s argument that something could have gone wrong with the 

hydraulic lift on the front-end loader bucket, as there was no evidence to suggest that this 

particular model of loader was susceptible to hydraulic problems. Id. at *3. 

In the present case, however, [redacted] was not only underneath the load, but was also 

partially inside of the protruding manway while the vessel was suspended on the pipe racks. 

This is not a case in which Complainant has merely alleged that “something could go wrong”; 

rather, Complainant presented evidence that indicates Respondent was specifically aware of the 

potential for round objects to shift/move/slide on the pipe racks, and had actually taken 

precautions to prevent that from happening, albeit only with respect to smaller gauge pipe. With 

respect to this 12,000 pound pressure vessel, Respondent simply did not go far enough to protect 

against the hazard. Respondent clearly recognized the hazard of this 12,000-pound cylindrical 

vessel moving, shifting, sliding, or otherwise falling from its elevated position on the pipe rack. 

Respondent also claims that it should not be held responsible any alleged violative 

condition, because it relied on Boardman’s expertise as the manufacturer to properly stage the 

vessel for painting. (Tr. 279–81). The problem, however, is that Respondent provided the racks,
15

claims to have used them multiple times before without incident, and, according to Boardman’s 

superintendent, Jeff Mills, directed Boardman as to how the vessels should be placed upon them. 

(Tr. 293–95). With respect to the accident in this case, Mills testified that this vessel was similar 

in length, diameter, and shape, to one that had been placed on the racks before, so Boardman’s 

employees acted in accordance with Respondent’s prior instructions. (Tr. 295–297). 

Notwithstanding the foregoing, even if we accept that Boardman was responsible for 

setting the vessel on the racks and for determining how to space and center it, Respondent would 

still be charged with recognition of the hazard. Under these circumstances, Boardman might be 

characterized as the creating employer; however, once the vessel was set, the record indicates 

that Respondent assumed control of the condition by taking responsibility for ensuring that the 

vessel was set properly and rested stably on the racks prior to its employees beginning work. See 

Centex-Rooney Constr. Co., 16 BNA OSHC 2127, 2129–2130 (No. 92-0851, 1994) (controlling 

employer liable if it could reasonably be expected to prevent or detect and abate the violative 

condition by reason of its supervisory capacity and control over the worksite); see also Lee Roy 

Westbrook Constr. Co., 13 BNA OSHC 2104, 2106 (No. 85-601, 1989) (“‘Control is established 

when it is shown that an employer possessed the expertise and personnel to abate a hazard.”’) 

(citation omitted). Patrick was the project supervisor and, therefore, had the wherewithal to both 

identify the hazard and, to the extent necessary, had the authority to request Boardman to 

reposition the vessel. (Tr. 142, 152). Respondent clearly can be characterized as the exposing 

employer. See Southern Pan Svcs. Co., 25 BNA OSHC 1081 (No. 08-0866, 2014) (“[L]ongstanding Commission precedent hold[s] that an employer whose own employees are exposed to a 

hazard or violative condition—an ‘exposing employer’—has a statutory duty to comply with a 
16

particular standard even where it did not create or control the hazard.”) (citing Anning-Johnson 

Co., 4 BNA OSHC 1193, 1198–99 (No. 3694, 1976)). 

The Court finds that Respondent specifically recognized the hazards associated with 

working on a 12,000-pound cylindrical vessel, elevated above the ground on round pipe racks, 

without implementing any methods to prevent the vessel from shifting, sliding, rotating, or 

otherwise moving.

The Hazard was Likely to Cause Death or Serious Physical Harm

As the facts of this case clearly illustrate, the hazard was not only likely to cause death or 

serious physical harm, but it did, in fact, cause the death of Respondent’s employee. Similar to 

the analysis for a serious violation, Complainant need not prove that the accident itself is likely; 

rather, he only needs to prove “that if an accident were to occur, death or serious physical harm 

would be the likely result.” Beverly Enters., Inc., 19 BNA OSHC 1161 at *31. Even 

disregarding the accident that occurred in this case, the Court would nonetheless find that placing 

a 12,000-pound cylindrical vessel on rounded, elevated crossbeams, without any additional 

precautions against falling or movement would be likely to cause death or serious physical harm 

if the vessel were to move or fall. Unfortunately, the facts of this case reinforce that conclusion. 

Thus, the Court finds that the hazard was likely to cause death or serious physical harm, and, as 

such, the violation is properly characterized as serious. 

Respondent had Knowledge of Hazard

In addition to proving that Respondent, or its industry, recognized the hazard, 

Complainant must also prove that Respondent knew or, with the exercise of reasonable 

diligence, could have known of the presence of the violative condition. See Pride Oil Well Svc., 

15 BNA OSHC 1809 (No. 87-692, 1992). Reasonable diligence, according to the Commission, 
17

“involves several factors, including an employer’s ‘obligation to inspect the work area, to 

anticipate hazards to which employees may be exposed, and to take measures to prevent the 

occurrence.’” Id. (quoting Frank Swidzinski Co., 9 BNA OSHC 1230, 1233 (No. 76-4627, 

1981). “Other factors indicative of reasonable diligence include adequate supervision of 

employees, and the formulation and implementation of adequate training programs and work 

rules to ensure that work is safe.” Id. (citations omitted). It should also be noted that 

Complainant need not show that Respondent knew the conditions were hazardous or violated the 

Act; rather, he need only show that Respondent had actual or constructive knowledge of the 

conditions giving rise to the hazard. Phoenix Roofing, Inc., 17 BNA OSHC 1076 (No. 90-2148, 

1995).

Respondent was clearly aware of the condition, as its supervisor was not only at the 

worksite, but directly involved in working on the vessel at the time of the accident. Mountain 

States Telephone and Telegraph Co., 623 F.2d 155 (10th Cir., 1980) (imputing knowledge of 

supervisory personnel to employer); St. Joe Minerals Corp. v. OSHRC, 647 F.2d 840, (8th Cir., 

1980)(same). Thus, the Court finds that Respondent was aware of the hazardous condition at 

issue. 

A Feasible and Effective Means Existed to Materially Reduce the Hazard

In order to establish a violation of the general duty clause, Complainant must “‘specify 

the proposed abatement measures and demonstrate both that the measures are capable of being 

put into effect and that they would be effective in materially reducing the incidence of the 

hazard.’” Arcadian Corp., 20 BNA OSHC 2001 (quoting Beverly Enters., Inc., 19 BNA OSHC 

1161 (No. 91-3144 et al., 2000)). “Feasible means of abatement are established if ‘conscientious 

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

materially reduce the recognized hazard.” Id. (quoting Pepperidge Farm, Inc., 17 BNA OSHC 
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1993)). Where an employer has taken steps to abate the recognized hazard, Complainant must 

show those measures are inadequate. Alabama Power Co., 13 BNA OSHC 1240 (citing Cerro 

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

The Court was unable to identify any steps Respondent took to abate the hazard. Instead, 

Respondent relied upon assumptions about: the stability of the racks (without knowing the 

weight of the vessel or the load capacity of the racks); the centeredness of the vessel on the racks

(without measuring); the ability of angle iron legs to prevent a round object from moving on a 

round surface; and the ability of those same legs to counteract the effect of a 2200-pound 

manway, which was offset to the side of the vessel. All of these assumptions were premised on 

two assessments: (1) whether the vessel looked like it was dead center on the racks; and (2) 

whether the vessel moved when Patrick pushed on it. Neither of these actions are attempts to 

mitigate the potential for a hazard; rather, they are assessment tools to determine the nature of 

the hazard. Assuming or hoping that an elevated vessel will not move is not the same as taking 

steps to ensure that it will not. Put more simply, eyeballing and shoving are not adequate means 

of preventing unintentional movement of a 12,000-pound cylindrical vessel. 

The Court finds that there were multiple feasible means of abatement with respect to this 

particular hazard, at least one of which Respondent was aware of and had access to at the 

Boardman facility—rollers. As discussed earlier, rollers are a set of tires or wheels that are 

spaced apart such that a cylindrical object, such as a pressure vessel, can rest in between the tires 

and rotate. Due to the cradle orientation of the tires, there is no opportunity for lateral movement 

of the vessel. (Ex. C-11 at F6). According to Patrick, Respondent had used the rollers at 

Boardman’s facility to sandblast and paint “40, 50, 60, 80-foot long vessels.” (Tr. 159). 

However, with respect to the pressure vessel involved in this case, which was approximately 15–
19

16 feet long, Patrick stated that the rollers sat too low to the ground to accommodate the 

protruding valves and manway. (Tr. 160). 

In contrast to Patrick’s testimony, Max McMillan, who worked as a quality control 

inspector for Boardman, and who also fabricated the vessel at issue in this case, testified that the 

vessel was fabricated almost entirely while resting on rollers. (Tr. 389–91). According to 

McMillan, the vessel was still resting in the rollers when they attached the angle iron legs, which 

is the last part of the process. (Tr. 393). In other words, the rollers were able to accommodate 

the protruding valves and manway while McMillan welded the legs onto the vessel. (Tr. 394). 

Further, he testified that, although the orientation of this particular vessel prevented the rollers 

from being able to rotate the vessel a full 360 degrees, the rollers could still be used to rotate the 

vessel some portion thereof, assisted by a crane for re-positioning when necessary, to account for 

the protruding valves. (Tr. 395–96). 

Given the testimony of McMillan, the Court rejects Respondent’s claim that it was 

somehow infeasible for its employees to sandblast and paint the vessel using rollers when the 

more complicated task of fabricating the vessel was accomplished using the exact same piece of 

equipment. To be sure, McMillan testified that rotating the vessel becomes more difficult with 

each additional valve, but he also expressed that the crane could be used to assist in the rotation.9 

To the extent that Respondent is suggesting that requesting a crane assist from Boardman 

somehow indicates infeasibility, the Court rejects that argument. The record indicates that all 

vessels will need to be repositioned, regardless of what type of rack or support system is used, 

including the pipe racks themselves. (Tr. 274, 303). The only difference might be the number of 

times a particular vessel needs to be repositioned; however, just because an additional step or 

 

9. Keith Farish, a project manager at Boardman, testified that cribbing or railroad ties have been placed underneath 

rollers in the past in order to accommodate protrusions such as manways and valves. (Tr. 357–58). 
20

two is required does not mean that a particular course of action is infeasible, especially when 

those extra steps abate a significant hazard. For that matter, Respondent had already used 

alternative measures, such as rollers, in the past, which further supports the conclusion that 

Complainant’s proposed abatement is feasible. See, e.g., SeaWorld of Florida, LLC v. Perez, 748 

F.3d 1202, 1215 (D.C. Cir. 2014) (“[SeaWorld] had already implemented abatement for at least 

one of its killer whales and needed only to apply the same or similar protective contact measures 

it used with Tilikum to other killer whales.”).

In addition to the rollers that were available at Boardman’s facility, multiple witnesses 

testified about alternative support systems, including those that were used by another painting 

contractor that was hired to complete the job after the incident involving Respondent. (Tr. 302, 

358, 397, 437). Brewer Restoration, which served as the painting contractor until the plant 

closed, never used pipe racks; instead, they relied upon the rollers available at Boardman, as well 

as utilizing a system of wood pilings, which were used to chock the various vessels in place. (Tr. 

301–303). Mills testified that they could not rotate the vessel when using the wood chocks, 

which meant they worked on it in a static position until it needed to be moved. (Tr. 302). The 

Court is persuaded by the fact that a different painting contractor was previously able to 

sandblast and paint vessels at the Boardman facility without elevating them, unsecured, on pipe 

racks. Instead, they did the exact same job using either Boardman’s rollers or a wooden crib setup, either of which would have materially reduced the hazard. See Arcadian, 20 BNA OSHC 

2001.

In addition, Brian Hope, Complainant’s designated expert, testified that Respondent 

could have implemented any number of alternatives for supporting the vessel while sandblasting 

and coating. For example, Hope testified that another employer used a rack constructed out of I-
21

beams, similar to those available at Boardman. (Tr. 461). The particular orientation of those 

racks was designed to prevent both movement of the vessel/tank and to prevent movement of the 

racks themselves. This was accomplished through welding vertical members to the ends of the 

crossbeam—not unlike the pins that were installed for smaller gauge pipe—and through the 

installation of round, steel discs, which were attached to the bottom of the stands to stabilize the 

racks. (Tr. 461–62). 

The Court finds that Complainant established multiple, feasible alternatives to the pipe 

racks used by Respondent to sandblast and paint this vessel. Accordingly, and in consideration 

of the foregoing, the Court finds that Respondent violated section 5(a)(1) of the Act.

Penalty

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

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

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

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

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

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

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

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

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

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

Complainant proposed a penalty of $7,000.00, and did not apply any reductions for good 

faith, size, or history of prior violations. Because Respondent did not have an inspection history, 

Complainant determined that it was not eligible for a reduction. (Tr. 133–34). Further, given the 
22

gravity of the violation and the fact that someone was fatally injured, Complainant did not apply 

any reductions for good faith or for the size of the employer. According to Moon, the AD has 

discretion as to whether to apply any of the available penalty reductions, and he determined that 

the gravity of the violation in this case justified the highest possible penalty. (Tr. 135).

The Court agrees. Respondent did not have a single rule, standard, or training program to 

address the hazard presented by elevating and supporting a 12,000-pound, cylindrical vessel; 

instead, Respondent simply relied upon visual examination and a supervisory “push” to ensure 

stability. No additional precautions were taken to mitigate the potential for the vessel to roll, 

shift, slide, fall, or otherwise move. Unfortunately, Respondent’s employee was fatally crushed 

by the vessel when it fell off of the racks. In consideration of the entire record, the Court finds 

that a $7,000.00 penalty is appropriate and shall be assessed. 

Order

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

that:

1. Citation 1, Item 1 is AFFIRMED and a penalty of $7,000.00 is ASSESSED. 

/s/ Brian A. Duncan

Date: November 28, 2016 Judge Brian A. Duncan

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