United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 09-1901

SEWARD SHIP’S DRYDOCK, INC.,

Respondent.

ON BRIEFS:

Edmund C. Baird, Attorney; Steven W. Gardiner, Attorney; Charles F. James, Counsel for 

Appellate Litigation; Joseph M. Woodward, Associate Solicitor of Labor for Occupational

Safety and Health; M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor, 

Washington, DC

For the Complainant

William F. Mede, Esq.; Turner & Mede, P.C., Anchorage, AK

For the Respondent

DECISION

Before: MACDOUGALL, Chairman; ATTWOOD and SULLIVAN, Commissioners.

BY THE COMMISSION:

This case arises from an inspection conducted by the Occupational Safety and Health 

Administration of the Paula Lee, a 270-foot long, 76-foot wide deck barge that Seward Ship’s 

Drydock, Inc. was repairing at its facility in Seward, Alaska. OSHA issued Seward three citations 

alleging numerous serious, willful, and repeat violations of the Occupational Safety and Health 

Act of 1970, 29 U.S.C. §§ 651-678, with a total proposed penalty of $87,300. The only citation 

item at issue before the Commission is Serious Citation 1, Item 3, alleging a violation of a

provision of the OSHA respiratory protection standard, 29 C.F.R. § 1910.134(d)(1)(iii),

1 which 

 

1 The cited provision specifically states that “[t]he employer shall identify and evaluate the 

respiratory hazard(s) in the workplace; this evaluation shall include a reasonable estimate of 
2

addresses the selection of respirators, the factors upon which to base respirator selection, and 

requires an employer to “identify and evaluate the respiratory hazard(s) in the workplace . . . .”

2

 

Id. Administrative Law Judge Patrick B. Augustine vacated this citation item, finding Seward 

complied with the cited provision. For reasons different than those found by the judge, we vacate 

the item. 

BACKGROUND

 Two OSHA compliance officers conducted a two-day inspection at Seward’s facility. 

While on board the Paula Lee, they observed multiple empty interior tanks, or “voids,” which 

were located underneath the main deck. Seward’s employees entered the voids through 19-inch 

wide manholes to perform welding repairs. It is undisputed that the employees used two types of 

welding rods, each of which contained materials that when burned could result, according to their 

material safety data sheets (MSDSs), in the release of fumes consisting of, among other substances, 

carbon monoxide and/or iron oxide.

One of the compliance officers asked Larry Williams, Seward’s shipyard superintendent, 

for documentation of Seward’s respiratory hazard evaluations for the voids. According to the 

compliance officer, Williams responded that Seward did not have any because the company relied

on a marine chemist certificate it obtained prior to starting work on the barge and on daily 

atmospheric tests Williams conducted each morning before welding began.

3

 The marine chemist 

 

employee exposures to respiratory hazard(s) and an identification of the contaminant’s chemical 

state and physical form. Where the employer cannot identify or reasonably estimate the employee 

exposure, the employer shall consider the atmosphere to be IDLH [immediately dangerous to life 

or health].” 29 C.F.R. § 1910.134(d)(1)(iii).

2 Two citation items were settled prior to the hearing, and as to the remaining items, the judge 

vacated two, and he affirmed seven as serious and three as repeat, assessing a total penalty of 

$34,000.

3 Pursuant to OSHA’s shipyard regulations, certain kinds of hot work (i.e., welding), conducted in 

a confined space requires initial testing by a marine chemist, who must certify the space as “safe 

for hot work.” 29 C.F.R. § 1915.14(a). Once the marine chemist certificate has been issued, 

further testing is conducted at the shipyard by a “competent person.” 29 C.F.R. § 1915.14(b). 

Marine chemists are certified by the National Fire Protection Association. 29 C.F.R. § 1915.11(b).

In addition to serving as Seward’s shipyard superintendent, Williams was also designated as its 

shipyard competent person. A “competent person” for purposes of the shipyard standards is “a 

person who is capable of recognizing and evaluating employee exposures to hazardous substances 

or to other unsafe conditions and is capable of specifying the necessary protection and precautions 

to be taken to ensure the safety of employees . . . .” 29 C.F.R. § 1915.4(o). One of a competent 
3

who prepared the certificate had evaluated the voids for, among other substances, carbon 

monoxide, which he found was not present. The judge found that Seward complied with the cited 

provision because “the Marine [chemist] Certificate on its face indicate[s] an evaluation of 

respiratory hazards.”

DISCUSSION

In the citation item on review, the Secretary alleges that Seward failed to conduct a 

respiratory hazard assessment pursuant to 29 C.F.R. § 1910.134(d)(1)(iii). As a threshold matter, 

on review before the Commission is whether the cited respiratory protection standard provision, 

§ 1910.134(d)(1)(iii), is applicable to the conditions at Seward’s worksite. The Secretary argues 

that this provision requires an employer to assess its workplace for respiratory hazards in order to 

determine whether respirators are “necessary,” in addition to setting forth requirements for

selecting an appropriate respirator. In contrast, Seward responds that the cited provision applies 

only if respirators are “necessary” pursuant to 29 C.F.R.§ 1910.134(a)(2);

4

only then must the 

assessment mandated by paragraph (d)(1)(iii)—which the company claims applies solely to the

selection of an appropriate type of respirator—be conducted.

1. Plain Meaning of § 1910.134(d)(1)(iii)

To determine a standard’s meaning, the Commission must first look to its text and 

structure. Superior Masonry Builders Inc., 20 BNA OSHC 1182, 1184 (No. 96-1043, 2003) (citing 

Unarco Commercial Prods., 16 BNA OSHC 1499, 1502-03 (No. 89-1555, 1993); Chevron U.S.A., 

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)). If the wording is unambiguous, 

the plain language of the standard will govern, even if the Secretary posits a different 

interpretation. Id.; Blount Int’l Ltd., 15 BNA OSHC 1897, 1902 (No. 89-1394, 1992). Both the 

courts and the Commission have rejected the Secretary’s interpretation of a standard when it strains 

the plain meaning of the regulatory text. Worcester Steel Erectors, Inc., 16 BNA OSHC 1409, 

1418-19 (No. 89-1206, 1993). 

 

person’s duties is to “visually inspect and test each space certified as ‘Safe for Hot Work’ as often 

as necessary to ensure that atmospheric conditions within that space are maintained within the 

conditions established by the [marine chemist] certificate after the certificate has been issued.” 29 

C.F.R. § 1915.15(c).

4 Section 1910.134(a) states, in relevant part: “A respirator shall be provided to each employee 

when such equipment is necessary to protect the health of such employee.” 29 C.F.R. 

§ 1910.134(a).
4

In view of both the text and structure of the respiratory protection standard, we find that 

paragraph (d)(1)(iii) plainly applies only to the selection of respirators. The provision states that 

“[t]he employer shall identify and evaluate the respiratory hazards in the workplace.” 29 C.F.R. 

§ 1910.134(d)(1)(iii) (emphasis added). This plainly presumes that such hazards are present and 

directs the employer to assess them; the provision does not state that the employer must evaluate 

the workplace for such hazards. See Murphy Exploration & Prod. Co. v. U.S. Dep’t of the Interior, 

252 F.3d 473, 481 (D.C. Cir. 2001) (noting rule of statutory construction that, if possible, every 

word be given effect (citing Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979)). Compare 29 

C.F.R. § 1910.132(d)(1) (assessment requirement in OSHA’s general personal protective 

equipment standard, which provides that “[t]he employer shall assess the workplace to determine 

if hazards are present . . . .” (emphasis added)).5

In addition, the cited provision is in paragraph (d), alongside provisions that deal

exclusively with either respirator selection factors or respirator specifications, not in paragraph (a), 

which contains the “necessary” requirement.

6

29 C.F.R. §§ 1910.134(a) (Permissible practice), 

 

5 The text of paragraph (d), which summarizes the paragraph’s subsidiary provisions, uses a more 

summary version of the (d)(1)(iii) language, stating that the provisions require the employer “to 

evaluate respiratory hazard(s) in the workplace, identify relevant workplace and user factors, and 

base respirator selection on [this evaluation].” 29 C.F.R. § 1910.134(d) (emphasis added). Even 

this formulation indicates that the employer is to evaluate respiratory hazards that are present, 

rather than evaluate the workplace for their presence. In any event, in light of the greater 

specificity of paragraph (d)(1)(iii), even if “evaluate respiratory hazards” may be read more 

broadly than “evaluate the respiratory hazards,” we conclude that paragraph (d)’s language is 

simply a reflection of the summary nature of the paragraph. See, e.g., FDA v. Brown & Williamson 

Tobacco Corp., 529 U.S. 120, 132 (2000) (“[A] reviewing court should not confine itself to 

examining a particular statutory provision in isolation. The meaning—or ambiguity—of certain 

words or phrases may only become evident when placed in context.”); Nuprecon LP DBA 

Nuprecon Acquisition LP, 22 BNA OSHC 1937, 1940 (No. 08-1037, 2009) (generally “[i]f a 

particular standard is specifically applicable to a condition, practice, means, method, operation, or 

process, it shall prevail over any different general standard which might otherwise be 

applicable . . . .” (citing 29 C.F.R. § 1910.5(c)(1))).

6 Paragraphs (d)(1)(i), (d)(1)(ii), and (d)(1)(iv) direct employers to “select” respirators, and 

paragraphs (d)(2) and (d)(3), titled “Respirators for IDLH atmospheres,” and “Respirators for 

atmospheres that are not IDLH,” respectively, address considerations that all relate to respirator 

selection. 29 C.F.R. §§ 1910.134(d)(1)(i), (d)(1)(ii), (d)(1)(iv), (d)(2), and (d)(3). 

The Secretary would have us find significance in the absence of the word “select” from (d)(1)(iii), 

but “select” is not used in paragraphs (d)(2) or (d)(3), even though each of those provisions clearly 

deal with respirator selection—paragraph (d)(2) lists specific types of respirators from which 
5

(d) (Selection of respirators). See Davey Tree Expert Co., 25 BNA OSHC 1933, 1934 (No. 

11-2556, 2016) (citing Am. Fed’n of Gov’t Emps., Local 2782 v. Fed. Labor Relations Auth., 803 

F.2d 737, 740 (D.C. Cir. 1986) (“[R]egulations are to be read as a whole, with ‘each part or 

section . . . construed in connection with every other part or section.’ ” (citation omitted)); Bates 

v. United States, 522 U.S. 23, 29-30 (1997) (“ ‘[W]here Congress includes particular language in 

one section of a statute but omits it in another section of the same Act, it is generally presumed 

that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’ ” (quoting 

Russello v. United States, 464 U.S. 16, 23 (1983)); Sec. Indus. Ass’n v. Fed. Reserve Sys., 847 F.2d 

890, 895 (D.C. Cir. 1988) (noting Court’s reliance on the structure of a statute in Bd. of Governors 

v. Agnew, 329 U.S. 441, 447-48 (1947)). Thus, we find unavailing the Secretary’s argument that 

while § 1910.134(a)(2) “establishes a basic requirement to provide respirators . . . [,] other 

provisions must be consulted to determine the standard’s full reach.” Rather, we find that 

§ 1910.134(a), the respiratory protection standard’s coverage provision, limits applicability to 

where respirators are “necessary.”

The Secretary claims that because paragraph (d)(1)(iii) requires an employer, in a situation 

in which exposure cannot be identified or reasonably estimated, to consider the atmosphere

immediately dangerous to life or health (“IDLH”), the provision implicitly addresses an aspect of 

whether a respirator is “necessary,” and thus it demonstrates that the provision is not limited to 

respirator selection. See 29 C.F.R. § 1910.134(d)(1)(iii) (“Where the employer cannot identify or 

reasonably estimate the employee exposure, the employer shall consider the atmosphere to be 

IDLH.”). However, the IDLH language in paragraph (d)(1)(iii) addresses what type of respirator 

to select when a successful hazard assessment is not possible; in such circumstances, the most 

protective type of respirator must be selected pursuant to the specifications set forth in paragraph 

(d)(2).

7

 See 29 C.F.R. § 1910.134(d)(2). As such, the IDLH language presumes that a 

determination of whether respirators are necessary is in fact required under § 1910.134(a)(2). For 

 

employers must choose for use by employees in IDLH atmospheres, and paragraph (d)(3) provides 

that in atmospheres that are not IDLH, “the employer shall provide a respirator that is adequate to 

protect the health of the employee . . . .” 29 C.F.R. §§ 1910.134(d)(2)-(3).

7 We note that this is also reflected in the final rule preamble. See Respiratory Protection, Final 

Rule, 63 Fed. Reg. 1152, 1200 (Jan. 8, 1998) (“[T]he Agency intends employers to use [the most 

protective respirator] when they do not have confidence that a less protective respirator is 

sufficient.” (emphasis added)).
6

all of these reasons, we find that the assessment specified by § 1910.134(d)(1)(iii) is required only 

for the selection of respirators—not for the determination of whether respirators are necessary 

under § 1910.134(a)(2).

2. Reasonableness of Secretary’s Interpretation of § 1910.134(d)(1)(iii)

Even if we were to consider the cited provision to be ambiguous, we find that the 

Secretary’s interpretation is not entitled to deference. The Commission will normally defer to the 

Secretary’s reasonable interpretation of an ambiguous standard if it “ ‘sensibly conforms to the 

purpose and wording of the regulation,’ taking into account ‘whether the Secretary has consistently 

applied the interpretation embodied in the citation,’ ‘the adequacy of notice to regulated parties,’

and ‘the quality of the Secretary’s elaboration of pertinent policy considerations.’ ” U.S. Postal 

Serv., 21 BNA OSHC 1767, 1770 (No. 04-0316, 2006) (citing Union Tank Car Co., 18 BNA 

OSHC 1067, 1069 (No. 96-0563, 1997); Martin v. OSHRC (CF&I), 499 U.S. 144, 150, 157-58 

(1991)); see also Chao v. Symms Fruit Ranch, Inc., 242 F.3d 894, 897 (9th Cir. 2001) 

(“Generally . . . [a] court must give effect to the unambiguously expressed intent of 

Congress . . . . [But where] Congress has not directly addressed the precise question at issue, the 

court should defer to [an] agency’s interpretation as long as it is reasonable.” (citing Chevron, 467 

U.S. at 842-44)). 

In arguing that he is entitled to deference here, the Secretary asserts that when OSHA

promulgated paragraph (d)(1)(iii) as part of the agency’s 1998 revision of its previous respiratory 

protection standard, OSHA made clear in the final rule preamble that the provision also applies in 

determining whether airborne hazards are present in concentrations that make respirators 

necessary. See Safeway Store No. 914, 16 BNA OSHC 1504, 1511 (No. 91-373, 1993) (if “a 

standard is susceptible to different interpretations, the Commission will consider statements made 

in the preamble to the standard as the most authoritative guide to the standard’s meaning.” (citing 

Am. Sterilizer Co., 15 BNA OSHC 1476, 1478 (No. 86-1179, 1992)). Specifically, the Secretary 

cites to OSHA’s explanation in the final rule’s preamble that the assessment required in (d)(1)(iii) 

would not have to be based on personal exposure monitoring, and instead it could be based on 

reasonable estimation techniques, because employers may have sufficient information or data 

indicating “that . . . a product or material cannot, under worst-case conditions, release 

concentrations . . . that would trigger the need for respirator use or require use of a more protective 

respirator.” Respiratory Protection, Final Rule, 63 Fed. Reg. 1152, 1199 (Jan. 8, 1998) (emphasis 
7

added). This argument is contradicted, though, by OSHA’s initial preamble description of 

paragraph (d)(1)(iii) as addressing hazards that have already been determined to exist in the 

workplace:

Paragraph (d)(1)(iii) of the final rule requires the employer to identify and evaluate 

the respiratory hazard(s) in the workplace. To perform this evaluation, the 

employer must make a “reasonable estimate” of the employee exposures 

anticipated to occur as a result of those hazards . . . .

Respiratory Protection, Final Rule, 63 Fed. Reg. at 1198 (emphasis added).

In addition, the Secretary fails to account for the fact that OSHA expressly stated that the 

part of the predecessor respiratory protection standard containing the “necessary” requirement—

paragraph (a)—would not be revised in the rulemaking; as the Secretary himself admits on review, 

paragraph (a) was carried over from the prior standard without change. See Respiratory Protection, 

Notice of Proposed Rulemaking, 59 Fed. Reg. 58,884, 58,895 (Nov. 15, 1994) (“OSHA 

is . . . proposing to retain the wording in paragraph (a)(2) of the current standard which requires 

that respirators be provided when such equipment is necessary to protect the health of the 

employee.”); Respiratory Protection, Final Rule, 63 Fed. Reg. at 1179 (“[I]n the proposal OSHA 

explained that this rulemaking was not intended to address the substantive portion of paragraph 

[(a)(1) or (2)].”). Indeed, in the proposed rule’s preamble, OSHA referenced the utility of personal 

exposure monitoring to respirator selection but made no mention of its use for the initial 

determination of a need for respirators:

The proposal does not now require monitoring, but it does require that where 

monitoring results exist, the employer evaluate them in selecting the proper 

respirator. OSHA requests comments and suggestions on whether monitoring 

should be made mandatory for making respirator selections, and what monitoring 

procedures should be used.

Respiratory Protection, Notice of Proposed Rulemaking, 59 Fed. Reg. at 58,933 (emphasis 

added).8 Similarly, the final rule preamble’s discussion of paragraph (a) makes no mention of 

paragraph (d)(1)(iii). See Respiratory Protection, Final Rule, 63 Fed. Reg. at 1179-81.

 

8 The regulatory history of this standard is replete with references to the need to use the assessment 

for respirator selection. See Respiratory Protection, Notice of Proposed Rulemaking, 59 Fed. Reg.

at 58,933 (“In paragraph (d)(3) . . . , the employer is required to evaluate certain information when 

selecting respirators.” (emphasis added)); id. at 58,896 (“In order to select a respirator which 

provides the proper degree of protection, it is necessary to know both the anticipated ambient 

airborne exposure level and the exposure that is acceptable in the breathing zone.” (emphasis 

added)); id. at 58,900 (“The first step in selecting respirators for a particular workplace is to 
8

Finally, absent from both the proposed and final rule preambles is any explicit statement 

of an intent to create a new obligation to use specific assessment procedures for determining if

respirators are “necessary.” Nor is any such new obligation reflected in OSHA’s economic 

analysis of the revised respirator standard, which considered only those employers and employees 

who were already using respirators—its estimates are based on the estimated “number of respirator 

wearers” and “number of establishments with respirator wearers.” See Respiratory Protection,

Final Rule, 63 Fed. Reg. at 1172 (Table VI-1, “Number of Respirator Users and Their Employers 

by Industry”); and at 1171-72 (“In all, about 5 million employees are estimated to use respirators

. . . . The Agency estimates that approximately five percent of workers wear respirators at some 

time, and that . . . about 20 percent of all establishments[] have employees who use respirators.”).9

 

consider available information concerning workplace conditions and characteristics of the

hazardous chemical.” (emphasis added)); see also Respiratory Protection, Final Rule, 63 Fed. Reg. 

at 1195 (“OSHA’s long enforcement experience has shown that employers often lack the 

information necessary to make informed choices about respirator selection.” (emphasis added)); 

id. at 1198 (“Identifying and evaluating the hazards a respirator is to provide protection against 

clearly play[s] a pivotal role in respirator selection.” (emphasis added)); id. (“Once an employer 

identifies the nature of the respiratory hazard or hazards present, the employer must evaluate the 

magnitude of the hazard to determine the potential exposure of each employee and the extent to 

which respirators of various types can reduce the harm caused by that exposure.” (emphasis 

added)); id. at 1199 (“OSHA finds that it is essential for employers to characterize the nature and 

magnitude of employee exposures to respiratory hazards before selecting respiratory protection 

equipment.” (emphasis added)).

9 Neither the summary of the economic analysis in the final rule preamble nor the economic 

analysis itself makes any mention or estimates of an anticipated increase in the number of 

employees using respirators, or the costs or benefits attributable to such an increase. See 

Respiratory Protection, Final Rule, 63 Fed. Reg. at 1172-78; see also Final Economic Analysis of 

OSHA’s Final Respiratory Protection Standard, Exhibit 196 to Respiratory Protection, Final Rule, 

at I-1 (“[R]espirator technology has changed . . . and OSHA has become increasingly aware of the 

health risks posed to employees who use respirators that have been improperly selected or fitted.” 

(emphasis added)); id. at III-3-4 (“Paragraph (a)(2) of the final rule is . . . unchanged from the 

corresponding paragraph of the previous § 1910.134. It requires employers to provide respirators 

when ‘necessary to protect the health of the employee . . . .’ ”); id. at IV-11 (“The Agency believes 

that the respirator-wearing population is particularly vulnerable to occupationally-related illness 

as a result of the high exposures this population is known to experience . . . .” (emphasis added)); 

id. at IV-25 (“[T]he Agency believes that the final Respiratory Protection standard will lead to an 

exposure reduction . . . among the respirator-wearing population.” (emphasis added)).
9

In sum, we find that the Secretary’s interpretation of paragraph (d)(1)(iii) is contrary to the 

plain meaning of the standard; even if we were to consider the provision ambiguous, the 

Secretary’s interpretation is not reasonable and would not be entitled to deference. 

3. Whether respirators were “necessary”

“Respiratory protection is a backup method which is used to protect employees from toxic 

materials in the workplace in those situations where feasible engineering controls and work 

practices are not available, have not yet been implemented, are not in themselves sufficient to 

protect employee health, or in emergencies.” Respiratory Protection Final Rule, 63 Fed. Reg. at 

1156. Paragraph (d) of § 1910.134 addresses the selection of respirators. 29 C.F.R. § 1910.134(d). 

As the cited provision in (d)(1)(iii) applies only when, pursuant to (a)(2), respirators are 

“necessary,” the Secretary must show that respirators were “necessary to protect the health” of 

Seward’s employees in order to establish applicability. 29 C.F.R. § 1910.134(a)(2). See Astra 

Pharm. Prods., Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 

F.2d 69, 74 (1st Cir. 1982) (elements of Secretary’s burden of proving violation include 

applicability of cited standard). This requires the Secretary to show there was a significant risk of 

harm necessitating the use of respirators. Weirton Steel Corp., 20 BNA OSHC 1255, 1259 (No. 

98-0701, 2003). Whether a significant risk of harm exists depends on both the severity of the 

potential harm and the likelihood of its occurrence. Id. (noting inverse relationship between these 

two elements). In addition, respiratory protection is “necessary” only when the Secretary shows 

that a reasonable person familiar with the circumstances surrounding an allegedly hazardous 

condition, including any facts unique to a particular industry, would recognize a hazard warranting 

the use of protective equipment. Owens-Corning Fiberglass Corp., 7 BNA OSHC 1291, 1295 

(No. 76-4990, 1979), aff’d on other grounds, 659 F.2d 1285 (5th Cir. 1981).

Although the Secretary admits that “[t]he record in this case does not contain proof that 

[Seward’s] employees were exposed to a concentration of an airborne substance in excess of the 

PEL,” he maintains that a significant risk of harm existed because there was a “reasonable 

possibility of overexposure,” that is, of exceeding the PEL for carbon monoxide and iron oxide.

10

 

10 Despite being asked to brief the specific issue of whether respirators were necessary, nearly all 

of the Secretary’s argument on review is devoted to his position that the cited provision requires 

an employer to assess its workplace for respiratory hazards. Indeed, even the compliance officer’s 

testimony suggests that the Secretary does not fully believe his own contention that overexposure 

was possible here:
10

The PELs for both contaminants are calculated as an eight-hour time weighted average, which for 

carbon monoxide is 50 ppm and for iron oxide is 10 milligrams per cubic meter. 29 C.F.R. 

§ 1910.1000, Table Z-1. We find that the Secretary has not proven that the risk of encountering 

either carbon monoxide or iron oxide at levels above the PEL made respirators “necessary.” 

The Secretary relies largely on what he describes as “OSHA’s own testing [having] showed 

the presence of carbon monoxide and iron oxide at levels approaching the permissible exposure 

limit [PEL] . . . .”

11

 29 C.F.R. § 1910.1000, Table Z-1. However, not only were none of the carbon 

monoxide samples taken by OSHA above the PEL, none of those samples were measured as an 

eight-hour time weighted average. On the contrary, a compliance officer obtained a “grab” sample 

(an instantaneous reading) of 40 ppm of carbon monoxide, well below the PEL, in a void with no 

forced ventilation in place. Later, when Seward’s employees were on break, a compliance officer 

tested a different void that did have ventilation in place, and this time obtained even lower grab 

sample readings of 35-36 ppm of carbon monoxide. As Seward’s expert witness, Philip Dovinh, 

testified, grab samples cannot be used to infer an eight-hour time weighted average. In fact, 

Dovinh noted that he has taken grab samples for carbon monoxide as high as 2,500 to 5,000 ppm 

near cigarette smoke, without the smokers getting sick or requiring hospitalization. 

As for iron oxide, an employee wore a personal sampling monitor for approximately 6.5 

hours as he moved between five to eight different voids where welding was taking place.12 This 

result—not from a grab sample but measured over a considerable amount of time and under 

varying conditions—still showed an exposure level below the PEL, 9.1 milligrams per cubic 

 

Q: They could lawfully be working in that area at that time without respirators, 

right?

A: Yes, they could.

11 On review, the Secretary makes only an abbreviated argument that respirators were also 

necessary to protect employees against iron oxide exposure. He made no such argument before 

the judge, though, focusing exclusively on carbon monoxide exposure. 

12 Another welder was also sampled at this time, but the results for his monitoring are not in 

evidence.
11

meter.13 Thus, for both carbon monoxide and iron oxide, we find that the Secretary has not proven 

a reasonable possibility of exceeding the PEL for an eight-hour time weighted average. 

In addition, the evidence fails to establish that it was reasonably foreseeable that a sudden 

spike of contaminant levels would be so quick as to preclude Seward from timely protecting its 

employees—in other words, the Secretary failed to offer sufficient proof, which must establish 

more than a vague risk, that employees would be exposed to contaminant levels that could abruptly 

present potential harm, such as exposure above the ceiling limit.14 Never before has the 

Commission held that respirators are required with no evidence that there was a significant risk of 

an exposure above the PEL, and we decline to do so here. See Snyder Well Serv., Inc., 10 BNA 

OSHC 1371, 1375-76 (No. 77-1334, 1982) (finding significant risk of harm due to distinct 

possibility of a “sudden excursion” of hydrogen sulfide in concentrations capable of quickly killing 

unprotected employees); Gulf Oil Corp., 11 BNA OSHC 1476, 1480-81 (No. 76-5014, 1983) 

(Secretary’s samples of catalyst dust showed concentrations in the area where employees worked 

were within the prescribed limits and there was no evidence that dust at those levels was hazardous 

to employees or of a “possible emergency situation occurring as a result of a sudden excursion 

above a [threshold limit value]”). The need for such protection must be more than a mere 

“speculative possibility.” See Weirton Steel Corp., 20 BNA OSHC at 1260. 

Here, the Secretary’s claim, and our colleague’s agreement with it, that overexposure was 

reasonably foreseeable is indeed speculative. The grab samples for carbon monoxide were 20-28 

percent below the eight-hour time weighted average OSHA set for its PEL. Although the Secretary 

claims that overexposure was reasonably predictable due to evidence of insufficient and 

inconsistent ventilation being used in the voids,15 these grab sample results were well below 50 

 

13 The compliance officer inexplicably claimed at the hearing that this result was “just at the PEL” 

and “almost” an overexposure even though the measured level is clearly below 10 milligrams per 

cubic meter.

14 According to NIOSH, carbon monoxide has a 200 ppm ceiling concentration and is considered 

immediately dangerous to life and health (IDLH) at 1200 ppm. Nat. Institute for Occupational 

Safety and Health, U.S. Dep’t of Health and Human Services, Pub. No. 2005-149, Pocket Guide 

to Chemical Hazards 54 (2007).

15 Welders who worked aboard the barge testified that the ventilation was off the majority of the 

time due to electrical problems and consisted only of a fan at the top of the void without ducts to 

remove welding fumes from deeper in the void where employees’ breathing zones were located. 
12

ppm in both the void with forced ventilation and the one without it, and no additional evidence 

was introduced to show that the conditions could suddenly change as to a create an ascent above 

the PEL or toward the ceiling limit.16 

For iron oxide, the one welder sampled was exposed at a level approximately 10 percent 

below the eight-hour time weighted average OSHA set for its PEL. Even if this level could be 

considered to be “approaching” the PEL, the result was a time weighted average over a 6.5 hour 

period during work in five to eight different voids where welding was taking place; still, there was 

no overexposure despite whatever ventilation problems had occurred. See Gulf Oil Corp., 11 BNA 

OSHC at 1480-81 (finding that Secretary failed to establish significant risk of harm where level 

of quartz dust was within the PEL and there was “no evidence of a possible emergency situation 

occurring as a result of a sudden excursion above a [threshold limit value].”) Thus, for both carbon 

monoxide and iron oxide, the Secretary’s evidence regarding exposure is not even consistent with 

eight-hour time weighted levels exceeding the PEL, let alone the more substantial standard of 

proof that there was a reasonable possibility of suddenly exceeding their ceiling concentration 

limits permissible for a specified shorter period of time during an employee’s workday. 

 

While we agree these problems are troubling, there is simply no evidence that such inconsistencies 

caused conditions necessitating the use of respirators.

16 Dovinh, on the other hand, stated that there was no reasonable possibility of a hazard 

necessitating the use of respirators:

Q: [W]ould you certify a space for entry that had 40 [ppm] of carbon monoxide 

when you tested it?

A: Yes. It is perfectly safe to go in at 40 [ppm]. The . . . regulation as you 

know is 50 [ppm]. So anything below that is safe . . . and that happens all the time. 

Happens all the time.

Q: If ventilation is turned off does that mean instantaneously that there’s an 

unacceptable carbon monoxide level? 

A: No . . . I don’t think so . . . [V]entilation gets shut off—off and on very 

often. But shutting the ventilation off doesn’t mean that you will have a high 

concentration of carbon monoxide right away . . . .

Our colleague’s focus on the lack of consistent ventilation is a red herring and results in the hasty 

generalization that any level of carbon monoxide or iron oxide is bad, so respirators should be 

required. There is simply no record evidence that under those conditions, or even with a complete 

lack of ventilation, there was a reasonable possibility that the exposure levels would rise above the 

PEL or ceiling limit.
13

Finally, the Secretary’s argument that respirators were necessary here—before there is a 

reasonable possibility of exposure above the PEL—is contrary to the respiratory protection 

standard’s preamble, its regulatory history, and the Secretary’s own enforcement guidance.17 

According to the final rule’s preamble, “OSHA considers respirators to be necessary to protect the 

health of the employee whenever feasible engineering and work practice controls are not available, 

are not sufficient to protect employee health, have not yet been instituted, in emergencies, and 

where the health of the employee is at risk (e.g., whenever employee exposure exceeds an OSHA 

[PEL].” Respiratory Protection Final Rule, 63 Fed. Reg. at 1181 (emphasis added). This shows, 

in unmistakable terms, that the Secretary recognizes that respirators are not “necessary” where 

employee exposure has not exceeded the PEL. Thus, our colleague’s and the Secretary’s 

interpretation to the contrary is at odds with OSHA’s intent as expressed in the preamble. 

Further, when OSHA promulgated revisions to the standard, the agency specifically 

rejected a suggestion that it institute an “action level” at one-half the PEL (or TLV) for triggering 

the requirement to provide respirators “and that employees be required to wear them before the 

PEL is exceeded.” Respiratory Protection Final Rule. 63 Fed. Reg. at 1160 (emphasis added). 

Consistent with that decision, OSHA issued guidance stating that protective measures must be 

instituted, and where there is a failure to do so a citation may be considered, “whenever exposures 

exceed permitted levels.” OSHA Directive CPL 02-00-120, Inspection Procedures for the 

 

17 While considerable weight is given to the agency’s representation as to its authority to regulate 

cited working conditions, the Commission “independently reviews the statutory and regulatory 

provisions at issue, as well as the evidence, to determine whether that view is reasonably supported 

by the record.” JTM Indus., 19 BNA OSHC 1697, 1699 (No. 98-0030, 2001). See also Superior 

Rigging & Erecting Co., 18 BNA OSHC 2089, 2091 (No. 96-0126, 2000) (citing Nooter Constr. 

Co., 16 BNA OSHC 1572, 1574 (No. 91-0237, 1994) (where the language of a standard is not 

explicit, the Commission looks to extrinsic evidence of the standard’s scope and meaning; 

legislative history and preamble of the standard are considered the most authoritative evidence)); 

Gen. Motors Corp., 22 BNA OSHC 1019, 1028 (No. 91-2834E, 2007) (consolidated) (preamble 

is best and most authoritative statement of the Secretary’s intent for standard susceptible to 

different interpretations); Perez v. Loren Cook Co., 803 F.3d 935, 939 (8th Cir. 2015)

(agency’s interpretation not entitled to deference “when the interpretation is plainly erroneous 

or inconsistent . . . [or] when there is reason to suspect that the agency's interpretation does not 

reflect the agency's fair and considered judgment on the matter in question . . . . This may be 

evidenced by an agency’s current position conflicting with prior interpretations, by an agency’s 

use of the position as nothing more than a litigating position, or by the use of the interpretation as 

a post hoc rationalization for prior action.”).
14

Respiratory Protection Standard (September 25, 1998) (emphasis added).18 Thus, it is clear that 

the Secretary did not intend to require respirators when exposure is below the PEL. Any 

inconsistent position is not entitled to deference.

In sum, the evidence of record falls well short of establishing that respirators were 

“necessary.” Accordingly, we find that (d)(1)(iii) is not applicable to Seward’s welding operations 

and vacate Citation 1, Item 3.

SO ORDERED.

/s/

Heather L. MacDougall

Chairman

/s/

James J. Sullivan, Jr.

Dated: February 28, 2018 Commissioner

 

18 OSHA’s current instruction similarly states that “[r]espirators must be used in conjunction with 

feasible controls whenever exposures cannot be controlled at or below permissible limits.” OSHA 

Directive CPL 02-00-158, Inspection Procedures for the Respiratory Protection Standard (June 26, 

2014).
15

ATTWOOD, Commissioner, concurring and dissenting:

I concur only with my colleagues’ conclusions in Parts 1 and 2 of the majority opinion, in 

which they find that § 1910.134(d)(1)(iii) applies only if the Secretary establishes that respirator 

use is “necessary” under 29 C.F.R. § 1910.134(a)(2). I dissent, however, from their conclusion in 

Part 3 because I find that the Secretary established both the applicability of the cited provision 

(i.e., that respirators were “necessary” under § 1910.134(a)(2)) and Seward’s noncompliance. 

1. Applicability of § 1910.134(d)(1)(iii)

As we have held, to prove applicability here the Secretary must show that respirators were 

“necessary to protect the health” of Seward’s employees. 29 C.F.R. § 1910.134(a)(2). Respirator 

use is “necessary” whenever a respiratory hazard is shown to exist, and such a hazard exists when 

there is a significant risk of respiratory harm. See Weirton Steel Corp., 20 BNA OSHC 1255, 1259 

(No. 98-0701, 2003) (citing Anoplate Corp., 12 BNA OSHC 1678, 1681-82 (No. 80-4109, 1986)). 

Whether such a risk exists depends on the severity of the potential harm and the likelihood of its 

occurrence, which are inversely related. Id. (citing Pratt & Whitney Aircraft v. Donovan, 715 F.2d 

57, 64 (2d Cir. 1983)). 

I find that the facts in this case establish that there was a significant risk of harm to exposed 

employees at Seward’s workplace. Regarding the severity of the potential harm, Material Safety 

Data Sheets (MSDSs) for the welding rods Seward used show that they can produce hazardous 

fumes containing, among other substances, iron oxide and carbon monoxide. The MSDSs, coupled 

with the compliance officers’ testimony, establish that (1) short-term overexposure to welding 

fumes can aggravate pre-existing respiratory problems, such as asthma and emphysema; and (2) 

long-term overexposure can affect pulmonary function by decreasing both respiratory efficiency 

and lung capacity and, in the case of iron oxide, can cause siderosis (iron deposits in the lung). 

Furthermore, as one of the compliance officers testified, carbon monoxide is a chemical asphyxiate 

which, at excess levels, can result in unconsciousness and death.

As to the likelihood of occurrence, I find the evidence shows that overexposure to airborne 

hazards was a reasonable possibility for Seward’s employees. Throughout these proceedings, 

Seward has repeatedly emphasized its reliance on ventilation rather than monitoring to maintain 

safe conditions inside the voids.1 It is entirely possible that effective ventilation would have 

 

1 The only regular monitoring that Seward performed was at the beginning of each shift, before

any welding took place.
16

maintained exposures to iron oxide and carbon monoxide below their respective PELs. As my 

colleagues point out, however, two of Seward’s welders testified that prior to OSHA’s arrival, 

ventilation had been used intermittently at best and even when used, it was ineffective. 

Specifically, one welder testified that ventilation was not working a majority of the time due to 

electrical problems on the ship. And another testified that even when ventilation was used in the 

starboard ballast tank, it consisted of a single fan at the top and there were no ducts to remove 

welding fumes from deeper in the void where the employees’ breathing zones were located. 

Indeed, the compliance officers both observed smoky conditions in the voids and, prior to the 

inspection, both welders had complained to their supervisor about poor ventilation in the starboard 

ballast tank. When ship superintendent Larry Williams eventually tested the space with a gas 

meter, it began to audibly alarm.

OSHA’s test results showed time weighted average iron oxide levels for one Seward welder 

at just below the PEL, and carbon monoxide grab samples at elevated levels but below the PEL (if 

they persisted unchanged) in two separate voids. Specifically, the compliance officers’ testing 

revealed carbon monoxide at 40 ppm in the crane turnstile void, which had no ventilation in place. 

Testing in the starboard ballast tank, in which ventilation was being used, showed a level that “rose 

to” 35 ppm. One of the compliance officers testified that he was concerned about both readings, 

but especially the starboard ballast tank’s reading because it was taken during the employees’ 

break in the absence of any welding. According to the compliance officer, a carbon monoxide 

reading at this level—in the absence of active welding—means the space was not being adequately 

ventilated. See, e.g., Elliot Constr. Corp., 23 BNA OSHC 2110, 2116 n.9 (No. 07-1578, 2012) 

(finding judge properly rejected as illogical the claim that carbon monoxide levels “would peak 

after the gas-powered equipment [generating those levels] had been turned off . . . .” (emphasis in 

original)). Furthermore, after the compliance officers had begun testing in the crane turnstile void,

Seward’s attempt to ventilate the space proved so difficult that it ultimately elected to simply 

remove its employees from the void altogether. Given Seward’s stated reliance on ventilation to 

maintain a safe atmosphere, this evidence establishes a reasonable possibility of overexposure to 

both iron oxide and carbon monoxide.

Contrary to Seward’s and my colleagues’ contention, the absence of any readings 

exceeding the OSHA PELs does not preclude a finding that respiratory protection was necessary. 

Here, Seward chose to place sole reliance on ventilation to prevent the contaminants produced 
17

during welding from exceeding the PEL—it did no atmospheric monitoring while the welders 

worked in these confined spaces. It therefore depended on the ventilation equipment being present, 

operating, and effective to remain in compliance with the standard.

Ventilation, however, was absent entirely from one void in which welders worked, and 

known electrical failures and visible smoke signaled that there were problems with the ventilation 

in another void. In these circumstances Seward could no longer assume that the PELs would not 

be exceeded. The elevated iron oxide level and elevated carbon monoxide grab sample levels 

taken by the compliance officers corroborate that, without the benefit of consistent and effective 

ventilation or monitoring, there was a significant risk the PELs would be exceeded as the welders 

continued to work, triggering the need for respirators. 

Given these conditions, evidence of actual overexposure is not a prerequisite to finding that 

a “significant risk of harm” is present here because the intent of the Act and cited respiratory 

protection standard is to prevent harm. This principle was recognized in Snyder Well Servicing, 

Inc., in which the Commission found a significant risk of harm from exposure to hydrogen sulfide 

gas because a “sudden excursion” of the gas in concentrations capable of quickly killing 

unprotected employees was possible even though OSHA’s testing had revealed only trace amounts 

of the gas. 10 BNA OSHC 1371, 1375-76 (No. 77-1334, 1982). In the instant case, a slow increase 

of carbon monoxide levels could be equally dangerous—carbon monoxide is odorless and 

colorless, so without monitoring its accumulation during welding in the confines of the voids could 

have been just as unexpected and deadly. 

Based upon this evidence, particularly Seward’s demonstrated inability to provide 

consistent and effective ventilation in the voids, I find there was a reasonable likelihood that the 

welders’ exposure to iron oxide and carbon monoxide would exceed their respective PELs. Thus, 

Seward’s welding operations subjected employees to a significant risk of respiratory harm, and 

respirators were therefore “necessary” under § 1910.134(a)(2). Accordingly, I would find that 

§ 1910.134(d)(1)(iii) was applicable to the conditions at Seward’s worksite. 

2. Noncompliance

The cited provision requires that an employer “identify and evaluate the respiratory 

hazard(s) in the workplace . . . , [including] a reasonable estimate of employee exposures to 

respiratory hazard(s) and an identification of the contaminant’s chemical state and physical form.” 

29 C.F.R. § 1910.134(d)(1)(iii). When asked for documentation of Seward’s evaluation of 
18

respiratory hazards, superintendent Williams responded that the company “did not have any of that 

information,” because it “relied on the marine chemist to provide that information for them.” The 

judge found that obtaining the marine chemist certificate constituted an evaluation under 

§ 1910.134(d)(1)(iii). On review, the Secretary argues that the assessment conducted to obtain a 

marine chemist certificate fails to account for the respiratory hazards that may be generated once 

welding activities have begun and is therefore inadequate to comply with the standard.

I agree with the Secretary that the judge erred in accepting the marine chemist certificate 

as an evaluation that complied with the cited provision. The requirement to obtain a marine 

chemist certification arises under OSHA’s shipyard standards and addresses safety hazards—the 

prevention of fire and/or explosion from a combustible atmosphere—not the atmospheric health 

hazards addressed by the respiratory protection standard. In short, establishing that a space is 

“Safe for Hot Work” is not the same as “estimat[ing] . . . employee exposures to respiratory 

hazards.”

Furthermore, none of the other measures Seward claims it took constitute compliance with 

the cited standard. Seward points to Williams’s testimony that he evaluated respiratory hazards 

every morning before welding began, and that testing beyond these morning checks was performed 

when circumstances dictated, including when employees made complaints. However, because 

Williams’s morning tests were conducted before welding work even started, they could not 

possibly evaluate the respiratory hazards associated with the use of the welding rods. And by 

Williams’s own admission, his morning tests were conducted to ensure that atmospheric conditions 

stayed within the parameters of the marine chemist certificate, not to assess potential respiratory 

hazards. Thus, this testing could not have constituted “a reasonable estimate of employee 

exposures to respiratory hazard(s) and an identification of the contaminant’s chemical state and 

physical form.” 29 C.F.R. § 1910.134(d)(1)(iii). 

Waiting to conduct an evaluation until an employee complains also runs counter to the 

respiratory protection standard’s prophylactic purpose—“the employer must make a ‘reasonable 

estimate’ of the employee exposures anticipated to occur as a result of . . . hazards . . . .”2 

 

2 Similarly unavailing is Seward’s reliance on Williams’s testimony that on April 15, 2009, when 

Seward’s project manager smelled acetylene emanating from a void welders were preparing to 

enter, the manager instructed Williams to test the void with a gas meter to determine whether the 

atmosphere was safe. Williams testified that he tested the void, the welders were assigned to work 
19

Respiratory Protection, Final Rule, 63 Fed. Reg. at 1198 (emphasis added); see also Arcadian 

Corp., 20 BNA OSHC 2001, 2008 (No. 93-0628, 2004) (“ ‘[t]he goal of the Act is to prevent the 

first accident, not to serve as a source of consolation for the first victim or his survivors.’ ” (quoting 

Mineral Indus. & Heavy Constr. Grp. v. OSHRC, 639 F.2d 1289, 1294 (5th Cir. 1981)). Under 

well-settled precedent, the evaluation contemplated by the standard is plainly prospective in 

nature, intended to take place before actual exposures occur.

Finally, Seward asserts that it was in compliance with the assessment requirement because, 

based on its prior experience, it reasonably believed that its use of ventilation would prevent unsafe 

exposures to respiratory hazards. However, Seward never actually estimated the types and levels 

of contaminants that could result from its welding work, or the rate and volume of ventilation 

necessary to control any such contaminants at safe levels. In addition, Seward’s purported 

“experience” was based on its practice of relying on the absence of employee complaints or other 

overt signs of any problems as verification that its ventilation was adequate—it performed no 

actual testing. But with a hazardous substance that is odorless and/or colorless, such as carbon 

monoxide, Seward’s practice could never reliably show that its ventilation practices were 

adequate. As OSHA has made clear, estimates under § 1910.134(d)(1)(iii) must be based on data, 

and such data must have a sufficient connection to the worksite:

For example, employers may rely on information and data that indicate that use or 

handling of a product or material cannot, under worst-case conditions, release 

concentrations of a respiratory hazard above a level that would trigger the need for 

respirator use or require use of a more protective respirator. This approach is 

similar to that used in several OSHA substance-specific health standards, which 

permit employers to use objective data in lieu of exposure monitoring to 

demonstrate that their employees cannot be exposed above an action 

level. Objective data can be obtained from an industry study or from laboratory 

test results conducted by manufacturers of products or materials being used in the 

workplace. To generalize from data in an industry-wide survey to conditions in a 

specific workplace, the survey must have obtained data under conditions closely 

resembling the processes, types of materials, control methods, work practices, and 

environmental conditions in the workplace to which it will be generalized, i.e., the 

employer’s operation.

. . .

Another approach that can be used by employers to estimate employee exposures 

involves using mathematical approaches and obtainable information. Employers 

 

in another space, and the void was ventilated, re-tested, and ultimately found to be safe. But this 

approach is wholly ineffective for odorless respiratory hazards such as carbon monoxide.
20

can use data on the physical and chemical properties of air contaminants, combined 

with information on room dimensions, air exchange rates, contaminant release 

rates, and other pertinent data, including exposure patterns and work practices, to 

estimate the maximum exposure that could be anticipated in the workplace.

Respiratory Protection, Final Rule, 63 Fed. Reg. at 1199 (emphasis added). 

Here, Seward failed to account for project-specific variables on the Paula Lee, opting 

instead to simply rely on its prior experience of using ventilation. Not only did production manager 

Kenneth Willis testify that he had been “doing this all his life,” using the “same type [of] rods, 

same wire, [and] same type [of] steel,” and that in his experience, as long as ventilation is utilized 

there is no need for employees to use respirators, he also asserted: “I don’t know why [the hazard 

assessment] process would have to be duplicated every time we do a barge or a ship.” But the key 

presumption upon which Seward based its belief that the atmosphere would be safe—the use of 

ventilation—was unfounded in this case given the unrebutted testimony that ventilation on the 

Paula Lee was interrupted by power failures, and in some cases failed to reach the part of the voids 

where the employees were actually performing the welding work. 

Accordingly, because I find that Seward was required but failed to conduct the assessment 

required by § 1910.134(d)(1)(iii), I dissent.3

 

/s/

Cynthia L. Attwood

Dated: February 28, 2018 Commissioner

 

3 Seward also argues that the § 1910.134(d)(1)(iii) citation is duplicative of the citation it received 

for violating § 1915.15(c), which was affirmed by the judge, and which Seward does not challenge 

on review. Applying the analysis set forth in my dissenting opinion in North Eastern Precast, 

LLC, OSHRC Docket Nos. 13-1169 and 13-1170 (2018), I would find the citations are not 

duplicative. 
UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 OSHRC DOCKET NO. 09-1901

Appearances:

Evan Nordby, Esq., Office of the Solicitor, U.S. Department of Labor, Seattle, Washington

For Complainant

William Mede, Esq., Turner & Mede, PC, Anchorage, Alaska

For Respondent

Before: Administrative Law Judge Patrick B. Augustine

DECISION AND ORDER

Procedural History

This proceeding is before the Occupational Safety and Health Review Commission ("the 

Commission") pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 

§651 et seq. ("the Act"). The Occupational Safety and Health Administration ("OSHA") conducted an 

investigation of a Seward Ship’s Drydock, Inc. ("Respondent") worksite in Seward, Alaska between 

April 14, 2009 and September 29, 2009. As a result of that investigation, OSHA issued a Citation and 

Notification of Penalty (“Citation”) to Respondent alleging fourteen violations of the Act. Respondent 

timely contested the Citation. During the trial in Anchorage, Alaska on March 23-25, 2011, the parties 

submitted two Partial Settlement Agreements which fully resolved Citation 1, Items 2 and 5.

1

(Tr. 10, 

606, 705). Therefore, only Citation 1, Items 1, 3, 4a, 4b, 6, 7, 8, 9; Citation 2, Item 1; and Citation 3, 

Items 1, 2, and 3 remained in dispute at the conclusion of the trial. Each party filed timely post-trial 

 

1 The Partial Settlement Agreements were formally approved on August 23, 2011.

Secretary of Labor, 

 

 Complainant,

 

 v. 

Seward Ship’s Drydock, Inc., 

 

 Respondent.
2

briefs.

Jurisdiction

Jurisdiction of this action is conferred upon the Commission pursuant to Section 10(c) of the 

Act. At all times relevant to this action, Respondent was an employer engaged in a business affecting 

interstate commerce within the meaning of Section 3(5) of the Act, 29 U.S.C. §652(5). (Tr. 341; Ex. 

C-34); Complaint and Answer; Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005).

Applicable Law

To establish a prima facie violation of a specific regulation promulgated under Section 5(a)(2) 

of the Act, Complainant must prove by a preponderance of the evidence that: (1) the standard applied

to the cited condition; (2) the terms of the standard were violated; (3) one or more of the employer’s 

employees had access to the cited conditions; and (4) the employer knew, or with the exercise of 

reasonable diligence could have known, of the violative conditions. Ormet Corporation, 14 BNA 

OSHC 2134, 1991 CCH OSHD ¶29,254 (No. 85-0531, 1991). 

Section 5(a)(1) of the Act (a/k/a the “General Duty Clause”) states that "each employer shall 

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). To establish a prima facie violation of Section 5(a)(1), 

Complainant must prove by a preponderance of the evidence that: (1) a condition or activity in the 

workplace presented a hazard to employees, (2) the employer or its 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. Kokosing Constr. Co., 17 BNA OSHC 1869, 

1995-96 CCH OSHD &31,207 (No. 92-2596, 1996). In addition, the evidence must show that the 

employer knew, or with the exercise of reasonable diligence, could have known of the hazardous 

condition. Otis Elevator Company, 21 BNA OSHC 2204, 2007 CCH OSHD &32,920 (No. 03-1344, 
3

2007).

A violation was serious if there was a substantial probability that death or serious physical 

harm could have resulted from the condition. 29 U.S.C. 666(k). Complainant need not show that 

there was a substantial probability that an accident would actually occur; she need only show that if an 

accident had occurred, serious physical harm or death could have resulted. Whiting Turner 

Contracting Co., 13 BNA OSHC 2155, 1989 CCH OSHD ¶28,501 (No. 87-1238, 1989). If the 

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

regulation is serious. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984); Dec-Tam 

Corp., 15 BNA OSHC 2072, 1993 CCH OSHD ¶29,942 (No. 88-0523, 1993).

When Complainant alleges a repeat violation, it has the burden of establishing that the past and 

present violations were substantially similar. Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 

1979). Complainant makes a prima facie showing of substantial similarity by establishing that the 

both violations were for failure to comply with the same regulatory standard, or that the employer 

failed to protect employees from similar hazards. The burden then shifts to Respondent to rebut that 

showing. Monitor Construction Co., 16 BNA OSHC 1589, 1594 (No. 91-1807, 1994).

A violation is “willful” if it is “committed ‘with intentional, knowing or voluntary disregard for 

the requirements of the Act, or with plain indifference to employee safety.’” Kaspar Wireworks, Inc., 

18 BNA OSHC 2178, 2000 CCH OSHD ¶32,134 (No. 90-2775, 2000); Ensign-Bickford Co. v. 

OSHRC, 717 F.2d 1419, 1422-23 (D.C. Cir. 1983). The employer’s state of mind is the key issue. AJP 

Construction, Inc., 357 F.3d 70 (D.C. Cir. 2004). Complainant must show that Respondent had a 

“heightened awareness” of the illegality of its conduct. Id. Heightened awareness is more than simple 

awareness of the conditions constituting the alleged violation; such evidence is already necessary to 

establish the basic violation. Id. Instead, Complainant must show that Respondent was actually aware 
4

of the unlawfulness of its action or that it “possessed a state of mind such that if it were informed of 

the standards, it would not care.” Id. 

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

the Commission to give Adue 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. 29 U.S.C. '666(j). 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, 1993 CCH OSHD 

&29,964 (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. Allied Structural Steel, 2 BNA OSHC 1457 (No. 1681, 1975); 

Valdak Corp., 17 BNA OSHC 1135 (No. 93-0239, 1995). 

Discussion

Respondent performs repair work on ships, both in drydock and while floating, at its facility in 

Seward, Alaska. (Tr. 13). On April 14, 2009, OSHA received an employee complaint by telephone 

concerning welding and confined space safety issues for repairs being performed on the Paula Lee, a 

270-feet-long, 76-feet-wide, deck barge. (Tr. 13, 61, 311, 489-490, 575; Ex. C-1). OSHA Compliance 

Officers Matt Pauli and John Casper were dispatched to Seward, Alaska the same day to begin an 

investigation. (Tr. 57-58, 382). They physically inspected the working conditions on and around the 

Paula Lee for two days: April 14-15, 2009. (Tr. 57-58, 103). Their investigatory findings serve as the 

basis for the citations proposed in this case. 

Several witnesses testified at trial: (1) Matt Pauli, an OSHA Compliance Safety and Health 

Officer (“CSHO”); (2) Henry Hogge, a welder employed by Respondent on the Paula Lee project; (3)

John Casper, an OSHA Compliance Safety and Health Officer ; (4) Joseph Graham, a Certified Marine 
5

Chemist; (5) Scott Ketcham, the OSHA Anchorage Area Director; (6) Kenneth Willis, Respondent’s 

Production Manager; (7) Larry Williams, Respondent’s Ship Superintendent and Shipyard Competent 

Person; (8) Bruce Whitmore, a welder employed by Respondent on the Paula Lee project; (9) Bernie

Lewis, Respondent’s Welding Supervisor; (10) John Moreno, Respondent’s Paint Crew Foreman; and 

(11) Philip Dovinh, a Senior Marine Chemist and testifying expert on shipyard work and shipyard

safety. (Tr. 54, 279, 340, 378, 445, 485, 505, 584, 608, 706, 726, 733).

Citation 1 Item 1

Complainant alleged a serious violation of Section 5(a)(1) of the Act in Citation 1, Item 1 as 

follows:

Section 5(a)(1) of the Occupational Safety and Health Act of 1970: 

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:

(a) Paula Lee Barge, Weather Deck, Port-Stern: On or about April

15, 2009 and at times prior thereto, whip protection was not provided 

at one (1) header on the compressed air hose manifold operating at 

108 p.s.i.g. This condition exposed employees to struck-by hazards in 

the event the hose released from the connection point.

(b) Paula Lee Barge, Weather Deck: On or about April 15, 2009 

and at times prior thereto, whip protection was not provided at a 

ventilation (Copus) blower operating with an entry pressure of 108 

p.s.i.g pressure. This condition exposed employees to struck-by 

hazards in the event the hoses released from the termination point at 

the blower.

(c) Paula Lee Barge, Port-Stern Mooring Bit: On or about April 15, 

2009 and at times prior thereto, whip protection was not provided at a 

compressed air line segment operating at 108 p.s.i.g. adjacent to the 

port-stern mooring bit. This condition exposed employees to struck-by 

hazards in the event the hoses released from the connection point.

(d) Paula Lee Barge, Weather Deck, Midship: On or about April 15, 

2009 and at times prior thereto, whip protection was not provided at 

compressed air line segments operating at 108 p.s.i.g. This condition 

exposed employees to struck-by hazards in the event the hoses 

released from the connection point.
6

During the inspection, CSHO Pauli observed numerous compressed air lines on the deck of the 

Paula Lee which were powering various tools used by Respondent’s employees. (Tr. 152-161; Ex. C15). The lines were an inch thick, had metal fittings on each end, and were charged with 108 pounds 

of pressure. (Tr. 162, 536; Ex. C-15). Most of the air lines were equipped with keeper clips, which 

served as a secondary means of keeping the air hoses connected, to protect employees in the area from 

loose lines “whipping” around. (Tr. 274-278). 

CSHO Pauli observed four charged air lines on the Paula Lee deck which lacked keeper clip 

protection. (Tr. 152-161, 274; Ex. C-15). The condition of the four lines was in plain view to anyone 

who walked by. (Tr. 164). This posed a hazard to Respondent’s employees and supervisors, who 

walked and worked all over the deck, in that energized air lines which accidentally became 

disconnected could strike them. (Tr. 163, 694). The whipping lines could have caused contusions, 

broken bones, or even loss of consciousness. (Tr. 163). 

Respondent recognized the hazard associated with loose, charged, air lines as Respondent’s 

Production Manager, Kenneth Willis, testified that Respondent buys approximately 1,500 keeper clips 

each year, that he had personally observed an energized air hose while disconnected, and conceded 

that they can “wave a little.” (Tr. 537-538, 556). Even if additional clips were unavailable, safety wire 

could have been used to secure the hoses in the event they unexpectedly became disconnected. (Tr. 

164). Therefore, multiple feasible means of abatement existed. 

Respondent argued that Citation 1 Item 1 is preempted because a specific regulation addresses 

the condition which was cited. Specific regulations promulgated under Section 5(a)(2) of the Act can 

preempt the General Duty Clause, but only with respect to hazards, conditions, or practices expressly 

covered by the specific standards. Con Agra, Inc., 11 BNA OSHC 1141, 1983 CCH OSHD ¶26,420 

(No. 79-1146, 1983). When the abatement required by specific standards does not eliminate the 

hazard addressed by a general duty clause citation, no preemption will be found. Coleco Industries, 
7

Inc., 14 BNA OSHC 1961, 1991 CCH OSHD ¶29,200 (No. 84-546, 1991). The court rejects 

Respondent’s argument that this violation is preempted by 29 C.F.R. §1915.131(h) because that 

standard only addresses the requirement to visually inspect air hoses, not the recognized practice of 

attaching keeper clips to the hoses in the event they accidentally become disconnected. (Tr. 165). 

Complainant established the elements required to prove Citation 1, Item 1. Therefore, it will 

be AFFIRMED. However, based on the fact that Respondent had keeper clips on all but four lines, 

and the court’s acceptance of its argument that the clips frequently came off despite their best efforts 

to maintain them, the proposed penalty for Citation 1, Item 1 will be reduced to $500.00.

Citation 1 Item 3

Complainant alleged a serious violation of the Act in Citation 1, Item 3 as follows:

29 C.F.R. §1910.134(d)(1)(iii): The employer did not identify and 

evaluate the respiratory hazard(s) in the workplace to include a 

reasonable estimate of employee exposures to respiratory hazard(s) 

and an identification of the contaminant’s chemical state and physical 

form (applicable to shipyard employment by 29 CFR 1915.154): 

Paula Lee Barge: On or about April 14, 2009 and at times prior 

thereto, respiratory hazards for welders and helpers working in 

confined spaced had not been evaluated. This condition exposed 

employees to inhalation hazards.

The cited standard provides:

29 C.F.R. §1910.134(d)(1)(iii): The employer shall identify and 

evaluate the respiratory hazard(s) in the workplace; this evaluation 

shall include a reasonable estimate of employee exposures to 

respiratory hazard(s) and an identification of the contaminant’s 

chemical state and physical form. Where the employer cannot identify 

or reasonably estimate the employee exposure, the employer shall 

consider the atmosphere to be IDLH.

The Paula Lee contained multiple, empty, interior tanks, or “voids”, which were underneath

the main deck and accessible only through manholes approximately 19 inches wide. (Tr. 516, 519; Ex. 

C-4). Respondent’s employees entered the voids through the manholes and performed welding 

repairs. (Tr. 126, 213, 592, 649-650). During the inspection, CSHO Pauli asked Respondent’s 
8

Shipyard Superintendent, Larry Williams, for a copy of Respondent’s respiratory hazard evaluations 

for the voids and was told that Respondent had none, and instead relied on the Marine Chemist 

Certificate and his own daily atmospheric tests. (Tr. 175-176). Joseph Graham, the Marine Chemist 

hired by Respondent to assess the safety of performing hot work inside the Paula Lee voids, confirmed

that as part of his ship inspection and issuance of the Marine Chemist Certificate, he evaluated the 

respiratory hazards posed to Respondent’s employees. (Tr. 463; Ex. C-3). His evaluation and 

inspection revealed normal oxygen levels, no carbon monoxide, and no explosivity, and thus the 

Marine Certificate on its face indicated an evaluation of respiratory hazards with no conditions which 

required correction. (Tr. 454; Ex. C-3). He further testified that the entire barge was covered by his 

inspection and subsequently issued Marine Chemist Certificate. (Tr. 472). Therefore, the court 

concludes that Respondent did evaluate the respiratory hazards on the Paula Lee. Accordingly, 

Complainant failed to establish that Respondent violated the requirements of the cited standard. 

Citation 1, Item 3 will be VACATED. 

Citation 1 Item 4a

Complainant alleged a serious violation of the Act in Citation 1, Item 4a as follows:

29 C.F.R. §1910.334(a)(2)(i): Portable cord and plug-connected 

electrical equipment and flexible cord sets (extension cords) were not 

visually inspected before use on any shift for external defects (such as 

loose parts, deformed and missing pins, or damage to outer jacket or 

insulation) and for evidence of possible internal damage (such as 

pinched or crushed outer jacket):

(a) Paula Lee Barge, Crane Turnstile: On or about April 15, 2009 

and at times prior thereto, the employer had not performed a visual 

inspection of an Americ #100 ventilation fan which was observed to 

have defective strain relief. This condition exposed employees to 

electrical shock hazards from the 120 volt circuit; 

(b) Paula Lee Barge, Crane Turnstile: On or about April 15, 2009 

and at times prior thereto, the employer had not performed a visual 

inspection of a flexible cord used to power an Americ #100 ventilation 

fan. The flexible cord was observed to have defective strain relief at 

the plug device. This condition exposed employees to electrical shock 
9

hazards from the 120 volt circuit.

The cited standard provides:

29 C.F.R. §1910.334(a)(2)(i): Portable cord- and plug-connected 

equipment and flexible cord sets (extension cords) shall be visually 

inspected before use on any shift for external defects (such as loose 

parts, deformed and missing pins, or damage to outer jacket or 

insulation) and for evidence of possible internal damage (such as 

pinched or crushed outer jacket). Cord- and plug-connected 

equipment and flexible cord sets (extension cords) which remain 

connected once they are put in place and are not exposed to damage 

need not be visually inspected until they are relocated. 

CSHO Casper conceded during his testimony at trial that Citation 1, Item 4a was based solely 

on the fact that the two cords identified in the citation item were damaged. (Tr. 434-435). OSHA 

presented no evidence to affirmatively establish that Respondent had failed to conduct a visual 

inspection of the cords. (Tr. 434-435). Furthermore, CSHO Casper acknowledged that Respondent’s 

Tool Room Operator told him that he conducted visual inspections of tools and equipment as they 

were returned. (Tr. 435). The mere existence of defective electrical cords on a jobsite is insufficient to 

affirmatively establish that the employer failed to visually inspect electrical equipment. Accordingly, 

Citation 1, Item 4a will be VACATED.

Citation 1 Item 4b

Complainant alleged a serious violation of the Act in Citation 1, Item 4b as follows:

29 C.F.R. §1910.334(a)(2)(ii): When there was a defect or evidence of 

damage that could expose an employee to injury, the defective or 

damaged item was not removed from service until the repairs and tests 

necessary to render the electrical equipment safe had been made:

(a) Paula Lee Barge, Crane Turnstile Void: On or about April 15, 

2009 and at times prior thereto, an Americ #100 ventilation blower 

with damaged strain relief, was not removed from service. This 

condition exposed employees to electrical shock hazards from the 120 

volt service; 
10

(b) Paula Lee Barge, Crane Turnstile Void: On or about April 15, 

2009 and at times prior thereto, a flexible extension cord for the 

Americ #100 blower had damaged strain relief. This equipment was 

not removed from service. This condition exposed employees to 

electrical shock hazards from the 120 volt service.

The cited standard provides:

29 C.F.R. §1910.334(a)(2)(ii): If there is a defect or evidence of 

damage that might expose an employee to injury, the defective or 

damaged item shall be removed from service, and no employee may 

use it until repairs and tests necessary to render the equipment safe 

have been made. 

CSHO Casper observed and photographed cords on a ventilation fan and a blower with 

damaged strain relief, which were being used by Respondent’s employees on the Paula Lee, as the 

outer sheathing had pulled away, exposing interior conductor wires. (Tr. 399, 405; Ex. C-22). 

Employees were observed walking by the fans frequently during the inspection, and both cords were 

in plain view. (Tr. 404, 408). Employees who contacted the exposed interior wiring could have 

received an electrical shock. (Tr. 402, 407). Wet conditions onboard the Paula Lee increased the 

likelihood of shock from contact with the exposed conductor wires. (Tr. 404). It was unclear how long 

the condition had existed, but Respondent had an electrician onboard who was actively addressing 

electrical deficiencies. (Tr. 430, 436, 443, 615-616). 

The court finds that the standard applied to the cited condition, the terms of the standard were 

violated, employees working and walking in the area of the cords were exposed, constructive 

knowledge was established in that Respondent could have known of the condition with the exercise of 

reasonable diligence, and a serious injury which could have resulted if an employee had been shocked. 

Accordingly, Citation 1, Item 4b will be AFFIRMED. Based on the totality of the circumstances, 

including the fact that Respondent had an electrician onsite actively addressing electrical problems and 

deficiencies at the time, the penalty for Citation 1, Item 4b will be reduced to $1,000.00. 
11

Citation 1 Item 6

Complainant alleged a serious violation of the Act in Citation 1, Item 6 as follows:

29 C.F.R. §1915.73(e): When employees are working near the 

unguarded edges of decks of vessels afloat the employer did not 

provide them with personal flotation devices. Paula Lee Barge: On or 

about April 15, 2009 and times prior thereto, employees were working 

next to the unguarded edges of the weather deck while the vessel was 

afloat. This condition exposed employees to drowning and 

hypothermia hazards. 

The cited standard provides:

29 C.F.R. §1915.73(e): When employees are working near the 

unguarded edges of decks of vessels afloat, they shall be protected by 

personal flotation devices, meeting the requirements of §1915.158(a).

Some of Respondent’s employees and supervisors were observed during OSHA’s inspection 

working near cluttered, unguarded edges of the deck of the Paula Lee without wearing personal 

flotation devices (PFDs). (Tr. 186-190, 348; Ex. C-26). There were gaps of several feet between the 

Paula Lee and the pier, as well as on the other side of the ship between the Paula Lee and another 

barge tied to the Paula Lee. (Tr. 191-192, 315; Ex. C-26). Production Manager Kenneth Willis 

acknowledged that Respondent did have employees on the deck of the Paula Lee who were not 

wearing PFDs, and that there was no guarding around most of the outer edges of the deck. (Tr. 561-

562). Ship Superintendent, Larry Williams, testified that there were no PFDs on the deck, but that 

they were “available” on the pier. (Tr. 698). The standard clearly applied and was violated. 

Each of Respondent’s employees photographed and observed working without PFDs near the 

outer edges of the deck of the Paula Lee were exposed to this condition, which was open, obvious, and 

in plain view of the three supervisors working on the ship. An employee who fell into the water, 

especially during the wet and snowy conditions at the time, would have been subject to hypothermia 

and drowning. (Tr. 194, 416). The court finds that employees were exposed to the risk of serious
12

injury, and knowledge by the Respondent of the hazardous condition was established. Accordingly, 

Citation 1, Item 6 will be AFFIRMED. The snowy and wet conditions observed in the investigative 

photographs, combined with the clutter virtually everywhere on deck, increased the likelihood that one 

of the employees would have actually fallen overboard. Accordingly, the proposed penalty of 

$1,500.00 for Citation 1, Item 6 will remain unchanged. 

Citation 1 Item 7

Complainant alleged a serious violation of the Act in Citation 1, Item 7 as follows:

29 C.F.R. §1915.91(a): Good housekeeping conditions were not 

maintained at all times. Hose and electric conductor were not 

elevated over or placed under walkways or working surfaces or 

covered by adequate crossover planks:

(a) Paula Lee Barge: On or about April 15, 2009 and times prior 

thereto, equipment including air hoses, electric cables, and welding 

leads were cluttered on the weather deck. This condition exposed 

employees to tripping and fall hazards.

(b) Paula Lee Barge: On or about April 15, 2009 and at times prior 

thereto, electrical cords and cables and welding leads (including 

connection points) were not elevated to keep the equipment out of the 

standing water that had accumulated on the weather deck. This 

condition exposed employees to electrical shock hazards.

The cited standard provides:

29 C.F.R. §1915.91(a): Good housekeeping conditions shall be 

maintained at all times. Adequate aisles and passageways shall be 

maintained in all work areas. All staging platforms, ramps, stairways, 

walkways, aisles, and passageways on vessels or drydocks shall be 

kept clear of all tools, materials, and equipment except that which is in 

use, and all debris such as welding rod tips, bolts, nuts, and similar 

material. Hose and electric conductors shall be elevated over or 

placed under the walkway or working surfaces of covered by adequate 

cross-over planks.

The conditions on the deck of the Paula Lee were extremely cluttered, with multiple air hoses, 

tires, electrical cords, work materials, and equipment scattered all over the walking and working 

surface. (Tr. 328, 405, 408; Ex. C-28). Respondent’s Production Manager, Kenneth Willis, testified
13

that housekeeping on the Paula Lee was “terrible” and acknowledged that significant portions of the 

clutter were Respondent’s own materials and equipment. (Tr. 546, 577). One of Respondent’s welders 

described the Paula Lee deck as “a mess.” (Tr. 635). The court’s own review of photographs of the 

deck confirmed the witness descriptions in that virtually every part of the deck was covered with 

hoses, material, tools, equipment, and other clutter. (Ex. C-1, C-10, C-28). The cited standard applied

and was violated. 

Respondent had fifteen employees walking and working on the Paula Lee deck during the 

course of the inspection, who were exposed to serious slip, trip, and fall hazards. (Tr. 415, 614). Ship 

Superintendent, Larry Williams, testified that he personally traveled all over the ship. (Tr. 660). 

Therefore, Complainant established employee exposure, employer knowledge, and the seriousness of 

the violation. Accordingly, Citation 1, Item 7 will be AFFIRMED. However, based on the totality of 

the circumstances, including the fact that Respondent had employees working on cleaning up the deck, 

the penalty will be reduced to $2,500.00.

Citation 1 Item 8

Complainant alleged a serious violation of the Act in Citation 1, Item 8 as follows:

29 C.F.R. §1915.111(a): Defective gear for rigging and materials 

handling was not removed and repaired or replaced before further 

use: Paula Lee Barge: On or about April 14, 2009 and times prior 

thereto, a hook latch (mouse) on one end of the four-way, wire rope, 

lifting bridle sling was broken and still in use. This condition exposed 

employees to struck-by hazards from lifting loads using defective 

lifting equipment. 

The cited standard provides:

29 C.F.R. §1915.111(a): All gear and equipment provided by the 

employer for rigging and materials handling shall be inspected before 

each shift and when necessary, at intervals during its use to ensure 

that it is safe. Defective gear shall be removed and repaired or 

replaced before further use.

Respondent was using a pier crane and attached metal container to move work equipment, 
14

tools, and materials on and off the Paula Lee. (Tr. 358, 699; Ex. C-30). The container was secured to 

the crane using a sling with four hooks, one of which was defective in that the hook safety latch was 

rusted and had been bent back. (Tr. 416-418; Ex. C-30). It was unclear how long the safety latch on 

the sling hook had been damaged. (Tr. 438). The defective hook latch increased the likelihood that 

one of the containers full of materials could have fallen while being moved between the Paula Lee and 

the pier. If the container had accidentally slipped off the hook, or more likely some of the materials 

and equipment fell out because the defective hook disconnected, it could have seriously injured or 

killed one or more of the employees walking and working in the area. (Tr. 420, 546-547; Ex. C-30). 

The standard applied, was violated, and created a serious hazard. 

The condition was open and obvious and could have been easily discovered, with the exercise 

of due diligence, by simply examining the hooks each time the container was loaded and unloaded. As 

there was no way to predict when or where the container or its contents would fall, all of Respondent’s 

employees traveling back and forth between the deck and pier (the same relative path over which the

container was moved) were exposed to the hazard. Accordingly, Citation 1, Item 8 will be 

AFFIRMED. However, the court finds that the likelihood of an actual accident occurring as a result of 

one broken safety latch to be low. (Tr. 546-547). Therefore, the penalty for Citation 1 Item 8 will be 

reduced to $500.00.

Citation 1 Item 9

Complainant alleged a serious violation of the Act in Citation 1, Item 9 as follows:

29 C.F.R. §1915.504(b)(8): The employer did not post a fire watch 

when a Marine Chemist, a Coast Guard authorized person, or a 

shipyard Competent Person as defined in 29 CFR 1915 subpart B 

requires that a fire watch be posted: Paula Lee Barge, Turnstile Void: 

On or about April 14, 2009 and times prior thereto, no dedicated fire 

watch was posted during hot work (welding) operations. This 

condition exposed employees to burn hazards in the event materials or 

clothing caught fire while performing hot work.

The cited standard provides:
15

29 C.F.R. §1915.504(b)(8): The employer must post a fire watch if 

during hot work any of the following conditions are present...(8) A 

Marine Chemist, a Coast Guard authorized person, or a shipyard 

Competent Person, as defined in 29 C.F.R. Part 1915, Subpart B, 

requires that a fire watch be posted. 

One of the things that the Marine Chemist Certificate required for Respondent’s welding 

activities, or “hot work,” on the Paula Lee was to “maintain dedicated fire watch with extinguisher.” 

(Tr. 90, 253-254; Ex. C-3). The Marine Chemist Certificate did not specify where or how many 

dedicated fire watchers or extinguishers were required, so OSHA conceded that those details were left 

to the discretion of the Shipyard Competent Person, Larry Williams. (Tr. 254, 256). CSHO Pauli

maintained, however, that there should have been enough fire watchers to observe each area in which 

hot work was being performed, and that the water hose located on the pier was not adequate fire 

extinguishing equipment. (Tr. 196-197, 255). OSHA maintained initially that each void should have 

had a dedicated fire watch, but later agreed that a fire watch who roamed from opening to opening 

with quick access to firefighting equipment would have been acceptable. (Tr. 255, 259-260). 

Joseph Graham, the Marine Chemist who issued the Certificate, explained that the fire watch 

he required for this job did not necessarily have to be immediately observing each welder at all times, 

but they should have been “dedicated” in that they had no other duties to distract them from fire watch

obligations. (Tr. 455-456). CSHO Pauli and Mr. Graham’s testimony were consistent with the 

language of 29 C.F.R. §1915.504(c) in that “the employer must not assign other duties to a fire watch 

while the hot work is in progress.” Even Respondent’s Production Manager Kenneth Willis ultimately 

acknowledged that he understood the term “dedicated fire watch” on a Marine Chemist Certificate to 

mean an employee was required to do nothing else but perform fire watch duties. (Tr. 549). Marine 

Chemist Graham also clarified that “...with extinguisher” meant quick access to a fire extinguisher or 

fire hose, and that having a garden-type water hose located on the adjacent pier was not sufficient. (Tr. 

456-457). 

On April 15, 2009, CSHO Pauli observed welding activities being performed in several voids, 
16

with no observable employee dedicated to fire watch and no fire extinguishers or fire hoses anywhere 

in the area. (Tr. 351). Respondent argued that John Moreno, Respondent’s Paint Foreman, and the 

welders’ helpers inside each void were performing fire watch duties. (Tr. 255-256, 352, 699-700, 729-

730). Respondent also argued that in the event of a fire, Mr. Moreno and/or a welder’s helper could 

have exited the void, traveled across the deck of the Paula Lee, crossed over the gap onto the pier, 

obtained the water hose from the pier, dragged the water hose back across the gap onto the ship, 

traveled back to the void, and then addressed the fire. (Tr. 352-353). 

The court rejects Respondent’s argument as not compliant with the cited standard or the 

regulatory description of “fire watch duty” in 29 C.F.R. §1915.504(c). The record clearly established 

that none of the individuals identified by Respondent were “dedicated” to fire watch, as they were 

performing numerous other duties, and did not have any type of fire extinguishing equipment near 

them. (Tr. 352, 699-700, 729-730). The cited standard applied and was violated. In addition, 

Respondent possessed direct knowledge of its failure to assigned employees to dedicated fire watch 

duty. 

 Ten to fifteen welders and welder’s helpers were exposed to the lack of a dedicated fire watch, 

which could have caused an unnecessary delay in responding to a fire, resulting in serious burns or 

death. (Tr. 198). Citation 1, Item 9 will be AFFIRMED. The multiple locations on the Paula Lee

where hot work was being performed, combined with no apparent effort to watch for fires or ensure 

the proximity of firefighting equipment, increased the likelihood of a fire not being promptly 

extinguished. Accordingly, the proposed penalty of $1,200.00 for Citation 1, Item 9 will remain 

unchanged. 

Citation 2 Item 1

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

29 C.F.R. §1915.15(c): A competent person did not visually inspect 

and test each space certified as “Safe for Workers” or “Safe for Hot 
17

Work” as often as necessary to ensure that atmospheric conditions 

within that space were maintained within the conditions established by 

the certificate:

(a) Paula Lee Barge, Crane Turnstile Void: On or about April 14, 

2009 and at times prior thereto, the competent person did not test each 

space as often as necessary to maintain safe conditions. This 

condition exposed employees within the space to Carbon Monoxide 

levels equaling and exceeding 40 parts per million (ppm); 

(b) Paula Lee Barge, Starboard Ballast Tank: On or about April 

14, 2009 and at times prior thereto, the competent person did not test 

each space as often as necessary to maintain safe conditions. This 

condition exposed employees within the space to Carbon Monoxide 

levels equaling and exceeding 35 ppm.

The cited standard provides:

29 C.F.R. §1915.15(c): Tests to maintain the conditions of a Marine 

Chemist’s or Coast Guard authorized person’s certificate. A 

competent person shall visually inspect and test each space certified 

as “Safe for Workers” or “Safe for Hot Work,” as often as necessary 

to ensure that atmospheric conditions within that space are 

maintained within the conditions established by the certificate after the 

certificate has been issued.

Respondent’s employees were performing welding repairs inside several voids on the Paula 

Lee which were accessible only by 19-inch manhole openings. (Tr. 233, 513, 519-520, 566; Ex. C-4). 

For this project, Respondent elected to obtain and operate under a Marine Chemist Certificate for the 

hot work it needed to perform inside the confined spaces. (Tr. 95, 449-450; Ex. C-3). Once a shipyard 

employer elects to obtain and operate under a Marine Chemist Certificate, compliance with the terms 

of the Certificate is mandatory. (Tr. 776-777). See also 29 C.F.R. §1915.14. Joseph Graham, the 

Marine Chemist who inspected the Paula Lee, commonly evaluates various safety issues, including 

confined space entry, respiratory hazards, fire safety, and toxicity issues. (Tr. 447, 463). He and other 

Marine Chemists document their findings on a Marine Chemist Certificate, which is left at the vessel 

for the Shipyard Competent Person to follow and enforce. (Tr. 82, 95, 448, 646-647; Ex. C-3). The 

Paula Lee voids had previously either been empty or contained only water, and therefore were not as 
18

hazardous as the voids Mr. Graham inspects on other types of ships. (Tr. 238). For example, tank 

barges often carry combustible and flammable liquids in their voids.

2

 (Tr. 475-476, 748-749). The 

court finds that the cited standard applied to the conditions in that it implemented certain requirements 

for shipyard hot work in confined spaces where Respondent elected to operate under a Marine Chemist 

Certificate. 3 

The manholes for each void were left open during welding to help dissipate welding fumes and 

for running hoses, electrical cords, and air duct sometimes used for ventilation. (Tr. 236-237; Ex. C-4). 

On April 14, 2009, CSHO Pauli observed welding smoke rising from the crane turnstile void manhole. 

(Tr. 68, 76, 112; Ex. C-4, C-26). Upon closer examination, he saw that the interior area of the crane 

turnstile void was very smoky, with very low visibility, while employees were inside performing 

welding repairs with no ventilation.

4

(Tr. 73; Ex. C-4). CSHO Pauli used his Industrial/Scientific 

ITX4 Gas Meter to check the oxygen level, hydrogen sulfide level, carbon monoxide level, and 

explosivity inside the crane turnstile void. (Tr. 71-72, 77, 208; Ex. C-4). The hose attached to his 

meter was lowered approximately 10 feet down into the 15-foot void, and indicated the presence of 

carbon monoxide. (Tr. 77, 79; Ex. C-4, pp. 3, 4, 5). Although the detected level was below the

permissible exposure limit (“PEL”), CSHO Pauli was concerned about the presence of carbon 

monoxide inside the void. (Tr. 96-97, 125). He then asked Respondent to remove the welders from 

 

2 Also referred to by witnesses as “tanks” because the term “void” in the industry means an empty tank. (Tr. 516).

3 Respondent raised an argument at trial, for the first time in this proceeding, that the Paula Lee Marine Chemist 

Certificate was void by the time of OSHA’s inspection because the ship had been moved from drydock to water (and 

secured to the pier) three days earlier. Complainant objected to the untimeliness of this new assertion and argued that if 

Respondent was allowed to raise new defenses at trial, Complainant would be prejudiced and therefore should be allowed 

to amend certain citations to allege violations of alternative regulations. Respondent then objected to Complainant’s 

attempts to amend its complaint and citations at the last minute as untimely. The court rejected both parties’ last minute 

assertions on this issue as untimely, not previously disclosed in response to related discovery requests, and in violation of

the court’s Scheduling Order. The court also notes that the record clearly established that: (1) Respondent posted the 

Marine Chemist Certificate at the entrance point to the ship from the pier after the Paula Lee was refloated, (2) 

Respondent’s Shipyard Superintendent and Shipyard Competent Person, Larry Williams, continued to reference the Marine 

Chemist Certificate terms on his own Daily Inspection Log after the Paula Lee was refloated, and (3) Respondent 

continued to operate under the stated terms of the Marine Chemist Certificate after it was refloated. (Tr. 27-48, 574). 

4 Other than natural air flow in and out of the 19-inch manhole.
19

the void. (Tr. 80, 528). 

Over the next two days, OSHA conducted fifteen additional direct read air sample tests5in 

several of the voids on the ship where hot work was being performed. (Tr. 80, 208-210, 220). None 

of OSHA’s monitoring results indicated the presence of any hazardous substances, including carbon 

monoxide, above OSHA’s permissible exposure limits. (Tr. 225, 375). Despite this fact, any 

detectible amounts of carbon monoxide inside the voids concerned OSHA because it is a colorless, 

odorless, tasteless, and toxic gas which asphyxiates people by displacing oxygen in the human 

bloodstream. (Tr. 96-97, 125, 242, 453, 575, 648, 779). It can only be detected through the use of air 

testing equipment. (Tr. 779). OSHA’s concern with regard to Citation 2, Item 1 was that the actual 

presence of carbon monoxide inside some of the voids should have alerted Respondent’s Shipyard 

Superintendent and Competent Person, Larry Williams, to conduct periodic testing throughout each 

shift, rather than just once each morning. (Tr. 124-125, 205, 208, 241). 

The cited regulation at issue here is a performance standard, which differs from a specific 

standard in that employers are afforded broader discretion by OSHA to identify hazards which are 

peculiar to their own workplace, and to determine the steps necessary to abate them. OSHRC v. 

Thomas Industrial Coatings, Inc., 21 BNA OSHC 2283, 2008 CCH OSHD ¶32,937 (No. 97-1073, 

2007). Since performance standards do not identify specific obligations, compliance is evaluated by 

courts on the basis of reasonableness. Id. Broadly worded standards, such as the one here requiring 

inspecting and testing “as often as necessary,” typically require a showing that a reasonable person 

familiar with the situation would recognize a hazardous condition which should have been addressed. 

Farrens Tree Surgeons, Inc., 15 BNA OSHC 1793, 1992 CCH OSHD ¶29,770 (No. 90-998, 1992). 

“If the language of the regulation is not specific enough, however, other sources may provide 

constructive notice: industry custom and practice; the injury rate for that particular type of [ ] work; 

 

5 As opposed to 8-hour time-weighted averages. (Tr. 99, 766). 
20

the obviousness of the hazard; and the interpretations of the regulation by the Commission.” Corbesco, 

Inc., 926 F.2d 422 (5th Cir. 1991).6

The record clearly established that Mr. Williams conducted air monitoring in each void every

morning, before welders entered the voids to begin work, to ensure that conditions were safe for them

to enter. (Tr. 104, 119, 228, 346, 385-386, 653-655). He also maintained a daily log of his Shipyard 

Competent Person inspections, which referenced the requirements of the Marine Chemist Certificate. 

(Tr. 688; Ex. C-24). Furthermore, he implemented mechanical ventilation through the use of fans and

blowers in each void to introduce fresh outside air, and to push out any air contaminants. (Tr. 232-233, 

650). In sixteen years of working in the ship repair industry, a single pre-shift air test combined with

the use of mechanical ventilation had always been sufficient to remove any hazardous substances from 

the confined space areas in which employees performed this type of work. (Tr. 585, 664-665). He 

never suspected that the employees performing hot work inside the voids on the Paula Lee were 

working in unsafe environments. (Tr. 588-589; Ex. R-30). 

Marine Chemist Graham testified that, to comply with the terms of his Certificate, any 

hazardous substances detected during hot work on the Paula Lee did not have to be completely 

eliminated. They just needed to be maintained below PELs, which was normally achieved through 

mechanical ventilation for this type of work. (Tr. 481-483). Only if levels could not be maintained 

below PELs would it have been necessary to contact the Marine Chemist. (Tr. 481-482). The court 

also notes that Marine Chemist Graham had worked with Larry Williams for more than five years and 

had always found him to be a competent Shipyard Competent Person. (Tr. 474, 478). 

Respondent’s expert witness, Senior Marine Chemist Philip Dovinh,7explained that because 

the Marine Chemist Certificate did not specify any requirement to test for carbon monoxide, Larry 

 

6 As there were no published Commission cases interpreting this standard, and no evidence concerning injury rates, the 

court focused on the obviousness of the hazard and industry custom and practice. 

7 Complainant stipulated to Mr. Dovinh’s status as a qualified expert witness in the field of shipyard work and shipyard 

safety. (Tr. 738).
21

Williams technically was not required to do so, even though he did perform such a test each morning 

with his air monitor. (Tr. 206-207, 751; Ex. C-3). He and Marine Chemist Graham both testified that 

Shipyard Competent Persons are afforded broad discretion under the plain language of OSHA Part 

1915 regarding any need to periodically re-test atmospheric conditions and regarding which type of 

ventilation to use. (Tr. 232, 458-459, 478, 663, 752-753, 756). Mr. Dovinh pointed to the “as often as 

necessary” language in the cited standard to support his opinion. (Tr. 756, 762). He testified that the 

standard practice in the ship repair industry is to do exactly what Mr. Williams did: conduct air 

monitoring each morning before welders entered the voids. (Tr. 758). He further testified that, in his 

opinion, even the extreme smokiness of the crane turnstile void did not warrant re-testing because 

there is absolutely no correlation between smokiness and carbon monoxide levels. (Tr. 760, 780).

It is clear to the court that OSHA’s initial concern over this issue arose when CSHO Pauli

observed the smoke-filled crane turnstile void on the first day of the inspection. When OSHA

subsequently discovered that two employees were working inside the crane turnstile void without 

active mechanical ventilation, and that carbon monoxide was present (although below permissible 

exposure limits), OSHA concluded that Mr. Williams was not re-testing the voids “as often as 

necessary.” 

The court credits Respondent’s undisputed explanation that the majority of the repair work in 

the crane turnstile void had been completed earlier with active ventilation. Then, just before OSHA

arrived, the Paula Lee owner’s representative had found a few more spots that needed touch-up work 

and had directed Respondent’s welders to go back into the crane turnstile void to address those issues 

even though the ventilation had been turned off. (Tr. 81, 217, 526-528, 532, 592). Larry Williams did 

not know that the Paula Lee owner’s representative had sent the employees back into the void. (Tr. 

526-528, 532, 592). 

Although afforded broad discretion under the cited standard, the court concludes that there 
22

were several factors present at this jobsite which should have alerted a reasonable Shipyard Competent 

Person of the need to re-test the atmospheric conditions of the voids during the shift, and not just once 

each morning before work began,8to maintain the Marine Chemist Certificate conditions: (1) it was 

undisputed that welding activity changes the atmospheric conditions in the voids from those tested by 

the Marine Chemist when he issued the Certificate (Tr. 117-119, 654); (2) the welding rods being used 

by Respondent’s welders on the Paula Lee were known to generate a small amount of carbon 

monoxide (Tr. 754; Ex. C-33); (3) carbon monoxide levels inside some of the voids were approaching 

the permissible exposure limits (Tr. 71-79; Ex. C-4); (4) the crane turnstile void was obviously and 

openly filled with smoke, and although smokiness may not have directly correlated to carbon 

monoxide levels, it certainly could indicate the presence of other harmful toxics at least justifying midshift air testing (Tr. 68-76; Ex. C-4); (5) Larry Williams and other supervisors had direct knowledge 

that the ship owner’s representative was actively inspecting Respondent’s work on the vessel and 

pointing out areas which needed further attention. A reasonable and diligent Shipyard Competent 

Person would have either prohibited employees from taking immediate direction from that person

(especially when employees were directed to re-enter confined spaces to perform welding repairs 

without ventilation), or ensured that safety procedures were followed when employees addressed areas 

needing more work (Tr. 212-213, 526-528, 532, 592); (6) Welders had been complaining to 

Respondent’s supervisors about inadequate ventilation, smoky conditions, and unusual smells inside 

the voids9(Tr. 299, 301-311, 338, 617); and (7) Respondent was experiencing electrical problems in 

various work areas due to the wet conditions which resulted in, among other things, problems keeping 

 

8 The court notes the testimony of Mr. Dovinh indicating that the standard practice in the ship repair industry was to test 

once each morning before welders enter voids, but even he acknowledged a duty by the competent person to determine 

whether additional tests during the shift should occur. (Tr. 758). The presence of hazardous and changing conditions in 

the voids created an obligation to go beyond the minimum industry standard. Corbesco, supra. 

9 Mr. Williams did re-test two voids on April 14 and 15, 2009, but only after specific requests by two of Respondent’s 

supervisors. Welding Supervisor Bernie Lewis asked him to re-test a void after employees complained about air quality, 

and on another occasion Respondent’s Production Manager, Kenneth Willis, directed him to re-test because employees 

thought they smelled acetylene. (Tr. 313-315, 329, 339, 521).
23

the ventilation fans and blowers operational. As a result, Respondent had an electrician onboard 

attempting to fix electrical problems as they were identified. (Tr. 436, 443, 615-616). 

Even Mr. Williams acknowledged that his own Shipyard Competent Person training provided 

that a “re-inspection frequency must be established and periodic survey of the work must be done to be 

sure that all requirements are being met.” (Tr. 666-667, 670; Ex. R-28, p. DOL 998). He ultimately 

conceded that his standard practice of never re-testing the air inside voids during a shift was not an 

option identified in his Shipyard Competent Person training materials. (Tr. 670). The court finds that 

Mr. Williams’ standard practice of never re-testing atmospheric conditions after welding began inside 

the voids, given the circumstances and conditions described above, was unreasonable and an abuse of 

the discretion afforded him under the standard. Accordingly, the court finds that Respondent violated 

the terms of the cited standard. 

Two welders, Dan Ursery and Carlos Rodriguez, who were performing hot work inside the 

crane turnstile void on April 14, 2009 without mechanical ventilation, were exposed to this violative 

condition. (Tr. 126, 213, 532, 592). The testimony was unclear as to Instance (b), with regard to 

which employees, on which dates, and under what conditions, were performing hot work inside the 

starboard ballast tank. Therefore, Complainant failed to establish specific employee exposure for that 

void as alleged in Instance (b). 

Respondent had direct knowledge, through its delegation of authority over the Paula Lee

project to Larry Williams, of the practice of not re-testing atmospheric conditions inside the voids on 

the Paula Lee after employees entered and welding began. A.P. O’Horo Co., 14 BNA OSHC 2004, 

1991 CCH OSHD &29,223 (No. 85-0369, 1991). Respondent’s failure to re-test atmospheric

conditions during shifts, when conditions had obviously changed from those identified in the Marine 

Chemist Certificate, especially considering the presence of carbon monoxide, exposed employees to 

serious, and possibly fatal, injuries. 
24

Complainant alleged that Respondent’s conduct in not re-testing the voids where carbon 

monoxide was present (although below permissible exposure limits) constituted willful conduct. To 

establish a willful violation, Complainant must prove heightened awareness of the violative condition 

which rose to the level of conscious disregard for the requirements of the Act, or plain indifference to 

employee safety. General Motors Corp., 14 BNA OSHC 2064, 1991 CCH OSHD ¶41,251 (No. 82-

630 et al., 1991). An employer cannot be found to have willfully violated a standard where it believed 

in good faith that the standard did not apply, or made good faith efforts to comply with the standard to 

eliminate a hazard. Id. The court finds that Respondent had implemented several measures to ensure 

the safety of the employees performing hot work inside the Paula Lee voids, and therefore, 

demonstrated a good faith, reasonable belief that its conduct conformed to the requirements of the 

cited regulation. Aviation Constructors, Inc., 18 BNA OSHC 1917, 1999 CCH OSHD ¶31,933 (No. 

96-0593, 1999). Respondent, through Mr. Williams, performed daily air testing before each shift, retested on at least two occasions when specifically requested to do so by other supervisors, and worked 

diligently to ensure that mechanical ventilation was working in each void (although the record 

revealed at least one failure in that task on April 14, 2009 in the crane turnstile void for about fortyfive minutes). (Tr. 212-213). These facts, combined with the extremely broad discretion afforded 

Shipyard Competent Persons under the cited regulation, convince the court that Complainant failed to 

establish the willfulness of this violation. The record, considered in its totality, does not establish that 

Respondent committed this violation with either an intentional disregard for the requirements of the 

Act, or with plain indifference toward employee safety. Kaspar Wireworks, Inc., 18 BNA OSHC 

2178, 2000 CCH OSHD ¶32,134 (No. 90-2775, 2000); Ensign-Bickford Co. v. OSHRC, 717 F.2d 

1419, 1422-23 (D.C. Cir. 1983). Accordingly, Citation 2, Item 1 will be AMENDED from a willful 

violation to a serious violation, Instance (b) will be VACATED, Instance (a) will be AFFIRMED as 

amended, and a $7,000.00 penalty will be ASSESSED.
25

Citation 3 Item 1

Complainant alleged a repeat violation of the Act in Citation 3, Item 1 as follows:

29 C.F.R. §1915.56(b)(2): Cables that were used were not free from 

repair or splices for a minimum distance of 10 feet from the cable end 

to which the electrode holder was connected: Paula Lee Barge, Port 

Crane Void: On or about April 14, 2009 and times prior thereto, the 

electrode holder (welding stinger) connected to a Miller XMT 304 

series welder operating at 28.0 volts and 124 was repaired with black 

vinyl tape at five (5) feet from the electrode holder (welding stinger). 

This condition exposed employees to shock hazards from using 

defective cables repaired within 10 feet of the working lead. Seward 

Ship’s Drydock, Inc. was previously cited for a violation of this 

occupational safety and health standard 29 CFR 1915.56(b)(2) which 

was contained in OSHA inspection number 307503631, Citation 03, 

Item 02, issued on September 18, 2008, with regard to a workplace 

located at Seward Ship’s Drydock, Inc., Seward, Alaska.

The cited standard provides:

29 C.F.R. §1915.56(b)(2): Only cable free from repair or splices for a 

minimum distance of ten (10) feet from the cable end to which the 

electrode holder is connected shall be used, except that cables with 

standard insulated connectors or with splices whose insulating quality 

is equal to that of the cable are permitted.

On April 14, 2009, during OSHA’s inspection, CSHO Casper observed one of Respondent’s 

welders using a “stinger” cable with black electrical tape wrapped around a cable repair approximately 

five feet from the electrode holder. (Tr. 390, 394). A “stinger” cable is the electrical cable that runs 

between the welding machine and the welding tip where actual welding is performed. (Tr. 392). When 

CSHO Casper closely examined the cable underneath the tape, he observed a cut in the cable which 

exposed the metal conductor wires. (Tr. 392). The welder was using the repaired cable at a setting of 

124 amps, which could have resulted in electrical shock. (Tr. 391, 396). The repaired stinger cable 

was in plain view to anyone walking by or working near that welder. (Tr. 395). 

Henry Hogge, another of Respondent’s welders testified that he observed other employees on 

the Paula Lee project using welding stinger cables which had been repaired and wrapped with 
26

electrical tape and duct tape while working on the Paula Lee. (Tr. 325). On one occasion, Mr. Hogge 

witnessed Welding Supervisor Bernie Lewis ask a welder who was using a repaired stinger cable, if it 

was “Time for a new stinger?” The welder replied to Mr. Lewis that he “can’t afford it.” (Tr. 326-

327). Welder Bruce Whitmore testified that he also observed some of Respondent’s welders using 

repaired and taped over stinger cables, that Respondent’s own tool shop was issuing welding stingers

with frayed cables, and that he was personally shocked several times because of the wet conditions in 

his work area and contact with the welding stinger. (Tr. 629, 633). It was unclear whether the other 

cable repairs observed by Respondent’s welders were within ten feet of the cable end.

Respondent’s Production Manager, Kenneth Willis, testified that he was not aware that welders 

were specifically experiencing shocks while working on the Paula Lee, but acknowledged that it was 

not uncommon and was “just part of the game,” especially when welding in wet conditions. (Tr. 523-

524). Respondent provided rubber gloves to address the issue. (Tr. 524, 555). Although the reports of 

shocks by welders were never directly attributed to repaired stinger cables, and were apparently more 

related to the wet conditions and incidental contact with the stinger end of the cable, the presence of 

repaired and taped-over welding cables increased the likelihood of a serious injury resulting from 

continued use of damaged welding cables. The court finds that the cited standard applied,10 was 

violated, that the specific instance described in Citation 3, Item 1 was open, obvious, and could have 

resulted in serious injury or death through electric shock. 

On September 18, 2008, Respondent was cited for an other-than-serious violation of the exact 

same standard as a result of OSHA Inspection No. 307503631. (Ex. C-13). On October 10, 2008, that 

item was accepted through Respondent’s execution of an Informal Settlement Agreement with the local 

OSHA Area Office. (Ex. C-13). Therefore, the violation became a Final Order of the Commission 

pursuant to Section 10(b) of the Act prior to the current inspection. Complainant made a prima facie

 

10 There was no testimony indicating any purported application of the exception contained within the language of the 

standard. 
27

showing of “substantial similarity” by establishing that the previous and present violations are for 

failure to comply with the same regulatory standard. Respondent failed to rebut that showing. 

Potlatch Corp., 7 BNA OSHC 1061 (No. 16183, 1979); Monitor Construction Co., 16 BNA OSHC 

1589 (No. 91-1807, 1994). Accordingly, Citation 3, Item 1 will be AFFIRMED as a repeat violation. 

Considering the totality of the circumstances, including the fact that only one instance of a cable repair

within ten feet of the cable end was actually documented, as well as Respondent’s recent history of 

committing the same violation less than a year earlier, the court will reduce the penalty to $3,000.00.

Citation 3 Item 2

Complainant alleged a repeat violation of the Act in Citation 3, Item 2 as follows:

29 C.F.R. §1915.72(a)(1): The use of defective ladders was not 

prohibited: Paula Lee Barge: On or about April 14, 2009 and times 

prior thereto, a defective ladder with a broken rung and footpad was 

used to access the vessel after the vessel was put back in the water. 

This condition exposed employees to fall hazards to the steel deck of 

the barge or into the water. Seward Ship’s Drydock was previously 

cited for a violation of this occupational safety and health standard 29 

CFR 1915.72(a)(1) which was contained in OSHA inspection number 

307503631, Citation 01, Item 4(a), issued on September 18, 2008, with 

regard to a workplace located at Seward Ship’s Drydock, Inc., 

Seward, Alaska.

The cited standard provides:

29 C.F.R. §1915.72(a)(1): The use of ladders with broken or missing 

rungs or steps, broken or split side rails, or other faulty or defective 

construction is prohibited. When ladders with such defects are 

discovered, they shall be immediately withdrawn from service. 

Inspection of metal ladders shall include checking for corrosion of 

interiors of open end, hollow rungs.

After the Paula Lee was refloated and secured to the pier on April 11, 2009, an extension 

ladder was stretched across the gap between the pier and the ship. (Tr. 134-135, 315). Walking back 

and forth on the ladder rungs was the only means of access for employees on and off the boat for two

days, until it was replaced with a gangway plank. (Tr. 315-316, 708-710). The angle of the ladder also 

fluctuated with the tide, becoming nearly horizontal at times. (Tr. 315, 625-626, 713). The ladder was
28

defective in that it had a broken lower rung, and one of the bases, or feet, was missing. (Tr. 132-134, 

317, 693-694; Ex. C-10). Although the precise number was unclear, at least four of Respondent’s 

employees, and possibly as many as fifteen, used the ladder to access the Paula Lee on April 11-12, 

2009. (Tr. 137, 298, 318, 627-629). 

Bernie Lewis, Respondent’s Welding Supervisor, had instructed the employees to use the 

ladder to access the Paula Lee. (Tr. 317). Both he and Production Supervisor Kenneth Willis knew 

that employees had been using the ladder to access the barge and that some had been complaining 

about it. (Tr. 563-564, 579, 627, 710). By the time CSHO Pauli observed the ladder, it had already 

been replaced by a gangway plank and was lying on a pile of tires on the deck of the Paula Lee. It still 

had not been tagged or otherwise labeled as defective and unusable. (Tr. 367; Ex. C-1, pp. 2, 4; C-10). 

The cited standard applied, was violated, and at least four of Respondent’s employees were 

exposed to the violative condition. Complainant established knowledge of the condition by at least two 

of Respondent’s supervisors, which is imputed to Respondent. The court also finds that falling from 

the defective ladder, which in this instance would have occurred through the gap over the water 

between the ship and the pier, could have resulted in serious injury or death. 

On September 18, 2008, Respondent was cited for a serious violation of the exact same 

standard as a result of OSHA Inspection No. 307503631. (Ex. C-13). On October 10, 2008, that item 

was accepted through Respondent’s execution of an Informal Settlement Agreement with the local 

OSHA Area Office. (Ex. C-13). Therefore, the violation became a Final Order of the Commission 

pursuant to Section 10(b) of the Act prior to the current inspection. Complainant made a prima facie

showing of “substantial similarity” by establishing that the past and present violations are for failure to 

comply with the same regulatory standard. Respondent failed to rebut that showing. Potlatch Corp., 

supra; Monitor Construction Co., supra. Accordingly, Citation 3, Item 2 will be AFFIRMED as a 

repeat violation. Considering the totality of the circumstances, including the fact that Respondent 
29

violated this same standard less than a year earlier, and that there was a high likelihood of an actual 

accident due to employees having to walk across a defective, horizontal, extension ladder stretched 

between a barge and a pier, in icy, wet, springtime Alaska conditions, the proposed penalty of 

$8,400.00 will remain unchanged.

Citation 3 Item 3

Complainant alleged a repeat violation of the Act in Citation 3, Item 3 as follows:

29 C.F.R. §1915.73(b): Flush manholes or other comparable small 

openings in the deck and other working surfaces were not suitably 

covered or guarded while employees were working in the vicinity:

(a) Paula Lee Barge, Weatherdeck, Port Ballast Tank: On or about 

April 15, 2009 and times prior thereto, employees were exposed to an 

open and unguarded flush manhole. This condition exposed employees 

to fall hazards of up to 15 feet.

(b) Paula Lee Barge, Weatherdeck, Starboard Ballast Tank: On or

about April 15, 2009 and times prior thereto, employees were exposed 

to an open and unguarded flush manhole. This condition exposed 

employees to fall hazards of up to 15 feet.

(c) Paula Lee Barge, Weatherdeck, Port Crane Void: On or about

April 15, 2009 and times prior thereto, employees were exposed to an 

open and unguarded flush manhole. This condition exposed employees 

to fall hazards of up to 15 feet.

(d) Paula Lee Barge, Weatherdeck, Starboard Crane Void: On or 

about April 15, 2009 and times prior thereto, employees were exposed 

to an open and unguarded flush manhole. This condition exposed 

employees to fall hazards of up to 15 feet.

(e) Paula Lee Barge, Weatherdeck, Starboard P5 Void: On or about

April 15, 2009 and times prior thereto, employees were exposed to an 

open and unguarded flush manhole. This condition exposed employees 

to fall hazards of up to 15 feet.

(f) Paula Lee Barge, Weatherdeck, Starboard S5 Void: On or about

April 15, 2009 and times prior thereto, employees were exposed to an 

open and unguarded flush manhole. This condition exposed employees 

to fall hazards of up to 15 feet.

(g) Paula Lee Barge, Weatherdeck, P/CL Void: On or about April 15,

2009 and times prior thereto, employees were exposed to an open and 
30

unguarded flush manhole. This condition exposed employees to fall 

hazards of up to 15 feet.

(h) Paula Lee Barge, Weatherdeck, Port Midship Void: On or about 

April 15, 2009 and times prior thereto, employees were exposed to an 

open and unguarded flush manhole. This condition exposed employees 

to fall hazards of up to 15 feet.

Seward Ship’s Drydock was previously cited for a violation of a 

substantially similar hazard under 29 CFR 1915.73(d) which was 

contained in OSHA inspection number 307503631, Citation 01, Item 

4(c), issued on September 18, 2008, with regard to a workplace 

located at Seward Ship’s Drydock, Inc., Seward, Alaska.

The cited standard provides:

29 C.F.R. §1915.73(b): When employees are working in the vicinity of 

flush manholes and other small openings of comparable size in the 

deck and other working surfaces, such openings shall be suitably 

covered or guarded to a height of not less than 30 inches, except 

where the use of such guards is made impracticable by the work 

actually in progress.

During the inspection, CSHO Pauli observed eight flush manholes on the deck of the Paula Lee 

that were open, with no guarding around them which would prevent employees from falling or 

stepping into the holes. (Tr. 140-147, 412; Ex. C-12, C-28). Each manhole was approximately 19 

inches wide. (Tr. 143). Some of the tanks/voids had employees performing work inside them. Some 

did not. (Tr. 272). All of Respondent’s employees were working and traveling near the eight 

unguarded manholes, and were exposed to the hazard of falling fifteen feet to the bottom of the voids. 

(Tr. 147-149, 414-415). Falls through the openings could have resulted in serious injuries, including 

cuts and broken bones. (Tr. 150). The cited standard applied, was violated, and fifteen of 

Respondent’s employees were exposed to the serious condition.

Respondent’s Production Manager, Kenneth Willis, acknowledged the existence of the open, 

unguarded manholes. (Tr. 534). In addition, their condition was in plain view to each of Respondent’s 

three supervisors walking and working on the Paula Lee. In direct contradiction of the plain language 

of the cited standard, Mr. Willis did not think it was reasonable to have to put guards around them. (Tr. 
31

535-536). He was aware, however, that there were various methods of guarding open manholes. (Tr. 

557). The manhole openings could have been guarded using a raised U-bar type protection, or by 

placing standard railing around the opening. (Tr. 141-142, 414). Knowledge of the violative 

conditions by Respondent’s supervisors, and specific means of abating the conditions, were 

established. 

The court rejects Respondent’s assertion that the abatement methods were impracticable 

because employees were working inside the voids, and therefore, the exception language in the 

standard applied. First, employees were not working inside all of the eight unguarded voids. Second, 

the railing and U-bar protection methods described by witnesses could have easily been installed so 

that they would not have impeded prompt entry or exit from the voids.

On September 18, 2008, Respondent was cited for a serious violation of a different fall hazard 

regulation as a result of OSHA Inspection No. 307503631, in Citation 1, Item 4c, which Complainant 

argues involved a substantially similar hazard. (Tr. 151; Ex. C-13, p. 12). Where the citations involve 

different standards, Complainant must introduce evidence to show the substantial similarity of the 

hazards in each violation. Monitor Construction Co., supra. The cited standard in the 2008 case, 29 

C.F.R. §1915.73(d), requires guardrails for “unguarded edges of decks, platforms, flats, and similar 

flat surfaces more than 5 feet above a solid surface...” The 2008 violation was based on an unguarded 

“leading edge of the hatch to the freezer hold” which was ten feet above the next lower level. (Ex. C13, p.12). On October 10, 2008, that citation item was accepted through Respondent’s execution of 

an Informal Settlement Agreement with the local OSHA Area Office. (Ex. C-13). Therefore, the 

violation became a Final Order of the Commission pursuant to Section 10(b) of the Act prior to the 

current inspection. 

The court finds that Complainant made a prima facie showing of substantial similarity by 

establishing that both the previous and present violations were for fall hazards related to unguarded 

openings on the deck of a ship. Respondent failed to rebut that showing of substantial similarity. 
32

Potlatch Corp., supra; Monitor Construction Co., supra. Accordingly, Citation 3, Item 3 will be 

AFFIRMED as a repeat violation. Considering the totality of the circumstances, including the fact that 

Respondent exposed employees to a similar hazard less than a year earlier, and that there were eight 

different unguarded openings throughout an already cluttered, icy, and wet deck, creating a high 

likelihood of an actual accident, the proposed penalty of $8,400.00 will remain unchanged. 

Affirmative Defenses

Respondent did not specifically or separately address the elements of any affirmative defenses 

in its Post-Trial Brief. Typically, this results in a waiver of any affirmative defenses pled in a party’s 

Answer. Georgia-Pacific Corp., 15 BNA OSHC 1127, 1991 CCH OSHD ¶29,395 (No. 89-2713, 

1991). However, Respondent did briefly refer to an employee failing to comply with company policy 

with regard to Citation 2, Item 1; used the terms “unfeasible” and “impracticable” with regard to 

Citation 3, Item 3; and “not feasible” with regard to Citation 1, Item 7. (Resp. Brief, pp. 14-15, 21, 24, 

44). Therefore, the court will briefly address those assertions.

To establish the affirmative defense of “unpreventable employee misconduct”, Respondent 

must show that: (1) it established work rules designed to prevent the violation, (2) it adequately 

communicated those rules to its employees, (3) it took steps to discover violations, and (4) it 

effectively enforced the rules when violations were discovered. American Sterilizer Co., 18 BNA 

OSHC 1082, 1995-97 CCH OSHD ¶31,451 (No. 91-2494, 1997). When the alleged misconduct is that 

of a supervisor, the proof of “unpreventable employee misconduct” is more rigorous and more difficult 

to establish since it is the supervisor's duty to protect the safety of employees under his supervision. 

Archer-Western Contractors Ltd., 15 BNA OSHC 1013, 1991 CCH OSHD ¶29,317 (No. 87-1067, 

1991). Respondent’s reference to a violation of company policy pointed to the conduct of welders 

working inside the crane turnstile void without proper ventilation. However, the conduct addressed in 

Citation 2 Item 1 was that of Respondent’s Shipyard Competent Person, not the welders, for failing to 
33

test the void atmospheres as often as necessary to maintain the conditions of the Marine Chemist 

Certificate. There were six other factors identified above, besides the two welders working inside an 

unventilated void, which should have alerted Mr. Williams of the need to periodically re-test the void 

atmospheres after welding began. The court also notes that Shipyard Superintendent and Competent 

Person Larry Williams never issued any documented discipline for any employee who worked on the 

Paula Lee project. (Tr. 644, 698). Accordingly, Respondent failed to establish the defense of 

unpreventable employee misconduct. 

The defense of infeasibility requires an employer to prove that: (1) the means of compliance 

prescribed by the standard were technologically or economically infeasible, or necessary work 

operations were technologically infeasible after implementation; and (2) there were no feasible 

alternative means of protection available. V.I.P. Structures, Inc., 16 BNA OSHC 1873, 1993-95 CCH 

OSHD ¶ 30,485 (No. 91-1167, 1994). Although it may not have been convenient to implement good 

housekeeping measures on the deck (Citation 1, Item 7), including raising electrical lines and air hoses 

above the walking surface of the deck, it certainly was technically and economically possible. 

Similarly, several witnesses testified that there were at least two recognized and available methods 

which could have been implemented to guard the eight manholes identified in Citation 3, Item 3. 

Accordingly, Respondent failed to establish the affirmative defense of infeasibility with regard to 

Citation 1, Item 7 or Citation 3, Item 3. 

ORDER

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

1. Citation 1, Item 1 is hereby AFFIRMED and a penalty of $500.00 is ASSESSED;

2. Citation 1, Item 3 is hereby VACATED;

3. Citation 1, Item 4a is hereby VACATED;

4. Citation 1, Item 4b is hereby AFFIRMED and a penalty of $1,000.00 is ASSESSED;
34

5. Citation 1, Item 6 is hereby AFFIRMED and a penalty of $1,500.00 is ASSESSED;

6. Citation 1, Item 7 is hereby AFFIRMED and a penalty of $2,500.00 is ASSESSED;

7. Citation 1, Item 8 is hereby AFFIRMED and a penalty of $500.00 is ASSESSED;

8. Citation 1, Item 9 is hereby AFFIRMED and a penalty of $1,200.00 is ASSESSED;

9. Citation 2, Item 1 is hereby MODIFIED to a serious violation, Instance (b) is VACATED, 

Instance (a) is AFFIRMED as modified, and a penalty of $7,000.00 is ASSESSED;

10. Citation 3, Item 1 is hereby AFFIRMED and a penalty of $3,000.00 is ASSESSED;

11. Citation 3, Item 2 is hereby AFFIRMED and a penalty of $8,400.00 is ASSESSED;

12. Citation 3, Item 3 is hereby AFFIRMED and a penalty of $8,400.00 is ASSESSED.

__/s/__________________________________

PATRICK B. AUGUSTINE

Judge, OSHRC

Date: October 6, 2011

Denver, Colorado