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A U.S. Occupational Safety and Health Administration investigator failed to provide sufficient evidence that an industrial and marine services company should be assessed more than $12,000 in penalties for allegedly exposing employees to fall hazards.
In Secretary of Labor v. HCI Industrial & Marine Coatings Inc., an administrative law judge reduced the penalties assessed against Brush Prairie, Washington-based HCI Industrial & Marine Coatings Inc. to $2,000 after holding that the investigator failed to prove by a preponderance of evidence that the company knew an employee who was injured after a fall was not wearing his harness, the Occupational Safety and Health Review Commission released Monday. However, the ALJ held that the investigator presented enough evidence that the company failed to remove spent harnesses and regularly inspect fall protection equipment.
In July 2017, right after HCI reported that an employee had been injured on a barge in Portland, Oregon, sustaining an injury requiring hospitalization, an OSHA compliance safety and health officer spent three days examining the worksite. The worker had been charged with sandblasting and painting the interior of a large storage tank on the barge, which required the installation of “hanging staging,” or scaffolding that hangs from the top of a tank using wire ropes. During the installation of the staging, the worker fell 9 feet to the bottom of a port storage tank; his harness, which he had not been wearing, was found on the bottom of the tank a few feet from him.
Although the inspector did not observe any employees working on staging, he interviewed several unidentified workers who claimed that HCI did not enforce fall protection policies. He also received an undated photograph of two unidentified workers who appeared to be working on elevated staging without fall protection. In his report, the inspector also said he observed fall protection to be poorly maintained and that several harnesses had their “impact indicator tag” showing, which means they should have been removed from service. He also claimed that the lighting inside the barge tanks was deficient.
The inspector issued a six-item citation with a proposed penalty of $12,752. HCI contested the citation.
The ALJ vacated the citations relating to inadequate lighting, the provision of personal protective equipment and the maintenance of that equipment, but allowed the citations to stand regarding the regular inspection of the fall protection equipment.
Although the inspector relied on statements made by nontestifying employees that HCI failed to enforce its fall protection policies, HCI’s superintendent testified that it held weekly safety meetings where demonstrations of fall protection and the company’s 100% tie-off policy were discussed, and said he saw the injured worker wearing his safety harness earlier on the day of his accident.
The ALJ held that nearly all of the investigator’s evidence regarding the company’s knowledge of fall hazards and alleged lack of enforcement of safety policies was either “vague hearsay or double hearsay from unnamed sources” whereas HCI offered witnesses to testify about their actual and direct knowledge of worksite conditions, employee activities, safety policies, and fall protection training and enforcement. Similarly, the court held that the investigator failed to present evidence that the fall protection had been compromised. In his report, he noted that many lanyards were coated in paint, but the ALJ held that he failed to testify as to “how the paint on the harnesses resulted in deterioration” and that there was nothing to suggest that paint affected the structural integrity of the harness. The ALJ also found that the inspector relied on hearsay evidence regarding inadequate lighting in the tanks.
However, regarding the citations on the failure to inspect personal fall protection, the ALJ noted that HCI’s superintendent admitted that he didn’t regularly inspect the harnesses, and the investigator noted harnesses indicating that they had been subject to an impact load were still available to employees in a box along with other newer harnesses and equipment. The ALJ found that the company’s failure to conduct inspections of the fall protection equipment constituted constructive knowledge of the violation, which has a recommended combined citation total of nearly $4,000. However, the ALJ held that given HCI’s safety program and lack of violation history, a total citation of $2,000 was appropriate.
The company did not immediately respond to calls for comment.
An administrative law judge of the Occupational Safety and Health Review Commission affirmed a serious citation and a $9,054 penalty against a steel erection company after an employee suffered three broken ribs and a partially collapsed lung after falling from an unsecured platform.