Thu Jan 5, 2012 10:25am Basic Marine, Inc. Inspection Nr. 301604252 SAFETY NARRATIVE COVERAGE INFORMATION Employer builds, repairs, and breaks barges and similar maritime equipment. Employer has contracts with the U.S. Coast Guard and US. Army Corps of Engineers. Employer is covered under the Federal Maritime Standards. NATURE AND SCOPE Cheek Applicable Boxes and Explain Findings: Complaint Items Referral Items Accident Investigation Summary Findings LEP Planned Inspection The'inspection was planned based on a follow?up and to determine if previously cited violations had been corrected and abated. NATURE AND SCOPE -- UNUSUAL CIRCUMSTANCES (Mark and explain all that apply:) l:lNone I: Denial of entry (see denial memo) Delays in conducting the inspection El Strikes l: Jurisdictional Issues Comments ONING CONFERENCE NOTES: The opening conference was held at Basic Marine, on July 12, 2011. I and . were ent and were assisted by I and .. . Credentials were prese by all OSHA staff to Terrie Peters (Controller), Dael Kobasic (President), Claude Kobasic (Yard Forman) an . . CSHO discussed the reason for the inSpection and went over e1 0f the Opening conference checklist. A portion of this information was echoed by .. '7 Daniel Kobasi . . . Daniel 5 even got up and walked out of the opening conference and returned a couple minutes later with no reason why while CSHO- was going over checklist items. 75 6193) Thu Jan 5, 2012 10:25am Basic Marine, Inc. Inspection Nr. 301604252 Evaluation of Safety and Health Program (0=N0nexistent 1=lnadequate 2=Average 3 :Above average) I3 Written Program Communication to Employees Enforcement Safety Training Program Health Training Program El Accident Investigation Performed El Preventive Action Taken Comments: There was no Safety and Health program noted. The employer had a New Hire Packet that had one page of safety policies included. This information did not cover all the elements of a safety and health program such as how this program is communicated to the employee after an employee is newly hired, and how it is being enforced. There were no' records of any investigations or preventive measures taken although there are eight injuries out of 15 injuries (>50 from 2008 through 2010 listed on the OSHA 300 log. CLOSING CONFERENCE NOTES: -- - - - SHO). Present was Terrie Peers (Controller), 7.: Dan Kpbasic (Yard Forman), Claude KebaSic (President - The items of the closing conference che .. - 7G began discussing the health items that were of concern. . Dan-and Claude Kobasic departed the room while the items of concern were being discussed and came back about two minutes later. Dan Kobasic stated he didn?t want to hear about those items but only hazards that are specific to the area, and the health stuff is for Christine and Terrie to take are of. Dan Kobasic went on to assert that our visit was damaging to his business and for us to wrap up the clerical and technical stuff and that Chris will take care of the health stuff, not him. discussed Emergency Response, 7C. slings/chains, cranes, guarding of holes and confined spaces. rovided concerns on powered industrial 7c; trucks and began talking about hazard communication before beingstopped by Dan Kobasic. The team discussed and gave Basic Marine?s staff pamphlets to help them in their business. The information pamphlets included: OSHA Inspections, All About OSHA, Personal Protective Equipment, Stairways and Ladders, Sling Safety, Crane or Derrick Suspended Personnel Platforms, Controlling Electrical Hazards, Permit Required Confined Space Flow Chart, Forklift Safety Guide Administrator Manual, Material Handling and Storage, Respiratory Protection, Small Business Handbook, and Hazcom Training Worksheet. stated that after documentation is finalized there will be a final closing conference conducted at a later date to cover potential violations. Dan Kobasic asked if there would be another inspection. reply was their may be.?7c mgr-"fry. e? ?a . 1?55: tiecircumstanch ehcountered suchas abu.t.,pot..litrlited to, abat?ment problem:i expected cgntest any: employer attitude? If yes, explain below. site In the two days on?site Dan and Claude Kobasic attempted to kick us 'ofli?the premi?ses?tiv?ide?." ?Ori July-12, 2011 (12:30pm) after the OSHA .team returned from lunch, we were informed by Claude Kobasic that he had sent everyone home. He said the men were not getting any work done and all they were doing was watching us walk around. He then stated he had one painter left behind because the paint was already mixed and he couldn?t throw it away or he would loose $500 so the 6193) Thu Jan.5, 2012 10:253111 Basic Marine, Inc. Inspection Nr. 301604252 painter had to finish painting. It was explained to him that we needed to see work in progress. We asked if we could observe the painter while-painted and interview him once was completed. Claude stated he would go and see and ?7 C, would come back and let us know. After about 15 minutes, laude returned saying he thought we were coming out and was waiting for us to arrive. He then told us where the painting was taking place and once we there the painter had finished and changed out of.overalls. There was also an employee there that described as the mixer for the paint. On the second day July 13, 2011 (8:4Bam) Dan came to tell us that he was sending all the i home because OSHA as a 7C big disruption He stednvere telling him that they didn?t want any part of .. .. He sing and also brushed up against CHSO He kept stating that Obama wa brother and the government was all Up. Claude used these same expressions '7 throughout th eion as well. Dan kept yelling for would stick a warrant up our was able to calm him a little to allow completion of the inspection. '76 19.Closing Conference Checklist as appropriate) I: No Violations Observed Gave copy Employer Rights lieviewed Hazards Standards Discuss Employer Rights! Obligations Encouraged Informal Conference Offered Abatement Assistance Discussed Consultation Programs Questionnaires Clpsing'Conference Held with Employee Representative Jointly I: Separately Note to file: The employer attempted more. than once to have the inspection terminated by sending their employees home without pay on our first visit July 13, 2011 and then threatening on the second visit July 14, 2011. CHSOs were threatened by way of vulgar language and name calling by both Dan Kobasi Owner) anCluae Kobasic (Owner/manager). Dan Kobasic approached Cluade Kobasic with CSHO- and 3? present and told him to send the-home 7C- again because they (OSHA) was abig disruption and they didn?t want any parts of OSHA. WheMtated we 7Q had the option to get a warrant, Dan Kobasic, stated he would shove it up ourasses. Dan Kobasic attempted to provoke CSHO- by bumping into him with his shoulder but shortly thereafter finally cahned down a little and stated we had 7C 30, minutes to finish-our testing and then get out. Throu bout the inspection Claude and Dan Kobasic continued to make racial comments about President Obama being CHSOkbrother and that the government was all (sic) up. The 7; employer has a "Zero Tolerance Policy" concerning workplace harassment and violence. It states in part under Descriptions of workplace harassment and violence, No form of intimidating, hostile, threatening, or violent behavior will be tolerated. Such behavior includes but not limited to the following: a. Intimidating or hostile includes language or action that disrupts the work environment, causes undue emotional distress to another, or creates a reasonable fear of injury to a person. B. Threatening behavior includes physical actions without physical contact or injury, and general or implied threats to people or property. C. Violent behavior includes any physical assault with or without weapons, throwing objects, destroying property, and specific or expressed threats to inflict harm to people or destruction to property. It 6:93) Thu Jan 5, 2012 10:25am 'Basic Marine, Inc. . Inspection Nr. 301604252 appears that the employer blatantly does not follow its own policies and has established a workplace that involves fear and intimidatidn towards its employees. This was also evident during interviews. I ?3 I i 62? 93) . . . U.S. Department of Labor Occupational Safety and Health Administration 315 W. Allegan Street Room 207 Lansing, MI 43933-1514 Phone: (517)487-4996 FAX: (517)487-4997 To: Inspection Number: 301604252 Basic Marine, Inc. Inspection Date(s): 07/12/2011?07/ 13/2011 and its successors Issuance Date: 01/06/2012 440 N. 10th Street Escanaba, MI 49829 Inspection Site: 440 N. 10th Street Escanaba, MI 49829 This Citation and Noti?cation of Penalty (this Citation) describes violations of the Occupational Safety and Health Act of 1970. The penalty(ies) listed herein is (are) based on these violations. You must abate the violations referred to in this Citation by the dates listed and pay the penalties proposed, unless within 15 working days (excluding weekends and Federal holidays) from your receipt of this Citation and Noti?cation of Penalty you mail a notice of contest to the U.S. Department of Labor Area Of?ce at the address shown above. Please refer to the enclosed booklet (OSHA 3000) which outlines your rights and responsibilities and which should be read in conjunction with this form. Issuance of this Citation does not constitute a finding that a violation of the Act has occurred unless there is a failure to contest as provided for in the Act or, if contested, unless this Citation is af?rmed by the Review Commission or a court. Posting The law requires that a copy of this Citation and Noti?cation of Penalty be posted immediately in a prominent place at or near the location of the violation(s) cited herein, or if it is not practicable because of the nature of the employer?s operations, where it will be readily observable by all affected employees. This Citation must remain posted until the violation(s) cited herein has (have) been abated, or for 3 working days (excluding weekends and Federal holidays), whichever is longer. The penalty dollar amounts need not be posted and may be marked out or covered up prior to posting. Informal Conference An informal conference is not required. However, if you wish to have such a conference you may request one with the Area Director during the 15 working day contest period. During such an informal conference you may present any evidence or views which you believe would support an adjustment to the citation(s) and/or penalty(ies). If you are considering a request for an informal conference to discuss any issues related to this Citation and Noti?cation of Penalty, you must take care to schedule it early enough to allow time to contest after the informal Citation and Noti?cation of Penalty Page 1 of 33 6/93) conference, should you decide to do so. Please keep in mind that a written letter of intent to contest must be submitted to the Area Director within 15 working days of your receipt of this Citation. The running of this contest period is not interrupted by an informal conference. If you decide to request an informal conference, please complete, remove and post the page 5 Notice to Employees next to this Citation and Noti?cation of Penalty as soon as the time, date, and place of the informal conference have been determined. Be sure to bring to the conference any and all supporting documentation of existing conditions as well as any abatement steps taken thus far. If conditions warrant, we can enter into an informal settlement agreement which amicably resolves this matter without litigation or contest. Right to Contest You have the right to contest this Citation and Noti?cation of Penalty. You may contest all citation items or only individual items. You may also contest proposed penalties and/or abatement dates without contesting the underlying violations. Unless you inform the Area Director in writing that you intend to contest the citationts) and/or proposed nenalty?es) within 15 working days after receipt. the citation(s) and the proposed penaltyties! will become a final order of the Occupational Safety and Health Review Commission and may not be reviewed by any court or agency. Penalty Payment Penalties are due within 15 working days of receipt of this notification unless contested. (See the enclosed booklet and the additional information provided related to the Debt Collection Act of 1982.) Make your check or money order payable to Please indicate the Inspection Number on the remittance. OSHA does not agree to any restrictions or conditions or endorsements put on any check or money order for less than the full amount due, and will cash the check or money order as if these restrictions, conditions, or endorsements do not exist. Notification of Corrective Action - For ea_ch violation which you do not contest, you are required by 29 CFR 1903.19 to submit an Abatement Certification to the Area Director of the OSHA of?ce issuing the citation and identi?ed above. The certi?cation Lung}; be sent by you within 10 calendar days of the abatement date indicated on the citation. For Willful and Repeat violations, documents (examples: photos, copies of receipts, training records, etc.) demonstrating that abatement is complete must accompany the certi?cation. Where the citation is classified as Serious and the citations states that abatement documentation is required, documents such as those described above are required to be submitted along with the abatement certi?cate. If the citation indicates that the violation was corrected during the inspection, no abatement certi?cation is required for that item. All abatement verification documents must contain the following information: 1) Your name and address; 2) the inspection number (found on the front page); 3) the citation and citation item number(s) to which the submission relates; 4) a statement that the information is accurate; 5) the signature of the employer or employer?s authorized representative; 6) the date the hazard was corrected; 7) a brief statement of how the hazard was corrected; and 8) a statement that affected employees and their representatives have been informed of the abatement. The law also requires a copy of all abatement veri?cation documents, required by 29 CFR 1903.19 to be sent to OSHA, also be posted at the location where the violation appeared and the corrective action took place. Employer Discrimination Unlawful - The law prohibits discrimination by an employer against an employee for ?ling a complaint or for exercising any rights under this Act. An employee who believes that he/she has been discriminated against may ?le a complaint no later than 30 days after the discrimination occurred with the U.S. Department of Labor Area Of?ce at the address shown above. Titation and Noti?cation of Penalty Page 2 of 33 6/93) i Employer Rights and Responsibilities The enclosed booklet (OSHA 3000) outlines additional employer rights and responsibilities and should be read in conjunction with this noti?cation. Notice to Employees The law gives an employee or his/her representative the opportunity to object to any abatement date set for a violation if he/she believes the date to be unreasonable. The contest must be mailed to the U.S. Department of Labor Area Office at the address shown above and postmarked within 15 working days (excluding weekends and Federal holidays) of the receipt by the employer of this Citation and Noti?cation of Penalty. Inspection Activity Data You should be aware that OSHA publishes information on its inspection and citation activity on the Internet under the provisions of the Electronic Freedom of Information Act. The information related to your inspection will be available 30 calendar days after the Citation Issuance Date. You are encouraged to review the information concerning your establishment at If you have any dispute with the accuracy of the information displayed, please contact this of?ce. Citation and Noti?cation of Penalty Page 3 of 33 6793) CERTIFICATION OF CORRECTIVE ACTION Robert I. Bonack, Area Director US. Department of Labor OSHA 315 W. Allegan Street, Room 207 Lansing, MI 48933 Fr?ozn: Company Name . Company Address City, State, Zip Code 29 CFR 1903.19 required employers, within 10 days of the abatement date, to certify to OSHA each cited items has been corrected; except those items that were veri?ed abated by the Compliance Officer. The employer must submit to the Area DirectorDocumentation demonstrating that each willful and repeat violation and each serious violation identi?ed "Documentation Required" on the Citation has b'een abated. Your certi?cation must explain the specific action taken with regard to each cited item. This form was prepared to . serve as reminder and to aid you in submitting the required information. Brief terms such as "corrected" or "in compliance" are not. acceptable. Documents needed to assure that corrective action has been taken include; photographs, videos, work orders, purchase orders, specifications (dimensions, materials, etc.) personal protective equipment, standard operating procedures, copies of any written programs, engineering controls, noise or atmospheric monitoring data or similar descriptions of what has been done. Since all citations are subject to follow-up action. Citation Item Instance Abatement Date and Action Taken I attest that the information contained in this document is accurate. (Signature) (Typed or printed name) I (Date) Citation and Noti?cation of Penalty Page 4 of 35 5/93) U.S. Department of Labor Occupational Safety and Health Administration NOTICE TO EMPLOYEES OF INFORMAL CONFERENCE An informal conference has been scheduled with OSHA to discuss the citation(s) issued on 01/06/2012. The conference will be held at the OSHA office located at 315 W. Allegan Street, ?Room 207, Lansing, MI, 48933-1514 on A at Employees and/ or representatives of employees have a right to attend an informal conference. Citation and Noti?cation of Penalty Page 5 of 33 6/93) U.S. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/ 12/2011 07/ 13/201 1 Issuance Date: 01/06/2012 Citation and Notification of Penalt Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 1 Type of Violation: Serious OSH Act Sec. 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 the hazard of crushing injuries: a. On or about July 13, 2011 employees were exposed to the hazard of being crushed/struck?by materials being handled by a crane serial 1860 in building one (1) red building with an inoperative safety latch on the hook of the hoist. b. On or about July 13, 2011 employees were exposed to the hazard of being crushed/struck?by materials being handled by cranes while operating a crane serial CH15121 in building one (1) red building with an inoperative safety latch on the hook of the hoist. c. On or about July 13, 2011 employees were exposed to the hazard of being crushed/struck?by materials being handled by a crane serial RA76233 in building one (1) red building with an inoperative safety latch on the hook of the hoist. Among other methods, one feasible and acceptable abatement method to correct the hazard is to repair or replace the safety latches in accordance with ASME B30.10-2009, American Society of Mechanical Engineers for Hooks, Section Abatement Documentation is required in accordance with 29 CFR 1903.19(d . Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 5390.00 See pages 1 5 of this Citation and Noti?cation of Penalty for htformation on employer and employee rights and responsibilities, Citation and Noti?cation of Penalty Page 6 of 33 OSHAF2 (Rev. 9/93) US. Department Of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 - 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 2 Type of Violation: OSH Act See. 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 the hazard of crushing injuries: - a. On or about July 13, 2011 at Basic Marine Inc., 440 N. 10th Street, Escanaba, MI employees were exposed to crushing injury from the hazard of falling loads and collapsing crane structures in the event that a indoor crane near the burn table in building one (1) or the spreader bar would be overloaded. Employees were unaware of the rated load capacity as well as the weight of the spreader bar, as the employer failed to ensure that this information was marked on the main structure of the spreader bar through the use of a nameplate or other permanent marking. b. On or about July 13, 2011 at Basic Marine Inc., 440 N. 10th Street, Escanaba, MI, employees were exposed to crushing injury from the hazard of falling loads and collapsing crane structures in the event that a mobile crane located outside behind building two (2) or the spreader bar would be overloaded. Employees were unaware of the rated load capacity as well as the weight of the spreader bar, as the employer failed to ensure that this information was marked on the main structure of the spreader bar through the use of a nameplate or other permanent marking. c. On or about July 13, 2011 at Basic Marine 1110., 440 N. 10th Street, Escanaba, MI employees were exposed to the hazard of being crushed by a load while using the Power-grip lifting magnet for lifting pieces of steel and the employer failed to establish and follow a program of periodic inspections of the lifting magnet. Among other methods, one feasible and acceptable abatement method to correct the hazard is to train employees on the rated load capacity as well as the weight of the spreader bar, mark the rated load of the lifting device on the main structure where it is visible and affix a nameplate or other permanent marking displaying the manufacture?s name and address, serial number, lift weight, rated voltage (when applicable), rated load [as described in ASME Design Category, and See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 7 of 33 (Rev. 9/93) U.S. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/ 12/2011 - 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 ASME Service Class in accordance with ASME American Society of Mechanical Engineers for Below-The?Hook Lifting Devices, Section 20-12 In regards to the lifting magnet, one feasible and acceptable abatement method to correct the hazard is to establish and follow a program of periodic inspections of the lifting magnet in accordance with ASME American Society of Mechanical Engineers for Below?the-Hook Lifting Devices, Section 20-3 .3 .4. Abatement documentation is required in accordance with 29 CFR Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 5390.00 See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 8 of 33 OSHA-2 (Rev. 9/93) 1 US. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 3 Type of Violation: Serious 29 CFR A body belt was not worn and a lanyard attached to the boom or basket when workhag from an aerial lift: On or about July 12, 2011, at Basic Marine Inc., 440 N. 10th Street, Escanaba, MI, employees were working from aerial lifts with a standard guardrail, and the employer did not ensure that personal fall protection was worn with a lanyard attached to the boom or basket to prevent from being ejected from the work platform. Abatement documentation is required in accordance with 29 CPR Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 3850.00 See pages 1 tln?ough 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 9 of 33 OSHA-2 (Rev. 9/93) U.S. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 The alleged Violations below have been grouped because they involve similar or related hazards that may increase the potential for injury resulting from an accident. Citation 1 Item 4a Type of Violation: Serious 29 CFR Nameplates or markings for powered industrial trucks were maintained in a legible condition: On or about July 13, 2011, at Basic Marine Inc. 440 N. 10th Street, Escanaba, MI, employees were operating a Baker forklift (model and the employer failed to ensure that markings on the forklift were maintained in a legible condition. The manufacturer?s plate for certified capacities was not maintained. Abatement documentation is required in accordance with 29 CFR Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 5390.00 See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Notification of Penalty Page 10 of 33 OSHA-2 (Rev. 9/93) US. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 4b Type of Violation: Serious 29 CFR Industrial trucks were not examined before being placed in service: On or about July 13, 2011, at Basic Marine Inc. 440 N. 10th Street, Escanaba, MI, employees were Operating a Baker forklift (Model and the employer failed to ensure that powered industrial trucks were examined before being placed into service. Defects on the forklift included, but were not limited to missing plate for certi?ed capacities, worn rubber gear shift boot, and worn and cracked tires. - Abatement documentation is required in accordance with 29 CFR 1903.19(d Date By Which Violation Must be Abated: 01/30/2012 See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 11 of 33 OSHA-2 (Rev. 9/93) U.S. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. InSpection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 5 Type of Violation: Serious 29 CFR The employer shall ensure that each powered industrial truck operator is competent to operate a powered industrial truck safely, as demonstrated by the successful completion of the training and evaluation specific to this paragraph (1). 29 CFR 1910.178(l) is applicable to shipyard employment by 29 CFR 1915.120 that incorporates the General Industry requirement. On or about July 13, 2011, at Basic Marine Inc. 440 N. 10th Street, Escanaba, MI, employees were exposed to the hazards related to tipover, struck by, pinch, crush, and caught in hazards due to the fact that forklift drivers are not adequately trained and evaluated to operate powered industrial trucks. Abatement documentation is required in accordance with 29 CFR Date By Which Vidlation Must be Abated: 01/30/2012 Proposed Penalty: 5390.00 See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 12 of 33 OSHA-2 (Rev. 9/93) U.S. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 6 Type of Violation: Serious The employer did not ensure that each operator followed the operating instructions, warnings, and precautions for the type of truck the operator was authorized to operate. 29 CFR 1910.178(l) is applicable to shipyard employment by 29 CFR 1915.120 that incorporates the General Industry requirement. On or about July 13, 2011 at Basic Marine Inc., 440 N. 10th Street, Escanaba, MI employees was exposed to the hazards of being pinned between a forklift and the ground in the event, of a tipover, due to the fact that employees were not required to wear the seatbelts that were provided on a Hyster forklift Model HISSXL, Serial F605401N. Among other methods, one feasible and acceptable abatement method to correct the hazard is to follow the requirements of the manufacturer?s instruction manual and AN B56.1-2009, Safety Standard for Low Lift and High Lift Trucks. Abatement documentation is required in accordance with 29 CFR Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 3080.00 See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 13 of 33 (Rev. 9/93) U.S. Department Of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 - 07/ 13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 7 Type of Violation: Serious 29 CFR Pendant control box(es) were not constructed to prevent electrical shock and were not clearly marked for identification of functions: a) On or about July 13, 2011, at Basic Marine Inc. 440 N. 10th Street, Escanaba, MI, employees assigned to operate the crane in building one were exposed to electrical shock/electrocution from exposed wiring in the pendent control for the crane. Employees were using a pendent control device for a Crane in building one (1) red building near the press brake which was noted as having a broken face plate with exposed electrical parts. b) On or about July 13, 2011, at Basic Marine Inc. 440 N. 10th Street, Escanaba, MI, employees were exposed to the hazard of being crushed/struck?by materials due to the fact that the pushbutton pendent was not marked for identification of the functions. Employees were using a pendent control device for a crane in building one (1) red building under the staircase and the labeling for the function buttons was. illegible. Abatement documentation is required in accordance with 29 CPR Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 5390.00 See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 14 of 33 OSHA-2 (Rev. 9/93) U.S. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/ 12/2011 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 8 Type of Violation: SSIIOUS 29 CFR Unsafe condition(s) disclosed during the frequent or periodic inspection(s) required by 29 CFR 1910.1790) were not corrected before operation of the crane(s) was resumed: a. On or about July 13, 2011, at Basic Marine Inc. 440 N. 10th Street, Escanaba, MI, employees were exposed to the hazards related to being struck by and/or crushed by a falling load due to the fact that an unsafe condition identified in an inspection of an overhead crane was not corrected before operation of the overhead crane resumed. Employees were operating a crane in building one East Bay South near the steel shear with an inoperative brake. b. On or about July 13, 2011, at Basic Marine Inc. 440 N. 10th Street, Escanaba, MI, employees were exposed to the hazards related to being struck by and/or crushed by a falling load due to the fact that an unsafe condition identified in an inspection of an overhead crane was not corrected before operation of the overhead crane resumed. Employees were operating a crane in building one East Bay North near the squaring machine with an inoperative brake. c. On or about July 13, 2011, at Basic Marine Inc. 440 N. 10th Street, Escanaba, MI, employees were exposed to the hazards related to being struck by and/or crushed by a falling load due to the fact that an unsafe condition identified in an inspection of an overhead crane was not corrected before operation of the overhead crane resumed. Employees were operating a crane in building one East Bay North near the steel shear with a defective wire rope, in that the rope was missing a lay. Abatement documentation is required in accordance with 29 CFR Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 5390.00 See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 15 of 33 OSHA-2 (Rev. 9/93) US. Department Of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 9 Type of Violation: 861310118 29 CFR web s1ing(s) with broken or worn stitches were not immediately removed from service. On or about July 13, 2011, at Basic Marine Inc. 440 N. 10th Street, Escanaba, MI, employees were exposed to the hazard of being materials being handled by cranes due to the fact that a sling was being used with a Power-grip magnet to lift pieces of steel. Abatement documentation is required in accordance with 29 CFR 1903.19(d . Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 5390.00 See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 16 of 33 OSHA-2 (Rev. 9/93) U.S. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 - 07/ 13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 10 Type of Violation: Serious 29 CFR Effective chip guarding and personal protective equipment was not used when compressed air was used for cleaning purposes: On or about July 13, 2011, at Basic Marine Inc. 440 N. 10th Street, Escanaba, MI, employees were exposed to the hazard of ?ying debris due to the fact employees were using compressed air to clean without chip guarding or personal protective equipment. Employees were using compressed air to clean their head, face, and hair. Abatement documentation is required in accordance with 29 CPR Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 3080.00 See pages 1 through 5 of this Citation and oti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 17 of 33 (Rev. 9/93) U.S. Department Of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 11 Type of Violation: 861710113 29 CFR When employees are working in the Vicinity of ?ush 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. On or about July 12, 2011, at Basic Marine, Inc. 440 N. 10th Street, Escanaba, MI, employees were working in the vicinity of ?ush manholes and other small openings of comparable size in the deck and other working surfaces, and such openings were not suitably covered or guarded to a height of not less than 30 inches. Abatement documentation is required in accordance with 29 CFR Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 3850.00 See pages 1 through 5 of this Citation and Notification of Penalty for information on employer and employee rights and responsibilities. Citation and Notification of Penalty Page 18 of 33 (Rev. 9/93) US. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 07/ 13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 12 Type of Violation: Serious 29 CPR When employees are exposed to unguarded edges of decks, platforms, ?ats, and similar ?at surfaces more than 5 feet above a solid surface, the edges shall be guarded by adequate guardrails meeting the requirements of section 29 CFR and (2), unless the nature of the work in progress of the physical conditions prohibit the use or installation of such guardrails. On or about July 12, 2011, at Basic Marine, Inc. 440 N. 10th Street, Escanaba, MI, employees were working on the barge MEMPHIS, and unguarded edges of decks, platforms, ?ats, or similar ?at surfaces more than 5 feet above a solid surface. These edges were not guarded by adequate guardrails meeting the requirements of 29 CFR and (2). Abatement documentation is required in accordance with 29 CFR 1903.19(d . Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 5390.00 See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 19 of 33 OSHA-2 (Rev. 9/93) U.S. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc? Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 13 Type of Violation: Serious 29 CFR Hoses and electric conductors were not elevated or placed under walkways or working surfaces or covered by adequate crossover planks. On or about July 13, 2011, at Basic Marine Inc. 440 N. 10th Street, Escanaba, MI, employees working on the top (deck) of a barge were exposed to slip, trip, and fall hazards from hoses and electrical cords that crossed their work surface and paths of travel without being elevated or covered by crossover planks. Abatement documentation is required in accordance with 29 CFR Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 5390.00 See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 20 of 33 (Rev. 9/93) U.S. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 14 Type of Violation: Serious 29 CFR All sling chains, including end fastenings, shall be given a visual inspection before being used on the job. A thorough inspection of all chains in use shall be made every 3 months. Each chain shall hear an indication of the month in which it was thoroughly inspected. The thorough inspection shall include inspection for wear, defective welds, deformation and increase in length or stretch. On or about July 12, 2011, at Basic Marine, Inc. 440 N. 10th Street, Escanaba, MI employees were using sling chains during the manufacture of barges, and the employer did not ensure that thorough chain inspections were conducted every three months. Each chain did not bear an indication of the month in which it was thoroughly inspected. Abatement documentation is required in accordance with 29 CFR Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 4620.00 See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Notification of Penalty Page 21 of 33 (Rev. 9/93) '1 U.S. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 - 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 15 Type of Violation: 29 CFR Loads shall be applied to the throat of the hook since loading the point overstresses and bends or springs the hook. On or about July 12, 2011, at Basic Marine, Inc. 440 N. 10th Street, Escanaba, MI employees were using chains during the manufacture of barges, and the employer did not ensure that loads were applied to the throat of the hook. Abatement documentation is required in accordance with 29 CFR Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 3080.00 See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 22 of 33 OSHA-2 (Rev. 9/93) . ?1 5 US. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 16 Type of Violation: Serious 29 CFR Slings shall be padded by means of wood blocks or other suitable material where they pass over sharpe edges or corners of loads so as to prevent cutting or kinking. On or about July 12, 2011, at Basic Marine, Inc. 440 N. 10th Street, Escanaba, MI employees were using slings during the manufacture of barges, and the employer did not ensure that slings were padded by means of wood blocks or other suitable material where they passed over sharp edges or corners of loads. Abatemend documentation is required in accordance with 29 CFR Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 3080.00 See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 23 of 33 (Rev. 9/93) U.S. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 17 Type of Violation: Serious 29 CFR The employer shall ensure that each affected employee wears a protective helmet when working in areas where there is a potential for injury to the head from falling objects. On or about July 12, 2011, at Basic Marine, Inc. 440 N. 10th Street, Escanaba, MI, employees were exposed to falling objects in building one during the manufacture of the barge Memphis, and the employer did not ensure that affected employees were protective helmets. Abatement documentation is required in accordance with 29 CFR Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 5390.00 See pages 1 through 5 of this Citation and Notification of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 24 of 33 OSHA-2 (Rev. 9/93) U.S. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 18 Type of Violation: serious 29 CFR At least 90 feet (27.43111) of line shall be attached to each ring life buoy. On or about July 12, 2011, at Basic Marine, Inc. 440 N. 10th Street, Escanaba, MI, employees were working on, over, or near water during repair of the USCG vessel Katmai Bay, and the employer did not ensure that 90 feet of line was attached to each ring life buoy. Abatement documentation is required in accordance with 29 CFR Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 3850.00 See pages 1 through 5 of this Citation and oti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 25 of 33 OSHA-2 (Rev. 9/93) U.S. Department Of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 19 Type of Violation: 29 CFR Containers of 55 gallons or more capacity containing ?ammable or toxic liquid shall be surrounded by dikes or pans which enclose a volume equal to at least 35 percent of the total volume of the containers. On or about July 12, 2011, at Basic Marine, Inc. 440 N. 10th Street, Escanaba, MI, employees entered the paint storage building on at least a weekly basis, and the employer failed to ensure that a 55 gallon container of xylene was surrounded by a dike 01' pan. Abatement documentation is required in accordance with 29 CFR Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 2310.00 See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 26 of 33 OSHA-2 (Rev. 9/93) U.S. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 20 Type of Violation: Serious 29 CPR Fire extinguishers adequate in number and suitable for the hazard shall be provided. These extinguishers shall be located in the immediate area where pressure vessels, drums and containers containing flammable liquids or gases are stored or in use. Such extinguishers shall be ready for use at all times. On or about July 12, 2011, at Basic Marine, Inc. 440 N. 10th Street, Escanaba, MI employees entered the paint storage building on at least a weekly basis, and the employer failed to ensure that fire extinguishers were located in the immediate area where drums and containers of ?ammable materials, such as paints and xylene were stored. Abatement documentation is required in accordance with 29 CFR Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 2310.00 See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 27 of 33 OSHA-2 (Rev. 9/93) i U.S. Department Of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/ 12/2011 - 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 The alleged violations below have been grouped because they involve similar or related hazards that may increase the potential for injury resulting from an accident. Citation 1 Item 21a Type of Violation: Serious 29 CFR Alarm procedures were not included in the fire safety plan. On or about July 13, 2011, at Basic Marine Inc. 440 N. 10th Street, Escanaba, MI, employees were exposed to the hazard of injuries related to burns, smoke inhalation, and due to the fact the Fire Safety Plan did not contain alarm procedures. Abatement documentation is required in accordance with 29 CFR Date By Which Violation Must: be Abated: 01/30/2012 Proposed Penalty: 5390.00 See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 28 of 33 A OSHA-2 (Rev. 9/93) U.S. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 21b Type of Violation: 29 CFR The fire safety plan did not include procedures for notifying employees of a fire emergency. On or about July 13, 2011, at Basic Marine Inc. 440 N. 10th Street, Escanaba, MI, employees were exposed to the hazard of injuries related to burns, smoke inhalation, and due to the fact the Fire Safety Plan did not include procedures for notifying employees of a fire emergency. Abatement documentation is required in accordance with 29 CFR 1903.19(d Date By Which Violation Must be Abated: 01/30/2012 Citation 1 Item 210 Type of Violation: 86110118 29 CFR Procedures for evacuation were not included in the fire safety plan. On or about July 13, 2011, at Basic Marine Inc. 440 N. 10th Street, Escanaba, MI, employees were exposed to the hazard of injuries related to burns, smoke inhalation, and due to the fact the Fire Safety Plan did not include procedures for evacuation. Abatement documentation is required in accordance with 29 CFR Date By Which Violation Must be Abated: 01/30/2012 See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 29 of 33 OSHA-2 (Rev. 9/93) U.S. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 21d Type of Violation: Serious 29 CFR Procedures to for all employees after an evacuation were not included in the fire safety plan. 011 or about July 13, 2011, at Basic Marine Inc. 440 N. 10th Street, Escanaba, MI, employees were exposed to the hazard of injuries related to burns, smoke inhalation, and due to the fact the Fire Safety Plan did not include procedures to account for all employees after an evacuation. Abatement documentation is required in accordance with 29 CFR Date By Which Violation Must be Abated: 01/30/2012 See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 30 of 33 (Rev. 9/93) U.S. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 1 Item 21e Type of Violation: Serious 29 CFR The employer did not document that affected employees of this standard have been informed about the plan as required by 29 CFR On or about July 13, 2011, at Basic Marine Inc. 440 N. 10th Street, Escanaba, MI, employees were exposed to the hazard of injuries related to burns, smoke inhalation, and and the employer did not document that affected employees had been informed of the Fire Safety Plan. Abatement documentation is required in accordance with 29 CFR Date By Which Violation Must be Abated: 01/30/2012 See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 31 of 33 OSHA-2 (Rev. 9/93) U.S. Department of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penalty Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 2 Item 1 Type of Violation: Repeat 29 CPR Points of operation of machinery were not guarded to prevent employee(s) from having any part of their body in the danger zone(s) during operating cycle(s). On or about July 13, 2011, at Basic Marine Inc. 440 N. 10th Street, Escanaba, MI, employees were exposed to the hazards related to cuts, amputation, and abrasions due to the fact that the blade 011 the band saw was not properly guarded. The employer failed to provide guarding to protect employees using the vertical band saw from making inadvertant contact with the unused portion of the moving blade during operating cycles while retrieveing and inserting materials to be cut with the machine. Basic Marine, Inc. was previously cited for a violation of this occupational safety and health standard or its equivalent standard 29 CFR which was contained in OSHA inspection number 301603460, Citation Number 02, Item Number 01 and was affirmed as a final order on April 7, 2009, with respect to their workplace located at 440 N. 10th Street, Escauaba. MI. Abatement documentation is required in accordance with 29 CPR Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 10780.00 See pages 1 through 5 of this Citation and Noti?cation of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 32 of 33 OSHA-2 (Rev. 9/93) U.S. Department Of Labor Inspection Number: 301604252 Occupational Safety and Health Administration Inspection Dates: 07/12/2011 07/13/2011 Issuance Date: 01/06/2012 Citation and Notification of Penal?, Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, MI 49829 Citation 3 Item 1 Type of Violation: Other 29 CFR Dated and signed inspection records and reports for locomotive crane(s) were not provided for critical items such as (but not limited to) brakes, crane hooks and ropes: On or about July 13, 2011, at Basic Marine Inc. 440 N. 10th Street, Escanaba, MI, signed inspection records for crawler (Harnischfeger and and wheel mounted (Grove Crane cranes were not being kept for critical items such as (but not limited to) brakes, crane hooks, and ropes. Abatement certification is required in accordance with 29 CPR Date By Which Violation Must be Abated: 01/30/2012 Proposed Penalty: 0.00 afm Robert J: Bonack Area Director See pages 1 through 5 of this Citation and Notification of Penalty for information on employer and employee rights and responsibilities. Citation and Noti?cation of Penalty Page 33 of 33 (Rev. 9/93) U.S. Department of Labor Occupational Safety and Health Administration 315 W. Allegan Street Room 207 Lansing, MI 48933-1514 Phone: (517)487-4996 FAX: (517)487~4997 DEBT COLLECTION NOTICE Company Name: Basic Marine, Inc. Inspection Site: 440 N. 10th Street, Escanaba, 49829 Issuance Date: 01/06/2012 Summary of Penalties for Inspection Number 301604252 Citation 1, Serious 92400.00 Citation 2, Repeat 10780.00 Citation 3, Other 0.00 TOTAL PROPOSED PENALTIES 103180.00 To avoid additional charges, please remit payment to this Area Of?ce for the total amount of the uncontested penalties summarized above. Make your check or money order payable to: Please indicate Inspection Number (indicated above) on the remittance. OSHA does not agree to any restrictions or conditions put on any check or money order for less than the full amount due and will cash the check or money order as if these restrictions or conditions do not exist. If a personal check is issued, it will be converted into an electronic fund transfer (EFT). This means that our bank will copy your check and use the account information on it to electronically debit your account for the amount of the check. The debit from your account will then usually occur within 24 hours and will be shown on your regular account statement. You will not receive your original check back. The bank will destroy your original check, but will keep a copy of it. If the EFT cannot be completed because of insufficient funds or closed account, the bank will attempt to make the transfer up to 2 times. Pursuant to the Debt Collection Act of 1982 (Public Law 97?365) and regulations of the U.S. Department of Labor (29 CFR Part 20), the Occupational Safety and Health Administration is required to assess interest, delinquent charges, and administrative costs for the collection of delinquent penalty debts for violations of the Occupational Safety and Health Act. Interest. Interest charges will be assessed at an annual rate determined by the Secretary of the Treasury on all penalty debt amounts not paid within one month (30 calendar days) of the date on which the debt amount becomes due and payable (penalty due date). The current interest rate is Interest will accrue from the date on which the penalty amounts (as proposed or adjusted) become a ?nal order of the Occupational Safety and Health Review Commission (that is, 15 working days from your receipt of the Citation and Noti?cation of Penalty), unless you Page 1 of 2 ?le a notice of contest. Interest charges will be waived if the full amount owed is paid within 30 calendar days of the ?nal order. Delinquent Charges. A debt is considered delinquent if it has not been paid within one month (30 calendar days) of the penalty due date or if a satisfactory payment arrangement has not been made. If the debt remains delinquent for more than 90 calendar days, a delinquent charge of six percent per annum will be assessed accruing from the date that the debt became delinquent. Administrative Costs. Agencies of the Department of Labor are required to assess additional charges for the recovery of delinquent debts. These additional charges are administrative costs incurred by the Agency in its attempt to collect an unpaid debt. Administrative costs will be assessed for second and subsequent demand letters sent in an attempt to collect the unpaid debt. Costs will not be assessed for first demand letters and payment default letters. W/igm w/y ec/zg/L Robert J. Bonac Date Area Director Page 2 of 2 UNITED STATES OF AMERICA SAFETY AND HEALTH REVIEW COMMISSION SECRETARY OF LABOR, Complainant, DOCKET NOS. 12~0259 V. (a 12-0260 (Consolidated) BASIC MARINE, INC., Respondent. Appearances: Denise C. Hockley-Cann, Esq., Of?ce of the Solicitor, U.S. Department of Labor, Chicago, Illinois For Complainant Terrie Peters, Controller, Basic Marine, Inc., Escanaba, Michigan For Respondent Before: Administrative Law Judge Brian A. Duncan DECISION AND ORDER Procedural Historv This matter is before the Occupational Safety, and Health Review Commission (?Commission?) pursuant to section 10(0) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 at seq. (?the Act?). On July 12, 2011, the Occupational Safety and Health Administration inspected Basic Marine?s (?Respondent?) facility in Escanaba, Michigan. As a result of that inspection, OSHA issued two Citations and Notifications of Penalty (?Citations?) to Respondent, which, after being contested, were designated Docket No. 12-0259 (OSHA Inspection No. 301604260) and Docket No. 12-0260 (OSHA Insp. No. 301604252). Docket No. 12?0259 contains ?ve serious violations, four repeat Violations, and one other-than?serious violation of the Act, with total proposed penalties of $44,660.00. Docket disputed issues for each citation item were clearly identi?ed: Docket No. 12-0259 (OSHA Insp. No. 301604260) 8 Citation 1 Item 1: Respondent?s contest was withdrawn as to all elements may the ?serious? classi?cation of the violation and the proposed penalty; 0 Citation 1 Item 2: Respondent?s contest was withdrawn as to all elements the ?serious? classi?cation of the violation and the proposed penalty; 0 Citation 1 Item 3a: Respondent?s contest was withdrawn as to all elements mg? the ?serious? classi?cation of the violation and the proposed penalty; 0 Citation 1 Item 3b: Respondent?s contest was withdrawn as to all elements the ?serious? classi?cation of the Violation and the proposed penalty; 0 Citation 1 Item 4: Respondent?s contest was withdrawn as to all elements @632): the ?serious? classi?cation of the Violation and the proposed penalty; 9 Citation 2 Item 1: All aspects of this proposed repeat Violation remain in dispute; 0 Citation 2 Item 2: Respondent?s contest was withdrawn as to all elements the ?repeat? classi?cation of the violation and the proposed penalty; 9 Citation 2 Item 3: Respondent?s contest was withdrawn as to all elements M- the ?repeat? classi?cation of the violation and the proposed penalty; 0 Citation 2 Item 4: Respondent?s contest was withdrawn as to all elements am the ?repeat? classi?cation of the violation and the proposed penalty; Citation 3 Item 1: Respondent?scontest of this proposed violation was entirely withdrawn; Docket No. 12-0260 (OSHA Insn. No. 301604252) 0 Citation I Item 1: Respondent?s contest was withdrawn as to all elements except Citation 1 Item 12: Respondent?s contest was withdrawn as to all elements the ?serious.? classi?cation of the violation and the proposed penalty; Citation 1 Item 13: Respondent?s contest was withdrawn as to all elements the proposed penalty; Citation 1 Item 14: Respondent?s contest was withdrawn as to all elements the ?serious? classi?cation of the violation and the proposed penalty; Citation 1 Item 15 Respondent?s contest was withdrawn as to all elements M- the ?serious? classi?cation of the violation and the proposed penalty; Citation 1 Item 16: All aspects of this proposed serious violation remain in dispute; Citation 1 Item 17 Respondent?s contest was withdrawn as to all elements mg; the ?serious? classi?cation of the violation and the proposed penalty; Citation 1 Item 18: All aspects of this proposed serious violation remain in dispute; Citation 1 Item 19: Respondent?s contest was withdrawn as to all elements the ?serious? classi?cation of the violation and the proposed penalty; Citation 1 Item 20: Respondent?s contest was withdrawn as to all elements the ?serious? classi?cation of the violation and the proposed penalty; Citation 1 Item 21a: Respondent?s contest was withdrawn as to all elements 913% the ?serious? classi?cation of the violation and the proposed penalty; Citation 1 Item 21b: Respondent?s contest was withdrawn as to all elements the ?serious? classi?cation of the violation and the proposed penalty; Citation 1 Item 210: Res ondent?s contest was withdrawn as to all elements Complainant need not show that there was a substantial probability that an accident would actually occur; it need only show that if an accident occurred, serious physical harm could result. Mosser Construction, 23 BNA OSHC 1044 at *2 (No. 08-0631, 2010); Dec?Tam Corp, 15 BNA OSHC 2072 (No. 88?0523, 1993?). If the possible injury addressed by a regulation is death or serious physical harm, a violation of the regulation is serious. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984). Many of the citation items that are characterized as serious allege violations of standards that protect against the same or similar hazards. Accordingly, to the extent that certain citation items allege a common hazard the discussion of these items is grouped together to analyze whether employee exposure to that common hazard could have resulted in serious physical harm or death. violation is repeated if the employer was previously cited for a substantially similar violation and that citation became a ?nal order before the occurrence of the alleged repeated violation.? Deep South Crane Rigging 23 BNA OSHC 2099 (No. 09-0240, 2012); Bunge Corp, 638 F.2d 831 (5th Cir. 1981); Potlafch Corp, 7 BNA OSHC 1061 (No. 16183, 1979). ?The Secretary establishes a primafacie case of substantial similarity by showing that the prior and present violations are for failure to comply with the same standard.? Id. ?[T]he principal factor to be considered in determining whether a violation is repeated is whether the prior and instant violations resulted in substantially similar hazards.? Stone Container Corp, 14 BNA OSHC 1757 (No. 88-310, 1990). M911 Respondent performs shipbuilding and ship repair work at a facility in Escanaba, Michigan. (Tr. 34, 72). A large part of Respondent?s business involves building custom vessels, conducting major retro?tting, and performing maintenance for U.S. Coast Guard and Army violation of 29 C.F.R. and (Item 4) Respondent failed to provide its employees with air line respirators when employees were continuously exposed to spraying paints mixed with toxic vehicles or solvents in confined spaces, in violation of 29 C.F.R. First, posting con?ned space testing results informs employees that the con?ned spaces they enter have been tested and are, in fact, safe for work activities. (Tr. 126). Without such information, Respondent?s employees were unaware as to whether the con?ned spaces on the barge Menphr?s were truly safe to enter. (Tr. 126). This exposed employees to potentially unsafe atmospheric conditions, including possible IDLH conditions (immediate danger to life and health) which can result in loss of consciousness, and death. (Tr. 125, 170). Second, shipyard employers are required to ensure that their rescue teams are prepared for emergencies, such as those that can arise when working with dangerous chemicals inside confined spaces. By failing to ensure that its rescue team had practiced rescue skills on an annual basis, as required by the regulations, employees working on the barge, and members of the rescue team, were exposed to inadequate, untimely, or unsuccessful emergency rescue methods. (Tr. 127). Third, Respondent?s failure to continuously monitor the atmosphere in the confined spaces on the barge Memphfo exposed employees to potential deterioration of con?ned space atmospheric conditions, including possible IDLH conditions, unbeknownst to the occupants. (Tr. 129)? Fourth, Respondent?s failure to identify and evaluate the respiratory hazards associated with the use of Amerccat 240 Off White Resin and Amercoat 240 Cure, exposed employees to unknown consequences of those hazardous chemicals and their impact on the confined space environments. (Tr. 131). Finally, Respondent?s failure to use air line respirators when paints 4. On the ?rst day of the inspection, CSHO was unable to verify that any con?ned space testing was conducted at all. (Tr. 168). However, he later learned that initial con?ned space testing was conducted, but never any subsequent monitoring for possible changes in conditions after the work began. (Tr. 170?171). CSHO learned of this violation by reviewing Respondent?s own electronic fit-test records, which revealed that the affected employee had not been fit-tested since 2008. (Tr. 140-l41, 145; Ex. 0-47). Therefore, by reviewing its own online tracking system, Reapondent knew, or at least should have known, that the affected employee had not been fit- tested in three years. (Tr. 139-141). Employer knowledge of the Violative condition was established. On June 16, 2008, Respondent was issued a Citation and Noz?y?icarion ofPenath, which included a serious Violation of this same standard: 29 C.F.R. (EX. C-l at 8). Respondent did not contest that citation item, which, by operation of law, became a final order of the Commission. (Tr. 151?52; EX. C-4 at 4). Therefore, Complainant established substantial similarity because both the prior and instant Violations are for failure to comply with the same regulatory standard. In addition, the prior and instant Violations resulted in Respondent?s employees being exposed to the same hazards associated with the failure to conduct annual respirator fit-testing. (Tr. 154?156). Accordingly, Citation 2, Item 1 was properly characterized as a repeat violation of the Act and will be AFFIRMED. Citation 2 Item 2 Only the repeat classification of this Violation and its associated proposed penalty are contested. Citation 2, Item 2 describes a Violation 29 CPR. which requires an employer to ?develop, implement, and maintain . . . a written hazard communication program.? hazard communication program describes how the criteria for warnings, material safety data sheets (MSDS), and employee training and information will be met. In addition to withdrawing its notice of contest to the violation, Respondent also admitted, by operation of law, that it had no hazard communication program in Building 2, where spray painting and striping ii Respondent did not contest that citation item, which, by operation of law, became a ?nal order of the Commission. (Tr. 151?152; Ex. 04 at 5). Therefore, Complainant established substantial similarity because both the prior and instant violations are for failure to comply with the same regulatory standard. In addition, both the prior and instant violations resulted in Respondent?s employees being exposed to the same condition of working with hazardous chemicals without proper training and information. (Tr. 149, 154). Accordingly, Citation 2, Item 3 was properly characterized as a repeat violation of the Act and will be AFFIRMED. Citation 2 Item 4 Only the repeat classi?cation of this violation and its associated proposed penalty are contested. Citation 2, Item 4 describes a yiolation of 29 C.F.R. which requires employers to ?ensure that each employee who enters a con?ned space . . . with dangerous atmOSpheres is trained to . . [a]nticipate and be aware of the hazards that may be faced during entry.? In addition to withdrawing its notice of contest to the violation, Respondent admitted, by operation of law, that it did not train its employees to anticipate and be aware of all hazards associated with painting, striping, welding, and cleaning in the con?ned space aboard the barge Marziphis. (EX. Resp. and C-4, Admission No. 23). On June 16, 2008, Respondent was issued Citation and Noti?cation of Penalty, which included a serious violation of this same standard: 29 C.F.R. (EX. C?l at 11). Respondent did not contest that citation item, which, by operation of law, became a ?nal order of the Commission. (Tr. 151?52; EX. C-4 at 5, 21?22). Therefore, Complainant established substantial similarity because both the prior and instant Violations are for failure to comply with the same regulatory standard. Further, both the prior and instant Violations resulted in Respondent?s employees being exposed to the same potentially hazardous conditions of working 13 Citation 1, Item 2 describes three instances in which Respondent failed to properly mark the rated load capacity on spreader bars and hoisting magnets that were used to lift these same steel plates. (Tr. 207; Exs. 0413, CSHO Chester testi?ed that Respondent?s employees were exposed to potential crushing injuries because the capacities of the spreader bars and hoist magnets were unknown. (Tr. 209). Without this readily available information, an employee could attempt to pick up an excessive load, which could cause the lifting mechanism to fail and seriously injure, or kill, an employee. (Tr. 209). This possibility was heightened by the fact that, in some instances, employees guided the steel plates by hand while they were being lifted and moved. (Tr. 210). In both citation items, the hazard is the same crushing injuries ?'om falling steel plates. Respondent did not dispute CSHO Chester?s testimony regarding the hazard or potential injuries. Any accident in which an employee is struck by a 3,000 to 6,000 pound steel plate could unquestionably result in serious injuries or death. Accordingly, Citation 1, Items 1 and 2 will be as serious violations of the Act. Citation 1 Item 3 Only the serious classification of this violation and its associated proposed penalty are contested. Citation 1, Item 3 describes a violation of 29 C.F.R. which requires that body belt shall be worn and a lanyard attached to the boom or basket when working ??om an aerial lift.? CSHO Chester observed one of Respondent?s employees driving an aerial lift, while occupying the basket, without using a body belt or lanyard. (Tr. 211; EX. C-17). Body belts prevent employees ??om falling out of the basket if the aerial lift were to move or shift unexpectedly, such as hitting a bump or pothole during operation. (Tr. 213). CSHO Chester observed the aerial lift in operation, with the employee elevated approximately 15 legible condition, in violation of 29 CPR. (Item 4b) Respondent failed to conduct an examination of industrial trucks before placing them in service, in violation of 29 C.F.R. (Item 5) Respondent failed to ensure that each forklift operator was properly trained and evaluated, in violation of 29 C.F.R. 1910. 178(1); and (Item 6) Respondent failed to ensure that each forklift operator followed the manufacturer?s operating instructions, warnings, and precautions, in violation of 29 C.F.R. 1910.17 The forklifts at issue were driven throughout Respondent?s facility, including areas where other employees were working. (Tr. 224?227). These conditions, when viewed individually, and especially when viewed collectively, eprsed employees to accidents caused from forklift tipping due to overloading, forklift malfunction, ejection from the forklift cab, and inappropriate forklift operation, any of which could result in serious injuries, such as crushing, decapitation, or death. (Tr. 215, 219, 227-228). Accordingly, Citation 1, Items 4a, 4b, 5, and 6 were properly characterized as serious violations of the Act and will be Citation 1 Item 7 Only the serious classification of this violation and its associated proposed penalty are contested. Citation 1, Item 7 describes a violation (with two instances) of 29 CPR. which requires pendant control boxes to be constructed to prevent electrical shock, and to be c1ear1y marked for identi?cation of functions. During the inspection, CSHO Chester observed a pendant control box (which controlled a crane) with a broken face plate and exposed electrical wiring underneath. (Tr. 235; Ex. 0-24). CSHO Chester was concerned that an employee picking up the pendant box could inadvertent1y touch the exposed wiring, resulting in I shock or electrocution. (Tr. 235w236). Claude Kobasic testified that the electrical power to the 6. CSHO Chester testi?ed that Citation 1, Item 4(a) contains a typographical error. It should read, ?Nameplates or markings for powered industrial trucks were not maintained in a legible condition.? (Tr. 218). 17 Citation 1 Item 9 Only the serious classi?cation of this violation and its associated proposed penalty are contested. Citation 1, Item 9 describes the continued use of a defective web sling, in violation of 29 C.F.R. The sling at issue was being used to carry a hoisting magnet and steel plates, yet clearly displayed torn stitching and an exposed red warning line. (Tr. 250?251; EX. C-28). The red warning line is integrated by the manufacturer into the inner part of the sling to alert users that the sling is no longer capable of lifting its rated load. (Tr. 250). By not taking this sling out of service, employees were exposed to sling failure, failing loads, crushing injuries and death. (Tr. 251?25 3). Accordingly, Citation 1, Item 9 was properly characterized as a Serious violation and will be AFFIRMED. Citation 1 Item 10 Only the serious classification of this violation and its associated proposed penalty are contested. Citation 1, Item 10 describes a violation of 29 C.F.R. which states that compressed air shall not be used for cleaning purposes except where reduced to less than 30 psi and then only with effective chip guarding and personal protective equipment (PPE). CSHO Chester observed an employee cleaning dust and debris off of himself using a compressed air line. (Tr. 253; Ex. Although it was undisputed that the compressed air hose did not contain chip guarding, Respondent presented undisputed evidence that the air pressure at the nozzle was 25 psi. (Tr. 440, 464). CSHO Chester asserted that using the air hose for that purpose could cause an the or could result in damage to the ?'om ?ying debris. (Tr. 253?257). However, there was no discussion of whether the employee was wearing or using appropriate PPE at the time. In addition, CSHO Chester conceded that the likelihood of an injury from this situation was ?pretty low? and that ?there was no possibility of 19 Citation 1, Items 14 and 15 Only the serious classi?cation of these violations and their associated proposed penalties are contested. Citation 1, Item 14 describes a violation of 29 C.F.R. which requires that sling chains be given a thorough inspection every three months for wear, defective welds, deformation, and increase in length or stretch. The chain must also hear an indication of the month in which it was inspected. CSHO Chester observed chains being used to lift steel plates with no evidence of inspection. (Tr. 276,281; Exs. C-35, C-36). According to one Commission ?If a chain which should have been discovered as defective was not removed ?'om service or repaired, even failure of one link could cause large objects to fall onto employees.? rinin Marine Prods, Inc, 21 BNA OSHC 1819 (No. 05-0302, 2006) (ALI Spies). Citation 1, Item 15 describes a violation of 29 C.F.R. which requires that ?[1]oads shall be applied to the throat of the hook since loading the point overstresses and bends or Springs the hook.? CSHO Chester observed hooks used by Respondent that were stretched open, which meant that the load was placing stress at the point of the hook as opposed to the throat. (Tr. 285; Exs. C-34, C-35, These hooks were being used to lift the steel plates referenced numerous times in the citations discussed above, which given their stretched condition, increased the possibility of failure. (Tr. 287-289). If a 3,000 pound steel plate were to fall onto an employee, due to an undiscovered defect in a chain or the failure of a stretched hook, serious crushing injuries or death could result. Accordingly, Citation 1, Items 14 and 15 were properly characterized as serious violations and will be AFFIRMED. Citation 1 Item 16 All aspects of Citation 1, Item 16 remain in dispute. This item alleges a violation of 29 CPR. 1915 .1 16(t), which requires the use of anti?chafmg material or blocks when slings pass 21 Citationl Item 17 Only the serious classi?cation of this violation and the associated proposed penalty are contested. Citation i, Item 17 describes a violation of 29 C.F.R. which requires an employer to provide protective head protection to its employees when there is a potential for head injuries from falling objects. None of Respondent?s employees, including owner Daniel Kobasic, were wearing hard hats while working in and around the barge Memphis. (Tr. 278, 362~364; EX. C-39). In addition to various suspended loads on hoists and cranes, CSHO Kampert observed a lot of equipment and materials ?haphazardly? stacked along the unprotected edge of the barge. (Tr. 364). Failure to wear proper head protection subjected Respondent?s employees to the potential for serious head injuries, or even death. (Tr. 365). Accordingly, Citation 1, Item 17 was properly characterized as a serious violation and will be AFFIRNIBD. Citation] Item 18 All aspects of Citation 1, item 18 remain in dispute. This item alleges a serious violation of 29 C.F.R. 1915 .15 which requires life buoys (rings) to have 90 feet of line attached to them. Respondent admitted, by operation of law, that at the time of the inspection its employees worked on, over, or near water during the repair of the U.S. Coast Guard vessel Katmai Bay, and that life buoys in the area were not all attached to at least 90 feet of line. (EX. 3, Admission No. 23). In addition, CSHO Kampert observed a life buoy along the waterfront of Respondent?s pier that did not have any line attached to it. (Tr. 366). Nick Kobasic, Respondent?s project manager for the Katmai Bay, as well as other employees, worked and traveled along the pier. (Tr. 367869). At trial, Claude Kobasic revealed that none of the three life buoys on the pier had the requisite 90 feet of line attached to them; rather, one had no line 23 Citation 1, Items 20. 21a, 21b, 210. 21d. and 21e Only the serious classi?cation of these violations and their associated proposed penalties are contested. Citation 1, Item 20 describes a violation of 29 which requires an employer to provide ?re extinguishers ?adequate in number and suitable for the hazard.? Citation 1, Item 21 alleges ?ve related violations of 29 C.F.R. 1915.502, which requires an employer to implement various elements of a Fire Safety Plan and to document that it was communicated to employees. More Speci?cally, Respondent failed to: (Item 20) provide ?re extinguishers in an area where ?ammable chemicals were stored; (Item 21a) institute fire alarm procedures; (Item 21b) institute procedures for notifying employees of a ?re emergency; (Item 21c) institute procedures for employee evacuation; (Item 21d) institute procedures to account for all employees after evacuation; and (Item 21c) inform employees of the Fire Safety Plan. The failure to establish and implement the requirements of a Fire Safety Plan, and the failure to have ?re extinguishers in areas where ?ammable liquids were stored, exposed Respondent?s employees to the potential for serious burn injuries and death. Accordingly, Citation 1, Items 20, 21a, 21b, 210, 21d, and 21s were properly characterized as serious Violations of the Act and will be AFFIRIVIED. Citation 2 Item 1 All aspects of Citation 2, Item 1 remain in dispute. This item alleges a repeat violation of 29 CPR. which provides: ?[t]he points of operation of machines whose operation exposes an employee to injury, shall be Respondent admitted, by operation of law, that at the time of the inspection its ?employees? duties included use of a band saw which lacked proper guarding to protect users ?'om making inadvertent contact with the unused portion of the moving blade during operating cycles.? (Ex. Admission No. 32). 25 became a ?nal order of the Commission. (Tr. 290; Ex. C-3 at p. 25). Therefore, Complainant established substantial similarity because both the prior and instant Violations are for failure to comply with the same regulatory standard. Further, both the prior and instant violations resulted in Respondent?s employee exposure to the same potentially hazardous condition of unguarded machinery. Accordingly, Citation 2, Item 1 was properly characterized as a repeat violation of the Act and will be AFFIRMED. Citation 3, Item 1 Respondent completely withdrew its contest of Citation 3, Item 1. (Tr. 53). Accordingly, Citation 3, Item 1 will be AFFIRMED as issued. . Penalties In calculating appropriate penalties for affirmed Violations, Section 170) of the Act requires the Commission give due consideration to four criteria: (1) the size of the employer?s business, (2) the gravity of the Violation, (3) the good faith of the employer, and (4) the employer?s prior history of Violations. Gravity is the primary consideration and is determined by the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood of an actual injury. 1A. Jones Construction Co., 15 BNA OSHC 2201 (No. 872059, 1993). It is well established that the Commission and its judges conduct de novo penalty determinations and have full discretion to assess penalties based en the facts of each case and the applicable statutory criteria. Valdak (70110., 17 BNA OSHC 1135 (No. 93~0239, 1995); Allied Structural Steel, 2 BNA OSHC 1457 (No. 1681, 1975). In calculating the original proposed penalties, Complainant credited Respondent with a 30% reduction for its status as a ?hnedium? sized employer, but increased the penalties by 10% based on Respondent?s 2008 Violation history. (Tr. 85?88; Ex. Complainant did not 27 is appropriate. Citation 1, Items 3a and 3b The same employees were exposed for the same periods of time as in the previous two violations. Complainant proposed a penalty of $3,850.00 for this grouped citation item based on the conclusion that the likelihood of an accident stemming from the failure to conduct regular inspections of con?ned spaces and evaluate reSpiratory hazards was low, and that the severity of the potential injury was high. (Tr. 130-132). Although it is incumbent upon Respondent to perform proper con?ned space evaluations, there was no evidence to indicate that the atmospheric conditions in the con?ned spaces at issue ever deteriorated. Based on the totality of the circumstances introduced in the record for this violation, as well as Respondent?s small size, the Court ?nds that a penalty of $2,000.00 is appropriate. Citation 1 Item 4 One employee was exposed for the same periods of time as in the three previous violations. Complainant proposed a penalty of $3,850.00 for this citation item based on the conclusion that the likelihood of an accident stemming from the failure to provide the employee with an airline respirator was low, and that the severity of the potential injury was high. (Tr. 134). Based on the totality of the circumstances. introduced in the record for this violation, as well as Respondent?s small size, the Court ?nds that a penalty of $2,000.00 is appropriate. Citation 2, Item 1 One employee was exposed to this condition, but there was no evidence that his respirator did not ?t him properly; just that the ?t had not been tested since 2008. If tight?fitting face~piece respirators do not ?t employees? faces properly, their effectiveness in protecting them 29 Court ?nds that a penalty of $4,000.00 is appropriate. Citation 2, Item 4 The number of employees exposed, and the approximate periods of exposure, for this violation are the same as in Citation 1, Items 1 through 4 above. Complainant proposed a penalty of $10,780.00 for this repeat citation item based on the conclusion that the likelihood of an accident stemming from failure to provide training regarding con?ned space hazards was high, and that the severity of potential injury was also high. Complainant?s assessment of probability was based, in large part, on the presence of the previously discussed violations in this inspection. (Tr. 154). According to CSHO narrative report, though de?cient in some respects, it appears that Respondent did provide some measure of confined space training. (EX. at 220). Based on thetotality of the circumstances introduced in the record for this violation, as well as Respondent?s small size, the Court ?nds that a penalty of $5,000.00 is appropriate. Citation 3, Item 1 Complainant did not propose a penalty for this citation item. Docket No. 12-0260 Citation 1 Iteml Five employees were exposed to the condition of defective lifting hook latches on a daily basis. (Tr. 205-206). Complainant proposed a penalty of $5,390.00 for this citation item based on the Conclusion that the likelihood of an accident stemming from the condition was high, and that the severity of potential injury was also high. Although the potential injury resulting from such an accident could be severe, the Court ?nds that the likelihood of such an accident occurring was relatively low. Based on the totality of the circumstances introduced in 31 de?ciencies. (Tr. 219). Complainant proposed a grouped penalty of $5,390.00 for these citation items based on the conclusion that the likelihood of an accident was high, and that the severity of the potential injury was also high. (Tr. 219-221). Complainant did not provide details regarding the loads that these forklifts carried, nor was there evidence introduced as to their lifting capacities, making a determination regarding likelihood of an actual accident difficult. Nor was their evidence that the other noted de?ciencies actually affected the forklifts? performance. Without more information, the Court is not persuaded that there was a high likelihood of an accident actually occurring from these conditions. Based on the totality of the circumstances introduced in the record for these violations, as well as Respondent?s small size, the Court ?nds that a penalty of $2,000.00vis appropriate. Citation 1, Item 5 The same employees were exposed for the same duration as in Citation 1, Item 4 above. (Tr. 223). Complainant proposed a penalty of $5,390.00 for this citation item based on the conclusion that the likelihood of an accident stemming from Respondent?s failure to train and evaluate its forklift operators was high, and that the severity of the potential injury was also high. (Tr. 224). However, CSHO Chester testified that Respondent?s employees had training in previous jobs and had operated similar equipment before. (Tr. 314). Based on the totality of the circumstances introduced in the record for this violation, as well as Respondent?s small size, the Court finds that a penalty of $2,500.00 is appropriate. Citation 1 Item 6 Complainant proposed a penalty of $3,080.00 for this citation item based on the conclusion that the likelihood of an accident stemming from Respondent?s failure to ensure that its forklift operators were wearing seatbelts was low, and that the severity of the potential injury 33 is appropriate. Citation 1, Item 9 Five employees were exposed on a daily basis to the continued use of a defective web sling. (Tr. 251H253). Complainant proposed a penalty of $5,390.00 for this citation item based on the conclusion that the likelihood of an accident was high, and that the severity of the potential injury was also high. (Tr. 253). Based 011 the totality of the circumstances introduced in the record for this violation, as well as Respondent?s small size, the Court finds that a penalty of $4,000.00 is appropriate. Citation 1 Item 10 Complainant proposed a penalty of $3,080.00 for this citation item. The Court modi?ed this Violation to other?than-serious. Based on the totality of the circumstances introduced in the record for this violation, as well as Respondent?s small size, the Court ?nds that a penalty of $500.00 is appropriate. Citation 1 Item 11 Seven employees were exposed to the insu?iciently protected manhole opening on a daily basis. (Tr. 263). Complainant proposed a penalty of $3,850.00 for this citation item based on the conclusion that the likelihood of an accident was low, and that the severity of the potential injury was high. (Tr. 264). Based on the totality of the circumstances introduced in the record for this violation, as well as Respondent?s small size, the Court ?nds that a penalty of $2,000.00 is appropriate. Citation 1 Item 12 Seven employees working onboard the barge Memphis were exposed to a 10-foot fall off the side of a barge onto packed gravel, dirt, and concrete. (Tr. 343; Ex. C-32). 35 Citationl Item 15 Complainant proposed a penalty of $3,080.00 for this citation item based on the conclusion that the likelihood of an accident stemming from Respondent?s failure to ensure that loads were being applied to the throat of its hooks was low, and that the severity of the potential injury was medium. (Tr. 289). Based on the totality of the circumstances introduced in the record for this violation, as well as Respondent?s small size, the Court-finds that a penalty of $1,500.00 is appropriate. Citation 1 Item 16 This citation item will be VACATED. Accordingly, there is no assessed penalty. Citationl Item 17 Nine employees were exposed to this condition 011 a daily basis. (Tr. 364-365). Complainant proposed a penalty of $5,390.00 for this citation item based on the conclusion that the likelihood of an accident stemming from Respondent?s failure to ensure that affected employees wear hard hats was high, and that the severity of the potential injury was also I high. (Tr. 365). Based on the totality of the circumstances introduced in the record for this ?violation, as well as Respondent?s small size, the Court ?nds that a penalty of $3,500.00 is appropriate. Citation Item 18 One employee?s exposure to this condition was observed, but there was evidence of other employees periodically traveling along the pier to work on the Katmai Bay. (Tr. 367669). Complainant proposed a penalty of $3,850.00 for this violation based on the conclusion that the likelihood of an accident from failure to have adequate line attached to life buoys was low, and that the severity of the potential injury was high. (Tr. 370). Based on the totality of the 37 implement the components of a Fire Safety Plan was high, and that the severity of the potential injury was also high. (Tr. 382). Respondent did, however, enter into an emergency response agreement with the local ?re department. (Tr. 381?3 82). Based on the totality of the circumstances introduced in the record for this Violation, as well as Respondent?s small size, the Court ?nds that a penalty of $2,000.00 is appropriate. Citation 2 Item 1 Five employees and a supervisor used the unguarded band saw intermittently throughout the day. (Tr. 295?296). Complainant proposed a penalty of $10,780.00 for this Violation based on the conclusion that the likelihood of an accident was high, and that the severity of potential injury was also high. (Tr. 303-304). A signi?cant portion of the moving saw blade was exposed, within inches of wheels and handles adjusted by operators. Based on the totality of the circumstances introduced in the record for this repeated violation, as well as Respondent?s small size, the Court ?nds that a penalty of $7,000.00 is appropriate. Citation 3, Item 1 Complainant did not propose a penalty for this citation item. ORDER Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that: Docket No. 12?0259 6 Citation 1, Item 1 is AFFIRMED and a penalty of $2,000.00 is 9 Citation 1, Item 2 is AFFIRMED and a penalty of $2,000.00 is 0 Citation 1, Items 3a and 3b are AFFIRMED and a grouped penalty of $2,000.00 is 39 0 Citation 1, Item 15 is AFFIRMED and a penalty of $1,500.00 is 0 Citation 1, Item 16 is 0 Citation 1, Item 17 is AFFIRMED and a penalty of $3,500.00 is 0 Citation 1, Item 18 is AFFIRMED and a penalty of $2,000.00 is 0 Citation 1, Item 19 is AFFIRMED and a penalty of $1,000.00 is 0 Citation 1, Item 20 is AFFIRMED and a penalty of $1,500.00 is 9 Citation 1, Items 20a through 20e are AFFIRMED and a gi'ouped penalty of $2,000.00 is 6 Citation 2, Item 1 is AFFIRMED and a penalty of $7,000.00 is and 0 Citation 3, Item 1 is AFFIRMED with no penalty. SO ORDERED. Is! 3W Judge Brian A. Duncan . U.S. Occupational Safety and Health Review Commission Date: July 2013 Denver, Colorado 41