First Marine, LLC

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UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,

v. OSHRC Docket Nos.

18-1287 & 18-1288

FIRST MARINE, LLC,!
Respondent.

DECISION AND ORDER
Attorneys and Law firms

Matt S. Shepherd, Schean G. Belton, Megan A. Carrick, Attorneys, Office of the Solicitor, U.S.
Department of Labor, Nashville, TN, for Complainant.

Tashwanda Pinchback Dixon, Attorney, Balch & Bingham LLP, Atlanta, GA, Ryan A. Hahn, Carl
Marshall, Attorneys, The Miller Law Firm, Paducah, KY, for Respondent.
JUDGE: John B. Gatto, United States Administrative Law Judge.
I. INTRODUCTION

This case centers on the ill-fated William E. Strait (the William), an inland river towboat.
In 2015, barges pushed by another towboat on the Mississippi River struck the William as she
pushed barges destined for New Orleans down the Mississippi River, causing the William to sink
just south of Memphis, Tennessee. Three salvage crews working together raised the William on
February 7, 2016 and transported her to a shipyard on the Tennessee River in Calvert City,
Kentucky, which was owned and operated by the Respondent, First Marine, LLC. First Marine
and its subcontractors began repairing and rebuilding the William, which was first in dry dock and

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

' The Court issued an order granting the motion of James A. Lang, I, James A. Lang, II, Tyler C.
Wedeking, Thomas E. Wilkerson, and Zachery W. Ford to withdraw as intervenors in this action.

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On the morning of January 18, 2018, an explosion ripped through the William, killing three
workers, and seriously injuring several others. The United States Department of Labor, through its
Occupational Safety and Health Administration (“OSHA”), investigated the accident, along with
the Kentucky State Police and the United States Coast Guard. None of the authorities investigating
the explosion, including OSHA, were able to determine definitively the cause of the explosion.2
According to signed statements provided to OSHA, most of the surviving workers aboard
the William that morning reported they had smelled gas when they boarded at approximately 7:00
a.m. Because the work aboard the William required the use of propane and propylene, as well as
diesel fuel in portable heaters, it was not unusual to smell whiffs of gas, but the odor was noticeably
stronger that morning. After a cursory search by several of the workers to find the source of the
smell, everyone proceeded with their assigned tasks.
OSHA opened its investigation on January 23, 2018, and Compliance Safety and Health
Officers3 Patrick Whavers and Matthew Amick conducted interviews, took photographs, and
examined the wreckage of the William. Based on their investigation, they recommended the
Complainant Secretary of Labor issue both Health and Safety citations to First Marine for
violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651- 678 (the Act).
On July 17, 2018, the Secretary issued4 separate Health and Safety citations to First Marine.
In the Safety citations (Docket No. 18-1287), the Secretary alleged 17 violations of the safety
standards and one violation of section 5(a)(1) of the Act, commonly known as the “general duty”
clause. In the Health citations (Docket No. 18-1288), the Secretary alleged 17 violations of the
health standards. First Marine timely contested both the Health and the Safety citations and the
2 The Secretary’s theory is the explosion originated in the deck locker, where propylene flowed through
a gas hose allegedly left there overnight (Compl’t’s Br., p.1). First Marine contends the ignition source of
the explosion was a propane-fueled portable heater allegedly being used improperly by a subcontractor’s
employees in the center potable water tank on the lower deck of the towboat (Resp’t’s Br., p, 10; see also
Ex. R-9, pp. 2-3).
3 A “Compliance Safety and Health Officer” is “a person authorized by the Occupational Safety and
Health Administration, U.S. Department of Labor, to conduct inspections.” 29 C.F.R. §1903.22(d).
4 The Secretary of Labor has assigned responsibility for enforcement of the Act to OSHA and has
delegated his authority under the Act to the Assistant Secretary for Occupational Safety and Health, who
heads OSHA. See Order 8-2020, Delegation of Authority and Assignment of Responsibility to the Assistant
Secretary for Occupational Safety and Health, 85 Fed. Reg. 58393 (Sept. 18, 2020), superseding Order No.
1–2012, 77 Fed. Reg. 3912 (Jan. 25, 2012). The Assistant Secretary has redelegated his authority to
OSHA’s Area Directors to issue citations and proposed penalties. See 29 C.F.R. §§ 1903.14(a) and
1903.15(a). The terms “Secretary” and “OSHA” are used interchangeably herein.

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Secretary subsequently filed formal complaints5 with the Commission seeking Orders affirming
the citations. The two cases were subsequently consolidated for trial and disposition. The parties
settled most of the cited items.6 Remaining at issue from the Safety citations are Citation 1, Items
1, 4, 10, and 11, alleging “serious”7 violations of the Act. Remaining at issue from the Health
citations are Citation 1, Items 4a, 4b, 5, 6, and 7, alleging serious violations of the Act, and Citation
2, Items 1, 2, and 3, alleging “willful” violations of the Act.
The parties stipulate the Commission has jurisdiction over this action, and First Marine is
a covered employer under the Act (Answer, ¶¶ I & II; J. Pretrial Order, ¶ 4; see also id. Attach. C
¶¶ 1, 2; Tr. 45). Based on the stipulations and the record evidence, the Court concludes the
Commission has jurisdiction over this proceeding under section 10(c) of the Act, and First Marine
is a covered employer under section 3(5) of the Act. 29 U.S.C. §§ 659(c), 652(5). The Court held a
bench trial in Paducah, Kentucky8 and the parties subsequently filed post-trial briefs. Pursuant to
Commission Rule 90, after hearing and carefully considering all the evidence and the arguments
of counsel, the Court issues this Decision and Order, which constitutes its final disposition of the
proceedings under section 12(j) of the Act.9 29 U.S.C. § 661(j). For the reasons indicated infra, the
Court VACATES all the remaining items of Safety Citation 1 and VACATES all the remaining
5 Commission Rule 30(d) provides that “[s]tatements in a pleading may be adopted by reference in a
different part of the same pleading or in another pleading or in any motion. A copy of any written instrument
which is an exhibit to a pleading is a part thereof for all purposes.” 29 C.F.R §2200.30(d). Attached to the
complaints and also adopted by reference were the citations, which were “a part thereof for all purposes.”
6 On January 30, 2020, the parties filed a Joint Notification of Partial Settlement and pursuant to
Commission Rule 10, 29 C.F.R. § 2200.10, the settled citation items were severed from the original cases
and were disposed of in a new case under Docket No. 20-0178.
7 The Act contemplates various grades of violations of the statute and its attendant regulations—“willful”;
“repeated”; “serious”; and those “determined not to be of a serious nature” (the Commission refers to the
latter as “other-than-serious”). 29 U.S.C. § 666.
8 Twenty-five witnesses testified at the trial. Eleven of the witnesses (including carpenters, electricians,
welders, and supervisors) were working for First Marine the day of the explosion. Four witnesses had been
working for subcontractor Thermal and Fabrication; one witness had been working for subcontractor
Rupke’s Blasting and Painting; two witnesses had been working for subcontractor Hutco, and one witness
had worked for subcontractor Wise Staffing. These nineteen witnesses were either aboard the William or
nearby on the dock string when the vessel exploded on January 18, 2018. Two management officials from
Western Rivers Boat Management Inc. (the owner of the William) testified, as did an expert in forensic fire
and explosion investigations hired by First Marine. An investigator for the Kentucky State Police testified,
as well as the two Compliance Safety and Health Officers that investigated the explosion.
9 All arguments not expressly addressed have nevertheless been considered and rejected. If any finding
is in truth a conclusion of law, or if any stated conclusion is in truth a finding of fact, it shall be deemed so.

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items of the Health citations except Citation 1, Item 7 and Citation 2, Item 2, which are
AFFIRMED, with penalty ASSESSMENTS of $12,934 and $129,336 respectively.
II. BACKGROUND
Western Rivers Boat Management Inc. (Western Rivers) owns and operates towing vessels.
The vessels push barges on the Mississippi River and its tributaries (Tr. 1138, 1143). Western
Rivers bought an inland river towboat in 2012 and renamed her the William E. Strait. The towboat
had three decks and was approximately 200 feet long and 45 feet wide. Two engines provided her
with 7,200 horsepower (Tr. 1144). On December 14, 2015, as the William was pushing barges
down the Mississippi River near Memphis, Tennessee, a barge being pushed by another towboat
struck her on the starboard stern. The William began to take on water and eventually sank (Tr.
1150).
Western Rivers initiated a salvage operation but suspended it due to the rising river and
recommenced salvage on January 25, 2016, after the river dropped. A salvage crew first pumped
off approximately 80,000 gallons of diesel fuel that remained aboard (Tr. 1155). Because the
William was a large towboat, Western Rivers hired three salvage companies to lift her (Tr. 1154).
The salvage crews placed a weave of large cables underneath the bow and the stern of the towboat
and used five derrick cranes to raise her. In addition to the damage sustained by the vessel during
the sinking, the weave of cables further damaged the bow and the stern of the towboat as the cranes
lifted her (Tr. 1157).
Western Rivers submitted a transit plan for the William to the United States Coast Guard
and towed her to First Marine’s shipyard on the Tennessee River in Calvert City, Kentucky, where
she was placed in dry dock on February 14, 2016 (Tr. 1159-61). After clearing the buildup of sand
and sediment that had accumulated in the vessel, workers partially disassembled her by cutting out
sections of the vessel, including the hull, to remove the engines and gearboxes. First Marine
subsequently removed the William from dry dock and moored her to the dock string10 at First
Marine’s shipyard in December 2017 (Tr. 1165-67, 1171).
First Marine contracted with several subcontractors to perform work on the William: Hutco,
a temporary staffing agency, provided welding and cutting workers; Rupke Blasting and Painting
10 The dock string comprises a series of barges permanently moored on the Tennessee River. Vessels are
moored to the dock string and workers access vessels from the individual barges of the dock string. The
barges are connected to the riverbed by spuds (long poles) which allow the barges to float up and down
with the vessels, but not back and forth (Tr. 616, 658, 1406, 1448).

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(Rupke)11 provided workers to pressure wash and paint water tanks; and Thermal Control and
Fabrication (Thermal) provided workers to install insulation. Wise Staffing, a temporary staffing
agency, also provided laborers for the project. First Marine itself had two welding and fitting crews
on the day shift, supervised by David Byrum and Brandon Carter (Tr. 843-44).
In mid-January of 2018, Calvert City, Kentucky, experienced chilly temperatures, and
wintry weather. Snow had fallen the night of January 18, and snow and ice remained on First
Marine’s dock and the surfaces of the William the morning of January 19 (Tr. 241, 461). The upper
engine room of the towboat is located on the main deck. It has exterior doorways on the starboard
and port sides of the vessel, and three interior doorways leading to the generator room, the control
room, and a hallway to the galley. The upper engine room also has several exterior window
openings (Ex. R-1). On January 18 and 19, 2018, doors and window glass were not installed in the
openings in the upper engine room. Workers had covered the openings with plastic tarps and
welder’s blankets to contain what heat there was in the room and to prevent wind from blowing in
(Tr. 61-63, 98-99, 127, 137, 182).
The lower engine room of the William is located on the bottom deck of the vessel. Workers
access the lower engine room from the upper engine room by using a stairway located in the middle
of the upper engine room floor (Ex. R-1). The two levels are not separated by a door or doors—
the stairway is open at its top and bottom. A Thermal employee stated the stairway area is “just
open really. You can see pretty good down there” from the upper engine room (Tr. 100).
Rupke, the company hired to provide pressure washing and painting services, had placed a
portable forced-air Remington heater (also known as a salamander) fueled by propane in the lower
engine room of the William on January 18 and 19, 2018 (Tr. 243; see also Ex. R-12, p. 35). The
heater was positioned at the bottom of the stairway and was visible from the upper engine room
(Tr. 99, 186-87, 246, 371).
On January 19, 2018, First Marine employees and subcontractor employees were working
aboard the William. Most of the workers had arrived at the shipyard before 7:00 a.m. and were
aboard the towboat by 7:15 a.m. Most of the workers who boarded the towboat immediately
noticed a gas odor, and one or two of them attempted to trace its origin (Tr. 66, 102-03, 139).
Workers moved the plastic aside from the doorways and window openings to air out the upper
11 The company’s name also appears as Rupcke in some exhibits and case documents. The Court uses the
spelling that appears in the trial transcript.

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engine room and, First Marine electrician Manuel Macario Garcia testified he could feel air
movement when the plastic was moved from the openings (Tr. 192-93, 197-98, 211, 282-84, 302,
313-14, 347-49, 368, 373). “Not all of [the upper engine room] was tarped up and you can feel the
cold coming through.” (Tr. 372.)
Rupke’s supervisor directed Rupke employee Zachary Ford to replace the propane tank
connected to the portable heater with a new propane tank to determine if the old tank was the
source of the gas smell (Tr. 243-45, 249).12 Ford disconnected the old tank and carried it to his
supervisor’s truck parked on the dock. He retrieved “a brand-new tank that had a blue plug in the
tank” from the truck, reboarded the vessel, and carried it to “the bottom deck of the boat at the
bottom of the stairs, and . . . hooked it up and turned it back on and started the heater back up. It
was just a process of elimination[.]” (Tr. 246.) At approximately 9:15 a.m., an explosion erupted,
killing a First Marine fitter and two Hutco welders, and seriously injuring several other employees
(Tr. 813).13
III. ANALYSIS
The fundamental objective of the Act is to prevent occupational deaths and serious injuries.
Whirlpool Corp. v. Marshall, 445 U.S. 1, 11 (1980). The Act “establishes a comprehensive
regulatory scheme designed ‘to assure so far as possible safe and healthful working conditions’ for
‘every working man and woman in the Nation.’ ” Martin v. Occupational Safety and Health
Review Comm'n (CF&I Steel Corp.), 499 U.S. 144, 147 (1991) (quoting 29 U.S.C. § 651(b)). “The
Act charges the Secretary with responsibility for setting and enforcing workplace health and safety
standards.” Id. To achieve this purpose, the Act imposes two duties on an employer, a general duty
to “furnish to each of his employees employment and a place of employment which are free from
recognized hazards that are causing or are likely to cause death or serious physical harm to his
employees,” 29 U.S.C. § 654(a)(1), and a specific duty to “comply with occupational safety and
12 Expert witness Michael Schulz explained that propane and propylene are odorless gasses.
Manufacturers add mercaptans to the odorless gases as a “safety strategy . . . so that leaks can be detected.
. . . Mercaptans are described as what’s called a high odor impact material. . . . [T]hey’ve often been
described by chemists as the stinkiest material liquid, gas or solid in the world. Biggest smell for the smallest
amount.” (Tr. 1289.)
13 Several of the injured workers testified at the trial, which began approximately two years after the
explosion. Some of them continued to suffer from the effects of the blast and were in noticeable physical
discomfort as they testified. One of the workers described his injuries: “Liver, my lungs and my spleen.
Broke all my ribs in the front. Broke them all in the back, plus my backbone. Broke my arm. Messed my
shoulder up. Broke my leg, my knee right above the kneecap.” (Tr. 70.)

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health standards promulgated under this Act.” Id. § 654(a)(2). Thus, each employee must “comply
with occupational safety and health standards and all rules, regulations, and orders issued pursuant
to this Act which are applicable to his own actions and conduct.” Id. § 654(b).
Pursuant to that authority, the standards at issue in this case were promulgated. See 29
U.S.C. § 665. Meanwhile, the Commission is assigned to carry out adjudicatory functions under
the Act and serves “as a neutral arbiter and determine whether the Secretary's citations should be
enforced over employee or union objections.” Cuyahoga Valley Ry. Co. v. United Transp. Union,
474 U.S. 3, 7 (1985) (per curiam). Thus, Congress vested the Commission with the “adjudicatory
powers typically exercised by a court in the agency-review context.” CF&I Steel Corp., 499 U.S.
at 151.
A. THE SAFETY CITATION (CASE NO. 18-1287)
1. Alleged General Duty Clause Violation
Under the law of the Sixth Circuit where this case arose,14 for alleged violations of the
general duty clause, the Secretary must demonstrate that: “(1) A condition or activity in the
workplace presented a hazard to employees; (2) The cited employer or the employer's industry
recognized the hazard; (3) The hazard was likely to cause death or serious physical harm; and (4)
A feasible means existed to eliminate or materially reduce the hazard.” Nelson Tree Servs., Inc. v.
Occupational Safety & Health Review Comm'n, 60 F.3d 1207, 1209 (6th Cir. 1995).
Citation 1, Item 1
In Citation 1, Item 1, the Secretary alleges on January 18 and 19, 2018, First Marine
committed a serious violation of the general duty clause by exposing employees on the William to
the hazard of asphyxiation, when “a carbon monoxide producing propane forced air heater was
used in the lower engine room.”15 (Compl. Ex. A p. 6 of 25.) The Court notes although the citation
14 Under the Act, an employer may seek review in the court of appeals in the circuit in which the violation
occurred, the circuit in which the employer’s principal office is located, or the District of Columbia Circuit.
29 U.S.C. § 660(a). The Secretary may seek review in the circuit in which the violation occurred or in which
the employer has its principal office. 29 U.S.C. § 660(b). “[I]n general, ‘[w]here it is highly probable that
a Commission decision would be appealed to a particular circuit, the Commission has ... applied the
precedent of that circuit in deciding the case—even though it may differ from the Commission's
precedent.’” Dana Container, Inc., 25 BNA OSHC 1776, 1828 n.10 (No. 09-1184, 2015), aff’d, 847 F.3d
495 (7th Cir. 2017). This case arose in Kentucky, located in the Sixth Circuit, where First Marine also has
its principal office. Therefore, the Court applies the precedent of the Sixth Circuit in deciding the case,
where it is highly probable that a Commission decision would be appealed.
15 Whavers recommended the Secretary cite First Marine for “the use of a forced air propane heater in an
enclosed space.” (Tr. 934) (emphasis added). However, the Secretary did not include the term “enclosed

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alleged the violation occurred on January 18 and 19, 2018, the testimony regarding the location
and use of the heater at issue relates almost entirely to the events of January 19, the day of the
explosion. The Court concludes the record regarding the location and use of the heater on January
18 is insufficient to establish that its condition presented a hazard. Thus, the Court restricts its
analysis to the alleged violation on January 19, 2018.
Did a Workplace Condition or Activity Present a Hazard to Employees?
As evidence of an asphyxiation hazard, the Secretary relies on the heater’s User’s Manual
& Operating Instructions, which warns, “Never use the heater in enclosed spaces[.]” (Ex. C-5, p.
1.) The Secretary argues the lower engine room was an “enclosed space” and the use of the heater
in it established the presence of an asphyxiation hazard. The maritime standards define the term
“enclosed space” as “any space, other than a confined space, which is enclosed by bulkheads and
overhead. It includes cargo holds, tanks, quarters, and machinery and boiler spaces.” 29 C.F.R. §
1915.4(q). A “confined space” is “a compartment of small size and limited access such as a double
bottom tank, cofferdam, or other space which by its small size and confined nature can readily
create or aggravate a hazardous exposure.” 29 C.F.R. § 1915.4(p).
First Marine does not dispute the cited heater was fueled by propane and was in use in the
lower engine room on January 18 and 19, 2018. However, First Marine argues the lower engine
room “was not an enclosed space ”and therefore, the Secretary failed to establish the use of the
heater presented an asphyxiation hazard (Resp’t’s Br., p. 62). First Marine argues that the
definition of an “enclosed space” cannot be expanded to encompass a three-sided compartment
with a stairway on the fourth side that opens to a large upper room. Whavers conceded the area
where the heater was located had bulkheads (or walls) on three sides, but the stairway leading to
the upper engine room was located on the fourth side. The area above the stairway was not enclosed
but opened into the larger upper engine room (Tr. 975-76; see also Ex. R-2). The record also
establishes workers had pushed the plastic tarps aside at the doorways and window openings to
space” in the alleged violative description of the citation, but rather, elected to include it only in the
paragraph addressing abatement. A “workplace hazard cannot be defined in terms of a particular abatement
method.” Otis Elevator Co., 21 BNA OSHC 2204, 2207 (No. 03-1344, 2007). First Marine failed to object
at trial that the evidence of the enclosed space was not within the issues raised in the pleadings, and at trial
the parties litigated the issue of whether the lower engine room was an enclosed space. “When an issue not
raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects
as if raised in the pleadings.” Fed. R. Civ. P. 15. Therefore, the Court concludes the issue of whether the
portable heater was used in an “enclosed space” was tried by consent of the parties.

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allow outside air to circulate in the engine rooms (Tr. 1181). The Court therefore concludes, as
established by the record, that the lower engine room was not an enclosed space within the meaning
of the maritime standards.16
Further, the heater’s User’s Manual allows for an exception to its prohibition on indoor
use of the heater: “INDOOR USE PERMITTED ONLY FOR: The temporary heating of
adequately ventilated buildings or structures under construction, alteration, or repair!” (Ex. C-5,
Bates page 000480.) Whavers agreed that on January 18 and 19, 2018, the William was under
construction, alteration, or repair (Tr. 970). The Secretary shifted ground at the trial to contend
that even if the lower engine room was not an enclosed space, the upper engine room was not
adequately ventilated because the door and window openings of that room were covered with
plastic to shield against the wind and freezing temperatures. Thus, the Secretary’s assertion that
“[u]nless fresh air was being pumped into the space (which there is no evidence of), the space is
exactly the type of space where the heater should not be used.” (Compl’t’s Br., pp. 60-1, n. 39.)
The Court finds no merit in this argument. The record is replete with undisputed testimony that
the plastic tarps on the upper engine room door and window openings had been moved aside to air
out the upper engine room once workers detected the gas odor (Tr. 192-93, 197-98, 211, 282-84,
302, 313-14, 347-49, 368, 372-73).17
16 The Secretary claims post-explosion photographs of the area where the heater was located the morning
of January 19, 2018, “are the best evidence” that the heater was being used in an enclosed space, which
according to the Secretary, is corroborated by Whavers’ testimony the heater was being used in a
compartment “off to the side of the [lower] engine room,” which sits below the water line. (Compl’t’s Br.,
p. 60) (citing Tr. 971-72; Ex. C-23, Ex. C-24, Ex. C-25). The Court finds no merit in this argument. The
Court does not find persuasive and therefore does not credit the testimony of Whavers with respect to the
location of the heater prior to the explosion since he observed the location of the heater after the explosion.
Rupke employee Ford testified the heater was at the bottom of the stairway when he replaced the propane
tank connected to it (Tr. 246). Multiple employees also testified they observed the heater at the foot of the
stairway before the explosion (Tr. 99, 186-87, 246, 371). The eyewitness testimony is corroborated by the
testimony of Michael Schulz, a forensic fire and explosion investigator and analyst called as an expert
witness by First Marine. He inspected the William on January 22, 2018, three days after the explosion,
found the Remington heater at issue and examined it (Tr. 1332-33). Schulz testified he did not find the
Remington heater at the base of the stairs where workers testified it had been used, but “closer towards the
aft of the vessel.” (Tr. 1302.) Schulz opined the dislocation resulted from “the explosion dynamics” that
propelled objects “away from the stairs because of the pressure wave coming from” the explosion (Tr.
1302). The Court credits the testimony of Schulz and the eyewitnesses and finds the heater was at the
bottom of the stairway before the explosion.
17 The Secretary also asserts in his post-trial brief that the size of an outside air opening required for
adequate ventilation of the 125,000 BTU heater would be 3.6 square feet (Compl’t’s Br., p. 60, n. 39).
However, the Secretary provided no measurement or calculations as to how he concluded 3.6 square feet
was required, cited to no evidence in the record establishing the actual size of the outside air openings, and

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Since the Secretary relied on the User’s Manual & Operating Instructions of the cited
heater to set the parameters of the heater’s safe use, he has failed to establish First Marine permitted
the heater to be used improperly, either by operating it in an enclosed space or by operating it
without adequate ventilation. The Court therefore concludes the Secretary failed to establish use
of the Remington heater presented an asphyxiation hazard in the workplace and Item 1 must be
vacated.
2. Alleged Violation of Occupational Safety and Health Standards
To establish a prima facie violation of applicable occupational safety and health standards,
the Secretary must show by a preponderance of the evidence that “ ‘(1) the cited standard applies
to the facts, (2) the requirements of the standard were not met, (3) employees had access to the
hazardous condition, and (4) the employer knew or could have known of the hazardous condition
with the exercise of reasonable diligence.’ ” Mountain States Contractors, LLC v. Perez, 825 F.3d
274, 279 (6th Cir. 2016) (internal citation omitted).
Applicability of the Shipyard Employment Standards
Except for the alleged general duty clause violation, all of the remaining citations and items
in dispute in both cases involve alleged violations of various standards found in Part 1915—
Occupational Safety and Health Standards for Shipyard Employment (Shipyard Standards), 29
C.F.R., Part 1915, which, except where otherwise provided, “shall apply to all ship repairing,
shipbuilding and shipbreaking employments and related employments.” 29 C.F.R. § 1915.2(a).18
Since First Marine was in the process of repairing or rebuilding the William at the time of the
explosion, the Court concludes the specifically cited Shipyard Standard in each citation item
applies unless a specific “applicability” provision applies, where the Court will separately address
the first prong of the Mountain States test as it relates to that specific “applicability” provision.
offered no evidence of how the actual ventilation was inadequate since the plastic tarps on the upper engine
room door and window openings had been moved aside to air out the upper engine room once workers
detected the gas odor.
18 “Shipyard employment” means “ship repairing, shipbuilding, shipbreaking and related employments.”
29 C.F.R. § 1915.2(i). “Ship repair” and “ship repairing” mean “any repair of a vessel including, but not
restricted to, alterations, conversions, installations, cleaning, painting, and maintenance work.” 29 C.F.R.
§ 1915.2(j). “Shipbuilding” means “the construction of a vessel including the installation of machinery and
equipment.” 29 C.F.R. § 1915.2(k). “Related employment” means “any employment performed as an
incident to or in conjunction with ship repairing, shipbuilding or shipbreaking work, including, but not
restricted to, inspection, testing, and employment as a watchman.” 29 C.F.R. § 1915.2(m).

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Citation 1, Item 4
In Citation 1, Item 4 the Secretary alleges First Marine committed a serious violation of §
1915.74(c)(2), a vessel access provision, on January 19, 2018 when a ramp was not provided to
access the vessel. More specifically, the Secretary asserts First Marine violated this standard when
the “William was tied to the dock in a manner that would allow it to float away from the dock
creating a space of approximately 2 feet that an employee could fall through between the deck and
dock.” (Compl. Ex. A p. 10 of 25.) The Shipyard Standards mandate that with respect to access to
barges and river towboats, either a ramp or a safe walkway shall be provided “[u]nless employees
can step safely to or from the wharf, float, barge, or river towboat[.]” 29 C.F.R. § 1915.74(c)(2).19
“When a walkway is impracticable, a substantial straight ladder, extending at least 36 inches above
the upper landing surface and adequately secured against shifting or slipping, shall be provided.”
29 C.F.R. § 1915.74(c)(2). “When conditions are such that neither a walkway nor a straight ladder
can be used, a Jacob's ladder . . . may be used.” Id.
Did First Marine Meet the Requirements of the Standard?
First Marine moors vessels in its shipyard to a dock string, a series of barges tied together
to provide a walking and working surface on the river. After First Marine moved the William from
dry dock and moored her with her starboard side next to the dock string barge, workers could board
the towboat either by stepping from the dock string barge to the deck of the towboat or walking
down a set of stairs to the main dock (Tr. 406-04, 1449).20 First Marine did not provide a ramp or
walkway for access between the dock string barge and the towboat (Tr. 959). Handrails line the
edge of the dock string. Workers accessed the William by passing through a gateway in the
handrails on the dock string barge to which the vessel was moored (Ex. R-10, Bates page 001538).
19 A ramp must be provided in conformity with § 1915.74(c)(1), which provides: “Ramps for access of
vehicles to or between barges shall be of adequate strength, provided with side boards, well maintained and
properly secured.” 29 C.F.R. § 1915.74(c)(1). A walkway must be provided in conformity with §
1915.74(a)(7), which mandates that “[i]f the foot of the gangway is more than one foot away from the edge
of the apron, the space between them shall be bridged by a firm walkway equipped with railings, with a
minimum height of approximately 33 inches with midrails on both sides.” 29 C.F.R. § 1915.74(a)(7). A
Jacob's ladder must “be of the double rung or flat tread type … shall be well maintained and properly
secured[,]” and “shall either hang without slack from its lashings or be pulled up entirely.” 29 C.F.R. §
1915.74(d).
20 First Marine electrician Victor Pineda explained the stairs lead to “the carpenter shop, and you can take
a right and you can get on the boat that way, too.” (Tr. 407.)

12
Hutco supervisor Gregory Voss fabricated a metal step and attached it to the edge of the
towboat next to the gate on the dock string barge so workers could step on it as they boarded the
vessel (Tr. 658-59; see also Ex. C-11, Ex. C-12). Voss fabricated the step in response to the
inclement weather. “Normally, we wouldn’t use a step on a sunshiny day, but it was snowing. It
had been snowing, icing up, and . . . because the boat was tilted in the water, it was actually real
slippery, and so we put the step there and leveled it off, so you weren’t stepping onto something
that was slick.” (Tr. 661.)
As indicated supra, the cited standard requires the employer to provide a ramp or safe
walkway “[u]nless employees can step safely to or from the . . . river towboat.” The Secretary
contends the fabricated step was insufficient to allow employees to step safely between the dock
and the towboat. Thus, the Secretary asserts in the citation that access to and from the towboat was
not safe because the way the towboat was secured to the dock string “would allow it to float away
from the dock creating a space of approximately 2 feet that an employee could fall through between
the deck and the dock.” No evidence in the record supports this claim that workers were exposed
to a gap between the William and the dock string as wide as 2 feet.
Welder B.K. had worked for First Marine for “a couple of years” at the time of the
explosion (Tr. 459). He stated the towboat generally was drawn in “tight” to the dock string unless
another boat passed, creating a wake. In that event, he would “[w]ait a second or jump across. . . .
If it was a problem, you could go to your manager and they would tighten the line.” (Tr. 514.) He
estimated he had seen the towboat drift 12 or 13 inches from the dock string (Tr. 534). Deron
Conaway, First Marine’s safety director, testified in a deposition that he had observed the towboat
drift “as much as 18 inches or more” from the dock string (Tr. 897).
James A. Lang I of Thermal testified he remembered the towboat was “snugged up to the
dock” the day of the explosion (Tr. 80). His son, James A. Lang II estimated any gap between the
dock string and the towboat was “six or seven inches probably” (Tr. 107.) Tyler Wedeking, also
of Thermal, stated the towboat “was pulled up tight against the . . . dock string. There [were]
always gaps, but you just stepped across.” (Tr. 199.) First Marine carpenter Matthew McCoy and
First Marine electrician Manuel Macario Garcia stated they had no trouble stepping over the gap,
and it caused them no safety concerns (Tr. 330, 374). Hutco supervisor Gregory Voss, who
fabricated the step for the towboat, testified he had seen gaps “maybe up to about six inches.” (Tr.
661.)

13
Whavers recommended the Secretary cite First Marine for a violation because “depending
on the action on the river due to vessel traffic or wind, the William would move away from the
dock.” (Tr. 944.) He experienced this condition himself as he boarded the towboat during his
inspection. “[W]hen I stepped onto the vessel it was a gap of about 10 inches. There was no
handhold when you stepped down to the [fabricated step]. . . . So, when you step down, you step
directly onto the top of the platform, and we had nothing to hold onto.” (Tr. 944.) Whavers
described the hazard created by the absence of a ramp or walkway. “The hazard is that if there is
a wake while you’re stepping from the dock to the vessel, you can receive a knee or ankle injury.
If the gap is such that it’s large enough for a person to pass, you could actually fall between the
barge and the dock to water. And that’s a potential crushing or drowning hazard.” (Tr. 945.)
However, Whavers admitted that none of the employees he spoke with during his inspection told
him they encountered difficulty boarding or disembarking from the towboat (Tr. 944).
Jason Strait, one of the managers of the family-owned Western Rivers, testified that he
believed Whavers’s perception of access to the William was skewed based on his observations of
the towboat following the explosion.
[W]e had to move the boat after the explosion. It was tied off. It was in a good spot.
We had a breakaway [of barges] from a fleet that's unrelated to our facility upriver
and some barges had come down the river. Well, there's multiple tugs running back
and forth grabbing these barges, moving things around. It was just an unusual
amount of traffic which made that boat come a little looser to its moorings. And
when Mr. Whavers got there that's how he [saw] it. Any normal operation is not
that way and we would have pulled it tight.
(Tr. 1450.) Strait testified that workers could support themselves on the handrails and swinging
gate as they stepped from the dock string barge to the William. “[T]he handrails that you see [in
photographic Exhibit R-10, Bates page 001538,] that are running vertical along the side are there,
but also the gate itself is used as a handrail. . . . It swings both ways, and when it swings it actually
stops at a 90-degree angle. That way you can hang on to it, lean on it when you’re accessing that
point.” (Tr. 1409-10.)
First Marine focuses on the conditional clause that opens the cited standard: “Unless
employees can step safely to or from the wharf, float, barge, or river towboat,” then a ramp or
walkway is required. First Marine argues guidance for determining whether employees can step
safely to or from the towboat is provided by § 1915.74(a)(7), which is referred to in the cited
standard. The Court agrees.

14
The well-established rule of statutory construction is that “each part or section
should be construed in connection with every other part or section so as to produce
a harmonious whole.” 2A Sutherland Statutory Construction § 46.05 (5th ed.
1992). . . . See also General Motors Corp., Electro–Motive Div., 14 BNA OSHC
2064, 2066 & n. 8, 1991 CCH OSHD ¶ 29,240, p. 39,165 & n. 8 (No. 82–630,
1991) (statutes should be construed so as to avoid conflict between them).
Morrison-Knudsen Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1107 (No. 88-0572,
1993). Section 1915.74(c)(2) explicitly incorporates § 1915.74(a)(7), which requires the employer
to provide a walkway “[i]f the foot of the gangway is more than one foot away from the edge of
the apron[.]” 29 C.F.R. § 1915.74(a)(7). The Court concludes that since a walkway is only required
if the gangway falls short by more than a foot, employees “can step safely to or from” a vessel if
the gap is one foot or less.
Here, except for Conaway and B.K., the workers who testified about the gap between the
dock string barge and the William gave estimates that were less than 12 inches. B.K. estimated the
gap to be 12 or 13 inches. The higher number exceeds the one-foot criterion by only an inch. The
Court has no basis for determining which of B.K.’s estimates of 12 or 13 inches is more accurate.
His testimony is an insufficient basis for finding the gap he observed exceeded one foot.
Conaway’s testimony he observed an 18-inch gap is an outlier. He did not state in his deposition
testimony the date he observed a gap that wide, and at trial he did not remember observing such a
gap (Tr. 896). Item 4 of the Safety Citation alleges the violation of § 1915.74(c)(2) occurred “[o]n
or about January 19, 2018.” There is no evidence showing Conaway’s observation of an 18-inch
gap between the dock slip barge and the towboat occurred during the cited timeframe.
Further, Whavers recommended the Secretary cite First Marine for violating §
1915.74(c)(2) based on his own observations of the altered conditions of the shipyard that existed
after the explosion. However, no workers boarded the William the day of his inspection and
therefore no workers were exposed to any violative condition existing when Whavers made his
observations. Finally, the addition of the fabricated step and the installation of the handrails and
swinging gate on the dock slip barge demonstrate additional measures were in place to aid workers
in stepping safely to and from the towboat. The Court concludes the Secretary has failed to
establish a violation of § 1915.74(c)(2) and Item 4 must be vacated.

15
Citation 1, Item 10
In Citation 1, Item 10 the Secretary alleges First Marine committed a serious violation of
§ 1915.503(b)(2)(ii), a shipyard fire protection provision, from January 17 to January 19, 2018,
when it failed to “make sure that unattended fuel gas and oxygen hose lines or torches were in
enclosed spaces for no more than 15 minutes[.]” (Compl. Ex. A p. 19 of 25.) The cited standard
mandates the employer must make sure that “[n]o unattended charged fuel gas and oxygen hose
lines or torches are in enclosed spaces for more than 15 minutes[.]” 29 C.F.R. § 1915.503(b)(2)(ii)
(emphasis added).
Does the Cited Standard Apply to the Facts?
For the cited standard to apply to the facts, the unattended fuel gas and oxygen hose lines
or torches had to be in “enclosed spaces.” The deck locker of the William is located on her forward
lower deck (Ex. R-1). When the tugboat is operational, the deck locker is a storage space for
supplies and equipment (Tr. 478.) The compartment was approximately 21 feet long and 7 feet
wide (Ex. C-32, p. 1) The room had four walls, but the overhead had not been completed, “just the
framework for the main deck.” (Tr. 479.) There were two openings in the overhead. One opening
was rectangular, measuring approximately 5 feet, 8 inches by 6 feet, 6 inches. The other opening
was circular (for the capstan) and measured approximately 2½ feet in diameter (Ex. C-32, p.1).
The capstan opening was covered with plywood, and the rectangular opening was covered by
boards when they were not being used to hand material down to the First Marine employees (Tr.
480-81).
The Secretary contends the deck locker was an enclosed space. The Secretary cites
Offshore Shipbuilding, Inc., 18 BNA OSHC 2169 (No. 97-257, 2000), in support of his position
that the openings in the deck locker overhead do not preclude finding the compartment was an
enclosed space. He contends that in Offshore Shipbuilding, the Commission held “a ballast tank,
measuring ‘12 feet by 13 feet by 19 feet’ to be an ‘enclosed space,’ even though ‘[i]t had three
openings: two 18-22-inch diameter holes in the deck for access, and a hole approximately 10 feet
by 18 inches running horizontally approximately 4 feet above the floor of the tank.’” (Compl’t’s
Br., p. 54.) Thus, according to the Secretary, “[t]he forward compartment where [the fitter] and
[B.K.] were working is an enclosed space. The space was enclosed by walls and overhead. . . . The
fact that there may have been two or three partially uncovered openings in the ceiling does not
transform the space into something other than an enclosed space.” (Compl’t’s Br., p. 64, n. 10.)

16
First Marine disagrees. It argues,
Both open areas above the lower forward hold remained open while [B.K.] and [the
fitter] worked below, except for when they would loosely place boards over the
openings because it had gotten too cold or so they could safely walk across the area.
(Tr. 480-81.) Even then, the boards had gaps between them, which prevented them
from creating even a makeshift ceiling. (Id.) In other words, at no time on January
19, 2018 was the lower forward hold closed in by a ceiling.
(Resp’t’s Br., p. 32.)
The Secretary mischaracterizes the Commission’s holding in Offshore Shipbuilding.
Commissioner Visscher dissented on the issue of the ballast tank being classified as an enclosed
space at the time of the inspection.
The judge found that the ballast tank was “an enclosed space, rather than a confined
space” and the majority agrees with the judge. I agree that the ballast tank when
completed would meet the standard's definition of an enclosed space.
The record does not show, however, that the ballast tank was enclosed when [the
employee] was welding deck plates on it before he was removed from this job. As
the compliance officer testified, the deck plates [the employee] was welding made
up the top of the tank, and he was in the process of “welding himself in; in other
words, enclosing it as he went.” Though the record is not entirely clear, the
strongest inference to be made is that [the employee] had not completed the process
of “enclosing himself in” before he was removed from the job. The compliance
officer herself agreed that “a lot” of the top of the tank had been open when [the
employee] began welding that morning, and another employee was assigned to
complete this welding job after [the employee] was removed.
Offshore Shipbuilding, 18 BNA OSHC at 2179 (emphasis in original). Contrary to the Secretary’s
characterization, a footnote by the majority makes clear the parties did not litigate the issue of
whether the ballast tank was an enclosed space.
Commissioner Weisberg notes that the position advanced by Commissioner
Visscher in his dissent, namely that the ballast tank did not become an enclosed
space until after the employee had completed the process of “enclosing himself in,”
was neither raised nor argued by the company. Moreover, the company’s expert
witnesses testified that it was an enclosed space.
Id. at 2180 n. 4.
The Court concludes Offshore Shipbuilding does not support the Secretary’s argument that
openings in a vessel compartment’s overhead do not affect its classification as an enclosed space.
Further, as the Court concluded supra, the maritime standards define the term “enclosed space” as
“any space, other than a confined space, which is enclosed by bulkheads and overhead. It includes

17
cargo holds, tanks, quarters, and machinery and boiler spaces.” 29 C.F.R. § 1915.4(q). As
commonly defined, “enclose” means “surround or close off on all sides.” The New Oxford
American Dictionary (2d ed. 2005) (emphasis added). Two large openings in the overhead means
the space is not closed off on its top side. When the plywood and the boards are removed from the
openings, the deck locker is not an enclosed space.
However, the issue is not so clear when the plywood and boards are in place over the
openings. First Marine is creative in its interpretation of the testimony when it claims B.K. and the
fitter “would loosely place boards over the openings because it had gotten too cold or so they could
safely walk across the area.” (Resp’t’s Br., p. 32) (citing Tr. 480-81). “Even then, the boards had
gaps between them, which prevented them from creating even a makeshift ceiling.” (Id.) (citing
id.). However, the cited testimony never mentions “loosely,” “cold,” “safely walk[ing],” or
“gaps.” Contrary to First Marine’s argument, B.K. did not testify there were gaps between the
boards but testified that the opening was “completely covered up.”21
The Secretary is alleging B.K. and the fitter discovered gas flowing from a gas hose when
they arrived at the deck locker the morning of January 19. At that time, presumably the openings
were covered because B.K. and the fitter had not yet started receiving the angle iron pieces lowered
through the openings. The Court concludes the deck locker was an enclosed space when the two
overhead openings were covered with plywood and boards.22 Because the allegation is that an
unattended gas hose in the deck locker had gas flowing through it overnight, the Court concludes
the cited standard applies in those circumstances.
21 Q.: Was anything covering that [capstan] hole on the morning of the accident?
B.K.: Yes, plywood.
Q.: Okay. Now, I'd like to talk about the hole -- the six by eight foot hole was anything covering that
on the morning of the accident?
B.K.: Yes. Two by twelves.
Q.: Okay. Was the hole completely covered up?
B.K.: Yes.
Q.: You indicated previously that you set up some fans in order to ventilate that space?
B.K. Yeah.
Q.: Did you move the boards in order to set up the fans?
B.K. Yeah, that's what held the fans up there the boards. I moved it back and slid it back so to hold the
fans.
Q.: Okay. You actually used the boards to hold the fans in the space?
B.K.: Right. Yeah.
(Tr. 480-81)
22 The Court finds the deck locker was not an enclosed space when the openings in the overhead were
not covered by plywood and boards.

18
Did First Marine Meet the Requirements of the Standard?
The Secretary relies on B.K.’s signed witness statement given to Whaver and his deposition
testimony where he stated the fitter left his gas hose in the deck locker overnight and propylene
was flowing through it when they arrived at the deck locker the next day, as evidence the standard
was violated. (Compl’t’s Br., pp. 64-5) (citing Tr. 471, 536-537). Hutco superintendent Voss also
testified the fitter informed him that morning that “he believed the night shift had left his torch
hose on, and it filled the bow up with a gas leak.” (Tr. 363.) This corresponds with B.K.’s OSHA
statement and his deposition testimony. It is possible B.K. and the fitter, who went directly to the
deck locker after boarding the towboat, assumed the strong gas odor they smelled as they
descended the deck locker steps was coming from the deck locker, and they assumed a gas hose
was left on. At that time, they were not aware the strong odor of gas was prevalent in other areas
of the vessel.
At trial, B.K. recanted his previous statements, which had been taken shortly after the
accident and while he was still taking pain medication and “wasn’t right.” He testified at trial that
he had turned off the gas at the manifold on January 18th, prior to quitting work. (Tr. 490, 536,
537, 538). B.K. was seriously injured in the explosion on January 19, 2018. It is not surprising his
memory of that day is confused. It is apparent he changed his testimony on several key points from
the dates he provided his OSHA statement and deposition testimony to the time he testified at the
trial. B.K. appeared anxious and easily suggestible during his trial testimony. The Court therefore
does not credit his testimony where it cannot be corroborated.
B.K.’s testimony is corroborated by video evidence that appears to show him turning off
the gas and disconnecting the hose at 3:37 p.m. on January 18, the day before the explosion (Ex.
R-35). B.K.’s testimony is also corroborated by Voss’s testimony that Hutco employees ended
their shift after the First Marine employees ended theirs every day and there was no night shift
crew working on the vessel, and that he would have noticed a torch hose connected to the manifold
the evening of January 18, 2018, as he finished his shift and he did not observe one (Tr. 670-71,
694).
As indicated supra, the cited standard mandates the employer must make sure that “[n]o
unattended charged fuel gas and oxygen hose lines or torches are in enclosed spaces for more than
15 minutes[.]” 29 C.F.R. § 1915.503(b)(2)(ii) (emphasis added). OSHA interprets a charged fuel
line to mean “any line that is connected to the manifold and filled with gas.” Fire Protection in

19
Shipyard Employment, 69 FR 55677 (Sept. 15, 2004). The Secretary’s evidence rests on B.K.’s
witness statement and deposition testimony, which he recanted at the trial, and on superintendent
Voss’s testimony that the fitter informed him welders on the night shift left the gas hose on
overnight. However, several gaps appear in this evidence.
Superintendent Thorn and supervisor Voss stated the night shift welding crew did not work
that night. And the record appears to show B.K. turned off the gas at the manifold at the end of his
shift on Thursday, January 18. Hutco foreman Voss stated there was no torch hose connected to
the manifold when he ended his shift after B.K. and the fitter had left for the day on January 18,
2018 (Tr. 670-71, 694). If the gas hose was left in the deck locker, it was not a “charged line” when
B.K. and the fitter ended their shift that day. If gas was flowing through the hose when B.K. and
the fitter arrived in the deck locker shortly after 7:00 on Friday morning, there is no evidence the
gas had been turned on for more than 15 minutes. The Court concludes the Secretary has failed to
establish a violation of § 1915.503(b)(2)(ii) and Item 10 must be vacated.
Citation 1, Item 11
In Citation 1, Item 11 the Secretary alleges First Marine committed a serious violation of
§ 1915.503(b)(2)(iv) from January 17 to January 19, 2018, by failing to ensure employees rolled
back disconnected oxygen and propylene hose lines to the supply manifold or to open air. (Compl.
Ex. A p. 20 of 25.) The cited standard provides in relevant part that the employer must make sure
that “[a]ll disconnected fuel gas and oxygen hose lines are rolled back to the supply manifold or
to open air to disconnect the torch[.]” 29 C.F.R. § 1915. 503(b)(2)(iv).
Did First Marine Meet the Requirements of the Standard?
In his witness statement and in his deposition testimony, as well as his trial testimony, B.K.
established that the fitter removed his torch cutter from the torch hose while he was inside the deck
locker. (Tr. 490, 492-94.) Thus, the Secretary argues B.K. testified without contradiction that his
co-worker disconnected his cutting torch inside the deck locker at the end of each shift. According
to the Secretary, this action violated the cited standard, which requires the employer to ensure
employees disconnect torches at the manifold or in open air. First Marine argues that
“disconnecting a torch in the lower forward hold is not a violation of this standard because the
space was open to the air.” (Tr. 69). The Court finds no merit in First Marine’s position.
As commonly defined, “open air” means “a free or unenclosed space outdoors.” The New
Oxford American Dictionary (2d Ed. 2005) (emphasis added). A ship’s compartment with two

20
openings in the overhead is not in open air. First Marine also claims B.K. said the fitter removed
his torch in the deck locker only in his OSHA statement “while he was under the influence of
medication” and in his deposition testimony, “which was likely a result of [B.K.] reviewing his
statement prior to the deposition.” (Resp’t’s Br., p. 70.) This is incorrect. B.K. reaffirmed his
OSHA statement and deposition testimony at the trial. When asked how he knew the fitter removed
the torch while he was in the deck locker, B.K. stated, “It was his personal torch. He took it home
every night” (Tr. 494.) B.K. stated he had observed him previously removing the torch in the deck
locker. B.K. had worked with the fitter for at least a month on the William and was familiar with
his work practices. The Court concludes the Secretary has established that First Marine failed to
meet the requirements of the cited standard.
Did Employees Have Access to the Hazardous Condition?
B.K. and the fitter both worked in the deck locker where the torch was disconnected from
the gas hose. The Court concludes the Secretary has established employees were exposed to a fire
or explosion hazard.
Did First Marine Know of the Hazardous Condition?
As indicated supra, to establish a prima facie violation, the Secretary must show by a
preponderance of the evidence that First Marine “knew or could have known of the hazardous
condition with the exercise of reasonable diligence.” Mountain States Contractors, 825 F.3d at
279. The Secretary does not allege First Marine had actual knowledge of the violation, but rather,
argues First Marine could have known of the hazardous condition with the exercise of reasonable
diligence. According to the Secretary, B.K. “testified that [the fitter] did this every day. And there
is proof that the employees regularly left their lines inside vessels. Thus, First Marine should have
known that employees were not rolling their lines back to open air before removing their torches.”
(Compl’t’s Br., p. 68.)
The Court concludes there is insufficient evidence to show constructive knowledge of the
violation on the part of First Marine. B.K. and the fitter worked alone in the deck locker. There is
no evidence of how long it took the fitter to remove his torch each day (but it was presumably done
quickly). Nothing in the record indicates a First Marine supervisor ever saw the fitter remove his
torch in the deck locker or had reason to know he was doing so. “Absent evidence showing how
long the violative condition existed, we are unable to evaluate whether a reasonably diligent
inspection by the foreman … would have informed [the company] of the deceased employees

21
failure[.]” Thomas Indus. Coatings, Inc., 23 BNA OSHC 2082, 2086 (No. 06-1542, 2012). See,
also, Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2196-97 (No. 90-2775, 2000) (concluding
that in the absence of any evidence indicating how long the violative conditions had been in
existence, we are unable to evaluate whether [the employer] could have known of them even if it
had been reasonably diligent in inspecting its equipment”), aff'd, 268 F.3d 1123 (D.C. Cir. 2001);
Ragnar Benson, Inc., 18 BNA OSHC 1937, 1940 (No. 97-1676, 1999) (concluding that
constructive knowledge was not shown where lack of evidence of violation's duration precluded
Commission from determining whether employer could have known of conditions with exercise
of reasonable diligence). Thus, the Court concludes the Secretary has not established First
Marine’s knowledge of the violative conduct and Item 11 must therefore be vacated.
B. THE HEALTH CITATION (CASE NO. 18-1288)
Citation1, Items 4a, 4b, 5
and
Citation 2, Item 123
In Citation 1, Item 4a, the Secretary alleges First Marine committed a serious violation of
§ 1915.12(a)(1)(ii) when it “did not ensure that spaces and adjacent spaces that contain or have
contained combustible or flammable liquids or gases24 were visually inspected25 and tested by a
competent person to determine the atmosphere's oxygen content prior to initial entry into the space
by an employee.” (Compl. Ex. A p. 14 of 25.) More specifically, the Secretary alleges on or about
January 19, 2018, First Marine exposed employees to “asphyxiation hazards” when it allegedly
“required employees to enter spaces to perform work . . . and did not ensure a competent person
tested the atmospheres of the space to determine the oxygen content prior to initial entry into the
space by employees[.]”26 (Id.) The cited standard provides the employer shall ensure that “[s]paces
23 The Court groups these citations and items together since the analysis and disposition is the same for
each.
24 Aboard the William, workers used propane, propylene, diesel, and kerosene in their equipment and
heaters. These substances are flammable and combustible. The heaters produced carbon monoxide, a toxic
gas (Tr. 1041-42). Thus, the space where the work was being performed contained “combustible or
flammable liquids or gases” and “liquids, gases, or solids that are toxic, corrosive or irritant.”
25 A “visual inspection” is “the physical survey of the space, its surroundings and contents to identify
hazards …” 29 C.F.R. § 1915.11(b).
26 Although only the introductory paragraph of Item 4a alleges First Marine failed to ensure spaces were
“visually inspected” and tested, the Secretary does cite in his brief to the deposition of First Marine’s Rule
30(b)(6) witness that admitted a “competent person did not visually inspect or test any of the spaces on the
William in the 12-hour period prior to the explosion.” (See Compl’t’s Br., p. 69; Ex. C-35, p. 21) (emphasis

22
and adjacent spaces that contain or have contained combustible or flammable liquids or gases” are
“visually inspected and tested by a competent person to determine the atmosphere's oxygen content
prior to initial entry into the space by an employee[.]” 29 C.F.R. §1915.12(a)(1)(ii) (emphasis
added).
In Citation 1, Item 4b, the Secretary alleges First Marine committed a serious violation of
§ 1915.12(c)(1)(ii) on or about January 19, 2018, by exposing employees to “inhalation hazards”
when it allegedly “allowed employees to enter spaces to perform work” and “did not ensure a
competent person tested to determine air concentration of toxics … prior to initial entry into the
space by employees[.]” (Compl. Ex. A p. 15 of 25.) The cited standard provides the employer shall
ensure that “spaces or adjacent spaces that contain or have contained liquids, gases, or solids that
are toxic, corrosive or irritant are … [t]ested by a competent person prior to initial entry by an
employee to determine the air concentration of toxics, corrosives, or irritants within the space.” 29
C.F.R. §1915.12(c)(1)(ii) (emphasis added).
Both Items 4a and 4b require testing (and also a visual inspection with Item 4a) by a
competent person prior to “initial entry.” The Secretary contends compliance is required “prior to
entry” by employees. (Compl’t’s Br., p. 70.) And it was clear at trial that the Secretary interpreted
the requirements to mean testing every day before workers entered the indicated spaces, or as the
Secretary asserts in his post-trial brief, “prior to employees entering the space,” which “was not
done on the day of the accident.” (Id. p. 71.) “Entry” means “the action by which a person passes
through an opening into a space.” 29 C.F.R. § 1915.11(b). The Secretary’s position is contrary to
the plain language of the cited provisions, which do not require compliance prior to “entry,” but
rather, require compliance prior to “initial entry.”
Although “initial entry” is not defined in the Shipyard Standards, it is defined in its
preamble. Where “the language of the standard is susceptible of different meanings, the preamble
is the best and most authoritative statement of the Secretary's legislative intent.” Healy Tibbitts
Builders, Inc., No. 15-1069, 2020 WL 5934209, at *3 (OSHRC Sept. 30, 2020). The preamble
addresses the issue of “initial entry” at length and indicates “for the purposes of this rule, the term
‘initial entry’ is interpreted by OSHA to mean the first entry into a space.” Confined and Enclosed
Spaces and Other Dangerous Atmospheres in Shipyard Employment (Preamble), 59 FR 37816-01
added). Therefore, even if Item 4a was unartfully drafted, the issue of visual inspections was tried by
consent.

23
at 37832 (July 25, 1994) (emphasis added).27 The Court therefore rejects the Secretary’s trial
interpretation that the “initial” entry must be met “each workday or shift.” The Court concludes
that to prove a violation the Secretary must establish First Marine failed to visually inspect and/or
test prior to the “initial entry,” meaning prior to the “first entry into a space.”
In Citation 1, Item 5, the Secretary alleges First Marine committed a violation of
§1915.12(b)(1)(i)28 on January 19, 2018, by “exposing employees to fire and explosion hazards”
when it permitted “employees to enter spaces to perform work . . . and did not ensure a competent
person visually inspected the spaces for the presence of combustible or flammable liquids prior to
initial entry into the space by employees[.]”(Compl. Ex. A p. 16 of 25) (emphasis added.) The
cited standard mandates that the employer shall ensure that spaces and adjacent spaces that contain
or have contained combustible or flammable liquids or gases are “inspected visually by the
competent person to determine the presence of combustible or flammable liquids.” 29 C.F.R. §
1915.12(b)(1)(i). Therefore, even though the cited standard does not by its express language, limit
the visual inspections to prior to “initial entry,” the Secretary has only charged First Marine with
an alleged violation prior to “initial entry,” and the Court therefore limits its analysis to the initial
entry.29
In Citation 2, Item 1, the Secretary alleges First Marine committed a testing violation of
§1915.12(b)(1)(ii) on January 19, 2018, by “exposing employees to fire and explosion hazards”
when it permitted “employees to enter spaces to perform work . . . where flammable gas was
present, filling the space and adjacent spaces, and did not ensure a competent person tested to
27 This does not mean an employer can test spaces once and never again concern itself with potentially
dangerous atmospheres in its workplace. Retesting is required under § 1915.15 (Maintenance of Safe
Conditions) when conditions change. For example, § 1915.15(e) provides: “After a competent person has
conducted a visual inspection and tests required in §§ 1915.12, 1915.13, and 1915.14 of this part and
determined a space to be safe for an employee to enter, he or she shall continue to test and visually inspect
spaces as often as necessary to ensure that the required atmospheric conditions within the tested space are
maintained.” However, the Secretary has not cited First Marine for violations under the relevant retesting
provisions of § 1915.15 (Maintenance of Safe Conditions).
28 In Citation 1, Item 5, the Secretary alleges a “serious” violation of § 1915.12(b)(1)(i) and in Citation
2, Item 1 alleges a “willful” violation of § 1915.12(b)(1)(ii). Subparagraphs (1)(i) and (1)(ii) are connected
by the conjunction “and.” Therefore, to comply with § 1915.12(b)(1), First Marine must meet the
requirements of both subparagraphs (i) and (ii). Therefore the Court analyzes the cited subparagraphs
together.
29 “In the hierarchy of law, language is king. Words matter in constitutions, treaties, statutes, rules, cases,
and contracts.” Pottinger v. City of Miami, 805 F.3d 1293 (11th Cir. 2015). Here, the Secretary could have
moved to amend the citation language to track the language of the standard but he elected not to.

24
determine the concentration of flammable vapors and gases prior to initial entry into the space by
employees[.]” (Compl. Ex. A p. 19 of 25) (emphasis added). The cited standard provides that the
employer shall ensure that spaces and adjacent spaces that contain or have contained combustible
or flammable liquids or gases are tested by a competent person prior to entry by an employee to
determine the concentration of flammable vapors and gases within the space. 29 C.F.R. §
1915.12(b)(1)(ii) (emphasis added). Again, although the cited standard does not limit the testing
to “initial entry,” Since the Secretary has only charged First Marine with an “initial entry”
violation, the Court again limits its analysis to the initial entry.30
Did First Marine Meet the Requirements of the Standards?
Ronald Thorn, First Marine’s designated Competent Person, tested the atmosphere of the
William twice: once when First Marine “first started working on the boat,” (in February of 2016)
and again after First Marine “had gotten the mud and stuff out of the vessel,” which was “months
prior” to the date of the explosion (Tr. 831-32.) Those tests occurred before First Marine moved
the William from dry dock and moored it on the Tennessee River in December 2017. Thorn
admitted First Marine did not test the atmosphere on the William prior to hot work being performed
on January 19, 2018 (Tr. 828). Jason Strait, First Marine’s designated Rule 30(b)(6) witness,31 also
admitted First Marine did not conduct any testing in the 12-hour period before the explosion on
January 19, 2018, and admitted no testing was done for weeks prior to the explosion (Ex. C-35,
pp. 20-21, 52; Tr. 1454).
By their express terms, or pursuant to the Secretary’s limitation in his charges, each of
these citations and items require a violation at the “initial entry.” However, the Secretary offered
no evidence to establish when the “initial entry” occurred, meaning when the “first entry into the
space” occurred. The salvage crews raised the William on February 7, 2016, and began transporting
her on February 8, and arrived at First Marine’s drydock on February 14, 2016. After finishing the
cleanup, which involved removing the sediment, mud, and sand from the interior of the vessel and
the hull, First Marine and its subcontractors began repairing and rebuilding the towboat. The main
engines and gearboxes were removed in March of 2016. The gearboxes were reinstalled in January
of 2017, and the engines were reinstalled in April of 2017. Clearly, the “initial entry” was not when
30 See footnote 29.
31 “The named organization must designate one or more officers, directors, or managing agents, or
designate other persons who consent to testify on its behalf; and it may set out the matters on which each
person designated will testify.” Fed. R. Civ. P. 30(b)(6).

25
the explosion occurred “on or about January 19, 2018.” Therefore, the Court concludes the
Secretary has failed to establish First Marine did not meet the requirements of the cited standards
since he failed to prove when the “initial entry” occurred and further, failed to prove the alleged
violations occurred prior to that unknown date of “initial entry.” Therefore, Citation 1, Items 4a,
4b, and 5 and Citation 2, Item 1 must be vacated.
Citation 1, Item 632
In Citation 1, Item 6, the Secretary alleges First Marine committed a serious violation of §
1915.12(f) on January 19, 2018, by “exposing both site employees and contractors to asphyxiation,
fire, and explosion hazards” when it permitted “contract employees to enter confined and enclosed
spaces to perform work . . . without ensuring that all available information on the hazards, safety
rules, and emergency procedures regarding confined and enclosed spaces or other dangerous
atmospheres they would encounter was exchanged[.]” (Compl. Ex. A p. 17 of 25.) The cited
standard provides that each employer whose employees work in “confined and enclosed spaces or
other dangerous atmospheres” shall “ensure that all available information on the hazards, safety
rules, and emergency procedures concerning those spaces and atmospheres is exchanged with any
other employer whose employees may enter the same spaces.” 29 C.F.R. §1915.12(f).
Does the Cited Standard Apply to the Facts?
For the cited standard to apply, First Marine had to have employees that worked in either
(a) confined and enclosed spaces or (b) other dangerous atmospheres. However, the Secretary did
not include the term “dangerous atmospheres” in the alleged violative description of Citation 1,
Item 6. Therefore, the Court concludes since the issue of dangerous atmospheres was not within
the issues raised in the pleadings, and it was not tried by the parties’ express or implied consent,
the Secretary may not rely on it to establish applicability. Fed. R. Civ. P. 15(b).
As to confined spaces, there is no evidence any First Marine employees were working in
confined spaces on January 19, 2018. As to enclosed spaces, the only evidence of First Marine
employees possibly working in an enclosed space on January 19, 2018 is when B.K. and the First
Marine fitter first entered the deck locker and the plywood and boards may still have been covering
the overhead openings. However, the record does not establish when the plywood and boards were
removed on January 19, 2018. The record does reflect that by the time of the explosion the deck
32 Citation 1, Item 5 alleging a serious violation of § 1915.12(b)(1)(i) is addressed with Citation 2, Item
alleging a willful violation of § 1915.12(b)(1)(ii).

26
locker was not an enclosed space since B.K. and the fitter were performing hot work on angle iron
that had been handed down through the overhead openings. There is also no evidence any of the
subcontractors’ employees entered the lower forward hold where the First Marine employees were
working. Therefore, the Court concludes the Secretary has failed to establish the cited standard
applied to the facts and Citation 1, Item 6 must be vacated.
Citation 1, Item 7
In Citation 1, Item 7, the Secretary alleges First Marine committed a serious violation of §
1915.14(a)(1)(i) when “[h]ot work was performed within, on, or immediately adjacent to spaces
that contain or have contained combustible or flammable liquids or gases before those spaces were
tested and certified by a Marine Chemist or a U.S. Coast Guard authorized person as ‘Safe for Hot
Work’.” (Compl. Ex. A p. 18 of 25.) More specifically, the Secretary alleges on January 19, 2018,
First Marine “required employees to perform hot work such as arc welding and cutting with a torch
in the space below the deck locker where a flammable gas leak occurred without the space and
adjacent spaces being tested and certified by a Marine Chemist or a U.S. Coast Guard authorized
person as ‘Safe for Hot Work.’” (Id.)
The cited standard provides that each employer “shall ensure that hot work is not performed
in or on . . . confined and enclosed spaces and other dangerous atmospheres, boundaries of spaces
or pipelines” that are “[w]ithin, on, or immediately adjacent to spaces that contain or have
contained combustible or flammable liquids or gases” until “the work area has been tested and
certified by a Marine Chemist or a U.S. Coast Guard authorized person as ‘Safe for Hot Work’.”
29 C.F.R. §1915.14(a)(1)(i). Again, the Secretary did not include the term “dangerous
atmospheres” in the alleged violative description of Citation 1, Item 7. However, the Court
concludes the issue was tried by the parties’ express or implied consent. Therefore, the Secretary
may rely on it to establish a violation.. Fed. R. Civ. P. 15(b).
Did First Marine Meet the Requirements of the Standard?
“Hot” work means “any activity involving riveting, welding, burning, the use of powder-
actuated tools or similar fire-producing operations.” 29 C.F.R. § 1915.11(b). B.K. and the fitter
were performing hot work since it is undisputed they were welding and cutting in the deck locker
on January 19, 2018. These activities constituted hot work within the meaning of the maritime
standards. (Tr. 477-78). The preamble distinguishes between spaces that have contained
flammable liquids or gases and those that have not:

27
If hot work is to be performed, confined and enclosed spaces and dangerous
atmospheres are classified in two groups. If the spaces contain or have contained
flammable liquids or gases or if the spaces are adjacent to such spaces, then a
Marine Chemist or Coast Guard authorized person must test and certify the space
as safe for hot work. Other types of confined and enclosed spaces and hazardous
atmospheres must be tested for safety by a competent person before hot work is
allowed.
Preamble, 59 FR 37816-01 at 37818. OSHA sets out the rationale for § 1915.14(a)(1) in the
preamble:
The Marine Chemist Certificate can only be issued when conditions within and
adjacent to spaces which have contained a flammable or combustible gas or
material have been cleaned and inspected and found to be safe (gas free). Moreover,
the certificate specifies other requirements for entry and work such as ventilation,
fire watch placement, and personal protective equipment, and requires a competent
person to reinspect and test the space as directed in order to maintain the conditions
of the Marine Chemist certificate. Similarly, the competent person cannot grant
permission for hot work in those locations that he or she is allowed to test and
certify until the conditions are safe for hot work. In addition, both the Marine
Chemist and the competent person are required to produce written certifications
that must be posted, as required in §§1915.14(a)(2) and 1915.7(d) (1) and (2)
respectively. As added protection, the Marine Chemist requires a competent person
to recheck the space to ensure that conditions do not change. If there is a change in
the space, the competent person must stop work and recall the Marine Chemist to
recertify that the space is safe for hot work before work can restart.
Id. at 37844.
The Secretary contends First Marine was required to have a Marine Chemist or U.S. Coast
Guard authorized person certify the deck locker before B.K. and the fitter began welding and
cutting in it. First Marine admits neither a Marine Chemist nor a U.S. Coast Guard authorized
person tested and certified any spaces on the William as “Safe for Hot Work.” (Ex. C-35, pp. 10-
11, 47-48.) Nonetheless, First Marine contends the deck locker and other compartments on the
William did not contain and had not contained combustible or flammable liquids or gases.
First Marine argues the deck locker and adjacent spaces were free of combustible or
flammable liquid or gas due to the thorough cleaning and refurbishing done to the William since it
had arrived at the shipyard. However, First Marine’s position ignores the change in the condition
of the deck locker and other areas of the vessel that workers discovered when they boarded the
towboat at approximately 7:00 a.m. on January 19, 2018. The odor of gas was pervasive throughout
the William that morning. It so alarmed B.K. and the fitter that they notified superintendent Voss

28
of the smell and began to ventilate the space. Not every witness testified he smelled gas the
morning of January 19, 2018, when he boarded the William, but most of the workers did. For those
workers, the odor was distinctive and markedly different from the usual gas odors on the vessel.33
A “dangerous atmosphere” means “an atmosphere that may expose employees to the risk
of death, incapacitation, impairment of ability to self-rescue (i.e., escape unaided from a confined
or enclosed space), injury, or acute illness.” 29 C.F.R. § 1915.11(b) (emphasis added). First Marine
also argues a “dangerous atmosphere” did not exist in the deck locker on January 19, 2018, because
it showed no sign of explosion or fire damage after the explosion. Schulz testified his examination
of the deck locker compartment showed there was “no evidence that any gas made it forward and
accumulated into the forward hold.” (Tr. 1323.) The Court finds no merit in this argument since
Schulz’s assessment was made post-explosion. Section 1915.14(a)(1)(i) is not concerned with
whether a combustion hazard existed at the time hot work was performed—it is designed to trigger
testing before hot work is performed when the potential for a combustion hazard exists, based on
awareness the space contained or has contained combustible gas.
The Commission has focused on the word may in the definition, noting “[t]he emphasis is
on the potential for a hazardous condition to occur, not on the existence of a hazardous condition.”
Offshore Shipbuilding, 18 BNA OSHC at 2173. Thus, “under the definition of ‘dangerous
atmosphere,’ the Secretary need establish only that there is the potential for a hazardous condition
to occur in a location[.]” Id. Therefore, contrary to First Marine’s position, the Secretary is not
required to show a hazardous condition existed on January 19 aboard the William for §
1915.14(a)(1)(i) to apply, but only that a potential for a hazardous condition existed. The Court
33 A Thermal employee smelled an odor like “[g]as and oil,” and stated he had not detected an odor like
that before on the towboat (Tr. 66). Another Thermal employee detected the odor and developed “a bad
headache,” and stated, “[E]verybody else on our crew felt the same way. . . . But we just thought it was just
another smell.” (Tr. 102-03.) A third Thermal employee noticed “a very heavy” gas odor as soon as he
entered the upper engine room. “[I]t was very disturbing to smell it.” (Tr. 140.) A fourth Thermal employee
detected the odor when he entered the upper engine room. “[I]t reeked like rotten eggs. . . . I know what
propane smells like.” (Tr. 190.) A First Marine electrician smelled gas in the lower engine room, where he
had never smelled it before (Tr. 347-49). Another First Marine electrician also caught a whiff of gas in the
lower engine room. “[I]t was just something that you don’t usually smell.” (Tr. 389.) A First Marine
carpenter stated a co-worker warned him, “Don’t light a cigarette. Do you smell that gas? It’s strong.” (Tr.
422.) An employee of Wise Staffing told OSHA, “The smell was very potent, felt like a smack in the face.”
(Tr. 302.) Several other workers aboard the William that morning stated they either smelled a strong gas
odor or heard their co-workers say they smelled it upon boarding the vessel at approximately 7:00 a.m. (Tr.
464, 562, 604, 637-39, 674-75, 689-90, 776-77 79).

29
concludes the pervasive odor of gas on the vessel that morning, especially in the deck locker,
alerted workers to the potential presence of a combustion hazard, i.e., a dangerous atmosphere.
First Marine argues the “smell of gas alone does not indicate that gas is present. . . .
Particularly given that people smell things differently, there is no linear relationship with the
strength of the smell of gas and the actual presence of gas in the atmosphere. . . . It is also
undisputed that smelling ‘gas’ on the [William] or any vessel is commonplace in a shipyard,
particularly when there is hot work being done.” (Resp’t’s Br., pp. 34-35.) In support of this
position, First Marine cites Schulz’s opinion that “[t]here is no correlation between smelling the
gas and whether the condition or atmosphere in the space you’re smelling it is dangerous or not.”
(Tr. 1290.)
The Court finds no merit in First Marine’s argument. Schulz also testified mercaptans are
added to odorless gases “as a safety strategy . . . so that leaks can be detected or . . . propane or
propylene that is somewhere where it’s not supposed to be.” (Tr. 1289.) Thus, propane and
propylene manufacturers obviously add mercaptans to the gases because they present combustion
hazards. Adding mercaptans to odorless gases would serve no purpose if the intent were not to
warn people of the presence of the gases. The strong odor of gas on the William the morning of
January 19, 2018, indicated the deck locker or its immediately adjacent spaces contained
combustible or flammable gases. The gas odor establishes there was a potential that a hazardous
condition existed. The Court therefore concludes the Secretary has proven a dangerous atmosphere
existed in the deck locker, and First Marine failed to ensure a Marine Chemist or a U.S. Coast
Guard authorized person tested and certified the deck locker as “Safe for Hot Work” on January
19, 2018, before B.K. and the fitter performed welding and cutting work in the space. Thus, the
Secretary has proven First Marine failed to meet the requirements of the cited standard.
Did Employees Have Access to the Hazardous Condition?
B.K. and the fitter both performed hot work in the deck locker the morning of January 19,
2018. They were exposed to a combustion hazard. Therefore, the Secretary has proven employee
access to the hazardous condition.
Did First Marine Know of the Hazardous Condition?
As indicated supra, in the Sixth Circuit the Secretary must establish First Marine “knew of
the hazardous condition or could have known through the exercise of reasonable diligence.”
Mountain States, 825 F.3d at 279 (citation omitted). “The knowledge of a supervisor or foreman,

30
depending on the structure of the company, can be imputed to the employer.” (Id.) “In cases
involving negligent behavior by a supervisor or foreman which results in dangerous risks to
employees under his or her supervision, such fact raises an inference of lax enforcement and/or
communication of the employer's safety policy.” Brock v. L.E. Myers Co., High Voltage Div., 818
F.2d 1270, 1277 (6th Cir. 1987).
The Secretary contends there were four First Marine supervisors who had actual knowledge
of the strong gas odor aboard the William the morning of January 19, 2018: Gregory Voss, Henry
Scott, Deron Conaway, and Curtis Jones. Their knowledge, the Secretary argues, should be
imputed to First Marine. However, the Court concludes three of the four supervisors identified by
the Secretary are problematic when it comes to imputing their knowledge to First Marine.
Voss was employed by Hutco as a foreman at First Marine’s shipyard (Tr. 625-26). He
described Hutco as “a labor-finder” for “any type of construction that needs employees.” (Tr. 628.)
There is ample evidence in the record that, despite his employment by Hutco, Voss had supervisory
authority over First Marine employees B.K. and the fitter.34 Voss himself appeared to consider
himself in the chain of command for First Marine. When counsel for First Marine asked who his
supervisor was at the shipyard, Voss first replied, “That would be [First Marine superintendent]
Ronnie Thorn.” (Tr. 665.)
First Marine foreman David Bynum supervised B.K. and the fitter when the William was
in dry dock. Once the vessel moved to the dock string, Bynum stated in his deposition, Voss
supervised their work (Tr. 709-10). This deposition testimony aligns with statements he gave to
OSHA during its investigation that Voss supervised First Marine employees B.K. and the fitter on
January 19, 2018:
34 Robert Miller, First Marine’s carpenter superintendent, stated in his deposition that Voss supervised
“First Marine guys that worked in his group,” and Miller regarded Voss as their supervisor (Tr. 611). In his
deposition, Miller stated he instructed Brad Stafford, a carpenter employee of Wise Staffing, to report
carpentry-related issues to him and “[a]s far as all other issues on the vessel, vessel management at the time,
he would report to or notify Greg Voss.” (Tr. 312-13.) Henry Scott, First Marine’s supervisor of laborers,
was asked who was acting as supervisor on the William the day of the explosion. He replied, “I thought it
was Greg Voss.” (Tr. 778.) In his deposition testimony, First Marine superintendent Ronnie Thorn stated
that Greg Voss was the supervisor of B.K. and the fitter “[a]t the time of the accident.” (Tr. 817.) He said
that after the William moved from dry dock to the water, Voss supervised B.K. and the fitter, and he had
“the authority to fire them if they did something wrong.” (Tr. 821.) He also had authority to discipline them
(Tr. 822-23). At the trial, Thorn altered his characterization of Voss’s authority. “I simply asked [him] to
keep an eye on our guys, no more than I would have asked one of the other experienced guys to check in
on them from time to time.” (Tr. 820.) Thorn testified First Marine no longer asks Hutco to “provide a
supervisor with their crew. We manage those employees ourselves.” (Tr. 865.)

31
On the day of the accident on the William I had two employees who worked for me
who were working on the boat, but they were not working directly under me that
day. . . . The person on the ship who was overseeing them was Greg Voss. . . . At
the time of the accident Greg was the lead man over the project on the boat. . . .
Greg works for Hutco and had his own crew on the boat and was directing the work
they were doing on the boat. And since he was over there directing the work they
were doing, he was supervising the two First Marine employees who were on the
boat as well.
(Ex. C-7; Bates page 000652; Tr. 716-17.) Bynum attempted to walk back his prior statements at
trial, stating Voss “was just asked to keep an eye on [B.K. and the fitter]. He wasn’t really there to
tell them what to do.” (Tr. 746.) The Court credits the statements Bynum gave to OSHA during its
investigation, which were more reliable since they were much closer in time to the accident than
his statements at trial.
It is apparent supervisors and workers for both First Marine and its subcontractors
considered Voss to have supervisory authority over subordinate employees, including First Marine
employees, working aboard the William on January 19, 2018. Their statements to OSHA and their
deposition testimony reflect their understanding of his status more accurately than their trial
testimony where they appear to have been coached on this issue. The Court concludes the Secretary
has established Voss was a supervisor, and he had actual knowledge of the gas odor aboard the
vessel on January 19, 2018.35 However, the Court concludes the Secretary has not established
Voss was a supervisor employed by First Marine.
Imputation of a supervisor’s knowledge rises only to the supervisor’s employer. As the
Eleventh Circuit has held, and the Court agrees, the rationale for imputation of knowledge is that
the supervisor acts as an agent of the employer.
“When a corporate employer entrusts to a supervisory employee its duty to assure
employee compliance with safety standards, it is reasonable to charge the employer
35 The morning of January 19, 2018, Voss boarded the William a little after 7:00 (Tr. 632). Between 7:15
and 7:30, he encountered the fitter for First Marine who was working with B.K. in the deck locker (Tr.
635). Voss stated the fitter “told me that he believed the night shift had left his torch hose on, and that it
filled the bow up with a gas leak.” (Tr. 636.) Then a painter told Voss he smelled gas in the engine room.
Voss stated, “I started walking around to see if I could smell it,” because “that was the second time that I’d
heard somebody mention gas.” (Tr. 638.) Voss testified he smelled gas “briefly at one point, but it was just
like a residual smell that you would smell on a daily basis” while he was standing on the bow (Tr. 638-39.)
Voss went to the deck locker to check on First Marine employees B.K. and the fitter. “I asked them if they
had checked their torch and torch hose. They told me they did and they weren't leaking. Nor could I smell
it. They had already start[ed] cutting and they were smoking cigarettes, so I didn't worry about it anymore.
I walked back out and just assumed that it was gas just when they was lighting up the torch.” (Tr. 641-42.)

32
with the supervisor's actual or constructive knowledge of noncomplying conduct of
a subordinate.” Mountain States[Tel. and Tel. Co. v. OSHRC], 623 F.2d [155,] 158
[(10th Cir. 1980)]. It is reasonable to do this because a corporate employer can, of
course, only act through its agents—as several of the above-cited cases have
recognized—and the supervisor acts as the “eyes and ears” of the absent employer.
That makes his knowledge the employer's knowledge.
ComTran Grp., Inc. v. U.S. Dep't of Labor, 722 F.3d 1304, 1317 (11th Cir. 2013). Here, the
Secretary does not dispute that Hutco was Voss’s employer. As such, Voss was not an agent of
First Marine, and he was not acting as the “eyes and ears” of First Marine. Therefore, the Court
declines to impute Voss’s knowledge to First Marine.
Deron Conaway
Conaway is First Marine’s Safety Director. In his deposition testimony, Conaway stated
he did not remember whether he boarded the William the morning of the explosion (Tr. 894-95).
However, Voss saw Conaway aboard the William the morning of January 19, 2018, between 8:00
and 8:30, talking to First Marine employee Henry Scott in the generator room (Tr. 656-658, 679).
Conaway was also seen by carpenter Brad Stafford that morning. In his statement to OSHA,
Stafford stated, “I do remember seeing Deron walk on the vessel on the day of the accident prior
to the event occurring. I don’t know what he was doing. I do know he walked on a couple of
times.” (Tr. 302.) Hutco electrician Samuel Gutierrez also saw Conaway on the William the
morning of January 19, 2018, between 8:15 and 8:20 (Tr. 565): “He was in a hurry. He went into
one door. He went to the boat and went out another door that’s at the back.” (Tr. 565.) “He went
through the engine room and he passed to the door on the other side.” (Tr. 567.)
At the trial, Conaway changed his testimony and denied he was on the vessel that morning.
“I did not board that boat. I said before that I did not recall. If I had been on that boat, I’m sure I
would have recalled it. . . . I’m saying today that I still have no recollection of being on that boat,
and that I feel that I would recall being on that boat if I had been on the boat that day.” (Tr. 895.)
The Court credits the testimony of the three witnesses who stated they saw Conaway on the
towboat the morning of the explosion. They were matter of fact in their demeanor and evinced no
hesitation or uncertainty in their testimony. There is no evidence of an ulterior motive or motives
that would prompt Voss, Stafford, and Gutierrez to lie about seeing Conaway that morning.
Conaway, in contrast, was nervous and defensive on the stand. His recantation of his deposition
testimony appeared rehearsed. And, unlike the three witnesses who saw him on the vessel, he had

33
a reason to lie about his presence that morning since his knowledge of a violative condition as First
Marine’s Safety Director can be imputed to First Marine. The Court does not credit Conaway’s
trial testimony on this point.
Nonetheless, the Court concludes Conaway’s presence on the William on January 19, 2018,
is insufficient to establish employer knowledge of the gas odor permeating the vessel that day.
There is no evidence Conaway smelled gas while he was aboard the towboat and no witnesses
testified they informed him of the odor or observed other workers inform him. Voss stated he saw
Conaway speaking with Scott and he thought Conaway might have been looking for the source of
the odor, but he could not be certain. At trial, Scott was evasive when asked about encountering
Conaway on the towboat that morning.
Scott: I was sent to find somebody.
Q.: Okay. Who were you sent to find?
Scott: I don't remember who I was sent to find.
Q.: Okay. Was it Deron Conaway?
Scott: No.
(Tr. 775.)
Q.: Did you ever find the person that you were looking for?
Scott: Eventually.
Q.: Okay. And how do you know?
Scott: Because after the accident, the entire crew was accounted for.
Q.: Okay. But it's my understanding you -- as you sit here today, you don't know
who that was that you went looking for?
Scott: Am I positive? No, I'm not.
Q.: Okay. Who do you think it is?
Scott: I think it was a guy named Dominick.
Q.: Okay. Fair enough.
Scott: But that's -- I don't know for sure.
Q.: Understand. On the day of the accident, did you see Deron Conaway on the
William?
Scott: I don't remember.
(Tr. 777-78.) The Court concludes the record does not establish by a preponderance of the evidence
that Conaway had knowledge of the gas odor on the William the morning of January19, 2018.
Henry Scott
At the time of the explosion Scott was employed by First Marine as a general laborer (Tr.
769-70). However, he had identified himself as a “leadman, general laborer” in his statement to
OSHA in May of 2018 (Ex. C-4; Tr. 771). At trial, he stated First Marine did not have leadmen.

34
When asked how he knew this, he stated, “I’ve been specifically told that I was not a leadman.”
(Tr. 781.) However, Voss identified Scott as First Marine’s “clean-up guy or their lead man,” (Tr.
657-58) and as a “foreman or a lead man.” (Tr. 680.) The morning of January 19, 2018, Scott was
aboard the William. About 7:30, he met the First Marine fitter, who told him “not to go down to
the lower deck locker because they were ventilating it because gas was smelled.” (Tr. 776.) Scott
also smelled the gas odor (Tr. 777).
Scott’s situation is the converse of Conaway’s. Conaway was undoubtedly a supervisor,
but the record is insufficient to establish he had knowledge of the gas odor. Scott knew of the gas
odor, both because the First Marine fitter informed him of it and because he himself could smell
it. However, the record is insufficient to establish Scott was a supervisor the day of the explosion.
Whether his actual title was leadman is of secondary importance to his actual responsibilities. “The
Commission has long recognized that ‘an employee who has been delegated authority over other
employees, even if only temporarily, is considered to be a supervisor’ for the purpose of
establishing knowledge.” Am. Eng'g & Dev. Corp., 23 BNA OSHC 2093, 2095 (No. 10-0359,
2012) (quoting Access Equip. Sys., 18 BNA OSHC 1718, 1726 (No. 95-1449, 1999)). “In deciding
whether an employee qualifies as a supervisor, ‘[i]t is the substance of the delegation of authority
that is controlling, not the formal title of the employee having this authority.’” (Id.) (quoting Dover
Elevator Co., 16 BNA OSHC 1281, 1286 [] (No. 91-862, 1993).
Here, there is evidence of Scott’s subordinate role the day of the explosion. Prior to being
dispatched to look for “Dominick,” he had been sent to collect shovels from the tool room (Tr.
774-75). Stafford would tell Scott the orders for the day and Scott would relay them to the other
laborers (Tr. 782). There is no evidence of Scott exercising any authority over another employee.
The Court concludes the record does not support the Secretary’s assertion that Scott was a
supervisory employee, such that his knowledge could be imputed to First Marine. Therefore, the
Court declines to impute Scott’s knowledge to First Marine.
Curtis Jones
Finally, Jones is First Marines’ supervisor of electricians and he supervised three First
Marine employees at the time of the explosion (Tr. 788-90). He boarded the William at
approximately 7:15 the morning of January 19, 2018, and went to the lower engine room, where
he smelled gas (Tr. 794). He had never detected an odor like that on the William. He discussed it
with two of the First Marine electricians (Tr. 795). He described what happened next.

35
Sat there and two Hutco guys was up there at the front of the engine, and I asked
my guys to ask them -- because I didn't know if they spoke any English or not -- to
ask them if they smelled gas also. They said yes that they know about it and that
they was telling Greg Voss about it, which was their supervisor. Then after that, I
looked around the engine room. Didn't see any kind of hoses or torches or anything
in the engine room. . . . [A]s I was leaving the engine room after I didn't find
anything, I seen where the Rupke guys were changing out a propane tank or
working on a heater up there at the hold by the steps. And I assumed that was it, so
I moved on up to the second deck.
(Tr. 795.)
When asked why he did not take any action in response to the odor of gas in the lower
engine room, Jones replied, “Because Greg Voss is more qualified than I am about the gas. I don’t
really mess with gas that much. And I figured he had it under control.” (Tr. 798.) Jones was aware
workers, including First Marine employees B.K. and the fitter, were performing hot work on the
vessel (Tr. 792-93).
First Marine argues Jones’s knowledge of the gas smell was limited to the lower engine
room and he properly deferred responsibility for addressing the issue to Gregory Voss.36
Mr. Jones was the only First Marine supervisor on the boat that morning. Although
he smelled gas in the lower engine room, he reasonably believed he found the
source of the gas to be the changing out of a propane tank on a heater. (Tr. 795-
796, 798.) Given the amount of ventilation in the lower engine room and based on
his competent person training, Mr. Jones did not believe what he smelled was strong
enough to investigate further. (Id.) He also knew that the Hutco welders were going
to report the smell to their supervisor, Mr. Voss. (Tr. 795.) After Mr. Jones left the
lower engine room, neither he nor the electricians smelled the gas again, nor did
anyone report to Mr. Jones that they smelled gas. (Tr. 679.)
(Resp’t’s Br., p. 45.) The Court finds no merit in First Marines’ position.
Jones smelled an unusually strong gas odor aboard the William and discussed it with
several employees. He learned Hutco’s employees planned to notify Voss of the odor. Jones did
not check other areas of the towboat to determine the scope of the gas odor or follow up with Voss
to learn what his response to the situation would be. Therefore, Jones failed to exercise reasonable
diligence in investigating and addressing the atypical gas odor, which was a general topic of
36 First Marine attempts to use Voss as a sword and a shield on the issue of employer knowledge. It relies
on his status as a Hutco employee to deflect imputation of knowledge, but argues Jones appropriately
abdicated his responsibility to deal with the situation to Voss (who took no steps to halt work or conduct
testing).

36
conversation that morning. Jones is employed by First Marine; he is a supervisor of electricians;
he smelled the gas odor aboard the William the morning of January 19, 2018; and he knew First
Marine employees were performing hot work that day. The Court imputes his actual knowledge
of the gas odor to First Marine. Therefore, the Court concludes the Secretary has established First
Marine knew of the dangerous atmosphere aboard the William the morning of January 19, 2018.
Thus, under § 1915.14(a)(1), First Marine was required to have a Marine Chemist or a U.S.
Coast Guard authorized person certify the spaces where hot work was to be performed as “Safe
for Hot Work” before the work proceeded. First Marine failed to do so, exposing B.K. and the
fitter to the hazard of combustible gas. Therefore, Citation 1 , Item 7 must be affirmed.
Characterization of the Violation
The Secretary characterized the violation of § 1915.14(a)(1) as serious. A serious violation
is established when there is “a substantial probability that death or serious physical harm could
result [from a violative condition] . . . unless the employer did not, and could not with the exercise
of reasonable diligence, know of the presence of the violation.” 29 U.S.C. § 666(k). Here, two
employees were exposed to the hazard of combustible gases in a space that had not been certified
as “Safe for Hot Work.” The violation is properly characterized as serious.
Citation 2, Item 2
In Citation 2, Item 2, the Secretary alleges First Marine committed a willful violation of §
1915.12(d)(1) when it “did not ensure that each employee entering a confined or enclosed space
or other areas with dangerous atmospheres was trained to perform all required duties safely.”
(Compl. Ex. A p. 20 of 25.) More specifically, the Secretary alleges on January 19, 2018, First
Marine exposed “employees to atmospheric, fire, and explosion hazards” when it “allowed
employees to enter confined and enclosed spaces to perform work … without training the
employees on the hazards of confined and enclosed spaces[.]” (Id.) The cited standard mandates
the employer “shall ensure that each employee that enters a confined or enclosed space and other
areas with dangerous atmospheres is trained to perform all required duties safely.”37 29 C.F.R. §
1915.12(d)(1).
37 Section 1915.12(d)(2) lists the training that is required. It requires the employer ensure that each
employee who enters a confined space, enclosed space, or other areas with dangerous atmospheres is trained
to: “(i) Recognize the characteristics of the confined space; (ii) Anticipate and be aware of the hazards that
may be faced during entry; (iii) Recognize the adverse health effects that may be caused by the exposure to
a hazard; (iv) Understand the physical signs and reactions related to exposures to such hazards; (v) Know

37
Did First Marine Meet the Requirements of the Standards?
Matthew McCoy is a carpenter for First Marine. He did not attend a trade school and had
not worked at other shipyards before First Marine hired him (Tr. 305). When he started with First
Marine, he received safety training in the carpentry shop but was not trained in shipyard hazards
(Tr. 306). He testified Robert Miller, First Marine’s carpenter supervisor, did not provide training
in atmospheric hazards or what to do if he smelled gas aboard a vessel (Tr. 320). He smelled gas
the morning of January 19, 2018, and discussed it with other workers, but he was not aware it was
potentially dangerous (Tr. 321).
Manuel Macario Garcia is an electrician for First Marine. He received an associate degree
from West Kentucky Community Technical College. First Marine is the first shipyard for which
he has worked (Tr. 340). He did not receive training in shipyard hazards when he began work at
First Marine (Tr. 341). He smelled gas the morning of January 19, 2018. Macario stated his
supervisor, Curtis Jones, had talked to him about dangerous atmospheres but did not tell him what
to do if he smelled gas (Tr. 365).
Victor Pineda is also an electrician for First Marine (Tr. 378). He attended trade school for
carpentry and graduated in 2017. First Marine was his first place of employment after his
graduation. He received no training in shipyard hazards when he began working at First Marine
(Tr. 379). He was not trained in hazards associated with confined and enclosed spaces (Tr. 381).
He smelled gas when he boarded the William on January 19, 2018 (Tr. 389). The only instruction
he received if he smelled gas was to inform his supervisor (Tr. 402).
Jerry Price is a carpenter for First Marine. He had previously worked at other shipyards
(Tr. 412-13). His supervisor Robert Miller did not provide training to him in shipyard hazards or
in working in confined and enclosed spaces or dangerous atmospheres (Tr. 414-15). He had not
been instructed what to do if he smelled gas in the workplace (Tr. 422, 430-31). Price smelled gas
when he boarded the towboat the morning of January 19, 2018 (Tr. 421). He testified regarding
his response to the odor.
Q.: You said that when you first got on the boat, you and Brad Stafford talked about
the smell of [gas] . . . And he said, "Don't light a cigarette." Was that like in a
joking manner?
Price: I'm assuming it was because I was smoking one.
what personal protective equipment is needed for safe entry into and exit from the space; (vi) Use personal
protective equipment; and (vii) Where necessary, be aware of the presence and proper use of barriers that
may be needed to protect an entrant from hazards.” 29 C.F.R. § 1915.12(d)(2).

38
Q.: Did you put your cigarette out?
Price: No.
Q.: Did you have any safety concerns that day working on the boat?
Price: No.
Q.: What about any other day?
Price: No.
Q.: So, the smell of gas didn't alert you at all that morning? You didn't think you
needed do anything about it, sir?
Price: No.
(Tr. 432-33.)
Price was asked if knew what confined and enclosed spaces are. He responded, “I’m
somewhat aware more so now than what I was. But before, no.” (Tr. 439.) At the time of the trial,
Price still had no understanding of the definition of a dangerous atmosphere.
Q.: Do you understand what a dangerous atmosphere is?
Price: I don't think I understand the full meaning of it, dangerous atmosphere.
Q.: What was your meaning of dangerous atmosphere? . . . What is your definition
of a dangerous atmosphere?
Scott: Well, I've so learned that it's asbestoses [sic] and it could be, there again, a
number of things.
(Tr. 439.)
B.K. worked as a welder for First Marine. He had worked at another shipyard (Tr. 460-61).
As previously noted, B.K. smelled a strong odor of gas when he boarded the towboat the morning
of January 19, 2018, and he set about ventilating the deck locker. When asked what he and the
fitter were doing as they ventilated the space, he responded, “Standing around smoking cigarettes.”
(Tr. 474.) B.K. testified First Marine did not provide training to him on the hazards associated with
propylene or compressed oxygen (Tr. 499). When he worked previously at the James Marine
shipyard, he had been instructed to perform hot work only if “Safe for Hot Work” documentation
was posted outside the space. First Marine did not provide him with this instruction (Tr. 500). He
stated the First Marine welders would have safety meetings in the morning before boarding the
towboat. “Yeah, they would just tell us what to do. And basically, everybody knew what, you
know, don’t leave nothing in the hold. Stuff like that.” (Tr. 509.) B.K. testified that after he had
ventilated the deck locker, he checked for the odor of gas by sniffing with his nose low in the
room. He stated the space “didn’t smell. Lit a cigarette and nothing happened.” (Tr. 528.)
Adam Leroy works as a welder for First Marine (Tr. 1387). He testified he received training
in confined spaces when he started working at First Marine. “Just proper ventilation and like as far

39
as being in the hold, the hazards to be aware of, like your torch being in there while you’re on
break and things like that.” (Tr. 1394.) He was trained to visually inspect confined spaces when he
approached them, “looking for WD-40 cans, greasy rags, things like that, anything that could be
flammable.” (Tr. 1395) He was told to alert his supervisor if he smelled “anything unusual” while
working (Tr. 1395). Leroy worked on the William while it was in dry dock. He did not work on
the vessel once it was moved to the Tennessee River (Tr. 1399).
Miller, the supervisor of First Marine’s carpentry crew, has worked for First Marine since
2011(Tr. 599-600). He was not aboard the William at the time of the explosion but was in First
Marine’s carpentry shop on the barge string next to the vessel (Tr. 602). Miller testified if his crew
members smelled gas on the towboat, “They should immediately notify me. That’s what I would
hope. . . . I would [have] immediately taken action, either, you know, called the shipyard
superintendent—we’d have done something.” (Tr. 618.) He stated he had told his crew this and
had provided one-on-one safety and competency training to his crew members (Tr. 618).
Byrum, First Marine’s dry dock foreman, supervises welders and fitters (Tr. 704). In the
statement he gave to OSHA on March 13, 2018, Byrum indicated, “All employees who work on
the boats here at the facility may be required to enter a confined space and perform work. The
work may include hot work such as cutting and grinding.” (Tr. 718-19.) When asked if First Marine
had provided him with training in confined and enclosed spaces. He responded it had not, but it
“didn’t have to.” (Tr. 719.) Byrum believes on-the-job training is more effective than classroom
training.
[I]f you ever been [in] a classroom you see a lot of people don't give a toot about
being in that classroom, don't give -- they wouldn't be able to tell you 10 minutes
after the class what you talked about. . . . Side-by-side is the best training anyone
can have.
(Tr. 731-32.) Byrum did not document any of the training he provided to employees (Tr. 759). But
he explained the protocol to be followed if one of his crew smelled gas on a vessel.
Q.: Now, if any of the employees working on your crew of welders and fitters were
to smell anything unusual on a vessel including gas, what are they supposed to do?
Byrum: Remove the source -- all sources of gas. Whether it be one, two, four it
doesn't matter. Remove all of them, find the source and ventilate.
Q.: And if you were aware of gas being inside a vessel, would you speak to Ronnie
Thorn about this?
Byrum: Absolutely.

40
Q.: And would Ronnie Thorn have to okay a vessel before you would be allowed
to board back on and perform work?
Byrum: He and I would make that discussion, yes.
Q.: And if employees working on your crew were to smell something unusual
including gas on a vessel, how do they know they're supposed to come to you?
Byrum: Because I tell them to.
(Tr. 737-38.) Byrum testified if an employee had told him he smelled gas on the William, “[The
explosion] probably never would have happened. . . . Because I would have shut the job down,
turn[ed] off all power sources and shut the job down.” (Tr. 750.)
Scott worked for First Marine as the supervisor of laborers at the time of the trial (Tr.
769).38 Scott smelled gas the morning of January 19, 2018. He did not report it to anyone (Tr. 784).
Scott had received safety training when he worked for another employer, but First Marine did not
provide him with any safety training (Tr. 785).
Jones, First Marine’s supervisor of electricians, began working for First Marine in 2015
(Tr. 788). Prior to working for First Marine, he received training as a shipyard competent person
from a Marine Chemist (Tr. 791). As noted previously, Jones smelled gas when he boarded the
William on January 19, 2018. He discussed it with other employees, briefly looked for the source
of the odor, and then turned his attention to other matters when he learned the employees planned
to inform Voss of the odor (Tr.794-96, 798). Jones testified he observed welders working in
confined spaces on the William in the days leading up to the explosion (Tr. 802).
Ronald Thorn is First Marine’s superintendent. He began working for First Marine in May
of 2013 (Tr. 811). Thorn admitted First Marine was not following the safety procedures set out in
its Safety and Health Manual (Ex. C-9; Tr. 829-30, 833). He claimed First Marine trained its
employees in shipyard safety. When asked if this training was documented, Thorn replied, “I’m
sure there is some documents somewhere.” (Tr. 833.) He agreed with Byrum that on-the-job
training is superior to classroom training (Tr. 846). He stated it was possible some First Marines
are functionally illiterate and will not benefit from classroom training (Tr. 847). Thorn testified he
held weekly safety meetings for First Marine and subcontractor employees (Tr. 847-48). He stated
38 In the section addressing Citation 1, Item 7 of the Health Citation, the Court notes there is a question
of whether Scott was a leadman at the time of the explosion. First Marine promoted him to the position of
supervisor between the time of the explosion and the start of the trial (Tr. 773). The Court groups Scott with
First Marine’s supervisors for the purpose of analyzing this item.

41
First Marine trained its employees in confined and enclosed spaces safety (Tr. 848). Thorn
explained First Marine’s ideal response to the detection of a gas odor aboard a vessel.
Q.: If First Marine employees smell anything unusual on a vessel including gas,
what are they supposed to do?
Thorn: Stop work.
Q.: And what should happen next?
Thorn: They should report it to their supervisor.
Q.: And then if it were reported to you, what would you do?
Thorn: I would [get] everyone off the vessel and shut all the gas lines and figured
out what was going on.
Q.: And what -- before you allowed everybody to come back to work is there
something you would do?
Thorn: Oh, yeah, the competent person or myself would sniff the vessel.
(Tr. 853-54.)
Conaway, First Marine’s safety director, started in that position in August of 2017
(approximately five months before the explosion) (Tr. 883). He has a Bachelor of Science degree
from Murray State University in Occupational Safety and Health (Tr. 886). Conaway stated First
Marine originally hired him because of his “background in purchasing and sales as a purchasing
agent for the shipyard.” (Tr. 900.) He agreed most of his working time before the explosion was
“devoted to [his] role in purchasing.” (Tr. 902.)
Conaway admitted that when he began working as safety director, his safety knowledge
“was very limited. So, a really rigorous detailed inspection was not something that I was qualified
to do.” (Tr. 885.) The defensive tenor of his testimony is captured in the following excerpt:
Q.: [D]o you have the authority to correct employees if you see them doing
something unsafe?
Conaway: You asked me that before. Nothing has ever been stated explicitly what
my authority is. I told you before, I just do it. I correct action.
Q.: Okay. When you were hired back in August 15 of 2017, did you replace the
prior safety man?
Conaway: I wasn't aware I was replacing anyone.
Q.: Was there a safety man employed by First Marine when you were hired?
Conaway: I don't recall. I'm not aware of one.
Q.: At some point before you came on board, was there a safety man employed by
First Marine?
Conaway: I'm not aware.
Q.: You don't know if the company has ever had a safety man?
Conaway: Well, people can wear many hats, can't they? So, I don't know if there
was somebody that was responsible for safety.

42
(Tr. 885-86.)
First Marine is the first shipyard at which Conaway has worked. He did not “undergo any
type of training” when he began working at First Marine (Tr. 886). He conceded he did not feel
qualified to work as a safety professional in January of 2018 (Tr. 887). Despite being First Marine’s
safety director, he was unaware of safety training provided by his employer.
Q.: [W]ere the employees who went to work on the William on January the 19th,
2018, trained to work in confined and enclosed spaces?
Conaway: Prior to the accident, I was not specifically aware of any training in
confined spaces.
Q.: What about enclosed spaces?
Conaway: Prior to the accident, I wasn't aware of any specific training.
Q.: Prior to the accident, were you aware if First Marine was documenting any
training that was being performed at the shipyard?
Conaway: I was not aware.
Q.: Prior to the accident, were employees trained on the requirements of First
Marine's safety and health program?
Conaway: I was not aware.
Q.: You didn't do any such training?
Conaway: No, sir. To qualify, I had given some safety talks, some morning
briefings prior to the accident. It wasn't a matter of routine. It was as I saw an
opportunity.
(Tr. 893.) Conaway testified he conducts safety inspections, safety meetings, and new-hire
orientation (Tr. 884). In his safety meetings, he would speak to employees
about housekeeping; slips, trips, and falls and things like that; PPE.” (Tr. 902.)
First Marine’s Safety and Health Manual
First Marine had a Safety and Health Manual onsite the day of the explosion but it did not
distribute copies to its employees. Conaway testified First Marine did not provide him with a copy
of the manual but he “was made aware that there was one in the office. We did have a manual in
the office and I knew it was there.” (Tr. 886.) At the time of the explosion, Conaway was “working
on” reading the manual, but stated, “I wouldn’t say I had read it in its entirety, no.” (Tr. 886-87.)
The Safety and Health Manual includes First Marine’s Fire Safety Plan, which requires a
competent person to inspect spaces each shift where hot work is scheduled to be performed :
The Supervisor is responsible for training employees and implementation of the
outlined procedures.
. . .
First Marine, LLC conducts hotwork utilizing various means of welding, jointing,
metal fusing, and pipe connection.

43
. . .
Hotwork aboard any vessel in the facility is also inspected, authorized, and
monitored by a First Marine, LLC employee who is a Shipyard Competent Person,
or by a Marine Chemist. This survey will take place at a minimum of each shift, or
more frequently as necessary if conditions change at the work-site.
(Ex. C-9, Bates page 000858.)
Of the six First Marine non-supervisory employees who testified, only Leroy stated he had
received the training required by § 1915.12(d). The other five employees stated consistently First
Marine did not train them in confined and enclosed space and dangerous atmosphere safety (Tr.
320, 341, 379, 414-15, 500). Each of these employees smelled gas aboard the William on January
19, 2018, but was not aware of the potential hazard it signified. Price and B.K. smoked cigarettes
as they smelled the gas odor (Tr. 432-33, 474). B.K. assumed the ventilation he placed in the deck
locker worked because he “[l]it a cigarette and nothing happened.” (Tr. 528.) At time of the trial,
Price thought a dangerous atmosphere involved asbestos (Tr. 439).
First Marine supervisors Byrum and Thorn touted on-the-job training over classroom
training, but the testimony of the five subordinate employees indicate they either received no on-
the-job training or the training they did receive was inadequate. The lack of training extends also
to the supervisors. Miller stated his employees should have immediately informed him they
smelled gas and he would have acted (Tr. 618). Byrum testified he would have shut down work
on the vessel if he had been told of the gas odor (Tr. 750). Thorn stated he would have ordered
everyone off the vessel and shut down all gas lines (Tr. 853-54). Yet supervisor Jones, who was
on the vessel and smelled the gas himself, took none of these actions. He relied on Voss to respond
to the situation (Voss also took no action).
Safety director Conaway was not aware of any training provided to employees regarding
confined and enclosed spaces or dangerous atmospheres. He did not know if training was
documented (Tr. 893). Thorn believed there were “some documents somewhere” documenting
safety training, but none were adduced at trial (Tr. 833).39 Thorn admitted First Marine did not
follow the procedures set out in its own Safety and Health Manual (Tr. 829-30, 833).
The Court credits the testimony of McCoy, Macario, Pineda, Price, and B.K that First
Marine did not provide them with safety training in confined and enclosed spaces and dangerous
39 Section 1915.12(d)(5) provides, “The employer shall certify that the training required by paragraphs
(d)(1) through (d)(4) of this section has been accomplished.”

44
atmospheres.40 It was clear from their testimony that at the time of the trial they did not have a
firm grasp of proper safety procedures. First Marine’s supervisors claim they provided adequate
training, but First Marine adduced no documentation to back up this claim. As management
personnel who still work for First Marine, the supervisors are motivated to close ranks and declare
First Marine provided the required training. The Secretary has established First Marine failed to
meet the requirements of § 1915.12(d).
Did Employees Have Access to the Hazardous Condition?
The untrained employees were required to work in confined and enclosed spaces and in
dangerous atmospheres at First Marine’s shipyard. Their lack of knowledge regarding the proper
procedures to follow and the hazards presented in the spaces and atmospheres exposed them to
potential physical harm or death. The preamble explains that § 1915.12(d) “is requiring employers
to ensure that employees who must enter confined or enclosed spaces or other dangerous
atmospheres are trained to perform their duties safely.” Preamble, 59 FR 37816-01, at 17839. “This
provision is intended to ensure that employees are familiar with the duties imposed by final revised
Subpart B so that the work practices they use will conform to the standard and will protect them
from hazards posed by these spaces.” Id. The Secretary has established First Marine’s employees
had access to the hazard of being inadequately trained in safely working in confined and enclosed
spaces and dangerous atmospheres.
Did First Marine Know of the Hazardous Condition?
While not binding precedent, the Court agrees with the Tenth Circuit that employer
knowledge of the violative condition “will almost invariably be present where the alleged violative
condition is inadequate training of employees.” Compass Env't, Inc. v. Occupational Safety &
Health Rev. Comm'n, 663 F.3d 1164, 1168 (10th Cir. 2011). Thus, the Commission has held to
establish noncompliance with a training standard, the Secretary must show that the cited employer
“failed to provide the instructions that a reasonably prudent employer would have given in the
same circumstances.” N & N Contractors, Inc., 18 BNA OSHC 2121, 2125 (No. 96–0606, 2000).
See, also, Capform, Inc., 19 BNA OSHC 1374 (No. 99–0322, 2001); Baker Tank Co., 17 BNA
OSHC 1177 (No. 90–1786, 1995). Here, First Marine’s own safety manual states it is the
40 The Court does not discredit the testimony of Leroy. It is possible his supervisor provided him with
adequate training when he was hired. However, Leroy did not work on the William after the vessel left dry
dock.

45
responsibility of supervisors to train their crew members in confined and enclosed spaces and
dangerous atmosphere safety. The supervisors knew they were not providing the required training
and their knowledge is imputed to First Marine. Therefore, the Secretary has established First
Marine knew of the hazardous condition. Thus, the Court concludes the Secretary has established
First Marine violated § 1915.12(d)(1) and Citation 2, Item 3 must be affirmed.
Characterization of the Violation
The Secretary alleges violation was willful. The Sixth Circuit has held “that a willful
violation is action ‘taken knowledgeably by one subject to the statutory provisions in disregard of
the action's legality.’” Nat'l Eng'g & Contracting Co. v. Herman, 181 F.3d 715, 721 (6th Cir. 1999)
(quoting Empire–Detroit Steel Div. v. Occupational Safety and Health Review Comm'n, 579 F.2d
378, 383 (6th Cir.1978)). “A willful violation occurs where the employer is ‘conscious’ of the
requirements of a rule and ‘nonetheless ... consciously continues’ in its contrary practice.” Id.
(quoting Donovan v. Capital City Excavating Co., 712 F.2d 1008, 1010 (6th Cir.1983)). “Conduct
is willful if it is ‘intentional, deliberate, and voluntary.’” Id. (quoting id.)
First Marine knew it was required to provide safety training in confined and enclosed
spaces and dangerous atmospheres. This requirement is incorporated in its safety manual. It knew
its employees are routinely required to enter confined and enclosed spaces and dangerous
atmospheres are common in shipyard employment. Its supervisors, to whom First Marine
delegated the responsibility of training the employees, knew they were not providing the training.
Thorn conceded First Marine was not following its own safety procedures. The Court concludes
First Marine demonstrated plain indifference to employee safety. This is evident in supervisor
Jones’s lack of urgency when he detected gas aboard the William and First Marine’s choice of
Conaway as safety director.
Thorn, Miller, and Bynum, who were not on the William the morning of January 19, 2018,
testified to the rapid, forceful action they would take if they knew a strong gas odor was detected
aboard the vessel.41 Their hypothetical decisive action contrasts with supervisor Jones’s mild
response to the odor. His lack of urgency lulled other workers into a false sense of safety. A
Thermal employee stated he was not worried about the gas odor. He believed if workers were
41 The Court does not credit the testimony of these three supervisors that they would have shut down
work, evacuated the vessel, and performed testing. The Court ascribes their testimony to a combination of
Monday morning quarterbacking and toeing the company line.

46
permitted to stay on the vessel, it was safe. “I figured if it was something to be concerned about,
they wouldn’t let us on the boat.” (Tr. 69.) Another Thermal employee testified everyone in his
crew detected the odor when they boarded the vessel, but no one directed them to stop work or
leave. “[T]hey didn’t act like there was even a problem.” (Tr. 103.) A third Thermal employee
stated he stayed aboard the towboat despite smelling gas because he “figured if it was a big
problem nobody would be on the boat.” (Tr. 214.) Had Jones himself been adequately trained he
would have responded to the pervasive strong odor of gas with more diligence.
First Marine originally hired Conaway for his background as a purchasing agent. He
conceded he did not feel qualified to work as a safety director when First Marine promoted him to
that position. First Marine did not provide Conaway with safety training, other than to let him
know there was a copy of its safety manual in the office, which Conaway was still working his
way through at the time of the explosion. Despite being the safety director of a shipyard, Conaway
was not familiar with OSHA’s § 1915 maritime standards (Tr. 888). Conaway was uncertain of
his own authority in correcting employees since First Marine had not informed him of the scope
of his authority (Tr. 885-86).
Indifference to employee safety is manifested in the behavior of Jones, as a First Marine
supervisor, who shrugged off responsibility to stop work or notify Thorn or another First Marine
management official that a pervasive odor of gas was present aboard the William. Indifference to
employee safety is also manifested by First Marine’s hiring of Conaway as its safety director. It is
evident to the Court, as it was self-evident to Conaway, that he was ill-equipped for the position.
Once Conaway was in the position, First Marine did not provide him with training, safety
documentation, or a description of his responsibilities and authority as safety director. It is clear
employee safety was not a paramount concern for First Marine. The Court concludes First Marine
committed a willful violation of § 1915.12(d)(1).
Citation 2, Item 3
In Citation 2, Item 3, the Secretary alleges First Marine committed a willful violation of §
1915.14(b)(1) on January 19, 2018, for “exposing employees to fire and explosion hazards” when
it permitted “employees to perform hot work . . . in an enclosed space with a dangerous atmosphere
below the deck locker, where flammable gas was present, without the space being tested to assure
it contained no concentration of flammable vapors equal to or greater than 10 percent of the lower
explosive limit[.]” (Compl. Ex. A p. 21 of 25.) The Cited Standard provides:

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Hot work is not permitted in or on the following spaces or adjacent spaces or other
dangerous atmospheres until they have been tested by a competent person and
determined to contain no concentrations of flammable vapors equal to or greater
than 10 percent of the lower explosive limit:
(i) Dry cargo holds,
(ii) The bilges,
(iii) The engine room and boiler spaces for which a Marine Chemist or a Coast
Guard authorized person certificate is not required under paragraph (a)(1)(i) of this
section.
(iv) Vessels and vessel sections for which a Marine Chemist or Coast Guard
authorized person certificate is not required under paragraph (a)(1)(iv) of this
section, and
(v) Land-side confined and enclosed spaces or other dangerous atmospheres not
covered by paragraph (a)(1) of this section.
29 C.F.R. § 1915.14(b)(1).
Does the Cited Standard Apply to the Cited Condition?
Section 1915.14(b)(1) requires the employer to test for concentrations of flammable vapors
equal to or greater than 10 percent of the lower explosive limit before it permits hot work to be
performed in a dry cargo holds; bilges; the engine room and boiler spaces for which a Marine
Chemist or a Coast Guard authorized person certificate is not required under paragraph (a)(1)(i) of
this section; vessels and vessel sections for which a Marine Chemist or Coast Guard authorized
person certificate is not required under paragraph (a)(1)(iv) of this section; and land-side confined
and enclosed spaces or other dangerous atmospheres not covered by paragraph (a)(1) of this
section.
In Item 3, the Secretary identifies the space at issue as the deck locker but does not specify
which of the five subsections of § 1915.14(b)(1) applies. The deck locker does not meet the
definitions of any of five subsections. The deck locker is designed to store tools and equipment
needed on the towboat when it is operational. It is not a cargo hold or a bilge, as listed in
subsections (i) and (ii) of the cited standard. The other three subsections identify areas “for which
a Marine Chemist or a Coast Guard authorized person certificate is not required under paragraph
(a)(1)(i) of this section.” The Secretary cited First Marine for a violation of §1915.14(a)(1)(i) in
Citation 1, Item 7 of the Health Citation for failing to have a Marine Chemist or a Coast Guard
authorized person certify the deck locker as “Safe for Hot Work.” According to the terms of §§
1915.14(a) and (b), if § 1915.14(a) applies to the cited condition, then § 1915.14(b) cannot. The
Court concluded supra § 1915.14(a)(1)(i) applied to the cited condition in Item 7 and affirmed the

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violation. Therefore, the Court concludes § 1915.14(b) does not apply here and Item 3 must be
vacated.42
IV. PENALTY DETERMINATION
“[T]he Commission has authority ‘to assess all civil penalties … giving due consideration
to the appropriateness of the penalty with respect to the size of the business of the employer being
charged, the gravity of the violation, the good faith of the employer, and the history of previous
violations.” Dunlop v. Rockwell Int'l, 540 F.2d 1283, 1296 (6th Cir. 1976) (quoting 29 U.S.C. s
666(j)). “Gravity of violation is the key factor.” (Id.) “Gravity . . . is based on the number of
employees exposed, duration of exposure, likelihood of injury, and precautions taken against
injury.” Siemens Energy & Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00- 1052, 2005)
(citation omitted). “The other factors are concerned with the employer generally and are
42 In addition, Citation 2, Item 3 of the Health Citation is duplicative of Citation 1, Item 7 of the Health
Citation.
Violations are duplicative where the abatement of one violation necessarily results in the
abatement of the other. See Flint Eng'g & Constr. Co., 15 BNA OSHC 2052, 2056-57 (No.
90-2873, 1992). The Commission has also found that violations are duplicative where they
require the same abatement conduct, see J.A. Jones Constr. Co., 15 BNA OSHC 2201,
2207 (No. 87-2059, 1993); where they involve substantially the same violative
conduct, see Cleveland Consol., Inc., 13 BNA OSHC 1114, 1118 (No. 84-696, 1987); or
where they involve the same abatement. E. Smalis Painting Co., 22 BNA OSHC 1553,
1561 (No. 94-1979, 2009) (citing Capform, Inc., 13 BNA OSHC 2219, 2224 (No. 84-0556,
1989), aff'd, 901 F.2d 1112 (5th Cir. 1990)). Violations are not duplicative where they
involve standards directed at fundamentally different conduct, J.A. Jones Constr., 15 BNA
OSHC at 2207, or where the conditions giving rise to the violation are separate and
distinct. H.H. Hall Constr. Co., 10 BNA OSHC 1042, 1046 (No. 76-4765, 1981). Here, the
inquiry falls within the category of duplicative violations that may involve the same
abatement. Capform, 13 BNA OSHC at 2224.
N. E. Precast, LLC, Nos. 13-1169 & 1170, 2018 WL 1301480, at *5 (OSHRC Feb. 28, 2018).
The standard cited here requires the competent person to test a space to determine it contains “no
concentrations of flammable vapors equal to or greater than 10 percent of the lower explosive limit.”
Section 1915.14(a)(1) requires a Marine Chemist or a U.S. Coast Guard authorized person certify the space
as “Safe for Hot Work.” Section 1915.11(b) provides,
Safe for Hot Work" denotes a space that meets all of the following criteria:
. . .
(2) The concentration of flammable vapors in the atmosphere is less than 10 percent of
the lower explosive limit[.]
The abatement required by Citation 1, Item 7 of the Health Citation results in the abatement of
Citation 2, Item 3 of the Health Citation. The two items are therefore duplicative.

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considered as modifying factors.”' Natkin & Co. Mech. Contractors, 1 BNA OSHC 1204, 1205
n.3 (No. 401, 1973).
First Marine employs approximately 300 employees (Tr. 955). Therefore, it is not entitled
to a reduction in the penalties based upon its size. Since OSHA had previously cited First Marine
for violations of the Act (Tr. 956), it is also not entitled to a reduction in the penalties based upon
a lack of history of penalties. The Court also concluded First Marine is not entitled to a credit for
good faith since any basis for finding good faith is diminished by First Marine’s “failure to
adequately prepare and train” its employees, “which demonstrates a lack of good faith.” MEI
Holdings, Inc., 18 BNA OSHC 2025, 1029 (No. 96-740, 2000). See also Gen. Motors, 22 BNA
OSHC 1019, 1057 (Nos. 91-2834E & 91-2950, 2007) (giving no credit for good faith when
management tolerated and encouraged hazardous work practices).
The Court concludes that with Citation No 1, Item 7 of the Health Citation, the gravity of
this violation is high. Failure to have a Marine Chemist certify a space that contains a dangerous
atmosphere prior to the performance of hot work as “Safe for Hot Work” exposed employees to
combustion hazards. Giving due consideration to the appropriateness of the penalty with respect
to the size of the business of the employer being charged, the gravity of the violation, the good
faith of the employer, and the history of previous violations, the Court concludes a penalty of
$12,934 is appropriate. The Court concludes that with Citation 2, Item 2 of the Health Citation,
the gravity of this violation is also high. First Marine failed to train employees in safe procedures
when working in confined and enclosed spaces and dangerous atmospheres. Without this training,
the employees were deprived of crucial information that could protect them from serious physical
harm or death. Giving due consideration to the appropriateness of the penalty with respect to the
size of the business of the employer being charged, the gravity of the violation, the good faith of
the employer, and the history of previous violations, the Court concludes a penalty of $129,336 is
appropriate. Accordingly,
VI. ORDER
IT IS HEREBY ORDERED THAT the remaining cited items of the Safety Citations are
VACATED and the remaining cited items of the Health Citations are VACATED except Citation
1, Item 7 and Citation 2, Item 2, which are both AFFIRMED, with penalty ASSESSMENTS of
$12,934 and $129,336 respectively.

SO ORDERED.

/s/

First Judge John B. Gatto

Dated: April 19, 2021
Atlanta, GA

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