Vacate

PP-2022-E7721-0049-ADOSH · Arizona Division of Occupational Safety and Health · 2023-11-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

DIVISION OF OCCUPATIONAL SAFETY & HEALTH OF THE INDUSTRIAL COMMISSION OF ARIZONA,

Complainant,

RED HAWK Construction, LLC

Respondent.

No. PP-2022-E7721-0049-ADOSH

FINDINGS & ORDER APPROVING SETTLEMENT AGREEMENT

On August 05, 2022, the Division of Occupational Safety and Health of the Industrial Commission of Arizona (“Division”) conducted an inspection of Red Hawk Construction, LLC at 1400 W. Hunt Hwy, San Tan Valley, AZ 85143, resulting in the issuance of a Citation on January 20, 2023.

Citation 1, Item 1 was issued for an alleged Serious violation of 29 C.F.R. § 1926.2l(b)(2). Citation 1, Item 1 had an assessed penalty of $2,000.00.

Citation 1, Item 2 was issued for an alleged Serious violation of 29 C.F.R. § 1926.65l(b)(4). Citation 1, Item 2 had an assessed penalty of $2,000.00.

Citation 1, Item 3 was issued for an alleged Serious violation of 29 C.F.R. § 1926.65l(k)(l). Citation 1, Item 3 had an assessed penalty of $2,000.00.

Citation 1, Item 4 was issued for an alleged Serious violation of 29 C.F.R. § 1926.652(a)(l ). Citation 1, Item 4 had an assessed penalty of $1,000.00.

Respondent filed a timely Notice contesting the Citation on February 09, 2023, contesting the Citation. A formal hearing is not currently scheduled before the Office of Administrative Hearings (“OAH”).

Having fully considered the file, records, and all other relevant matters, the OAH enters Findings and Conclusions as follows:

FINDINGS AND CONCLUSIONS

The parties have filed a Settlement Agreement resolving all issues and disputes involved in this matter. The Settlement Agreement fully appears to be consistent with the provisions and objectives of the Arizona Occupational Safety and Health Act, A.A.C. R20-5-827. Accordingly, the Settlement Agreement is by this reference adopted herein and made a part hereof.

The terms of the Settlement Agreement provide Citation 1, Item 1, shall remain as a serious citation. The penalty for Citation 1, Item 1, shall be reduced by 25% from $2,000.00 to $1,500.00.

Citation 1, Item 2 shall be reclassified from Serious to Non-Serious. The penalty for Citation 1, Item 2 shall be reduced by 50% from $2,000.00 to $1,000.00.

Citation 1, Item 3 shall be reclassified from Serious to Non-Serious. The penalty for Citation 1, Item 3 shall be reduced by 40% from $2,000.00 to $1,200.00.

Citation 1, Item 4 shall remain as a Serious citation. The penalty for Citation 1, Item 4 shall be reduced by 25% from $1,000.00 to $750.00.

Respondent agrees to the following:

Within fourteen (14) days after the date that the OAH approves the Findings and Order Confirming Settlement Agreement (“Order”), Respondent agrees to deliver a bank check or money order in the amount of $4,450.00 made out to “Industrial Commission of Arizona” and mail or deliver the check to Jo-Ann Handy, Legal Division, Industrial Commission of Arizona, 800 W. Washington St., Ste. 303, Phoenix, AZ 85007.

Within 90 days after the date that the OAH approves the Order, Respondent agrees to have Josh Cullipher take and complete a specialized competent person training class in trench and excavations.

Within 90 days after the date that the OAH approves the Order, Respondent agrees to submit to ADOSH documentation of the completion of the trench and excavation competent person training course completed by Josh Cullipher.

The Citations or alleged violations shall not be deemed as an admission of any matter, and Respondent does not admit that it violated the standards cited.

Modifications to citation classification or penalty level, or any vacating of a citation or penalty in this agreement are contingent upon the Respondent's compliance with Findings and Conclusion number 6 of this agreement. Failure by the Respondent to substantially comply with the terms of this agreement, constitutes a breach of this agreement. Any breach shall mean that all originally issued citations and penalties shall be reinstated and affirmed as a final order of the Commission, and all unpaid amounts shall become due and payable 14 calendar days following the breach.

ORDER

IT IS HEREBY ORDERED that, Item 1 Citation 1, Item 1 shall remain as a Serious Citation. The penalty for Citation 1, Item 1 shall be reduced by 25% from $2,000.00 to $1,500.00.

Citation 1, Item 2 shall be reclassified from Serious to Non-Serious. The penalty for Citation 1, Item 2 shall be reduced by 50% from $2,000.00 to $1,000.00.

Citation 1, Item 3 shall be reclassified from Serious to Non-Serious. The penalty for Citation 1, Item 3 shall be reduced by 40% from $2,000.00 to $1,200.00.

Citation 1, Item 4 shall remain as a Serious Citation. The penalty for Citation 1, Item 4, shall be reduced by 25% from $1,000.00 to $750.00.

IT IS FURTHER ORDERED that the Citations or alleged violations shall not be deemed as an admission of any matter, and Respondent does not admit that it violated the standards cited.

IT IS FURTHER ORDERED each party is to bear its own attorney's fees and costs.

NOTICE

Any party dissatisfied with this Decision may request review by the Occupational Safety and Health Review Board by filing a written request with the Administrative Law Judge Division of the Industrial Commission within fifteen (15) days after the mailing of the Decision as provided by Arizona Revised Statutes §§ 23-421(C) and 23-423(A) and (B). If no such request is made within the time provided, the Decision becomes final.

By: /s/ Hon. Jenna Clark

Administrative Law Judge

DATED AND MAILED IN PHOENIX, ARIZONA, THIS 30th DAY OF NOVEMBER, 2023.

BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS

CERTIFICATE OF SERVICE

The attached Findings and Order Approving Settlement Agreement was placed in, and is now a part of, the Office of Administrative Hearings file and was served on the parties named below via mail/email/facsimile on November 30, 2023:

Mark Norton, Director

Arizona Division of Occupational Safety and Health

800 W. Washington St.

Phoenix, AZ, 85007

[email redacted]

Julie Pace, Esq.

David Selden, Esq.

CMR Construction, LLC, Respondent

PSGM Law, Counsel for Respondent

7901 N. 16th St., Ste. 200

Phoenix, AZ 85020

[email redacted]

Jo-Ann Handy, Esq.

Legal Division, Attorney for the Industrial Commission of Arizona

Industrial Commission of Arizona

800 W. Washington St., Ste. 303

Phoenix, AZ 85007

[email redacted]

By: OAH Staff