Vacate
PP-2022-T3633-0005-ADOSH · Arizona Division of Occupational Safety and Health · 2022-05-03
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
DIVISION OF OCCUPATIONAL SAFETY AND HEALTH OF THE INDUSTRIAL COMMISSION OF ARIZONA,
Complainant
v
OLDCASTLE APG WEST, INC.,
Respondent.
No. PP-2022-T3633-0005-ADOSH
FINDINGS AND ORDER APPROVING
SETTLEMENT AGREEMENT AND
VACATING HEARING
On November 04, 2021, the Division of Occupational Safety and Health of the Industrial Commission of Arizona (“ADOSH” or “Division”) conducted an inspection at the business location of Oldcastle APG West, Inc., (“Respondent” or “OW”) located at 2200 W Gardner Lane, Tucson, AZ 85705, Inspection No. PP-2022-T3633-0005.
On December 17, 2021, the inspection resulted in ADOSH issuing a Citation and Notification of Penalty (“Citation”) to Respondent, specifically:
The Division issued Citation 1, Item 1 for a Serious violation of 29 C.F.R. 1910.212(a)(1) assessing a penalty in the amount of $1,125.00.
The Division issued Citation 1, Item 2a for a Serious violation of 29 C.F.R. 1910.219(c)(2)(i) assessing a penalty in the amount of $1,125.00.
The Division issued Citation 1, Item 2b for a Serious violation of 29 C.F.R. 1910.219(h)(1) with no assessed penalty.
WHEREAS, Respondent filed a notice of contest dated January 07, 2022, with respect to the above-mentioned Citation and Notification of Penalty, and Division and Respondents now desire to settle this matter without necessity and uncertainty of formal hearing. Both parties agree that it is in their respective best interests to settle this matter without going through the procedures, as well as, time and expense associated with litigating through a formal hearing.
FINDINGS
On April 28, 2022, the parties filed a Settlement Agreement resolving all issues and disputes involved in this matter. The Settlement Agreement is incorporated by reference and made a part hereof.
The Settlement Agreement is in furtherance of the purpose of Industrial Safety, is consistent with the provisions and objectives of the Arizona Occupational Safety and Health Act of 1977, represents a full and final determination of this matter, and is hereby approved.
ORDER
IT IS HEREBY ORDERED that Citation 1, Item 1 shall be re-classified from Serious to Non-Serious.
IT IS FURTHER ORDERED that Citation 1, Item 2a shall be re-classified from Serious to Non-Serious.
IT IS FURTHER ORDERED that Citation 1, Item 2b shall be re-classified from Serious to Non-Serious.
IT IS FURTHER ORDERED that the penalty amount for Citation 1, Item 1 shall remain as issued.
IT IS FURTHER ORDERED that the penalty amount for Citation 1, Item 2a shall remain as issued.
Respondent, agrees to:
Provide ADOSH with documentation within 30 days of the date of this Settlement Agreement indicating that the guarding issues identified in the Citation and Notification of Penalty have been corrected and abated.
Develop Administrative Controls that specify what its employees can and cannot do while equipment is operating.
Develop barriers to prevent employees from entering spaces where there are moving parts.
To bring a third party consultant to carry out an audit of all of its guarding practices within 30 days of the date of this Settlement Agreement and to address all of the consultant’s recommendations.
To contact ADOSH within 60 days of the date of this Settlement Agreement and schedule a consultation site visit.
Respondent moves to withdraw its Request for Hearing with regard to Inspection No. PP-2022-T3633-0005 with prejudice.
IT IS FURTHER ORDERED that this matter is vacated from the Office of Administrative Hearings and remanded back to the Arizona Division of Occupational Safety and Health of the Industrial Commission of Arizona for further processing and disposition.
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 to the Review Board by filing a written request with the Industrial Commission of Arizona, Administrative Law Judge Division, as provided by Ariz. Rev. Stat. §§ 23-421(C) and 23-423 (A) & (B). Written requests for review must be filed within fifteen (15) days after the mailing of this Decision. A written request for review shall be considered “filed” with the Industrial Commission of Arizona if the request is deposited in the U.S. Mail, postage prepaid, or if the request is actually received by an office of the Industrial Commission of Arizona, If no written request is filed within the time provided, this Decision becomes final.
DATED this 3rd day of May, 2022.
/s/ Tammy L. Eigenheer
Tammy L. Eigenheer
Administrative Law Judge
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 a copy thereof was served upon the Complainant and Respondent, and upon all other parties hereinafter named, on May 3, 2022 by depositing in the United States mail a copy thereof in a postage-prepaid, sealed envelope addressed to such parties at their addresses shown:
Jessie Atencio
Director
Arizona Division of Occupational Safety and Health
800 W. Washington Street
Phoenix, AZ 86007
[email redacted]
Kevin R. Keating, Esq.
Counsel
CRH Americas, Inc.
900 Ashwood Parkway, Suite 600
Atlanta, GA 30338
Mohamad Chehab, Esq.
Industrial Commission of Arizona
Legal Division
800 W. Washington, Suite 303
Phoenix, Arizona 85007
By: c. serrano Date: May 3, 2022