Vacate
PP-2022-T3633-0034-ADOSH · Arizona Division of Occupational Safety and Health · 2023-03-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
DIVISION OF OCCUPATIONAL SAFETY AND HEALTH OF THE INDUSTRIAL COMMISSION OF ARIZONA,
Complainant
v
CITY OF CASA GRANDE-SOUTH OPERATIONS CENTER
Respondent
No. PP-2022-T3633-0034-ADOSH
FINDINGS AND ORDER APPROVING
SETTLEMENT AGREEMENT
On April 13, 2022, the Division of Occupational Safety and Health of the Industrial Commission of Arizona (“Division” or “ADOSH”) conducted an inspection of CITY OF CASA GRANDE – SOUTH OPERATIONS CENTER (“Respondent”) located at 314 E. 1st Avenue, Casa Grande, Arizona 85122. The Division assigned inspection number PP-2022-T633-0034 to this inspection. As a result of the inspection, the Division issued a Citation and Notification of Penalty on June 29, 2022.
The Division issued two citations. Both citations were categorized as “Non-Serious” and neither citation was assessed a penalty. The Division issued Citation 1 Item 1 as a Non-Serious violation of 29 Code of Federal Regulations (“C.F.R”) 1910.95(c)(1), “The employer shall administer a continuing, effective hearing conservation program.” The Division issued Citation 1 Item 2 as a Non-Serious violation of 29 C.F.R. 1910.101(b) that regulates the “in-plant handling, storage, and utilization of all compressed gases.”
WHEREAS, the Respondent filed a timely notice of contest with respect to the above-mentioned Citations and Notification of Penalty, the Division and the Respondent (the “parties”) now desire to settle this matter without the necessity and uncertainty of a formal hearing. The parties agree that it is in their respective best interests to settle this matter without going through the procedures, time and expense associated with litigating this matter.
The undersigned, having fully considered the file, records and all other relevant matters, now enters Findings and Conclusions as follows:
FINDINGS AND CONCLUSIONS
The parties have filed a Settlement Agreement (“Agreement”) resolving all issues and disputes involved in this matter. The Agreement is incorporated by reference and made a part of this document.
The Agreement is in furtherance of the purpose of industrial safety and is consistent with the provisions and objectives of the Arizona Occupational Safety and Health Act of 1972 and represents a full and final determination of this matter, eliminating any need for and constituting a waiver of the right to hearing or any alternate determination on the merits of the citations, classifications, and stated penalty, and is hereby approved.
ORDER
IT IS ORDERED that the Division will delete Citation 1 Item 1 only under the condition that within 120 days from the date the Judge in this matter approves this Settlement Agreement (“Agreement”), Respondent conducts an assessment to determine whether or not the level of noise determined by the ADOSH at the time of inspection (85.6 dBA) has been reduced through elimination, engineering, substitution, or administrative action. Respondent agrees to notify the Director of ADOSH, Jessie Atencio ([email redacted]), and his legal counsel, Jo-Ann Handy ([email redacted]), of the results of the assessment within 120 days from the date the Judge in this matter approves this Agreement.
IT IS FURTHER ORDERED that Citation 1 Item 2 will remain as provided in the Citations and Notification of Penalty issued on June 29, 2022.
IT IS FURTHER ORDERED that Respondent’s request in the Agreement to withdraw its notice of contest and request for hearing with regard to inspection number PP-2022-T633-0034 is granted.
IT IS FURTHER ORDERED THAT each party is to bear its own attorney’s fees and costs.
IT IS FURTHER ORDERED that the hearing in this matter is vacated from the docket of the Office of Administrative Hearings and the matter is referred back to the Arizona Division of Occupational Safety and Health of the Industrial Commission of Arizona.
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.
Done this day, March 22, 2023.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile March 22, 2023 to:
Jessie Atencio, Director
Arizona Division of Occupational Safety and Health
800 W. Washington Street
Phoenix, AZ 86007
[email redacted]
CITY OF CASA GRANDE-SOUTH OPERATIONS CENTER
Susan Blythe
City of Casa Grande-South Operations Center
510 E. Florence Blvd.
Casa Grande, AZ 85122
[email redacted]
Jo-Ann Handy
Industrial Commission of Arizona
Legal Division
800 W. Washington St. Suite 303
Phoenix, AZ 85007
[email redacted]
By: OAH Staff