United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, SW

Atlanta, Georgia 30303-3104




Secretary of Labor,

	

 

     Complainant, 

	

 

          v.

	

           OSHRC Docket No. 07-1498

Fern Valley Excavating, Inc.,

	

 

     Respondent.

	

 


Appearances:


              Patrick L. DePace, Esquire., U. S. Department of Labor,
Office of the Solicitor, Cleveland, Ohio

              For Complainant

 

David Leneghan, Esquire, Broadview Heights, Ohio

              For Respondent


Before: Administrative Law Judge Stephen J. Simko, Jr.



DECISION AND ORDER


            Fern Valley Excavating, Inc. (Fern Valley) is engaged in
excavation contracting and landscaping. On April 26, 2007, the
Occupational Safety and Health Administration conducted an investigation
of a jobsite in Parma, Ohio. This investigation concerned working
conditions relating to an accident at that worksite on April 26, 2007.
Respondent timely filed a notice contesting the citation and proposed
penalties. A hearing was held, pursuant to Simplified Proceedings, 29
C.F.R. § 2200.200 et seq., in Cleveland, Ohio, on February 5, 2008. The
threshold issue to be decided is whether Respondent was the employer of
workers on this jobsite on April 26, 2007, the date of this accident.
For the reasons that follow, I find Respondent was not an employer on
that site on that date. All alleged violations are vacated and no
penalty is assessed.


            Excerpts of relevant transcript pages and paragraphs,
including findings of fact and conclusions of law (Tr. 174 - 183), are
attached hereto in accordance with 29 C.F.R. § 2200.209(f).

 

FINDINGS OF FACT AND CONCLUSION OF LAW


The foregoing decision constitutes the findings of fact and conclusions
of law in accordance with Federal Rule of Civil Procedure 52(a).


ORDER


            Based upon the foregoing decision, it is ORDERED:


            Citation No. 1, Items 1, 2, 3 and 4 are vacated and no
penalty is assessed.





                                                                                                /s/


                                                                                                 STEPHEN
J. SIMKO, JR.

                                                                                                Judge



Date: February 29, 2008





Attachment Tr. 174 - 183