Secretary of Labor,

	

 

              Complainant,

	

 

          v.

	

           OSHRC Docket No. 02-0667

Recchi America, Inc. - GLF Construction Corporation, A Joint Venture,

	

 

              Respondent.

	

 


Appearances:


Millard P. Darden, Jr., Esq., Office of the Solicitor, U. S. Department
of Labor, Atlanta, Georgia

For Complainant


Donald R. McCoy, Esq., Donald R. McCoy, P.A., Ft. Lauderdale, Florida

For Respondent


Before: Administrative Law Judge Ken S. Welsch


DECISION AND ORDER

            RECCHI America, Inc./GLF Construction Corporation (RAI/GLF),
is a joint venture formed to construct the Sidney Lanier Bridge in
Brunswick, Georgia, replacing the existing lift bridge that spans the
Brunswick River. The bridge project began in 1998 and was scheduled to
be completed by February 2003. The Occupational Safety and Health
Administration (OSHA) had issued citations resulting from safety
inspections of RAI/GLF’s bridge project on August 18, 1999, and June 1,
2000. On October 24, 2001, OSHA compliance officer (CO) Ronald Byrd
began a follow-up inspection at the bridge construction site, which
resulted in the Secretary issuing the instant citations for serious and
repeat violations of the Occupational Safety and Health Act of 1970
(Act) on April 10, 2002. RAI/GLF timely contested the citations and
proposed penalties.

            Citation no. 1 contains one item alleging a serious
violation of 29 C.F.R. § 1926.701(b) for failing to guard protruding
reinforcing steel into which employees could fall on or about
November 16, 2001. The Secretary proposed a penalty of $2,000 for this
item.

            Citation no. 2 contains three items. Item 1 alleges a repeat
violation of 29 C.F.R. § 1926.501(b)(4)(ii) for failing to protect
walking/working surfaces to prevent employees from tripping in or
stepping into holes on or about November 16, 2001. Item 2 alleges a
repeat violation of 29 C.F.R. § 1926.550(a)(9) for failing to barricade
accessible areas within the swing radius of the rear of a crane’s
rotating superstructure on or about October 24, 2001. Item 3 alleges a
repeat violation of 29 C.F.R. § 1926.550(f)(1)(iv) for failing to
positively secure a mobile crane to a barge on October 24, 2001. The
Secretary proposed a penalty of $25,000 each for items 1 and 2, and a
penalty of $70,000 for item 3.

            The court held a hearing in this matter on December 10 and
11, 2002, in Savannah, Georgia. The parties stipulated to jurisdiction
and coverage (Tr. 4). The parties have filed post-hearing briefs.

            RAI/GLF contests only the amount of the proposed penalty for
item 1 of citation no. 1 (RAI/GLF’s brief, p.1). For citation no. 2,
RAI/GLF denies that it failed to comply with the standards cited in
items 1, 2, and 3. RAI/GLF also contends that CO Byrd’s inspection was
flawed and that the Secretary failed to issue the citations with
reasonable promptness.

            For the reasons discussed, RAI/GLF’s procedural objections
are rejected. Item 1 of citation no. 1 and item 2 of citation no. 2 are
affirmed. Items 1 and 3 of citation no. 2 are vacated.

Background

            RAI/GLF is a joint venture formed to construct the Sidney
Lanier Bridge in Brunswick, Georgia. Construction began in 1998 and was
scheduled for completion in February 2003. The Sidney Lanier Bridge is
to replace an existing lift bridge that “impedes marine and vehicular
traffic.” The new bridge is a high-rise structure connecting the
southern end of Brunswick to an unpopulated area on the south side of
the Brunswick River (Tr. 22). The completed Sidney Lanier Bridge will be
approximately 10,000 feet (almost 2 miles) long and approximately 200
feet wide (Tr. 23).

            OSHA first inspected the project on June 25, 1999. As a
result of the inspection, the Secretary issued two citations to RAI/GLF
on August 18, 1999 (Exh. C-1, pp. 25-30). Citation no. 1 alleged, among
other violations, serious violations of § 1926.501(b)(4)(ii) (item 4),
§ 1926.550(a)(9) (item 6a), and § 1926.550(f)(1)(iv) (item 6b). The
parties settled the citations on August 18, 1999, with a reduction in
penalty and reclassification of item 6a from serious to
other-than-serious (Exh. C-1, pp. 12-14). The settlement was approved by
Order dated December 2, 1999 (Exh. C-1, p. 10).

            OSHA CO Ronald Byrd inspected the bridge project beginning
on April 3, 2000, through May 25, 2000. Following this inspection, the
Secretary issued three citations to RAI/GLF on June 1, 2000, alleging
serious, repeat, and other-than-serious violations of the Act. These
citations were settled with the withdrawal of two items and a reduction
in penalty (Exh. C-1, pp. 171-173). The court approved the parties’
settlement agreement by Order dated February 27, 2001 (Exh. C-1, p. 170).

            On October 24, 2001, CO Byrd began a follow-up inspection of
the bridge project. The inspection was limited to items found in the
previous inspection and unsafe conditions in plain view. At that time
RAI/GLF had completed the superstructure crossing the river and 85% of
the approach spans (Tr. 24). RAI/GLF had approximately 125 employees on
the construction site. It was using both land-based and marine-based
equipment, including cranes mounted on barges (Tr. 25).

            Upon arrival on site, CO Byrd went to the construction
office located in a trailer on Lanier Boulevard, where he met RECCHI’s
safety manager Sonia Lawrence. She took Byrd to the office of project
manager Brian West, where Byrd held an opening conference. Lawrence then
accompanied CO Byrd to the dock area on the north side of the river (Tr.
64-67).

            At the dock Byrd observed a 40-ton American Crawler Crane on
a 180-foot long barge (Tr. 346). The crane was unloading rebar steel
from a trailer on shore to a barge on the other side of the crane. The
swing radius barricade of the crane did not completely extend beyond the
crane’s rotating superstructure. The crane operator and two other
employees were on the barge (Tr. 68-70). One of the anchor points
securing the crane to the barge had become dislodged (Tr. 69, 75).

            CO Byrd returned to the bridge site on November 16. He
bypassed the office trailer and went directly to the bridge deck on the
south side of the river. Byrd introduced himself to deck superintendent
Richard Warrell, who called West to the site. West arrived and gave Byrd
permission to inspect the area (Tr. 86, 156).

            CO Byrd observed uncovered access holes over the span of the
bridge. Some of holes were marked with yellow caution tape, but most
were not and were not otherwise guarded. Approximately 20 employees were
walking in the area of the access holes. The employees were not wearing
fall protection (Tr. 296). Byrd also observed protruding rebar
throughout the south deck which was not covered with protective caps
(Tr. 101, 303-304).

            As a result of CO Byrd’s inspection, the Secretary issued
the citations that gave rise to this case.

Reasonable Promptness

            The citations were issued on April 10, 2002, approximately 2
weeks shy of the 6 month mark since the October 24 inspection. RAI/GLF
claims that the delay in issuing the citations prejudiced it in
preparing its defenses, particularly with regard to the conditions
observed on November 16, 2001, because the conditions had undergone
drastic changes between the inspection and the issuance of the citations.

            Section 9(a) of the Act provides:

If, upon inspection or investigation, the Secretary or his authorized
representative believes that an employer has violated . . . any standard
. . . of this Act . . ., he shall with reasonable promptness issue a
citation to the employer.


            Section 9(c) of the Act provides:

 

No citation may be issued under this section after the expiration of six
months following the occurrence of any violation.


            The purpose of the six-month limitation is “to ensure that
claims are prosecuted while the events are still fresh, and the
witnesses and evidence can be obtained.” /Safeway Store No. 914/, 16 BNA
OSHC 1504 (No. 91-373, 1993). Where the citations are issued within the
six-month period after the inspection, the employer must rebut the
presumption that they were not issued with reasonable promptness.

            In the present case, RAI/GLF has failed to show that it was
prejudiced in preparing its defense. Deck superintendent Warrell was
present with CO Byrd throughout his November 16 inspection and Byrd held
a closing conference with project manager West where the alleged
violations were discussed. Both Warrell and West testified at the
hearing. In its post-hearing brief, RAI/GLF states that it “might well
have come to the hearing with photographs and videos of the actual
operation instead of having to rely on drawings” to dispute Byrd’s
measurements and estimates (RAI/GLF’s Brief, p. 13). However, RAI/GLF
was on notice as to what conditions were at issue. It controlled the
work schedule and knew when the conditions at issue were likely to
change. RAI/GLF was no stranger to OSHA proceedings, having been
subjected to two previous inspections in the previous 2 years at the
same site. It was RAI/GLF’s responsibility to document the conditions at
the time of the inspection if it believed that no violative conditions
existed. RAI/GLF appears to believe that the rapidly changing nature of
its work entitles it to “express” citations, but any employer engaged in
a construction project oversees rapid changes in the physical work
environment. RAI/GLF was on notice of the inspection findings and could
have taken action to document the conditions, if needed.

            RAI/GLF’s claim that the Secretary failed to issue the
citations with reasonable promptness is rejected.

Improper Inspection

            RAI/GLF also contends that Byrd’s inspection was improper.
The company contends that Byrd was required to provide copies of the
complaint against it that prompted Byrds’s November 16 visit. This
argument is also without merit.

            Byrd testified that he returned to the bridge on November
16, 2001, in response to a number of anonymous telephone calls received
at his office expressing concern about fall hazards from the bridge
deck. Byrd had not yet held a closing conference with an RAI/GLF
representative and he considered his November 16 visit to be a
continuation of his inspection begun on October 24 (Tr. 242, 247-254).
It was not a complaint inspection.

            RAI/GLF also argues that Byrd should not have bypassed its
office trailer and gone to the bridge deck. It cites Chapter 2 of OSHA’s
Field Inspection Reference Manual (FIRM), which provides (Exh. R-2):

At the beginning of the inspection, the CSHO shall locate the owners
representative, operator, or agent in charge at the workplace and
present credentials. On construction sites this will most often be the
representative of the general contractor.


            RAI/GLF’s argument fails on a number of counts, starting
with the fact that an allegation that the Secretary violated § 8(a)(1)
by conducting an unreasonable inspection is an affirmative defense that
must be plead in the answer. RAI/GLF failed to raise the issue prior to
the hearing and did not move to amend its answer during the hearing. As
such, this issue should not be considered by the court. /National
Engineering & Contract Co., /16 BNA OSHC 1778, 1779 (No. 92-73, 1994).

            Even if the court were to consider this issue, RAI/GLF would
fail. It is a well-established precedent of the Review Commission that
OSHA’s guidelines and internal documents, including the FIRM, do not
confer procedural or substantive rights on employees. /Caterpillar,
Inc., /15 BNA OSHC 2153, 2160 (No. 87-922, 1993). Furthermore, it is
undisputed that Byrd did present his credentials and hold an opening
conference at RAI/GLF’s trailer on October 24, which fulfills Byrd’s
obligation to do so “[a]t the beginning of the inspection.” Even though
he bypassed the office trailer on November 16 as he continued his
inspection, Byrd met with West after the deck superintendent radioed for
him.

            RAI/GLF’s argument that the Secretary conducted an
unreasonable inspection is rejected.

CITATION NO. 1

            The Secretary has the burden of proving her case by a
preponderance of the evidence.

In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the applicability
of the cited standard, (b) the employer’s noncompliance with the
standard’s terms, (c) employee access to the violative conditions, and
(d) the employer’s actual or constructive knowledge of the violation
(/i.e., /the employer either knew or, with the exercise of reasonable
diligence could have known, of the violative conditions).


/Atlantic Battery Co., /19 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

Item 1: Alleged Serious Violation of 29 C.F.R. § 1926.701(b)

            The Secretary alleges that RAI/GLF committed a serious
violation of § 1926.701(b), which provides:

All protruding reinforcing steel, onto and into which employees could
fall, shall be guarded to eliminate the hazard of impalement.


            On the first page of its brief, RAI/GLF states: “The
citations allege a serious violation of 29 CFR 1926.701(b) for having
unguarded, protruding rebar (Citation 1, Item 1). Respondent contests
only the proposed penalty as to this citation.” RAI/GLF does not further
address either the merits of citation no. 1 or the proposed penalty of
$2,000.00.

            It is undisputed that the cited standard applies to the
cited conditions. Photographs taken by CO Byrd document that the
protruding rebar on the south bridge deck was not capped or otherwise
guarded to prevent employees from falling and being impaled on the rebar
(Exhs. C-2, C-3, C-4). Byrd observed 25 to 30 employees working on the
south deck, exposed to the hazard of impalement. The uncapped rebar was
in plain view, and its condition was known to RAI/GLF’s management
personnel (Tr. 101, 303-304). The Secretary has established a violation
of § 1926.701(b).

            The Secretary classified the violation as serious. A
violation is serious under § 17(k) of the Act if it creates a
substantial probability of death or serious physical harm. In
determining whether a violation is serious, the issue is not whether the
accident is likely to occur, but whether the result would be death or
serious physical harm if an accident should occur. /Whiting-Turner
Contracting Co., /13 BNA OSHC 2155, 2157 (No. 87-1238, 1989).

            As the photographic exhibits show, the uncapped rebar was
spread over a large area of the south bridge deck. Up to 30 employees
were exposed to the hazard of impalement. If an employee fell onto the
rebar, the likely result would be death or serious physical injury. The
violation is correctly classified as serious.

            The Secretary proposed a penalty of $2,000. The Commission
is the final arbiter of penalties in all contested cases. In determining
an appropriate penalty, the Commission is required to consider the size
of the employer’s business, history of previous violations, the
employer’s good faith, and the gravity of the violation. Gravity is the
principal factor to be considered.

            RAI/GLF had approximately 125 employees on the site at the
time of the inspection (Tr. 42). The cost of the bridge project overall,
including the demolition of the old bridge, was approximately
$110,000,000. RAI/GLF’s contract for the main span crossing and one
portion of the approach was $68,000,000 (Tr. 54). OSHA had inspected the
bridge project and issued citations to RAI/GLF in 1999 and 2000. The
Secretary issued the instant citations as a result of a follow up to the
2000 inspection (Exh. C-1). RAI/GLF is entitled to some credit for good
faith because it has a written safety program and an onsite safety
manager (Tr. 201-202, 205-206). The gravity of the violation is high.
There were a large number of employees working around a large number of
uncapped vertical rebar, increasing the chances that an accident could
occur. It is determined that a penalty of $2,000 is appropriate.

CITATION NO. 2

            The Secretary classifies the three violations cited in
citation no. 2 as repeat violations. A violation is considered a repeat
violation “if, at the time of the alleged repeat violation, there was a
Commission final order against the employer for a substantially similar
violation.” /Potlatch Corp., /7 BNA OSHC 1061, 1063 (No.16183, 1979). “A
prima facie case of substantial similarity is established by a showing
that the prior and present violations were for failure to comply with
the same standard.” /Superior Electric Company, /17 BNA OSHC 1635, 1638
(No. 91-1597, 1996).

Item 1: Alleged Repeat Violation of 29 C.F.R. § 1926.501(b)(4)(ii)

            Section 1926.501(b)(4)(ii) provides:

Each employee on a walking/working surface shall be protected from
tripping in or stepping into or through holes (including skylights) by
covers.


            The citation alleges that on the south side of the bridge,
“[s]everal holes in the walking working area were not protected exposing
employees to an 8 foot fall onto a four foot wide wooden platform and to
a 180 foot fall to the water or ground, on or about 11/16/01.” As CO
Byrd was walking with Warrell on the south bridge deck, he noted several
uncovered access holes. Some of the holes had yellow caution tape around
them, but most had no tape or other barricade guarding them. Two or
three employees working in access holes were tied off; the other
employees walking in the area were not (Tr. 294-296).

            Section 1926.500(b) defines “walking/working surface” as
“any surface, whether horizontal or vertical, on which an employee walks
or works, including but not limited to, floors, roofs, ramps, bridges,
runways, formwork and concrete reinforcing steel but not including
ladders, vehicles, or trailers, on which employees must be located in
order to perform their job duties.” There is no dispute that the south
bridge deck is a walking working surface.

            Section 1926.500(b) defines “hole” as “a gap or void 2
inches (5.1 cm) or more in its least dimension, in a floor, roof, or
other walking/working surface.” Byrd measured the access holes as 7
feet, 8 inches long and 44 inches wide (Tr. 299). The access holes were
holes within the meaning of the standard. Byrd and concrete foreman
Donnie Haase used a tape measure to measure the depth of the holes, and
found them to be 7 feet, 8 inches deep (Exh. C-23; Tr. 500).

            RAI/GLF contends that the cited standard is not applicable
to the cited conditions. It argues that the more applicable standard is
§ 1926.501(b)(4)(i) which provides:

Each employee on walking/working surfaces shall be protected from
falling through holes (including skylights) more than 6 feet (1.8m)
above lower levels, by personal fall arrest systems, covers, or
guardrail systems erected around such holes.


            The standards address two different hazards. Section
1926.501(b)(4)(i) addresses a fall hazard, /i.e/, falling completely
through the hole from its level to the level below. Section
501(b)(4)(ii) addresses a tripping hazard or “stepping into or through
holes,” where the employee’s body remains on the same level as the hole,
with only his foot or leg dropping down. Where the hole is large enough
for an employee to fall through to the level below, § 1926.501(b)(4)(i)
is the applicable standard. /Lancaster Enterprises, Inc., d/b/a Orbit
Roofing Co., /19 BNA OSHC 1033, 1036, fn.13 (No. 97-0771, 2000). The
holes on the bridge deck were 7 feet, 8 inches long and 3 feet, 8 inches
wide, more than sufficient for an average-sized man to fall through.

            CO Byrd testified that he cited RAI/GLF for a tripping
hazard rather than a fall hazard because he thought tripping was more
likely to happen. However, his testimony makes clear that what concerned
him was the possibility of an employee tripping on something else and
falling through the hole (Tr. 250-251):

[T]he workers that were working right at the hole of the openings, those
workers were protected; they were tied off. I was relating my citation
versus the guys that were walking by the opening. And, they had a
greater potential of tripping over rebar or even that piece of wood that
came across the walk path.

 

            The standard the Secretary cited does not address the
tripping hazard as described by CO Byrd. Section 1926.501(b)(4)(ii)
addresses the hazard of tripping in the hole itself, not tripping on
some other object and falling into the hole. The cited standard is not
applicable. Item 1 is vacated.

Item 2: Alleged Repeat Violation of 29 C.F.R. § 1926.550(a)(9)

The Secretary alleges a repeat violation of § 1926.550(a)(9), which
provides:

Accessible areas within the swing radius of the rear of the rotating
superstructure of the crane, either permanently or temporarily mounted,
shall be barricaded in such a manner as to prevent an employee from
being struck or crushed by the crane.


            On October 24, Byrd went to the dock area where he observed
a 40-ton American Crawler Crane mounted on a 180-foot long barge. The
crane was being used to unload rebar from a trailer to another barge
(Tr. 69). Crane operator James Oxner testified that the crane was
barricaded with four pieces of PVC pipe staked and strung with yellow
caution tape or yellow rope. Initially, Oxner testified, this was
sufficient to prevent employees from accessing the areas within the
swing radius of the rear of the crane’s rotating superstructure (Tr.
347). Later, around the time of Byrd’s inspection, more employees were
working on the barge and Oxner conceded that the barricade was
insufficient to prevent employees from exposure to the hazard of being
struck by the rotating superstructure of the crane (Tr. 348):

[W]e didn’t have quite as much materials on the barge, we had more
people on the barge and [the swing radius barricade] needed to be wider,
so when I swung, at least the counterweight would be a little bit inside
the caution tape.


            RAI/GLF had moved the barge from the bridge area to the dock
area for the purpose of making repairs, including the widening of the
barricade (Tr. 348-349). However, at the time of Byrd’s inspection, the
barricade had not been widened and the crane was in use. Byrd observed
two employees working on the barge while Oxner operated the crane. The
superstructure of the crane extended beyond the barricade approximately
2 feet. The two employees were working approximately 6 feet from the
accessible area (Tr. 73). Oxner conceded that he was aware that the
superstructure of the crane swung outside the barricade radius at a
certain point (Tr. 375).

            RAI/GLF argues that its employees were trained to avoid
areas where they could come in contact with the rotating superstructure
of the crane. This argument is without merit. Compliance with the cited
standard cannot be achieved through employee training; the standard
requires the installation of a physical barricade.

            The Secretary has established a violation of §
1926.550(a)(9). She alleges that it is a repeat violation.

            On August 18, 1999, the Secretary cited RAI/GLF for a
violation of § 1926.550(a)(9) because on or about July 1, 1999, the
company failed to properly guard the swing radius of the rear of a
crane’s rotating superstructure. RAI/GLF abated the violation and, on
November 19, 1999, entered into a Stipulation and Joint Motion with the
Secretary for final disposition of the matter, affirming the violation
as other than serious. Judge Nancy Spies issued an order approving the
stipulation on December 2, 1999 (Exh. C-1).

            On June 1, 2000, the Secretary cited RAI/GLF for a repeat
violation of § 1926.550(a)(9) because on or about April 14, 2000,
RAI/GLF failed to properly guard the swing radius of a crane’s rotating
superstructure. RAI/GLF abated the violation during the inspection. On
February 21, 2001, RAI/GLF entered into a Stipulation and Joint Motion
with the Secretary for final disposition of the matter, affirming the
violation as repeat. This court issued an order approving the
stipulation on February 27, 2001 (Exh. C-1).

            The Secretary has established that RAI/GLF committed a
repeat violation of § 1926.550(a)(9). Item 2 is affirmed.

            The Secretary proposed a penalty of $25,000. Failing to
barricade all accessible areas of the swing radius of a crane’s rotating
superstructure exposes employees to the hazard of being struck or
crushed, putting them at risk for death or serious physical injury.
RAI/GLF had twice before been cited for the same violation at the same
site. A penalty of $25,000 is appropriate.

Item 3: Alleged Repeat Violation of 29 C.F.R. § 1926.550(f)(1)(iv)

            Section 1926.550(f)(1)(iv) provides:

            Mobile cranes on barges shall be positively secured.

            It is undisputed that when CO Byrd observed the American
Crane Crawler on October 24, one of the four pad eyes used as anchor
points to secure the crane to the barge was broken (Tr. 69, 75). Byrd
stated, “When we went up to the barge at the dock, on one side of the
crane, it looked good; it was secured. And, as I continued my
walk-through and walk-around the crane, the other side did not have the
cable attached to the crane” (Tr. 75).

            RAI/GLF contends that § 1926.550(f)(1)(iv) is not applicable
to the cited crane. Noting that § 1926.550(f) is captioned “Floating
cranes and derricks,” RAI/GLF argues that, at the time of the
inspection, the barge was moored to another barge (effectively docked),
it was grounded on mud, and the Brunswick River was at low tide. Thus,
the barge was not floating.

            It is immaterial whether or not the barge was floating at
the time of the inspection. Although the caption to the standard refers
to “floating cranes,” the standard itself does not contain the word
“floating.” It is the standard itself, and not the caption, that
determines the scope of the standard. /Chesapeake Operating Company, /10
BNA OSHC 1790, 1793 (No. 78-1353, 1982). The standard plainly addresses
“mobile cranes on barges.” Undoubtedly, the crane in question was a
mobile crane on a barge. The cited standard is applicable.

            RAI/GLF argues that the barge had been towed in to effect
various repairs, including the broken pad eye. But, as noted in the
previous section, the crane was being used to hoist rebar before any
repairs were made (Tr. 355).

            Oxner testified that as a temporary measure, he “put a chain
in through the eye around the corner bit of the barge. . . . A corner
bit is where you would put more in the line to secure it to like another
barge or a dock” (Tr. 357). Oxner testified that the chain around the
corner bit secured the crane as well as a cable through the repaired pad
eye would (Tr. 359-360).

            The Secretary offered no rebuttal to Oxner’s testimony at
the hearing and does not address it in her post-hearing brief. It is the
Secretary’s burden to establish that RAI/GLF failed to positively secure
the crane to the barge. She has not shown that temporarily chaining the
crane to a corner bit on the barge is less secure than anchoring the
crane through the pad eye. Therefore, the Secretary has failed to
establish that RAI/GLF failed to comply with the terms of the standard.
Item 3 is vacated.

FINDINGS OF FACT AND CONCLUSIONS 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 hereby ORDERED that:

            1. Item 1 of citation no. 1 is affirmed, and a penalty of
2,000 is assessed;

            2. Item 1 of citation no. 2 is vacated, and no penalty is
assessed;

            3. Item 2 of citation no. 2 is affirmed, and a penalty of
$25,000 is assessed; and

            4. Item 3 of citation no. 2 is vacated, and no penalty is
assessed.

 

                                                                        /s/ 

                                                                        KEN
S. WELSCH

                                                                        Judge


Date: May 12, 2003