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By Scott S. Shepardson
Thelen Reid Brown Raysman & Steiner LLP
A
South Dakota excavation contractor was fined $93,000 by
the Occupational Health and Safety Administration for trenching
violations on a water main project that were discovered
during a surprise site inspection. The fines were upheld
recently by the U.S. Court of Appeals for the Eighth Circuit.
Dakota Underground, Inc. v. Secretary of Labor, 200
F.3d 564 (8th Cir. 2000). The court remanded to the Administrative
Law Judge for further consideration a separate penalty for
a trenching water violation that could increase the total
fine by $40,000.
Dakota
Underground, Inc. is an excavation contractor. In August
1997, a four-man Dakota crew was replacing a water main
in Fargo, North Dakota. An OSHA inspector conducted an unscheduled
inspection of the worksite and cited Dakota for violations
of OSHA regulations. Each of the violations was deemed "willful,"
resulting in greater penalties. The violations included:
(1) Allowing a worker to work in the trench without a ladder
for egress; (2) allowing water to accumulate in the trench
and failing to protect the worker from the dangers associated
with the water; and (3) failure to adequately protect workers
from cave-in by shoring up or sloping the walls of the trench.
Specifically,
the OSHA inspector noted that when he arrived at the site,
he observed a worker in a trench without a ladder, in clear
view of the foreman. OSHA argued, and the court agreed,
that such a disregard by the foreman for OSHA regulations
demonstrated that Dakota condoned the actions of its worker.
The foreman's inaction was attributable to Dakota. The court
also noted that Dakota had previously been cited for multiple
trenching violations, several of which were willful.
Dakota,
however, argued that ladders were available to its employees
at the worksite and that the ladders were periodically moved
so as to be close to workers in the trenches. Accordingly,
the violation should not be deemed willful. The court stated
that even if Dakota complied with the ladder regulation
at other times, that would not negate the ALJ's finding
of willfulness with respect to this violation. "If
an employer knowingly permits a serious hazard to exist,
it has acted willfully even if the workplace is otherwise
safe." Valdak Corp. v. OSHRC, 73 F.3d 1466 (8th
Cir. 1996). Accordingly, the court affirmed the ALJ's assessment
of a $23,000 penalty for the ladder violation.
Dakota
also was cited for trenching in violation of 29 CFR §1926.652
(a). That regulation requires that each employee in an excavation
be protected from cave-ins by an adequate protective system.
For the water main job, Dakota chose to utilize trench boxes
to protect its workers. While trench boxes are an adequate
protective measure under the regulation, they protect only
those workers working within their boundaries.
During
his inspection, the OSHA inspector noted that at least two
employees in three different locations were working outside
the confines of the trench box. The OSHA inspector deemed
these violations willful, and the ALJ assessed the maximum
penalty for the trenching violations, $70,000. The penalty
assessed is determined by examining four factors: (1) the
size of the company; (2) the gravity of the violation; (3)
the good faith of the employer; and (4) the history of previous
violations. 29 USC §666 (j).
The
court noted that the size of the penalty here was based
primarily on the second factor, the gravity of the violation.
The court added, however, that none of the other factors
warranted a reduction in the amount of the penalty. Dakota
had a history of OSHA violations, and because the violations
were willful, there was an indication of a lack of good
faith on the part of the employer. Consequently, despite
that fact that Dakota was a small company, the court affirmed
the penalty.
Lastly,
Dakota argued that the violations should have been grouped,
thus capping the penalty at $70,000. The court disagreed,
stating that the different violations would require different
acts of abatement. Accordingly, the ALJ's decision not to
group the violations was upheld and penalties of $93,000
were affirmed. The determination on the $40,000 water penalty
was remanded to the ALJ for further proceedings.
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For more information about the issues covered in this report, please contact Scott S. Shepardson in our San Francisco office at 415-369-7184 or at sshepardson@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.
©2000 Thelen Reid Brown Raysman & Steiner LLP
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