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Howrey LLP
A contractor performed excavation work for a sewer and water line project. The digging occurred on a public street in an industrial park. An OSHA compliance officer drove by the jobsite and noticed the excavation. The officer parked his car and walked past the traffic cones blocking traffic to get a better view of the trench. The officer saw one of the contractor's employees excavating with a backhoe and another employee working at the bottom of the 18-foot-deep trench. There was no ladder for the employee to climb out of the trench. Nor did the trench contain a trench box - a device used to prop up the walls and prevent a collapse, thereby protecting workers.
The officer began videotaping the scene and told the project's superintendent of the nature of the inspection. During this discussion, the officer noticed loose dirt falling back into the trench as the employee climbed out. The backhoe operator, who was also a supervisor, told the employee to only work in the trench with a trench box. The excavation resumed.
The officer was concerned that the slope of the trench was too steep. He measured the slope and found that the walls were between 35 and 50 degrees. He also measured the length, width and depth of the trench. Once the officer left, the contractor made its own measurements, finding a more gradual slope of 45 degrees on one wall rather than 49 degrees as measured by OSHA. Both the officer and contractor also took soil samples to determine soil stability.
OSHA, the Occupational Safety and health Administration, has three classifications for soil types. Type A is the most stable, followed by Types B and C. Trench walls must be less steep in Type C soil than in Type B or A soil. Type A may be sloped up to 53 degrees, Type B up to 45 degrees, and Type C no steeper than 34 degrees. OSHA's testing on the soil classified it as Type B and C. The contractor's testing classified the soil as Type A and B.
Based on the officer's soil samples and the measurements of the trench's slope, OSHA issued three citations to the contractor. The citation at issue was the fine for "willfully permitting an employee to work in a trench without adequate protection (inadequately sloped trench walls)" in violation of federal regulations. This civil penalty was $49,000.
The contractor contested the citations, and an administrative law judge conducted a two-day evidentiary hearing. At the hearing, the contractor moved to suppress the evidence from the inspection on the ground that it was acquired by a warrantless search in violation of the Fourth Amendment. The contractor also disputed the soil type and the dimensions and slope of the trench. The contractor argued that its violation was not willful because it had a safety program in place and because it had complied in good faith with OSHA regulations.
The ALJ compared the parties' measurements and tests. Finding the OSHA evidence to be more credible, the ALJ affirmed all three violations. OSHA's Review Commission denied review of the ALJ's decision, and the contractor petitioned for review to the Seventh Circuit, which affirmed. Lakeland Enterprises of Rhinelander, Inc. v. Chao, 402 F.3d 739, 741 (7th Cir. 2005).
The contractor argued that the ALJ should not have accepted the evidence presented by OSHA as the more accurate version. The court accepted the ALJ's reliance on OSHA's tests because its soil samples were taken from an undisturbed pile that had been removed from the trench. On the other hand, the contractor's samples were taken later, and there was evidence that the contractor tested soil from outside the excavation area to mislead the ALJ. The contractor's contentions also were undercut by videotapes of soil conditions. Even though there was a dispute over the trench's dimensions, the court found that both parties agreed that one wall of the trench was sloped in excess of that allowed for Type B and C soils. The court held that the citation was warranted because there was substantial evidence that the contractor's employee was exposed to a cave-in hazard.
Turning to the issue of willfulness, the court considered the present violation and the contractor's past misconduct. Regarding the present violation, the court noted that the contractor's employee worked in an inadequately sloped trench in plain view of two supervisors. The two supervisors did nothing to eliminate this danger or to remove the employee from the trench. The court found that this inaction amounted to "plain indifference" for purposes of finding willfulness.
Regarding the past misconduct, the court found that the contractor had received six OSHA citations since 1990, including one for a trench-related fatality in 1996, all of which demonstrated that the contractor possessed a "heightened awareness" of its responsibility to comply with OSHA safety regulations. The combination of the supervisor's indifference and the past citations justified the $49,000 fine.
The court also considered the contractor's Fourth Amendment defense. The contractor argued that the OSHA officer's inspection required a warrant and, absent a warrant, any evidence was inadmissible. The court sidestepped the issue of whether the exclusionary rule even applied to OSHA civil enforcement proceedings. Instead, it ruled that there was no Fourth Amendment violation because the contractor did not have a "reasonable expectation of privacy" in an open trench dug on a public roadway. The court held, moreover, that the contractor consented to the OSHA officer's search by not objecting to the inspection and requesting a warrant.
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For more information about the issues covered in this report, please contact Paul Berning in our San Francisco office at 415-848-4996 or at paulberning@howrey.com or contact your Howrey attorney. For more information about Howrey's Construction Practice Group, click here.
©2006 Howrey LLP
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