9th Circuit Affirms OSHA Violations Ruling

October 17, 2006 (PLANSPONSOR.com) - The 9th US Circuit Court of Appeals has denied a request to review an order from the Occupational Safety & Health Review Commission by an employer who had a trench collapse, killing one employee.

In its decision, the appellate court said it found sufficient evidence to support safety violations cited by the Occupational Safety & Health Administration (OSHA) against R. Williams Construction Company. Affirmation of the OSHA violations was given by an administrative law judge after a two-day hearing during which various employees and supervisors testified they were never provided safety training. One supervisor testified he was not even familiar with OSHA.

Violations affirmed by the 9th Circuit included:

  • Williams violated 29 C.F.R. § 1926.21(b)(2) for failing to instruct each employee in the recognition and avoidance of unsafe conditions and for failing to eliminate other hazards. Williams provided no training in trenching hazards to at least the two employees working in the trench; moreover, no Williams supervisor was familiar with OSHA regulations.
  • Williams also violated 29 C.F.R. § 1926.651(c)(2) by providing only one safe means of egress at the east end of the 45-foot trench. OSHA requires that employers ensure that no worker would have to travel more than 25 feet to reach a safe point of egress.
  • Williams violated 29 C.F.R. § 1926.651(k)(1) for failing to designate a “competent person” with sufficient training and knowledge to identify and correct existing and predictable hazards. No supervisor at the company was familiar with the basic standards applicable to the worksite or otherwise “capable . . . of identifying and correcting existing and predictable hazards in their surroundings.
  • Williams violated 29 C.F.R. § 1926.652(a)(1) for failing to protect employees from cave-ins. Williams had reason to know that its employees would enter the trench on the day of the cave-in and had actual knowledge that two of its employees entered the trench prior to the cave-in.

On the day prior to the trench collapse a hydraulic jack shoring system, which supported the trench wall, was removed. Two employees entered the trench on the next day to clean pumps designed to remove ground water from the trench. As they exited the trench, the wall collapsed, killing one worker and severely injuring the other.

OSHA cited Williams with four safety violations and Secretary of Labor Elaine Chao ordered the company pay a $91,000 penalty. After its hearing, the administrative law judge affirmed the citations, but decreased the penalty to $22,000 partly due to the fact Williams was a small company and had no prior violations.

The appellate court affirmed the administrative law judge’s decision.

The opinion in R. Williams Construction Company v. Occupational Safety & Health Review Commission is here .