U.S. Court of Appeals Upholds Findings of Four OSHA Violations

June 2015

By Andrew R. Makauskas

In DuKane Precast, Inc. v. Thomas E. Perez, Secretary of Labor and the Occupational Safety and Health Administration, No. 14-3156 (US Circuit 7th), DuKane appealed a determination by an administrative law judge of a penalty of $70,000.00 for four violations. Three of the violations were characterized as serious and one as willful.

The underlying incident occurred at a plant in Naperville, Illinois in February 2012. A worker, William Ortiz, was inside of a bin, 18 feet in height, that was used for storing sand. Mr. Ortiz was in the bin trying to scrape sand from its inside wall when the sand beneath his feet gave way, causing him to sink and to be engulfed by sand falling into the space created by his fall. He was buried up to his neck in the sand. Coworkers ran to the bin and started to dig him out. They were able to remove the sand pressing on him above his waist but were not able to free him completely. According to the decision, the plant manager was informed of the incident within about 10 minutes of it happening. He investigated the matter and allegedly determined that there was no emergency and left the accident scene, allowing the coworkers to attempt to free Mr. Ortiz. After being unable to free him, and after additional sand pressed on Mr. Ortiz, he asked the coworkers to call 911 for professional assistance. This request was not immediately granted. The plant manager later called 911. The Naperville Fire Department's technical rescue team arrived with specialized equipment and freed Mr. Ortiz. It was estimated he had been trapped in the bin for 1 ½ hours.

The bin was considered to be a "permanent - required confined space." (PRCS) The day after the accident, an OSHA inspector went to the scene and issued three "serious" violations and one "willful" violation. The serious violations were that the barrier, which consisted of the bins' wall, was only 27 inches above the platform abutting the wall; that DuKane had failed to take measures to prevent unauthorized entry into the bin (and also into another bin-the DuKane plant has 5 bins); and the company had failed to post warnings that a permit was required to enter a bin.

The willful violation pertained to DuKane's failure to summon emergency services immediately upon discovering the accident and a failure to prevent Ortiz' coworkers from trying to rescue him which they should not have done because of the dangers to themselves and because they might also endanger the person they were trying to rescue.

Following OSHA's proposal, the administrative law judge imposed a penalty upon DuKane of $70,000.00 for the four violations. The company appealed the finding on the willful violation and the finding as to the violation of the requirement of a 42-inch railing or an equivalent barrier. In denying DuKane's argument regarding the willful violation, the 7th Circuit acknowledged that there was not a clear meaning for the term "willful". Ultimately, it settled on a definition that willfulness in the context of civil penalties requires proof only that the defendant was aware of the risk, knew that it was serious, and knew it could take effective measures to avoid it, but did not - in short, that it was reckless in the most commonly understood sense of the word.

The court found the plant manager acted recklessly and therefore willfully within the meaning of OSHA Section 29 USC Section 666(a) and that the reckless behavior must be imputed to DuKane. The plant manager had to know that the bins were PRCS's or, if he did not, he had to at least know that Mr. Ortiz was in danger as Mr. Ortiz was buried in sand when the plant manager arrived at the scene. The court also found that the company's safety manager also disregarded the regulation. There were inconsistencies between his testimony as to which employees had received PRCS training and what was set forth in the training records. Additionally, there was no evidence that the workers who had received PRCS training ever communicated what they learned to the workers who had not received such training and were in the bin, trying to free Mr. Ortiz.

As to the railing regulation, the court looked at 29 CFR Section 1910.23(c)(3) which states that "regardless of height, open-sided floors, walkways, platforms, or runways above or adjacent to dangerous equipment, pickling or galvanizing tanks, degreasing units, and similar hazards should be guarded with a standard railing and toe board." The court then cited Section 1910.23(e)(1) which stated that a standard railing is required to be at least 42 inches in height in order "to prevent falls of persons" which was set forth in Section 1910.21(a)(6).

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