Compass Environmental, Inc. v. Occupational Safety & Health Review Commission
663 F.3d 1164
10th Cir.2011Background
- Compass Environmental, Inc. challenged an OSHA citation under 29 C.F.R. § 1926.21(b)(2) for failing to train workers on recognizing/avoiding overhead power-line hazards.
- The incident occurred at a Fort Lupton, Colorado surface mine site during a slurry-wall trenching project with a 75-foot boom excavator.
- A new trench hand had not been trained about the overhead line hazard; the Job Safety Analysis covered the hazard but the trench hand was not present for that training.
- On March 18, 2006, the excavator operator moved toward a fuel tank beneath a energized power line, with the trench hand nearby; contact caused the trench hand’s death.
- The ALJ vacated part of the citation; the Commission held Compass should have trained the trench hand on the hazard and affirmed a $5,500 penalty; Compass petitioned for review in the Tenth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Commission used the correct legal test for §1926.21(b)(2) violations | Compass argues for the Atlantic Battery four-part test | Secretary contends a training-specific test applies | The Commission did not err; training-specific test applied |
| Whether the training-specific analysis was properly applied to the facts | Compass contends training not required for trench hand given circumstances | Commission found a reasonably prudent employer would have trained on the hazard | Yes, the Commission properly applied the training-specific standard |
| Whether evidence supports liability given industry norms versus internal policies | Secretary failed to prove industry norms; Compass followed internal policies | Secretary need not prove internal policies; must show industry norms or higher standards | Secretary failed to prove industry norms; internal policies cannot substitute for industry practice; affirmed compliance with standard absent industry proof |
| Whether Compass violated § 1926.21(b)(2) by inadequate training of the trench hand for the known hazard | Compass argues adequate, existing training was provided to others | Training specific to trench hand was required due to known hazard | Compass failed to provide required training; standard violated |
Key Cases Cited
- Cape & Vineyard Div. v. Occupational Safety & Health Review Comm'n, 512 F.2d 1148 (1st Cir. 1975) (evidence on internal rules can inform industry norms but not alone prove violation)
- B&B Insulation, Inc. v. OSHRC, 583 F.2d 1364 (5th Cir. 1978) (industry norms must be proven; cannot rely on laxity of industry standards)
- Ray Evers Welding Co. v. OSHRC, 625 F.2d 726 (6th Cir. 1980) (illustrates proving industry standards or higher standards essential)
- L.R. Willson & Sons, Inc. v. OSHRC, 698 F.2d 507 (D.C. Cir. 1983) (requires proof of industry practice when enforcing standards)
- F.A. Gray, Inc. v. OSHRC, 785 F.2d 23 (1st Cir. 1986) (reads vague regulations against industry norms; industry-based proof favored)