*1 DONOVAN, Secretary of Raymond J. Petitioner,

Labor, COMPANY CONSTRUCTION

MICA Safety

Occupational and Health Review

Commission, Respondents. Appeals, Court of

United States

Eighth Circuit. Dec. 1982.

Submitted

Decided Jr., Labor, Ryan, Sol. of Timothy

T. White, Occupa- Associate for Frank A. Sol. Health, Kade, Dennis K. tional Lit., for Maca- Appellate Judith N. Counsel luso, Atty., Dept, of Wash- D.C., for Donovan. ington, Goldman, Miller, Profes- Miller & A Stan Ark., Ass’n, for Mica Springs, Hot sional Co. Const. BRIGHT, McMILLIAN, Cir

Before HARRIS,* Judges, cuit Senior District Judge.

BRIGHT, Judge.

In that an administrative determining (ALJ) erred judge law Company Mica Construction only had committed a serious (Mica) Safety and Health Ad- Occupational tion of (OSHA) protect- standards for ministration caving-in. After review- ing record, we affirm. ing the Administrative Pro- Background and I. ceedings. and sewer line in water engages On December

construction. engaged in workers was of Mica crew * sas, HARRIS, sitting by designation. United States Senior District OREN Districts of Arkan- Eastern

432

trenching, sewer laying pipeline in the II. Discussion. thereafter. The parties agree that to a establish measured opening approximately willful violation the evidence must show in depth, twelve to thirteen feet three feet “an act done with either disre intentional approximately width and sixty in feet in of, gard plain to, indifference the [Occu length. A at cave-in occurred the construc- pational require Act’s Health] injuring workmen, tion four one fatal- OSHRC, ments.” Joe Minerals Corp. St. Mica failed to or shore ly. the trench 840, 846 Cir.1981), citing, sides. Waterproofing Co. v. 576 cave-in, Following inspection after the denied, 142 cert. 439 cited Mica' for violation OSHA of OSHA 99 58 4423 L.Ed.2d Mica contested the standards.1 citation. Thereafter, the a issued argued before the ALJ that complaint alleging formal conjunctively trenching had in occurred shale and there willful, Mica had a that committed repeated required support. fore neither nor serious violation OSHA rejected defense, finding this that Mica denied the standards. violation and significant a portion of the trench walls sought charges. a dismissal of the An ALJ were composed hard or compact soil. issues, a hearing held and deter- a prima showing established facie mined that Mica had violated the trenching noncompliance shor OSHA set forth in 29 standard C.F.R. 1926.- § ing or support standards. The then AU 652(c), serious, found the violation but not noted if that violation is not willful “[a] willful, repeated or and assessed a penalty had faith employer good opinion a in amount of $500. violation conformed to the requirement of The Secretary subsequently sought dis- Co., standard[,]” citing Flagg C.N. & 75 cretionary review from the Occupational 32/C6, OSAHRC BNA OSHC 1974- Safety and Health Review Commission (No. 1409, 1975). 75 CCH OSHD ¶ (Commission) grounds that Mica had found, however, AU that although violation, a repeated committed willful or president erroneously believed the trenches rather than merely serious violation. The standard, from the OSHA his took no action on petition. Commission belief was reasonable under the circum The determination ALJ thereby be- stances. The ALJ concluded that because came final commission order. The Secre- record discloses [t]he tary then filed timely petition for re- standard, was aware of the and possessed under 29 view 660. The Secretary § view, good though faith view mistaken (1) the AU erred by failing of its The evidence fails to consider to relevant testimony, regulatory disclose conduct in- constitutes an language, and case law when concluding tentional of the requirements, Mica reasonably believed its trench no accordingly, willful violation exempt from require- standard’s the standard occurred. ments, (2) holding in that Mica’s viola- tion was not willful because the company’s The ALJ rejected also claim trench conditions that re- that Mica had a repeated committed quired grounds an earlier offense inspector’s investigation, length. Based shoring, in In lieu of alleging OSHA issued a citation sloped Mica had 5-foot trench above the level 1926.652(c). violated 29 C.F.R. collapse, preclude steeper Section to but shall not be 1926.652(c) provides: to each than a 1-foot rise 'k foot horizontal. pipe great- When outside diameter of a (c) is compact Sides of trenches hard or feet, soil, er than 6 a bench of embankments, 4-foot minimum including shall be shored sloped shall be at the toe of the supported or otherwise when the trench portion. depth more than 5 feet in and 8 feet or more Well, open A. and we ditch was similarity present pipe there laying were down violation. of there as fast get and out to a determi review is limited Our dug had it the could because we as we substantial evidence whether nation and it in. We left it day caved supports as a whole considered and it caved in then. overnight findings. *3 factual AU’s Q. happen? you did that Can How Waterproofing v. 660(a) (1976); Western had happened, part what what describe cert. de in? had caved 58 L.Ed.2d nied, 439 north wall had caved in over- A. The have concluded might backfilled, wasn’t night. completely It those at Mica did not have responsible of We had the open. left most it view that or reasonable good faith off. roads blocked from OSHA testimony the AU re- No other However, supporting testimony by this eave-in. The lates to finding question say cannot we to define the nature and extent itself fails be as without substan characterized should cave-in, whether the cave-in occurred of in the evidence. foundation tial or to a minor inci- amounted spontaneously Mica’s its fore president, indicate that does opera- dent attributable witness for the job, and a man witness Significantly, tion. Stevens Mica), (a employee former all Secretary compare the earlier cave-in with soil condi- (although they observed mis testified subsequent event. When asked at the tions excavation to the material under takenly) any the ALJ whether observed by Stevens Thus, reject we the first conten shale. of the falling material for reversal. morning, testified that Monday on Stevens ground second for rever- loose at that time.” “the banks wasn’t [sic] company is that foreman sal however, added, “but we busted some He of a cave-in discovered at the existence there, it wet which made water lines beginning at the construction have caused it cave in.” might 15,1980. asserts, theory December on the Secretary did not focus We note essentially, cave-in discovered at post-hearing evidence in his or cite this morning worksite on the of December AU nor on Stevens’ testi- rely brief to the put company have 1980 should fore- seeking discretionary review. mony in of the to shore or up on notice need man agree that clear evidence of While we of the and constitutes sides at the worksite the morn- prior cave-in violation of OSHA stan- a willful ignored by to be ing of the accident shown However, this not theory was artic- dards. provide strong would Mica’s foreman clarity in the administrative ulated willfulness, evidence of perhaps conclusive employee, Mica’s former Ron- proceedings. testimony, ap- say we cannot Stevens’ Stevens, following testimo- ald belatedly by the relied Secre- parently discovery to the first relating ny to establish Mica’s tary, serves cave-in. apparent danger. The issue here BY However, MS. of La- given WILSON the unclear state of [for close. (Resuming.) issue, limited on this our review the record bor]: does not mandate reversal. function

Q. the attitude of the— What was charge the work that was who was Accordingly, being done there? the final administrative decision affirm we the time was A. The foreman at of the Commission. Prince.

Wayne McMILLIAN, dissenting. or if Q. Okay. any, What instructions morning getting were what said about I believe that on Because acted with work done? the accident indifference” to an “plain apparent danger, Ronald testimony

I must dissent. Stevens’ that on the morning

is uncontradicted portion

the accident a of the trench wall already caved in and that water was in the trench. Although the fore- testified that on the

man of the morning

accident he believed that the trench was rock, in shale

being dug that belief was light of the presence

unreasonable of the

cave-in and the water. Those conditions put

should have foreman on notice that digging

the crew was not in solid rock and trench walls Fur-

thermore, undisputed it is that Mica did not train the

formally foreman in soil recogni- compliance with

tion or OSHA standards. not “fail to properly train and

supervise its employees and then hide be-

hind its lack of knowledge concerning their

dangerous practices.” Danco Con-

struction Co. v. Secretary of Cir.1978) (footnote

omitted).

Kenneth Norman SMITH and Michael Manis, Appellants,

David BACON,

Honorable Max E. Honorable Crow,

John C. Assistant Public Defender McNabb,

James Defender, and Public County Greene,

Circuit Court for the

Springfield, Missouri, Appellees.

United States Court of Appeals,

Eighth Circuit.