938 F.2d 1265 (11th Cir. 1991), 90-8383, Ed Taylor Const. Co. v. Occupational Safety and Health Review Com'n

Docket Nº:90-8383.
Citation:938 F.2d 1265
Party Name:P 29,432 ED TAYLOR CONSTRUCTION CO., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Elizabeth Dole, Secretary of Labor, Respondents.
Case Date:August 15, 1991
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1265

938 F.2d 1265 (11th Cir. 1991)

P 29,432

ED TAYLOR CONSTRUCTION CO., Petitioner,

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Elizabeth

Dole, Secretary of Labor, Respondents.

No. 90-8383.

United States Court of Appeals, Eleventh Circuit

August 15, 1991

Page 1266

[Copyrighted Material Omitted]

Page 1267

Michael C. Murphy, Dan R. Gresham, Troutman, Sanders, Lockerman & Ashmore, Atlanta, Ga., for petitioner.

Bobbye D. Spears, Regional Sol., Office of the Sol., U.S. Dept. of Justice, Atlanta, Ga., Curtis L. Gay, Bruce Justh, Ann Rosenthal, Counsel for Regional Trial Litigation, Office of the Sol., U.S. Dept. of Labor, Washington, D.C., for respondents.

Petition for Review of an order of the Occupational Safety and Health Review Commission.

ON PETITION FOR REHEARING

Before ANDERSON and CLARK, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

On petition for rehearing, the Court WITHDRAWS the opinion published in this case on May 22, 1991, and the following opinion and judgment is issued in lieu thereof.

This is an appeal by Ed Taylor Construction Co. ("Taylor") from the order of an administrative law judge affirming a citation for three violations of the Occupational Safety and Health Act (or the "Act") and the regulations promulgated thereunder. We affirm in part and vacate in part.

I. STATEMENT OF THE CASE

On September 12, 1988, the Occupational Safety and Health Administration (or "OSHA") issued a citation to Taylor alleging violations of: (1) 29 C.F.R. Sec. 1926.20(b)(1) (failing to provide for frequent and regular inspections of jobsites by a competent person); (2) 29 C.F.R. Sec. 1926.21(b)(6)(i) (failing to instruct employees on the hazards, precautions, and equipment associated with work in confined spaces); and (3) 29 U.S.C. Sec. 654(a)(1) (failing to provide a place of employment free of recognized hazards likely to cause death or serious physical harm).

Taylor filed a timely notice contesting all of the alleged violations, and the Secretary of Labor filed a complaint to enforce the citation. An administrative law judge ("ALJ") conducted a hearing on the matter. He affirmed the citation and assessed a total penalty of $700. The ALJ's decision and order were docketed with the Commission on February 5, 1990.

On February 21, 1990, Taylor filed a timely petition for review with the three-member Occupational Safety and Health Review Commission ("Review Commission"). The Review Commission took no action on the petition during the thirty days that followed. Under 29 U.S.C. Sec. 661(j), "[t]he report of the administrative law judge shall become the final order of the Commission within thirty days after such report ..., unless within such period any Commission member has directed that such report shall be reviewed by the Commission." Taylor then appealed the decision of the ALJ to this court pursuant to 29 U.S.C. Sec. 660(a).

Shortly after Taylor filed its initial brief, it discovered that all three seats on the Review Commission were vacant throughout

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the thirty-day period during which its petition was pending.

II. STATEMENT OF THE FACTS

Taylor is a general contractor in the commercial construction industry, employing between 300 and 350 people. While Taylor works primarily in the building of commercial structures, it won a "hardscape" contract to do the aesthetic landscaping and concrete work on the grounds of the Central Park office complex in Atlanta, Georgia. The building had been constructed under the supervision of another general contractor.

The "hardscape" project included the construction of a man-made pond in front of the building. The pond was lined with cement and had an opening at the bottom so that the pond could be emptied for cleaning and repairs. The drain could be opened or closed by a cutoff valve that was located at the bottom of a manhole. The manhole shaft was four feet in diameter and twenty-four feet deep. It was lined with concrete and had rungs on the side to permit a person to climb down the shaft and turn the cutoff valve. The sole purpose of the manhole was to give access to the cutoff valve, and the shaft was not connected to any sewer or utility. 1 The opening to the manhole was two feet in diameter and was covered with a round metal plate.

A drought in the Atlanta area prevented Taylor from filling the pond when it was completed, but water restrictions were lifted several months later. On August 19, 1988, three regular employees of Taylor, John Garren ("Garren"), Gene Geeslin ("Geeslin"), and Charles Bohler ("Bohler"), and two casual day laborers went out to the site to clean the rubbish from the lakebed, close the cutoff valve, and fill the pond. All three of the regular Taylor employees were experienced in the commercial construction industry and were familiar with basic OSHA regulations.

While nobody witnessed the deaths, the parties agree generally that the Taylor employees removed the cover from the manhole, and Geeslin entered the shaft. When Garren and Bohler noticed that he was having problems, they followed. All three men subsequently died of asphyxia due to a lack of oxygen.

At the hearing, several witnesses with extensive experience in the construction industry testified that contractors in the Atlanta area did not recognize a dry shaft as a hazard prior to the accident in this case. They testified that so-called "sanitary manholes" (i.e. those connected to a sewer or other utility) were hazardous because they were subject to a build up of methane gas. They uniformly, however, believed that a dry...

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