American Wrecking Corp. v. Secretary of Labor

• Decision Date: 19 December 2003
• Docket Number: No. 02-1379.,02-1379.
• Citation: 351 F.3d 1254
• Parties: AMERICAN WRECKING CORPORATION, Petitioner, v. SECRETARY OF LABOR, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

351 F.3d 1254

AMERICAN WRECKING CORPORATION, Petitioner, v. SECRETARY OF LABOR, Respondent.

No. 02-1379.

United States Court of Appeals, District of Columbia Circuit.

Argued October 21, 2003.

Decided December 19, 2003.

COPYRIGHT MATERIAL OMITTED

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

Joseph P. Paranac, Jr. argued the cause and filed the briefs for petitioner.

John Shortall, Attorney, U.S. Department of Labor, argued the cause for respondent. With him on the brief were Joseph M. Woodward, Associate Solicitor, and Bruce F. Justh, Counsel.

Before: GINSBURG, Chief Judge, and EDWARDS, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

Petitioner American Wrecking Corporation ("AWC") was the subcontractor on a demolition project at which a fatal accident occurred in February 1996. Following the accident, officials from the Department of Labor investigated the project and cited the general contractor, IDM Environmental Corporation ("IDM"), and AWC for, inter alia, willfully violating an Occupational Safety and Health Administration ("OSHA") regulation that requires the removal of all "loose material" from buildings during demolition. IDM and AWC contested the citations and the Secretary of Labor ("Secretary") then filed a complaint with the Occupational Safety and Health Review Commission ("Commission").

A hearing was held before an Administrative Law Judge ("ALJ") to review the citations issued by the Secretary. The ALJ upheld the citations against IDM and AWC, both as to liability and the willfulness of the violation. Upon review, the Commission affirmed the ALJ's findings of liability, but set aside the ALJ's holding on willfulness. The Commission remanded the case for further findings by the ALJ on the question of willfulness, because it was unclear on the record whether AWC and IDM were "plainly indifferent" to their employees' safety or simply mistaken about the dangers involved at the work site. On remand, the ALJ once again found AWC and IDM guilty of willful violations of the Act. The Commission denied AWC's request for review. AWC now seeks review of this final order.

We deny AWC's petition for review insofar as it challenges the Commission's finding that AWC violated the loose material safety standard. Substantial evidence on the record supports this determination. The Commission's finding of willfulness, however, is not supported by substantial evidence on the record considered as a whole. We therefore grant the petition for review insofar as it challenges the determination that AWC willfully violated the Act.

I. BACKGROUND

This case arises out of a fatal accident at a demolition site at the Steel Point Generating Station ("Steel Point") in Bridgeport, Connecticut. Steel Point was an electric power plant complex consisting of several buildings that were constructed in the 1920s and 1930s. In 1995, after Steel Point had been idle for roughly a decade, the owner, United Illuminating Company ("United Illuminating"), initiated plans to demolish the complex. United Illuminating selected IDM as the general contractor for asbestos removal and demolition at Steel Point. IDM in turn awarded a subcontract to petitioner AWC to perform certain demolition work. AWC began its demolition work in June 1995. Throughout the course of demolition at Steel Point, AWC's activities on the site were supervised by Frank Bartolotti. In February 1996, several months into the demolition project, AWC prepared to demolish the turbine generator building. This large steel-frame structure — 60 to 80 feet wide, 400 to 500 feet long, and 50 to 60 feet high — formerly housed the generator area of the power plant. AWC adopted the "selected precut demolition" method to raze the turbine building. This approach required removal of the exterior masonry of the building, leaving the roof and a skeleton of steel columns. These steel columns in turn would be cut selectively in order to control the direction in which the building would fall upon demolition.

In preparation for demolition, Frank Bartolotti operated a front end loader with an attachment known as a "rake" to remove the exterior bricks from the turbine generator building. Although he intended to remove all the bricks, Bartolotti was unable to reach the highest bricks on the south wall of the building because the rake was not long enough to reach them, given the slope of the ground on the south side of the building. As a result, Bartolotti left about 15 feet of bricks near the top of the steel skeleton on the south wall. The bricks were suspended for the most part over two steel columns, designated columns 14 and 15, and were at least partly supported by an iron beam known as a channel iron that formed a kind of transom across columns 14 and 15. An expert witness familiar with the site later estimated that the suspended bricks weighed roughly 14 tons.

On February 27, 1996, two AWC employees were making the necessary preparatory cuts to the steel columns surrounding the turbine building. Around 1:30 p.m., one employee, Percy Richards, was alone in the basket of a "manlift" using a blowtorch to make cuts in columns 14 and 15 when the columns collapsed and the suspended bricks fell, killing Mr. Richards. The site was immediately secured, and an OSHA compliance officer arrived at the scene soon thereafter to investigate the site. In August 1996, at the conclusion of the inspection, the officer issued three citations each to IDM and AWC, including, inter alia, a charge that the contractor and subcontractor willfully violated an OSHA regulation requiring the removal of all "loose material" from the steel skeleton of a building during demolition. See 29 C.F.R. § 1926.854(f) (1989). Both companies contested the various citations. The Secretary then filed a complaint before the Commission.

All citations against both AWC and IDM were consolidated in the administrative proceedings. A six-day hearing was held before the ALJ in April 1997. The Secretary introduced evidence consisting primarily of photographs of the demolition site before the accident and expert testimony based on those photographs. Central to the Secretary's case was a photograph identified at the hearing as Exhibit C-15. See Appendix ("App.") 420. The photograph depicts the south end of the turbine generator building sometime before the February 27, 1996, accident, but after Bartolotti had removed all the exterior bricks except those that fell during the accident. Witnesses for AWC and IDM testified that the bricks were not loose prior to the accident, because they were supported by the 10-inch-wide channel iron that connected columns 14 and 15. Exhibit C-15 showed, however, that some of the bricks were hanging below the channel iron or to the left or right of the columns, beyond the ends of the channel iron. See Tr. at 142-44 (4/8/97), reprinted in App. 66; App. 420.

In addition to the photographic evidence, the Secretary introduced the testimony of two expert witnesses who concluded, based in part on the depiction of the south wall in Exhibit C-15, that the bricks were unstable prior to the accident. The first expert, Russell Geisser, testified on the basis of a visit to the accident site and examination of the photograph that the bricks were not supported by the channel iron. Rather, the bricks were supported only by mortar, which had a "practical value of zero" in terms of lending any stability to the bricks. See Tr. at 252-57 (4/8/97), App. 99-101. The suspended bricks, according to Geisser, were in a "meta stable condition," such that the "tiniest little thing" could cause the bricks to collapse. Tr. at 254 (4/8/97), App. 100. A second expert, Joseph Maitz, also testified on the basis of Exhibit C-15, stating that the bricks in the picture appeared to be in an unsafe and unstable condition and to be in danger of falling. Tr. at 315-16 (4/9/97), App. 120; Tr. at 363-66 (4/9/97), App. 135-36.

Contrary to the testimony of these expert witnesses, Frank Bartolotti testified that, after he removed the majority of the bricks from the steel skeleton of the turbine building, he believed that the remaining bricks on the south wall were supported by the channel iron and therefore stable. In particular, he stated that he felt the bricks "were stabile enough and secure enough" that they safely could be left in place. Tr. at 117 (4/8/97), App. 58. Employees of IDM similarly testified that the bricks were not loose because they were supported by the channel iron. Any bricks that were not so supported were secured by mortar, clips, and wire mesh. Accordingly, none of these witnesses who had viewed the south wall prior to the accident believed the bricks to be loose. See Tr. at 144 (4/8/97), App. 66; Tr. at 516, 520-21 (4/10/97), App. 183-84; Tr. at 891-93 (4/15/97), App. 301-02; Tr. at 925 (4/15/97), App. 312; Tr. at 952-53 (4/15/97), App. 320.

In addition to these disagreements regarding the security of the bricks on the south wall, it was revealed during the hearing that IDM had fallen behind on the demolition schedule it had agreed upon with United Illuminating. The delay evidently resulted from unexpected difficulties during asbestos removal. According to witnesses for IDM and AWC, AWC was not at fault for the delay. Witnesses acknowledged that United Illuminating had repeatedly chastised IDM regarding the missed deadlines, see Tr. at 540-41 (4/10/97), App. 190, but asserted that no pressure was brought to bear on AWC to expedite its portion of the demolition project, see Tr. at 215-17 (4/8/97), App. 88; Tr. at 778-79 (4/11/97), App. 265.

The ALJ found that AWC willfully violated OSHA's loose material safety standard. See In re Am. Wrecking Corp., 1998 O.S.H.D. (CCH) ¶ 31603, 1998 WL 650798 (O.S.H.R.C.1998), reprinted in App. 622-42. On the question of liability, the ALJ...