Bush & Burchett, Inc. v. Reich

• Decision Date: 22 January 1997
• Docket Number: No. 95-4331,95-4331
• Citation: 117 F.3d 932
• Parties: 17 O.S.H. Cas. (BNA) 2165, 1997 O.S.H.D. (CCH) P 31,350 BUSH & BURCHETT, INC., Petitioner, v. Robert B. REICH, Secretary of Labor; The Occupational Safety & Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 932

117 F.3d 932

17 O.S.H. Cas. (BNA) 2165, 1997 O.S.H.D. (CCH)

P 31,350

BUSH & BURCHETT, INC., Petitioner, v. Robert B. REICH, Secretary of Labor; The Occupational Safety & Health Review Commission, Respondents.

No. 95-4331.

United States Court of Appeals Sixth Circuit.

Argued Nov. 22, 1996

Decided Jan. 22, 1997. ^*

Ray Darling, Secretary, OSHRC, Washington, DC, for Respondent Occupational Safety & Health Review Commission.

Albert A. Burchett (argued and briefed), Prestonsburg, Kentucky, for Petitioner.

Daniel J. Mick, Elizabeth Hopkins, U.S. Department of Labor, Office of the Solicitor, Washington, DC, Elizabeth Hopkins (argued and briefed), Allen H. Feldman, U.S. Department of Labor, Office of the Solicitor, Washington, DC, Deborah Pierce-Shields, Office of the Regional Solicitor, U.S. Department of Labor, Philadelphia, PA, for Respondent Robert B. Reich, Secretary of Labor.

Before: KENNEDY, BOGGS, and WOOD, ^** Circuit Judges.

OPINION

BOGGS, Circuit Judge.

This case arises from the issuance of three citations by the Secretary of Labor against Bush & Burchett, Inc. ("BBI") for violations of the Occupational Safety and Health Act of 1970. The violations were issued during two separate inspections at a bridge construction site. BBI contested each citation and the two cases were consolidated. BBI argues on appeal that the Occupational Safety and Health Review Commission ("OSHRC") erred in upholding the citations because the Mine Safety and Health Act ("MSHA"), 30 U.S.C. § 801 et seq., had preempted the Occupational Safety and Health Administration's ("OSHA") jurisdiction. BBI also argues on appeal that OSHRC's decision upholding $337,200 in civil penalties was not supported by the administrative law judge's ("ALJ") findings of fact and conclusions of law or supported by the evidence. We affirm.

I

Heartland Resources, Inc. contracted with BBI to build a bridge over the Guyandotte River in West Virginia. The construction project included the roadway approaches to the bridge. Heartland was building a large coal mine on 22,000 acres of land in Lincoln County, West Virginia and needed to build the bridge to connect the surface mine at the top of Bryan Ridge Mountain to the railroad loadout facility, located on the opposite side of the Guyandotte River. ¹ Even though Heartland obtained seven surface disturbance permits for the extraction and loadout facilities, it did not file for a surface disturbance permit for the haul road and bridge. Instead, Heartland showed on its permit application that the transportation route from the extraction facility to the loadout facility would be a county road system although, at the time, there was no contiguous county road system in place between the surface mine and loadout facility. ²

Heartland had made an agreement with the West Virginia Department of Transportation that Heartland would convey the bridge and haul road to the Department of Transportation after completion, to become part of the state road system. The haul road to be constructed under the agreement was to begin on Lincoln County Route 72, near Heartland's mining operation, and continue for approximately 2.4 miles to Route 72's junction with Delta Route 43. Petitioner agreed to improve Route 72 to that point. From this point, a new road was to be constructed for approximately 3.5 miles to Delta Route 38. Petitioner would improve Route 38 to its intersection with U.S. Route 10. The road would then continue over the newly constructed bridge to span Route 10, the Guyandotte River, and the mainline CSX Railroad and connect with Delta Route 25, which would be upgraded. Thus, the haul road plus the bridge would connect public roads, namely Route 72, Delta Route 43, and Delta Route 38. Under the agreement, Heartland, which owned the property, ³ was required to prepare right-of-way plans and convey all rights-of-way by proper deeds to the Department of Transportation. Heartland, under the agreement, is required to perform future maintenance on the haul road and bridge; however, the work will be subject to the Department of Transportation's approval and conditions. The West Virginia Highway Patrol polices the bridge, and the road and bridge have been given a secondary route number, indicating that it is a county road, although, at the time of trial, the haul road and bridge had not been formally conveyed to the Department of Transportation.

Because the bridge was intended for public use as part of the state road system, the Department of Transportation assigned a project supervisor to verify materials for the bridge during its construction. And, under the contract between BBI and Heartland, BBI was required to conform with the Department of Transportation's specifications and requirements.

Under the agreement between BBI and Heartland, BBI was required to establish a safety plan and program. It was Heartland's responsibility, however, to secure all necessary permits required for the construction of the bridge. Even though Heartland had obtained surface disturbance permits and begun construction of the mine, haul road, and loadout facility in 1990, it did not obtain an MSHA identification number until August 1991 and BBI never obtained an MSHA identification number.

MSHA officials believed that they did not have safety jurisdiction over the bridge site because it was not on coal company property and was not a coal company facility. Heartland also believed that MSHA did not have jurisdiction over the road and bridge construction because "[they were] built for the state." However, on September 10, 1991, MSHA had cited Heartland for failure to berm the haul road from the mine site down to the bridge, as required by MSHA regulations. Heartland abated the citation by installing berms. Later, sometime after 1992, Heartland removed the berms in response to a letter written by the Department of Transportation indicating that the raised berms had caused severe drainage and erosion problems.

The OSHA citations involved in this case were issued as the result of two separate inspections of the bridge site. The first inspection, which began on June 20, 1991, was prompted by the deaths of two BBI employees. The second inspection, which occurred on September 4, 1991, was in response to a complaint filed by the United Steel Workers Union, Local 14-614, which represented the employees at the site.

On June 19, 1991, two fatalities occurred at the bridge site. Two BBI employees, Greg Pridemore and Ralph Snyder, died during an attempt to place one of the bridge's beams on the caps of two bridge piers. Under the plan formulated by the owner of BBI and the project manager, two cranes were to lift the concrete beam and place it on the pier caps. Pridemore and Snyder were stationed atop one of the piers. They were killed when the boom of one crane collapsed on top of the pier where they were standing.

Before the fatal lift, the cranes were positioned on solid timber mats, which had been prepared for them to travel on. They then moved up the river bank, traveling on the mats, suspending the beam a few feet above the water. When the cranes reached the pier caps, they stopped and simultaneously hoisted the beam above the pier caps. They had to stop, however, when the smaller crane came off the ground slightly. The cranes then swung their booms to move the beam closer to the pier caps, but the smaller crane continued to come off the ground. The beam was twice temporarily placed on the middle of the piers while the smaller crane was repositioned to complete the transfer. The timber mats, however, did not extend far enough. Owner Joe Burchett, foreman Jack Cochran, and supervisor Fred Smith then discussed the possibility of extending the mats. They hoped that by moving the smaller crane closer to the pier caps, they could maintain a correct boom angle that would prevent tipping. They decided, however, simply to level and compact the ground in front of the smaller crane with a backhoe and allow the crane to sit directly on the ground during the lift. The plan, however, failed and the lift resulted in overloading both cranes when the smaller crane's boom collapsed against the cap of pier two. This resulted in the end of the beam that the smaller crane had been carrying falling into the river, causing the boom of the larger crane to collapse onto the cap of pier three, pinning Snyder and knocking Pridemore into the river.

OSHA compliance officer John A. Johnson began to inspect the site the next day, in accordance with OSHA policy to inspect a work site where a fatality had occurred. Before the inspection occurred, however, the area OSHA office contacted the area MSHA office, and both determined that MSHA did not have jurisdiction at the accident site because the site was not at a mine.

Johnson visited the work site on several occasions. Following a closing conference, OSHA issued one serious citation, containing 25 separate items, and one willful citation, containing 10 items. The total proposed penalty for these violations equaled $243,500.

OSHA conducted a second inspection after receiving a complaint from Gerald Overby, the local union president. Overby reported to OSHA that employees at the work site were being lifted to their work stations underneath the bridge on the tip of a crane boom and that they were not being provided with any fall protection while they wrecked the forms underneath the bridge, even though the heights at which the employees were working ranged from 7 to 60 feet.

In response to this complaint, Johnson returned to the work site and conducted an inspection of the hazards related to the complaint. He interviewed several employees and personally observed two employees working at a height of 17 feet without any fall protection. Johnson held a closing conference for this second inspection and issued two more citations. The total proposed penalty for these violations was $100,000.

II

To the extent this...