Fairfax County Department of Public Works and Environmental Services v. Davenport, Record No. 0745-09-4 (Va. App. 12/22/2009)
| Decision Date | 22 December 2009 |
| Docket Number | Record No. 0745-09-4. |
| Parties | FAIRFAX COUNTY DEPARTMENT OF PUBLIC WORKS AND ENVIRONMENTAL SERVICES v. C. RAY DAVENPORT, COMMISSIONER, DEPARTMENT OF LABOR AND INDUSTRY |
| Court | Virginia Court of Appeals |
Appeal from the Circuit Court of Fairfax County, Dennis J. Smith, Judge.
Brian S. Yellin (David P. Bobzien, County Attorney; Cynthia L. Tianti, Senior Assistant County Attorney; Law Office of Adele L. Abrams, P.C.; Office of the County Attorney, on brief), for appellant.
Crystal Y. Twitty, Assistant Attorney General (William C. Mims, Attorney General; Maureen Riley Matsen, Deputy Attorney General; Peter R. Messitt, Senior Assistant Attorney General, on brief), for appellee.
Present: Judges Kelsey, Haley and Powell.
Fairfax County Department of Public Works and Environmental Services (DPWES) appeals a final order of the circuit court finding that substantial evidence supported all but two of the Virginia Occupational Safety and Health (VOSH) civil penalty citations issued by the Virginia Department of Labor and Industry (DOLI) for violations of the safety standards incorporated by the VOSH program. On appeal, DPWES contends that the circuit court erred by: 1) determining that substantial evidence proved that the confined space at issue here requires a permit; 2) concluding that the commissioner of DOLI met his burden of proving employer knowledge by substantial evidence; 3) failing to address DPWES's affirmative defense of employee misconduct; and 4) classifying citation 2, item 3 as willful because this classification is not supported by substantial evidence. Finally, DPWES asserts that the commissioner of DOLI impermissibly withheld documents from DPWES that supported the commissioner's determination that several violations were willful. On cross-appeal, DOLI argues that the circuit court erred in vacating citation 2, item 4b where substantial evidence supported the commissioner's decision.
We hold that DPWES failed to preserve its objections that the circuit court erred by failing to address its affirmative defense of employee misconduct and the commissioner impermissibly withheld documentation from it that supported the willful violations because DPWES never made these arguments to the circuit court. Further, we affirm the circuit court's decision to uphold DOLI's determination that the space in question was a permit-required confined space, that there was substantial evidence proving employer knowledge, and that the classification of citation 2, item 3 as willful was supported by substantial evidence. Finally, we reverse the circuit court's decision to vacate citation 2, item 4b because there is substantial evidence in the record to support the commissioner's finding.
As an inspector in the Storm Water Management Division of DPWES, Phillip Miley was responsible for inspecting the internal structures of private and public wet pond facilities, underground retention facilities, manholes, catch basins, and risers. He inspected the internal structures of these facilities for blockages, cracks, and other structural faults. On August 1, 2005, during the performance of his duties, Miley inspected a private wet pond facility in Fairfax County. Before entering the manhole at this location, Miley placed two cones near the manhole but did not place any barrier on the manhole. Miley then entered the manhole without an attendant present and, while inside, fell down a shaft that was ten feet, nine inches deep.2 During the fall, Miley struck his head on a storm water valve and received cuts on the back of his head and abrasions on his right arm. Miley then crawled into another pipe, where he died from these injuries. Miley did not have any communications equipment with him and was, therefore, unable to summon any assistance.
Gregory Pappas, a compliance officer with DOLI, investigated the fatality and determined that the confined space that Miley was inspecting when he died contained or had the potential to contain several safety hazards: falls, engulfment, atmospheric, and other hazards (i.e., being struck by objects falling or being thrown into the open manhole). Pappas learned from DPWES employees, including safety analyst Dean Blackwell, that because DPWES had a program in place to evaluate potential hazards in confined spaces on public but not private land, the wet pond that Miley entered on August 1, 2005 was not inspected for hazards before or during his entry. Pappas's investigation revealed that Miley was not equipped to test for atmospheric hazards. Pappas further learned from Tim Fink, an engineering technician with DPWES, that prior to Miley's death, DPWES employees routinely "[broke] the plane" of confined spaces to take photographs, but employees received no training on how to do so.3
Following Pappas's investigation, DOLI determined that DPWES violated the provisions of the VOSH standards and issued numerous serious and willful citations against DPWES on January 20, 2006. The DPWES requested an informal fact-finding conference, which was held on May 22 and 23, 2007 before Ellen Marie Hess, a hearing officer for DOLI. On August 17, 2007, Hess submitted the results and recommendations of her fact finding to the commissioner. Hess recommended that the commissioner vacate two violations, reduce three others from willful to serious, and uphold the remaining twenty violations. The DOLI vacated four additional violations. The commissioner accepted the results and recommendations as the final agency decision on September 12, 2007. In so doing, DOLI determined that the space Miley entered was a permit-required confined space, that DPWES knew or should have known that employees were entering permit-required confined spaces in violation of VOSH's regulations, that DPWES employees were not provided with required safety equipment, that DPWES policies and forms were deficient, and that the employees' proficiencies were not evaluated as required.
DPWES appealed the agency's final decision to the circuit court and alleged that DOLI's decisions lacked substantial evidence to support them. In a letter opinion, the circuit court held that "a reasonable mind would accept the facts set forth in the record as substantial evidence to support DOLI's conclusion regarding all of the violations" except two violations that the circuit court then vacated.
Specifically, the circuit court held that under 29 C.F.R. § 1910.146, a permit-required confined space is any space that has one or more of the following characteristics:
(1) contains or has a potential to contain a hazardous atmosphere;
(2) contains a material that has the potential for engulfing the entrant (3) has an internal configuration such that the entrant could be trapped or asphyxiated by inwardly converging walls or by a floor which slopes downward and tapers to a smaller cross-section; or
(4) contains any other recognized safety or health hazard.
The court concluded that there was substantial evidence in the record to support the finding that the wet pond facility was a permit-required confined space. The court specifically cited Pappas's testimony that among the hazards present or potentially present at the site Miley entered were wild animals, slip hazards, engulfment hazards, fall hazards due to the unguarded shaft, and explosions due to flammable gasses. The court stated that, contrary to appellant's assertions, a reasonable mind could conclude that a fall hazard was not the only hazard present at the site. Thus, the circuit court held that there was substantial evidence to support the agency's determination that this space was a permit-required confined space.
The circuit court also found that interviews in which DPWES employees admitted violations they committed and knowledge of other employee violations revealed that DPWES failed to review permits that disclosed violations and provided substantial evidence that DPWES knew or should have known about the violations by employees. The circuit court held that there was substantial evidence supporting the characterization of citation 2, item 3 as willful because DPWES knew or should have known that employees entered permit-required confined spaces without an attendant present and that DPWES systematically failed to implement this standard. Finally, the circuit court vacated citation 2, item 4b because it found that there was not substantial evidence in the record to prove that Blackwell did not review the permit-required confined space program annually.
DPWES presents five questions in this appeal. We will initially dispose of those questions presented that were not adequately preserved for appeal and, therefore, will not be considered. The rules of our Court provide that
[n]o ruling . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.
Rule 5A:18. This rule exists so that the circuit court is alerted to possible error and is afforded the opportunity to "consider the issue intelligently and take any corrective actions necessary to avoid unnecessary appeals, reversals and mistrials." Martin v. Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992) (citing Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991) (en banc)).
DPWES argues that the circuit court committed reversible error when it failed to address DPWES's affirmative defense of employee misconduct. DPWES also contends that the commissioner impermissibly withheld documentation from DPWES supporting the willful violations. Though DPWES made both of these arguments to the agency, DPWES did not make either of these arguments in its memorandum of law in support of its petition for appeal to the circuit court and the circuit...
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