Lakeland Enterprises of Rhinelander v. Chao

• Decision Date: 28 March 2005
• Docket Number: No. 03-3697.,03-3697.
• Citation: 402 F.3d 739
• Parties: LAKELAND ENTERPRISES OF RHINELANDER, INCORPORATED, Petitioner, v. Elaine L. CHAO, Secretary of Labor, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

402 F.3d 739

LAKELAND ENTERPRISES OF RHINELANDER, INCORPORATED, Petitioner, v. Elaine L. CHAO, Secretary of Labor, Respondent.

No. 03-3697.

United States Court of Appeals, Seventh Circuit.

Argued October 26, 2004.

Decided March 28, 2005.

John H. Zawadsky (argued), Reinhart, Boerner, Van Deuren, Norris & Rieselbach, Madison, WI, for Petitioner.

Lee Grabel (argued), David Zeigler, Occupational Safety & Health Administration, Washington, DC, for Respondent.

Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

This is a review of a decision of the Occupational Safety and Health Review Commission (OSHRC) assessing a $49,000 civil penalty against Lakeland Enterprises of Rhinelander, Inc., for willful violation of 29 C.F.R. § 1926.652(a)(1), which requires that workers in excavation trenches be protected from cave-ins. Lakeland argues that the evidence collected at its excavation site should have been suppressed because the surprise inspection by a compliance officer from the Occupational Safety and Health Administration (OSHA) was conducted without a warrant. Lakeland also challenges the administrative law judge's (ALJ) exclusion of certain expert testimony and attacks the sufficiency of the evidence regarding the code violation and the ALJ's finding of willfulness. We deny the petition for review.

I. Background

Lakeland is a northern Wisconsin sewer and water contractor. In August 2002 the company was engaged in an excavation project to install sewer and water lines on a public street in the Mill Creek Industrial Park development in Marshfield, Wisconsin. The citation at issue here arose from an August 28 impromptu inspection conducted by Chad Greenwood, an OSHA compliance officer who was driving by the industrial park project and noticed the excavation in progress. Greenwood parked his car, walked past some traffic cones blocking street traffic from the site, and observed Lakeland employee Ron Krueger excavating a trench with a backhoe. Greenwood also observed another Lakeland employee, Tony Noth, working at the bottom of the trench. The trench contained neither a ladder nor a trench box, a device used to prop up the walls and prevent collapse.

Greenwood began videotaping the scene, at which point Jim Gust, the project superintendent, asked him to step back and informed him that the road was closed. Greenwood explained that he was an OSHA compliance officer and indicated the nature of the inspection.¹ While Gust and Greenwood were speaking, Noth began climbing up one of the walls of the trench. Greenwood observed loose dirt falling back into the trench, apparently unsettled by Noth's feet as he scaled the slope. Krueger later admitted that he knew Noth was not supposed to be working in the trench and that he failed to remove him. After Noth climbed out of the trench, Krueger told him he should not have been working in the trench without a trench box. Krueger then resumed the excavation.

The slope of the trench walls concerned Greenwood. Sloping is "a method of protecting employees from cave-ins by excavating to form sides of an excavation that are inclined away from the excavation so as to prevent cave-ins." 29 C.F.R. § 1926.650(b). Eyeballing the trench, Greenwood believed the walls were too steep and there was a fair chance they could collapse. Greenwood measured the slope of the trench walls and recorded a west wall slope of 35 degrees, an east wall slope of 50 degrees, a north wall slope of 38 degrees, and a south wall slope of 49 degrees.² After Greenwood left, Lakeland employees measured the trench wall slopes and produced a different result for the south wall only: Lakeland's measurement found the south wall to be sloped at 45 degrees.

Greenwood also measured the length and width of the trench at the surface and found that it was approximately 31 feet wide, east to west, and 39 feet long. However, because Krueger had widened the trench in the process of "grooming" it after Noth climbed out, the 31-foot-width measurement overstated the width of the trench at the time Noth was in it. Greenwood testified the "grooming" process added about 5 feet to the width of the trench. Lakeland contended the trench was actually 34 feet wide and 38 feet long. There is no dispute the trench was approximately 18 feet deep and 6 feet wide at the bottom.

In addition to his other measurements, Greenwood also took soil samples. Not all soil is the same, and different types of soil will behave differently under the pressure of holding up a trench wall. See Globe Contractors, Inc. v. Herman, 132 F.3d 367, 369 (7th Cir.1997). For instance, a trench dug in firm clay will hold up better than a trench dug in loose, sandy soil. In addition to the composition of the soil, several other factors contribute to soil's relative stability, including water saturation levels, fissures, and previous digging in the soil. OSHA recognizes such soil differences by classifying soil into several categories. Type A soil is the most stable, followed by Types B and C. OSHA regulations allow trenches dug in Type A soil to be sloped up to 53 degrees (3/4 horizontal to 1 vertical); walls dug in Type B soil may be sloped no steeper than 45 degrees (1 horizontal to 1 vertical), and in Type C soil no steeper than 34 degrees (1 1/2 horizonal to 1 vertical). See 29 C.F.R. § 1926, subpt. P, app. B.

Greenwood's soil samples came from a "spoil pile" — a pile of soil that had been removed from the trench. His field tests found the soil was Type B. He also sent two soil samples to an OSHA lab, which classified one sample as Type B and the other as Type C. After Greenwood left the site, Krueger took his own soil samples and sent them to a private engineering firm, STS Consultants; the firm classified the soil as Type A. Later, when the trench had been filled in, STS took on-site samples which it determined to be both Type A and B soil.

Based on the soil samples and Greenwood's measurements of both the soil quality and the trench dimensions, OSHA's office in Madison, Wisconsin, issued three citations to Lakeland, including the citation at issue on this review — willfully permitting an employee to work in a trench without adequate protection (inadequately sloped trench walls), in violation of 29 C.F.R. § 1926.652(a)(1).³ Lakeland timely contested the citations, see 29 U.S.C. § 659(c), and an ALJ conducted a two-day evidentiary hearing. Lakeland moved to suppress the evidence from the inspection, asserting that Greenwood's search of the excavation site violated the Fourth Amendment because it was conducted without a warrant. The ALJ denied the motion, concluding that Lakeland had no right of privacy on the excavation site because "that land and that road was [a] public road that they [Lakeland] did not own," and further that "it was covered by the open fields doctrine." The ALJ also concluded that any Fourth Amendment claim was waived because Lakeland did not object to the inspection and ask for a warrant at the site.

On the merits, Lakeland disputed both the soil type and the dimensions and slope of the trench, and also maintained that any violation of 29 C.F.R. § 1926.652(a)(1) was not willful because it had a safety program in place and had attempted to comply in good faith with the applicable regulations. Greenwood testified for the Secretary of Labor. The Secretary also called three expert witnesses: two OSHA soil analysts and an OSHA engineer. Krueger, Gust, and Lakeland President Gary Taylor testified for Lakeland. The company also presented the testimony of Thomas O'Neill, a soil engineer at STS Consultants; Harry Butler, a safety consultant; and a union operating engineer familiar with Lakeland's jobsites. The ALJ affirmed all three citations and held that the trench wall violation was willful.

The ALJ rejected the testimony of Krueger, Gust, and Taylor as "neither credible nor plausible," and accepted the Secretary's evidence regarding soil type and trench dimensions over the evidence produced by Lakeland's tests and measurements. The ALJ found the on-site testing done by Lakeland after the inspection was nothing more than a "post-facto reconstruction of the facts," and concluded that Greenwood's measurements and soil tests, which were contemporaneous with the alleged violation, more accurately reflected both the trench's dimensions and its soil classification. The ALJ also held Lakeland's violation of the trench wall safety regulation was willful because: (1) Greenwood's videotape depicted "a deep, dangerous trench with steep sides, with visibly running soil"; (2) Krueger and Gust were trained supervisory personnel with "years of trenching experience" and were aware of Noth's improper presence in the trench; and (3) Lakeland had a history of trenching citations. The ALJ assessed a penalty of $49,000. Lakeland petitioned for discretionary review by the Occupational Safety and Health Review Commission. Review was declined, the ALJ's decision became the final order of the Commission, and Lakeland sought review in this court. See 29 U.S.C. §§ 659(c), 660(a), 661(j).

II. Discussion

A. Fourth Amendment

Lakeland argues that Greenwood's warrantless inspection violated the Fourth Amendment and that the evidence seized in the inspection should have been suppressed. The ALJ denied Lakeland's suppression motion, concluding that Lakeland had no right of privacy on a jobsite on a public roadway and that the excavation site was covered by the "open fields" doctrine. The ALJ also found waiver because Lakeland did not object to the inspection and ask for a warrant at the scene.

As a threshold matter, it is an open question in this circuit whether the exclusionary rule applies to OSHA civil enforcement proceedings. Donovan v. Fed. Clearing Die Casting Co., 695 F.2d 1020, 1023 (7th Cir.1982) (applying a good faith exception without directly deciding the applicability of the exclusionary rule). In INS v. Lopez-Mendoza, 468 U.S....