Modern Continental/Obayashi v. Occupational Safety & Health Review Comm'n

• Citation: 196 F.3d 274
• Decision Date: 08 October 1999
• Docket Number: No. 99-1409,99-1409
• Parties: (1st Cir. 1999) MODERN CONTINENTAL/OBAYASHI, A JOINT VENTURE PETITIONER, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION AND SECRETARY OF LABOR, RESPONDENTS. Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 274

196 F.3d 274 (1st Cir. 1999)

MODERN CONTINENTAL/OBAYASHI, A JOINT VENTURE PETITIONER, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION AND SECRETARY OF LABOR, RESPONDENTS.

No. 99-1409

U.S. Court of Appeals, First Circuit

Heard October 8, 1999

Decided November 15, 1999

[Copyrighted Material Omitted] Richard D. Wayne, with whom Debra Dyleski-Najjar and Hinckley, Allen & Snyder, Llp were on brief, for petitioner.

Lee Grabel, Attorney, U.S. Department of Labor, with whom Henry L. Solano, Solicitor of Labor, Joseph M. Woodward, Associate Solicitor for Occupational Safety and Health, and Ann Rosenthal, Counsel for Appellate Litigation, were on brief, for respondents.

Before Torruella, Chief Judge, Lynch and Lipez, Circuit Judges.

Lynch, Circuit Judge.

The Big Dig is a massive construction project that will submerge below the streets of Boston the Central Artery, an elevated interstate highway that has run through the heart of the city since 1959. An enormously important and complicated project, work on the Big Dig can also be dangerous. Two construction workers have died thus far and there have been major and minor injuries. This low accident rate for a project of this magnitude has been accomplished by a great emphasis on employee safety. Nevertheless, the risk of injury and death is still constant.

Modern Continental/Obayashi, a joint venture, holds a contract for a portion of the Big Dig that runs below the existing superstructure. In order to allow for the continued operation of the Central Artery during construction, MC/O, like other Big Dig contractors, constructs "slurry walls" that serve both as support for the old elevated highway above and as side walls for the future submerged highway below. Slurry walls have been the single most important construction technique on the Big Dig, and are especially useful in construction in tight urban environments.

On December 11, 1997, two federal Occupational Safety and Health Administration Compliance Officers conducted an inspection of an MC/O slurry wall excavation along Atlantic Avenue. The officers found that "[e]mployees were exposed to possible serious fall and drowning hazards while walking and/or working in close proximity to slurry wall ground openings, where standard guardrails, fences, barricades, were not installed around the holes, nor was any other equivalent fall protection used to prevent employees from falling into the ground openings." MC/O was cited for a "serious" and "repeated" violation of 29 C.F.R. § 1926.501(b)(7)(ii). ¹ After a period for discovery and a hearing, a Department of Labor Administrative Law Judge affirmed the citation on January 4, 1999. See Secretary of Labor v. Modern Continental/Obayashi, a Joint Venture, 18 O.S.H. Cas. (BNA) 1767 (1999). The ALJ's decision became a Final Order of the Occupational Safety and Health Review Commission on February 8, 1999, when no commissioner granted MC/O's Petition for Discretionary Review. MC/O now petitions this court on various procedural and substantive grounds. For the reasons stated below, we deny the petition.

I.

Compliance Officers Alexander Steel and Eric Jones inspected an MC/O slurry wall excavation on the evening of December 11, 1997. Slurry walls are constructed in short sections called "panels." Each panel is about three and a half feet wide, nine feet long, and ninety to one hundred feet deep. The construction of a panel involves several steps. First, MC/O digs a hole approximately twenty feet deep to make sure the area is free of underground utilities. It then refills the hole. MC/O next builds concrete guide walls at the top of what will be the panel excavation. The guide walls extend from the surface down to four feet below ground level. An excavator with a bucket called a "clamshell" next digs thirty feet down inside the guide walls; the hole is then examined to make sure the clamshell is digging straight. After the inspection, MC/O fills the hole with slurry (a mixture of water and bentonite, a kind of clay) to a depth of three or four feet below ground level, and the clamshell resumes digging until the excavation is ninety to one hundred feet in depth. As the clamshell removes earth from the excavation, slurry is pumped in periodically to replace it. The slurry's viscosity prevents the sides of the excavation from collapsing. Finally, MC/O places reinforcing steel beams in the excavation and pumps in concrete, displacing the lighter slurry. When the concrete hardens, the panel is finished.

The officers observed an MC/O employee, John McDunough, standing three feet from the edge of a slurry wall excavation while assisting the excavator operator. There was a guardrail on one side of the excavation, but McDunough was standing inside the guardrail. Compliance Officer Steel testified before the ALJ that there was nothing to prevent McDunough from falling into the excavation. McDunough told Steel that the excavation was about twenty feet deep. Steel did not measure the distance from ground level to the surface of the slurry in the excavation.

Across the street, at a second slurry wall excavation, the officers observed another MC/O employee, Joe Rego, standing about three feet from the edge of the opening. Like McDunough, Rego was not protected by a guardrail. Rego told Steel that this excavation was sixty to eighty feet deep. Steel observed that the surface of the slurry in the excavation was about ten feet below ground level.

The officers then examined a third slurry wall excavation, which was surrounded by a chain link fence. There was a camera resting on rails over the excavation. One of the MC/O employees present, Loreto Rufo, told Steel that he and the other employees had just placed the camera over the opening; that they had removed a part of the fence in order to do so; and that they had not had any fall protection while they were placing the camera. Rufo also told Steel that this excavation was one hundred feet deep. Steel observed that the surface of the slurry was about three feet below ground level.

Based on this inspection, the officers cited MC/O for violating 29 C.F.R. § 1926.501(b)(7)(ii), which requires that "[e]ach employee at the edge of a well, pit, shaft, and similar excavation 6 feet (1.8 m) or more in depth shall be protected from falling by guardrail systems, fences, barricades, or covers." The officers characterized the violations as "serious" and "repeated" and proposed a penalty of $2,500.

MC/O timely contested the citation. Because procedural arguments are raised in the petition, we review the procedures before the ALJ. On June 16, 1998, the ALJ set a hearing date of September 29, 1998 and issued a planning order which required, inter alia, that all discovery be completed by August 28, and that all motions seeking orders to compel discovery be accompanied by a statement that the parties had made a good faith effort to settle the matter. The planning order also required that the parties file by September 15, 1998 a list of all witnesses, documents, and other exhibits to be offered in evidence.

On June 22, MC/O served a Request for Production of Documents on the Secretary. Request Number 10 was for all investigative files, citations, and settlement agreements involving fall protection for slurry wall construction. The Secretary responded to the Request for Production of Documents on July 28, objecting to Request Number 10 on grounds of relevance. Almost six weeks later, on September 11, MC/O filed a motion to compel production. The ALJ denied the motion on September 14 because it was untimely. MC/O immediately moved for reconsideration, which the Judge denied on September 15. MC/O then filed a Resubmitted Motion for Reconsideration, and the Judge denied it on October 1, the day of the hearing.

On September 28, MC/O served two subpoenas on the Secretary. The first, a subpoena duces tecum, directed OSHA's keeper of the records to produce at the hearing "any and all evidence, records, correspondence, and documents relating to investigations, citations, and proceedings in which slurry wall construction was involved." The second subpoena directed OSHA's most knowledgeable person in the area of slurry wall construction to appear at the hearing as a witness. On the day of the hearing, the Judge granted the Secretary's motion to quash both subpoenas, holding that they were untimely and overly burdensome.

After the two-day hearing, during which MC/O called no witnesses, the ALJ issued a Decision and Order. In order to establish a violation of an OSHA standard, the Secretary must show: (a) the applicability of the cited standard; (b) the employer's noncompliance with the standard; (c) employee access to the violative conditions; and (d) the employer's actual or constructive knowledge of the violation. See Secretary of Labor v. Atlantic Battery Co., 16 O.S.H. Cas. (BNA) 2131, 2138 (1994). The Judge's decision addressed each element in turn.

The ALJ held that 29 C.F.R. § 1926.501(b)(7)(ii) did apply to the slurry wall excavation despite the fact that, as MC/O pointed out, the standard did not expressly mention slurry wall openings. In light of Commission precedent that standards "are to be broadly and reasonably construed to effectuate the Act's express purpose, which is 'to assure as far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources,'" Secretary of Labor v. Hackney, Inc., 16 O.S.H. Cas. (BNA) 1806, 1808 (1994), the ALJ concluded that the fact that slurry wall excavations were not explicitly listed in the standard was not dispositive. In her view, the terms used in the standard -- "a well, pit, shaft, and similar excavation" -- were not exclusive or restrictive, and the ordinary meaning of the terms encompassed "a broad range of man-made openings, cavities or depressions in the ground created by cutting, digging or scooping," including the slurry...