ELEVENTH CIRCUIT UPHOLDS OSHA VIOLATIONS WHERE FALLING CLAY CRUSHED EMPLOYEE IN BORROW PIT

The Eleventh Circuit denied a company’s petition for review of an OSHA general duty clause citation issued after falling clay crushed an employee working in a “borrow pit.”  When OSHA issues a general duty clause citation, OSHA must establish four elements: 1) that a condition or activity in the employer’s workplace presented a hazard to employees; 2) that the cited employer or the employer’s industry recognized the hazard; 3) that the hazard was causing or likely to cause death or serious physical harm; and 4) that feasible means existed to eliminate or materially reduce the hazard.  On appeal, the parties disputed whether OSHA had proven the fourth element, that the incident was feasibly preventable.  The Eleventh Circuit held that the reviewing ALJ’s decision to affirm the OSHA penalties was not arbitrary nor capricious (the Occupational Safety and Health Review Commission declined review of the ALJ decision, which made the ALJ decision the final order of the Commission). The court explained that here, even though no evidence in the record showed that any other borrow pits have adopted OSHA’s proposed abatement methods, conscientious experts familiar with the industry would clearly take the proposed abatement method of sloping the walls of the excavation into account in prescribing a safety program.  In the case, the company’s president had acknowledged that OSHA’s proposed abatement method was one method for making the borrow pit worksite safer, as did the company’s safety trainer and an MSHA inspector.