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U.S. v. MYR GROUP
May 1, 2003
UNITED STATES OF AMERICA,
MYR GROUP INC. AND THE L.E. MYERS COMPANY DEFENDANTS.
The opinion of the court was delivered by: Geraldine Soat Brown, United States Magistrate Judge.
MEMORANDUM OPINION AND ORDER
A four count indictment was returned charging defendants MYR Group Inc. ("MYR") and its wholly-owned subsidiary. The L.E. Myers Company ("L.E. Myers") with violating a section of the Occupational Safety and Health Act (the "Act"), 29 U.S.C. § 666 (e), which provides:
Any employer who willfully violates any standard,
rule, or order promulgated pursuant to section 655 of
this title, or of any regulations prescribed pursuant
to this chapter, and that violation caused death to
any employee, shall, upon conviction, be punished by a
fine of not more than $10,000 or by imprisonment for
not more than six months, or by both; except that if
the conviction is for a violation committed after a
first conviction of such person, punishment shall be
by a fine of not more than $20,000 or by imprisonment
for not more than one year, or by both.
Specifically, the indictment charges that L.E. Myers was engaged in the repair and maintenance of high voltage power transmission lines on towers located in various locations in Illinois, and that Blake Lane and Wade Cumpston, two employees of L.E. Myers, died from injuries sustained by electrocution. Blake Lane died on or about December 28, 1999 while working on a tower in Mt. Prospect, Illinois. Wade Cumpston died on or about March 25, 2000 while working on a tower at Plainfield, Illinois. The indictment charges that L.E. Myers and MYR violated certain regulations promulgated by the Secretary of Labor pursuant to OSHA, causing the deaths of Lane and Cumpston. L.E. Myers is charged with violating various safety standards. MYR is charged with violating two subsections of the regulations relating to training.
MYR has moved to dismiss the two counts of the indictment against it. As discussed herein, notwithstanding the tragic circumstances of Lane's and Cumpston's deaths, the indictment fails to set out any basis for criminal liability on the part of MYR. Therefore, Counts Two and Four of the indictment must be dismissed.
The government acknowledges that the fact that MYR is the parent of a wholly-owned subsidiary that maybe criminally liable for violations of the Act is not enough to make MYR itself subject to criminal liability. Instead, the government charges MYR with violating two regulations relating to the training of employees. The allegations relating to MYR are set out in ¶ 1(k) of the indictment, which states as follows:
Defendant, MYR GROUP, INC., a Delaware corporation and
an employer under the Act, was engaged in electrical
repair and maintenance work through its wholly-owned
subsidiary, THE L.E. MYERS COMPANY. Defendant, MYR
GROUP, INC. was responsible for overseeing the safety
program at each of its wholly-owned subsidiaries,
including but not limited to THE L.E. MYERS COMPANY.
Defendant MYR GROUP, INC. authored and published a
Safety Manual and numerous Safety Alerts for the use
of employees of THE L.E. MYERS COMPANY. Defendants,
MYR GROUP, INC. and THE L.E. MYERS COMPANY were
responsible for safety training, safety instruction
and safety enforcement for employees of THE L.E. MYERS
(Capitalization in original.)
The indictment alleges that MYR violated the following regulations:
Employees shall be trained in and familiar with the
safety-related work practices, safety procedures, and
other safety requirements in this section that pertain
to their respective job assignments. Employees shall
also be trained in and familiar with any other safety
practices including applicable emergency procedures
. . . that are not specifically addressed by this
section but that are related to their work and are
necessary for their safety.
29 C.F.R. § 1910.269 (a)(2)(i); and
Qualified employees shall also be trained and
competent in: (A) the skills and techniques necessary
to distinguish exposed live parts from other parts of
electric equipment; (B) the skills and techniques
necessary to determine the nominal voltage of exposed
live parts; (C) the minimum approach distances
specified in this section corresponding to the
voltages to which the qualified employee will be
exposed; and (D) the proper use of the special
precautionary techniques, personal protective
equipment, insulating and shielding materials, and
insulated tools for working on or near exposed
energized parts of electric equipment.
29 C.F.R. § 1910.269 (a)(2)(ii).
MYR argues that no matter what its involvement in the training of L.E. Myers employees, it cannot be criminally liable because it had no duty to those employees. The Act and the regulations promulgated by the Occupational Safety and Health Administration ("OSHA"), MYR argues, create obligations of employers to their own employees, except for the limited exceptions discussed below. Although MYR is admittedly an "employer" as defined in the Act (29 U.S.C. § 652 (5)), it was not the employer of Lane and Cumpston.
Section 654(a) of the Act provides:
Each employer (1) shall furnish to each of his
employees employment and a place of employment which
are free from recognized hazards that are causing or
are likely to cause death or serious physical harm to
his employees; (2) shall comply with occupational
safety and health standards promulgated under this
The government argues that its case against MYR arises under § 654(a)(2). However, the government has not cited any precedent directly on point, that is, any case in which an entity that was not the injured employee's employer, that provided training but did not have control of the work site, has been held liable for an OSHA violation, either civilly or criminally. Instead, the government argues that the indictment against MYR is proper under ...
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