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Frank Lill & Son, Inc. v. Secretary of Labor

April 06, 2004

FRANK LILL & SON, INC., PETITIONER
v.
SECRETARY OF LABOR, RESPONDENT



On Petition for Review of an Order of the Occupational Safety and Health Review Commission

Before: Henderson, Randolph and Garland, Circuit Judges.

The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge

Argued January 20, 2004

Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.

The Secretary of Labor (Labor), through the Occupational Safety and Health Administration (OSHA), cited Frank Lill & Son, Inc. (Lill) for willful violation of 29 C.F.R. § 1926.501(b)(1) which requires an employer to provide fall protection where employees work on a surface with an unprotected edge more than 6 feet above the level below. The Administrative Law Judge (ALJ) affirmed the citation as serious (rather than willful) and his decision became the final order of the Occupational Safety and Health Review Commission (OSHRC, Commission). Lill petitioned for review of the final order. For the reasons set forth below, we deny the petition for review.

I.

Lill is in the business of constructing power plants and process piping installations. In April 2001 Lill began construction of two eighty-foot heat recovery steam generators (HRSGs) in Newington, New Hampshire under a subcontract with general contractor Fluor Constructors (Fluor). On January 24, 2002 at about 9:30 a.m. OSHA Compliance Officer Stephen Rook visited the construction site to conduct a safety inspection. When he arrived, Rook went to Fluor's job trailer and spoke with Fluor safety director Jim Reese, who accompanied Rook on an inspection of the site.

During his inspection, Rook observed two Lill employees at HRSG No. 2 ''working at a platform approximately 100 feet up in the air without fall protection.'' Tr. 16. He walked to HRSG No. 2 and began to climb its stairway toward the workers. While ascending, he encountered Lill site foreman Bob Brown. According to Rook, he informed Brown he was ''on site for a complaint'' and had ''observed employees working without fall protection.'' Tr. 18. Rook then continued up the stairs and saw two employees, Real Savoy and Kevin Gross, ''working at the edge of the platform without fall protection.'' Tr. 19. He photographed Savoy. Savoy's only visible protection consisted of a horizontal wire rope, about 18 inches high, at the edge of the platform and ''a ratline or horizontal lifeline'' above his shoulder. Tr. 23. Rook spoke with Savoy and Gross who informed him that working without fall protection ''was a pattern throughout the worksite or throughout the HRSGs on days prior, that employees weren't always tied off'' and that ''there isn't a convenient place to tie off.'' Tr. 25. They also told Rook that members of Lill management ''had been working in the area when employees weren't tied off.'' Id.

A short time later, Rook met with Lill foreman Ron Tanguay, explained who he was and why he was at the site and stated he had seen employees working without fall protection. When asked, Tanguay confirmed that working without fall protection was ''a recurring pattern,'' Tr. 29, and told him of an incident 7-10 days earlier when Lill employee Rick Chamberlain ''had slipped and fallen while walking along the platform on the HRSG,'' Tr. 30. After this conversation, Rook began to climb down the stairs to interview Chamberlain. While descending the stairs, Rook observed and photographed another Lill employee, Steve Drew, working without fall protection about 75 feet above the ground. Rook proceeded down the stairs and located Chamberlain. When asked about his fall, Chamberlain explained he had fallen toward the edge of the platform from about eight feet in and had landed about three feet from the edge. He also told Rook he had not been tied off. After this conversation, Rook inspected HRSG No. 1 and, although the workers there were tied off, Lill foreman Dwight Grant informed him ''it was a frequent occurrence for employees not to be tied off while working on the HRSG.'' Tr. 40.

The following day Rook returned to the Newington site and spoke with three members of Lill management–site manager Bill Cole, site foreman Brown and site safety representative Neil Briscoe–and told them of his ''findings the day earlier, inadequate fall protection which had occurred on the HRSGs.'' Tr. 45. He then accompanied them to the top of HRSG No. 1 and ''explained to them they had three options that they use according to the minimum OSHA standards, a fall protection system, a safety net system or a guardrail system.'' Tr. 46. Rook visited the site a third time on January 28, 2002 and spoke with Briscoe and Cole. Finally, on February 22, 2002 Rook met with management from all of the site contractors, including Lill, and discussed his inspection and the deficiencies he had observed.

On March 8, 2002 OSHA issued a citation to Lill for willful violation of 29 C.F.R. § 1926.501(b)(1), which provides: ''Each employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.'' Specifically, the citation alleged that Lill employees ''were not adequately protected from falls of approximately 85 feet while working on HRSG #2.'' JA 327. OSHA proposed a penalty of $49,500. Lill contested the citation and on April 14, 2002 the Secretary issued a complaint alleging that Lill had violated section 1926.501(b)(1) as described in the citation. Following an evidentiary hearing, the ALJ issued a decision, docketed January 9, 2003, which affirmed OSHA's citation but amended it from ''willful'' to ''serious'' and imposed a $5,000 fine.

Lill filed a petition for discretionary review by the Commission. When no Commissioner directed review within 30 days of the ALJ's decision, that decision became the Commission's final order on February 10, 2003. See Notice of Final Order, OSHRC Docket No. 02-0564 (dated Feb. 11, 2003) (citing 29 C.F.R. §§ 2200.90(d), 661(j)).

Lill filed a timely petition for review on ...


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