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Judge issues split decision on civil construction firm’s safety citations

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An administrative law judge of the Occupational Safety and Health Review Commission affirmed in part and vacated in part citations and penalties against a civil construction company related to machine guarding, safety data sheets and personal protective equipment.

Bozeman, Montana-based Barnard Construction Co. Inc. was performing work at a hydroelectric plant owned by the U.S. Army Corps of Engineers in Smithland, Kentucky, in 2016, when investigators from the U.S. Occupational Safety and Health Administration visited the site on multiple occasions after receiving a complaint at the agency’s Nashville, Tennessee, office. Barnard received three multipart safety and health citations along with total proposed fines of $10,300. The company contested the citations, and the Secretary of Labor filed formal complaints with the review commission seeking to affirm the citations and proposed penalties in a consolidated enforcement action.

The first citation, which was classified as serious, alleged Barnard’s employees were exposed to struck-by hazards in the welding shop because a bench grinder did not have proper guarding and work rests were not properly situated. However, Barnard said the grinder was taken out of service after the guard in question broke and was not used while the part in question was on order, according to commission documents.

The judge agreed with Barnard that part of the citation must be vacated because investigators did not prove the equipment was used. However, the judge affirmed the portion of the citation related to work rests because the equipment was available for use and employees could have been exposed to the hazard, the judge said.

The judge also affirmed a second serious citation that alleged troughs in the floor of the turbine house at the site were not securely covered to prevent accidental displacement that would expose workers to the hazard of tripping or stepping into holes. Barnard contended that the troughs were covered with scaffold boards and that it did not have authority to further secure the troughs because it was functioning as a subcontractor. The judge disagreed with Barnard and affirmed the citation, which carried no financial penalty.

The judge vacated the remaining citations and penalties against Barnard, which included a safety citation alleging that the company did not anchor drilling equipment to the floor, a health citation alleging that the company did not maintain safety data sheets for chemicals used on the site, and a health citation alleging employees were not using proper eye protection during welding activities.

In its final order released Tuesday, the commission ordered Barnard to pay $2,550 for the violation related to the bench grinder work rests. All other citations were vacated or carried no financial penalty.

Representatives for Barnard were not immediately available to comment.