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Developer awarded attorney fees, expenses over vacated safety citations

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Developer awarded attorney fees, expenses over vacated safety citations

An administrative law judge of the Occupational Safety and Health Review Commission awarded $17,571 in attorney fees and expenses to a Florida employer who successfully litigated against U.S. Occupational Safety and Health Administration citation items issued after a fatal incident.

The citation items issued against Riverview, Florida-based Central Site Development L.L.C. arose from a fatality investigation after the incident at an apartment complex construction project in which a worker was struck by a bulldozer being operated in reverse and was killed, according to commission documents.

Central Site sought an award for the fees and expenses under the Equal Access to Justice Act, which allows for such awards in specified civil judicial actions, after the administrative law judge hearing the appeal vacated the OSHA citations and proposed penalties, according to the decision in Secretary of Labov v. Central Site Development L.LC. A private party prevailing in an adversarial agency adjudication may be awarded fees and other expenses unless it is determined that the agency was “substantially justified” or special circumstances make an award “unjust,” but the burden to prove such justification is on the agency.

Central Site argued that the department was not substantially justified in citing it for a serious violation because the suggested means of abatement – implementation of an internal traffic control plan per the American National Standards Institute’s Work Zone Safety for Highway Construction standard – was not supported by the language of the ANSI standard. The company also contended there was no credible evidence either of Central Site’s onsite employees was exposed to the cited struck-by hazard, and Central Site could not be held responsible for exposure of employees of other contractors under the Occupational Safety and Health Act’s general duty clause.

The judge had previously vacated the citation in part after determining that the worksite at issue was not an area of a highway with construction, maintenance or repair or utility work activities, meaning the alleged violation did not occur inside a construction work zone that would be covered under the ANSI standard.

“The secretary attempts to gloss over the crucial fact that the ANSI standard referred to in his citation as an acceptable abatement method applies, by its own language, to Work Zone Safety for Highway Construction,” the judge said in rejecting the department’s argument.

“It is the secretary’s burden to establish he was substantially justified in issuing the citation in this proceeding,” the judge continued. “He has offered no evidence of the effectiveness of his proposed abatement method in eliminating or materially reducing the cited hazard – in fact … the secretary is on record in The Federal Register stating OSHA has no such evidence. The secretary’s failure to note that both the title and language of ANSI (work zone standard) are inapplicable to the worksite at issue demonstrates he was not substantially justified in issuing the citation.”

In his previous order, the judge vacated the citation in part after noting that the multi-employer worksite doctrine does not apply to citations issued under the general duty clause and that Central Site’s employees were not exposed to the hazard.

“The secretary did not have a reasonable basis in law for the theory he propounded – the general duty clause does not apply to exposure of other employers’ employees to a hazard,” the judge said. “Despite the secretary’s protestations, it is clear his focus at trial was on the exposure of the subcontractors’ employees to struck-by hazards, and the exposure of (Central Site’s employees) was an afterthought.”

The administrative law judge’s decision became a final order of the commission Wednesday.

Paul J. Waters, a Clearwater, Florida-based attorney for Waters Law Group, said he and his client Central Site were “very pleased” with the judge’s decision, particularly because the judge agreed with their arguments both in relation to the struck-by and general duty clause arguments and an other-than-serious recordkeeping citation. The judge vacated that recordkeeping citation after determining the department failed to meet its burden of proof because the company’s attorney had notified the department by email that he had never received a request for the documents at issue.

“We argued all along that OSHA was not justified in issuing these citations on the grounds that they issued on,” Mr. Waters said. “They refused to try to work it out with us. We were quite happy to get what attorney’s fees we could in an award. It’s not often OSHA gets hit with attorney’s fees.”

“Unfortunately, it cost money to litigate on principle when you feel you’re right and you have to defend yourself,” he continued. “It cost a lot of money to go against the federal government. The attorney fees didn’t make them whole by any stretch of the imagination, but nonetheless, it helps make them feel vindicated.”

 

 

 

 

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