An administrative law judge of the Occupational Safety and Health Review Commission issued a split decision in a case against a North Dakota contractor relating to alleged trenching violations.

A compliance safety and health officer and a trainee saw an active, open trench in Bismarck, North Dakota, on their way to another inspection site and opened an investigation under the U.S. Occupational Safety and Health Administration’s National Emphasis Program on trenches, according to commission documents. The officer observed that the spoil pile sat at the very edge of the trench, prompting him to take measurements, conduct interviews and collect samples. Prior to leaving the worksite, the officer asked the foreman of Insulation-N-Coatings, a company focusing on the installation and repair of underground utilities and doing business as Mandan, North Dakota-based Force Enterprises, to make sure to push the spoil pile back from the edge of the trench before any employees re-entered.

Insulation-N-Coatings was issued a two-item citation, with a proposed $1,200 penalty, alleging that the company failed to keep the spoil pile more than two feet away from the edge of the trench in violation of OSHA’s excavation standard and that the company’s competent person failed to remove employees from the trench when those employees were exposed to a hazardous condition, according to commission documents. The company contested the citation items, contending that regulators failed to prove it violated either standard, and, alternatively, that the existence of any violation was caused by unpreventable employee misconduct.

The administrative law judge affirmed the first item as a serious violation and assessed the $1,200 penalty after finding that the regulators proved the required elements to establish the violation and that the company failed to provide evidence to support an affirmative defense of unpreventable employee misconduct.

“To prevail on the affirmative defense of employee misconduct, (Insulation-N-Coatings) cannot simply rely on testimony that people were disciplined,” the judge stated in the ruling released Monday. “Notwithstanding its rather thorough paper policy, there is no evidence (Insulation-N-Coatings) effectively enforced it.”

“The lack of consistency, as well as (Insulation-N-Coatings’) apparent inability to track progressive disciplinary problems, show that (Insulation-N-Coatings’) disciplinary program is just a document,” the law judge continued.

But the law judge vacated the second citation item as duplicative to the first.

“If (Insulation-N-Coatings) had complied with the setback requirements for spoil piles, there would have been no need to remove the employees from the trench because there would be no hazard in the first instance,” the law judge stated.

The law judge’s decision became a final order of the commission on Monday.

An attorney for the company could not be immediately reached for comment.