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Safety citations against construction firm vacated

Large traffic cones

An administrative law judge of the Occupational Safety and Health Review Commission vacated citations against a bridge and highway construction company related to a workplace incident in which an employee was fatally struck in a traffic control zone.

On Dec. 3, 2014, a driver of a 2004 Jeep Liberty veered into J.D. Eckman Inc.’s worksite in the westbound lanes of the Benjamin Franklin Highway in Pottstown, Pennsylvania, and crashed into a company superintendent, killing him, according to review commission documents in Secretary of Labor v. J.D. Eckman Inc. The next day, the U.S. Occupational Safety and Health Administration inspected the employer’s traffic control worksite on the highway and issued one three-item citation alleging serious violations of the Occupational Safety and Health Act and proposing a total penalty of $21,000 in June 2015.

OSHA alleged that the construction company violated the statute’s general duty clause because “the employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that the employer failed to protect employees from vehicle strikes by not establishing a safe temporary work zone.”

But the law judge determined that the secretary failed to meet the burden of proof and the cited standard was inapplicable in vacating the citations and proposed penalties. For example, the secretary argued that the employer created a dangerous work zone by placing traffic control devices at 120-foot intervals instead of 40-foot intervals, but did not specifically address how the spacing of the cones created a hazard or contributed to an increased risk of a hazardous event, the law judge determined. The secretary failed to establish the precise cone spacing at the time of the incident and that the spacing constituted a hazard under the general duty clause, according to the ruling.

“It is the secretary’s burden to ‘apprise’ (the employer) of a specific forty-foot cone spacing requirement if the secretary chooses to pursue a general duty clause violation citation for this issue,” the law judge stated.

In addition, the Jeep Liberty driver was charged with failing to comply with “duties within a construction zone,” which supports a finding that the driver’s conduct at least contributed to the incident in this case, according to the ruling.

“There is no evidence that establishes how much of the driver’s own conduct caused or contributed to the incident,” the law judge stated.

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

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




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