Citation in landfill worker’s death vacated

A landfill operator whose employee was killed by a tractor on the worksite did not violate the general duty clause, an administrative law judge of the Occupational Safety and Health Review Commission held in a decision released Monday.

In Secretary of Labor v. Kimble Cos. Inc., the judge held that the U.S. Secretary of Labor failed to provide sufficient proof that an Occupational Safety and Health Act violation led to the death of the employee.

On Nov. 10, 2016, an employee for Dover, Ohio-based Kimball Cos. Inc., a sanitation company that also owns multiple mines, was killed when he was struck by a wheeled front-loader operated by a co-worker. Kimble reported the fatality to the U.S. Occupational Safety and Health Administration, which issued Kimble a serious citation for violation of the general duty clause, which requires employers to provide employees with a workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm.”

Kimble maintained a safety and training program, as well as a policy that prohibited workers from being on foot in the working face of the landfill. The company did, however, permit employees to be on foot in the timing area and approach, but only when necessary for the employee to perform essential duties. The company’s vehicles were equipped with backup alarms, warning signs were posted and all employees were required to wear high-visibility vests and other personal protective equipment.

According to the case, no one witnessed the accident and it was unknown why the worker was in the area where he was struck, since it was not where he was assigned. The operator said the deceased worker also failed to obtain eye contact with him before going in the vicinity of the machine, as required by company policy. He also was not wearing his vest, which the company argued in the case was contrary to his typical behavior.

OSHA charged that Kimble permitted employees to walk through areas where earth-moving equipment, compactors, tippers, dump trucks and semitractors with end-dump trailers were operating, allegedly exposing employees to struck-by/crushed-by hazards. Kimble contested the citation.

First, Kimble argued that the Mine Safety and Health Act preempts OSHA’s regulation of the cited struck-by hazard at the landfill, but the administrative law judge found no evidence to support Kimble’s argument that MSHA governed the work at the landfill, even if it was located above a mine. The judge also rejected Kimble’s argument that work at the landfill constituted construction work, and therefore was governed by OSHA’s struck-by hazards under construction industry standards.

However, the judge did find that there was insufficient evidence that a general duty clause violation occurred at the landfill. Although Kimble conceded that the first three elements of the general duty clause had been met — a condition in the workplace presented a hazard, the employer recognized the hazard, and the hazard was likely to cause death or serious harm — the company argued that OSHA investigators failed to carry their burden that a feasible and effective method existed to eliminate or materially reduce the hazard. Although the Secretary of Labor said a dedicated spotter, a prohibition on foot traffic where vehicles operate and training on new procedures could correct the hazard, the judge held that the Secretary failed to present sufficient evidence to establish that “knowledgeable persons familiar with the industry would regard” having a dedicated spotter to control movement on the landfill to be “necessary and appropriate in the particular circumstances existing at the employer's worksite.” The judge noted that Kimble’s president testified that the industry had trended “away from the idea of having a spotter,” in part due to fatalities in which the spotters were fatally struck at other landfills.

The judge also found that the Secretary failed to show that prohibiting foot traffic within the vicinity of operating equipment would be feasible or that Kimble’s training was inadequate.

The judge, therefore, vacated the citation.

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

The attorney for Kimble did not immediately respond to requests for comment.