Court Upholds Delayed Rescue Violation

THURSDAY, MAY 28, 2015

CHICAGO—A concrete company that left a worker trapped in a sand silo for over an hour before calling 911 can't argue its way out of violations imposed by health and safety authorities, a federal court has decided.

Naperville, IL-based Dukane Precast Inc., the employer of a man who was seriously injured Feb. 6, 2012 while stuck in an 18-foot-deep bin for hours, vigorously contested the resulting violations and $70,000 penalty levied by the Occupational Safety and Health Administration.

Now a trio of federal judges has denied the company's petition to toss out the most expensive citation—a $56,000 willful violation of permit-required confined space regulations issued for failing to immediately call rescue services.

The case, Dukane Precast Inc. v. Thomas E. Perez, Secretary of Labor, and the Occupational Safety and Health Administration, was argued April 2 and a decision to deny the petition was issued May 4 by Seventh Circuit Court of Appeals Circuit Judges William J. Bauer, Richard A. Posner and Daniel A. Manion.

90-Minute 911 Delay

OSHA launched an inspection after Dukane supervisor William Ortiz, then 37-years-old, was nearly buried alive in a cone-shaped sand bin that was elevated 25 feet in the air and accessible via a catwalk across a 10-foot-wide opening at the top.

Ortiz was standing in the bin—which OSHA classifies as a permit-required confined space—trying to scrape sand from its inside wall when the sand beneath his feet gave way, causing him to sink and become engulfed by sand flowing into the space created by his fall.

Buried up to his neck, Ortiz started to scream, and several workers who heard him rushed to the bin and started trying to dig him out, according to court documents. They were able to remove the sand above his waist, but he remained trapped when the workers were unable to remove the sand pressing on the lower part of his body.

According to the court documents, plant manager Don MacKenzie was alerted to the accident within 10 minutes by a supervisor. After arriving at the bin a few minutes later, MacKenzie "decided there was no emergency—that Ortiz was in no danger—and, told by the attempting rescuers that thought they could dig Ortiz out, left the accident scene," court documents said.

These attempting rescuers were not trained or equipped to rescue a person trapped in a bin of sand, and their efforts were futile as their digging only created a space for other loose sand to enter.

Ortiz asked someone to call 911, but "for some unexplained reasons no one did," court documents stated. Eventually, MacKenzie was told Ortiz had requested professional assistance. MacKenzie finally called 911 after "receiving an answer that must have been less than reassuring" when he asked an employee whether he was confident that workers could free Ortiz.

When the Naperville Fire Department's Technical Rescue Team arrived Ortiz had already been trapped for 90 minutes.

With help from 22 surrounding fire agencies, the rescue team used a vacuum truck to remove the sand and, after nearly four hours, finally freed Ortiz from the bin. By then, Ortiz had sustained serious injuries to his lower body from being squeezed by a large mass of sand for over five hours.

Citations Contested

An OSHA inspector examined the bin and other parts of the plant the day after the accident. Dukane was cited for three serious violations and one willful violation for failing to immediately call rescue services.

Naperville, IL-based Dukane Precast manufactures precast/prestressed products for the architectural and structural markets. The company has been inspected over a dozen times by OSHA.

The company contested the citations in front of an administrative law judge for the Occupational Safety and Health Review Commission, and all of the citations and penalties were upheld.

Dukane's petition for review in federal court challenged the willful violation and one of the serious violations that had been cited for not having the required 42-inch railing or equivalent barrier.

OSHA requires facilities with permit-required confined spaces "to develop and implement procedures for summoning rescue and emergency services, for rescuing entrants from permit spaces, for providing necessary emergency services to rescued employees, and for preventing unauthorized personnel from attempting a rescue"

The rescue plan must specify that in the event of an accident, rescue and emergency services are to be summoned immediately, and must forbid anyone not employed by those services to attempt a rescue.

The company argued that the applicable regulation (29 CFR 1910.46(d)(9)) issued for the willful violation doesn't require that the employer actually call 911 immediately or prevent coworkers from attempting a rescue, but requires merely that it have adopted such procedures, according to court documents.

The regulation instructs the employer to "develop and implement" the procedures, and Dukane argued "that to develop is to devise and that to implement is to adopt rather than apply," court documents stated.

"That may be a permissible literal interpretation, but it is neither inevitable nor sensible, as it would allow the employer to do nothing at all to rescue a worker injured or endangered at work—not even call 911," the judges wrote in their decision.

"Literalism frequently, and in this instance, leads to absurd results."

Muddied Waters of 'Willful'

The decision stated a more difficult question to answer was whether the violation was "willful." An earlier case decided by the Seventh Circuit Court in 2005 "may have muddied the waters" by ruling that "an OSHA violation is willful if it is committed with intentional disregard of, or plain indifference to, the requirements of the statute," the judges said.

The definition gives two alternatives to test whether a violation is "willful": intentional disregard or plain indifference. 

The judges correlated "intentional disregard" with recklessness, not negligence. In other words, the judges said, recklessness means "you know there's a danger, you could prevent it, but you do nothing," while negligence requires only that there be a danger of which a reasonable person would be aware.

Judges determined the company's plant manager acted recklessly, and therefore willfully, by delaying the call to 911.

However, OSHA deemed Dukane's violation as willful based on plain indifference, and "it's unclear what that term means," the judges wrote.

But for this case, proving willfulness only required proof that the defendant was aware of the risk and its seriousness, and knew that he could take effective measures to avoid it, but did not.

'Had to Know'

The judges determined MacKenzie "no doubt" acted recklessly, and therefore willfully.

According to the court documents, MacKenzie "had to know" that the bins were permit-required confined spaces, although he testified that he didn't know, which an administrative law judge didn't believe.

Even if he really didn't know, "he had to at least know that Ortiz was in danger" when he was buried up to his waist in sand—another point MacKenzie testified he was unaware of, which the administrative law judge also disbelieved.

"His ignorance of safety procedures, if indeed he was ignorant of them rather than determined to ignore them, was itself willful," the judges wrote.

The judge's also said the plant's safety manager, Tom Gorman, disregarded the regulation. Gorman testified that Ortiz and MacKenzie were the only two employees out of everyone involved in the accident that had received permit-required confined space training. However, training records revealed that two of the other workers involved in the rescue had received training.

'Terrible' Argument

The decision briefly discussed Dukane's disagreement over the serious citation issued for railing violations.

Dukane's argument, which the judges called "terrible," was that a sand bin is not as dangerous as a galvanizing tank. While that is true, a fall into an 18-foot-deep sand bin "is a good deal more dangerous than a short fall onto regular flooring, as indicated by the serious injuries that Ortiz sustained," the judges said.

Dukane is currently contesting four willful violations, four serious violations, and $303,900 in proposed penalties that OSHA issued after a temporary worker was killed in 2013 while working alone in a confined space.

The company's further argument that the danger is "de minimis" is refuted by Ortiz's accident—had he dropped a few inches deeper, he would have been asphyxiated, according to the decision.

Fighting a Fatality

In a separate incident, a longtime temporary worker for Dukane was crushed to death in a concrete mixer at the company's Aurora, IL, plant July 20, 2013, while working alone in a confined space.

The worker had entered the mixer's discharge mud hopper to try to free a pneumatically powered discharge gate that was stuck open by hardened concrete. The gate had not been deactivated and closed on the worker.

OSHA issued four willful violations, four serious violations and $303,900 in fines in that incident. The company was also added to the Severe Violator Enforcement Program.

After receiving the citations, Dukane issued a statement that OSHA had "issued overreaching allegations" in the case, "and we vehemently disagree with its findings."

"For decades, Dukane has employed full-time safety professionals, established extensive training programs and policies to protect its workers," the statement said. "Dukane will aggressively defend itself against these citations."

According to OSHA records, those violations are currently being contested.


Tagged categories: Accidents; Concrete; Confined space; Health & Safety; Health and safety; Laws and litigation; North America; OSHA

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