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Division of Occupational Safety and Health of Industrial Commission of v. Chuck Westenburg Concrete Contractors Inc.12/24/1998
Special Action -- Industrial Commission
INSPECTION NO. N0135-1761/115588212
Administrative Law Judge Bill H. Enriquez
FINDINGS AND ORDER SET ASIDE
This is a statutory special action review of Arizona Occupational Safety and Health Review Board (review board) findings and order reversing an administrative law Judge's decision that the respondent employer, Chuck Westenburg Concrete Contractors, Inc. (Westenburg Contractors) had violated three Occupational Safety and Health Administration (OSHA) regulations. The sole stated basis for this reversal was the review board's Conclusion that Westenburg Contractors was not responsible for the soil retention system at the excavation, which failed.
The Division of Occupational Safety and Health of the Industrial Commission of Arizona (ADOSH) timely petitioned for review. For the following reasons, we set aside the review board's findings and order.
FACTUAL AND PROCEDURAL HISTORY
Mark Douglas Norton testified that in March 1993, he was an ADOSH safety compliance officer conducting workplace inspections to determine compliance with OSHA regulations. On March 12, 1993, he investigated an accident at a jobsite at 5301 E. Grant Road in Tucson, where a parking structure was being constructed. He stated that he spent several days at the site, which he described as a large excavation with some concrete walls already poured and others covered by a soil protection system. In the course of his investi- gation, he examined the excavation area, interviewed employees of Westenburg Contractors and T.L. Roof & Associates (Roof), took photographs, and retained an engineer, Claude Baker, to assist him. As a result of this investigation, he recommended that three citations be issued to Westenburg Contractors as well as citations to the general contractor, Roof, and the engineering firm that designed the soil protection system, Terracon.
Norton testified that the accident occurred on Friday, March 12, 1993. He stated that two Westenburg Contractors employees were working near the west wall of the excavation when a large portion of the west wall collapsed completely burying one employee, who died, and partially burying another, who escaped serious injury.
Two days before this accident, sandy soil had been noted to be sloughing off the bottom of the west wall on the north side of the elevator shaft pit where Westenburg Contractors' employees were digging footings. Westenburg Contractors' foreman, Jesus Robles, Sr. (Robles, Sr.), removed his workers from this area and reported the sloughing to Roof's project superintendent, Juan Roman. Roman attempted to control the sloughing by setting wooden forms and pouring concrete slurry over the area that was sloughing, but the forms broke. Roman decided that no employees would be allowed to work in the elevator shaft area until the sloughing could be remedied.
Norton testified that the employees he interviewed indicated that the sloughing on the west wall had continued unabated until the accident. During his investigation, Norton observed a number of factors that could have affected the stability of the excavation, such as heavy rainfall, a previous excavation adjacent to the west wall, potholes dug adjacent to the west wall that had collected water, and vibration from a paved, well-traveled city road running parallel to the west wall.
Norton also testified that he became aware that neither Roof nor Westenburg Contractors had a "competent person" on the jobsite in accordance with OSHA regulations. He found that none of Westenburg Contractors' employees had any knowledge or training
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