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Division of Occupational Safety and Health of Industrial Commission of v. Chuck Westenburg Concrete Contractors Inc.12/24/1998
16', and sections of the wall were noted to have been sloughing off on March 10, 1993[,] to the point where corrective measures were attempted, failed and employees were pulled out of the area but were allowed to go back on March 12, 1993[,] without correcting the existing problem.
(3) 29 C.F.R. § 1926.21(b)(2): The employer did not instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury:
(a) Jobsite at 5301 E. Grant Rd., Tucson, AZ, Chuck Westenburg, Inc., concrete contractor: The employer did not instruct employees in the recognition and avoidance of unsafe conditions and the applicable standards in that employees were allowed to work in close proximity to/adjacent to vertical earthen walls up to 16' height and were not aware of the standards or hazards to which they were exposed, such as falling materials or walls.
Westenburg Contractors timely requested an Arizona Industrial Commission (ICA) hearing, and two lengthy hearings were held. Two depositions were also filed in lieu of additional hearing testimony. Following these hearings, the administrative law Judge entered a twelve-page decision, which summarized all of the evidence presented, recited applicable case law, and affirmed the citations and penalties. Westenburg Contractors timely requested review before the review board, which summarily reversed the administrative law Judge's decision. ADOSH brought this petition for special action. See A.R.S. § 23-423(I).
STANDARD OF REVIEW
This court has jurisdiction to review an order of the review board and may affirm, modify, or set aside in whole or in part that order. See A.R.S. § 23-423(I). This court will affirm the review board's findings of fact if they are supported by substantial evidence. See id.; McAfee-Guthrie, Inc. v. Division of Occupational Safety and Health, 128 Ariz. 508, 510, 627 P.2d 239, 241 (App. 1981).
Arizona has adopted the Federal Occupational Safety and Health Standards, Code of Federal Regulations, Title 29, Part 1926. A.R.S. § 23-410; Ariz. Admin. Code (A.A.C.) R20-6-601 (1997). This court has recognized that federal case law is persuasive in interpreting those regulations. See APS v. Industrial Comm'n, 178 Ariz. 341, 343 n.3, 873 P.2d 679, 681 n.3 (1994).
DISCUSSION
ADOSH raises seven issues on appeal:
(1) whether the review board was so biased as to preclude ADOSH from receiving due process of law;
(2) whether the review board's decision is legally insufficient for failure to make findings of fact and Conclusions of law;
(3) whether Westenburg Contractors committed a wilful or serious violation of 29 C.F.R. § 1926.651(k)(1) by failing to have a competent person performing daily inspections at the excavation site;
(4) whether Westenburg Contractors committed a wilful or serious violation of 29 C.F.R. § 1926.651(k)(2) by allowing its employees to return to a hazardous area of the excavation before necessary precautions were taken;
(5) whether Westenburg Contractors committed a serious violation of 29 C.F.R. § 1926.21(b)(2) by failing properly to train its employees in the recognition of excavation hazards;
(6) whether the review board erred by deleting the penalty that the administrative law Judge awarded under A.R.S. § 23-418.01; and,
(7) whether the review board erred by awarding attorneys' fees and transcription costs to Westenburg Contractors.
ADOSH first argues that the review board was so biased as to deny
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