Wildcat Renovation, LLC

Plain-English summary

Wildcat Renovation was demolishing concrete bridge-support walls at a Florida waterpark when a wall fell on an employee, causing fatal injuries. OSHA alleged that Wildcat failed to conduct an adequate pre-demolition engineering survey and failed to make continuing inspections as work progressed. The judge found that Wildcat's review of as-built drawings, site inspections, demolition plan, and written scope of work satisfied the engineering-survey standard. The judge also found that OSHA did not prove the inspections by the foreman and project manager were unreasonable under the circumstances, because the standard did not require constant supervision and the planned method had been used safely on the first wall. Both citation subitems were vacated, and the proposed $13,653 penalty was not assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.850(a); 29 C.F.R. § 1926.859(g)
• Outcome: Citation 1, Items 1a and 1b were vacated, and no penalty was assessed.
• Key point: A demolition survey may be documented through project records, and a continuing-inspection duty does not automatically require constant observation of every worker.

Full text (OSHRC public release)


Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104

Secretary of Labor,

Complainant

v.   

OSHRC Docket No.
21-0387

Wildcat Renovation, LLC,

Respondent.

Representatives:

Richard A. Latterell, Esq .

U.S. Department of Labor, Office of the Solicitor,
Atlanta, GA , for Complainant

John M. Miller, Esq.
and Katherine Cook, Esq.

BOY AGNEW POTANOVIC, PLLC, for Respondent

JUDGE: Administrative Law Judge Heather A. Joys

DECISION AND ORDER

On September
29, 2020,
an employee of Respondent, Wildcat Renovation , LLC
(Wildcat) , was crushed to death when a concrete wall he was demolishing fell on him .
Upon notification of the fatal ity , the
Fort Lauderdale, Florida, Area Office of the Occupational Safety and Health Administration
investigated the
incident .
As a result of that investigation, the Secretary issued Wildcat a citation alleging serious violation s
of the
Occupational Safety and Health Act of 1970 ,
29 U.S.C. § 651 (the Act) .
In the citation, the Secretary alleges Wildcat failed to conduct an adequate
engineering survey of the demolition
operations
prior to
commencing work in violation of 29 C.F.R. § 1926.850(a) and
failed to conduct continuing inspections
as demolition work progressed
in violation of 29 C.F.R. §
1926.859(g). 1
The Secretary proposes a penalty of $13,653 for the
alleged violation .

W ildcat timely contested the citation
bringing
the matter before the Occupational Safety and Health Review Commissio n
pursuant to § 10(c) of
the Act. The
court
held a hearing in this matter on
August 30 and 31, 2022, in
Fort Myers, Florida.
The parties filed post-hearing briefs on
O ctober 31, 3022 . 2

For the reasons discussed below, Item s
1a
and 1b , Citation 1, alleging violation s
of 29 C.F.R. § §
1926.805(a)
and
1926.859(g) , respectively, are vacated.

JURISDICTION

The
parties stipulated jurisdiction of this action is conferred upon the Commission pursuant to
§
10(c) of the Act
(Joint Prehearing Statement, p. 10 ) .
The parties also
stipulated that at all times
relevant to this action,
Wildcat
was an employer engaged in a business affecting interstate commerce within the meaning of
§
3(5) of the Act, 29 U.S.C. § 652(5)
( Id. ) .
Based upon the stipulations and the
record as a whole,
the
court
finds
Wildcat
is an employer covered under the Act and that the Commission has jurisdiction over this proceeding.

STIPULATIONS OF FACT

The parties stipulated to the following issues of fact:

1. On September 30, 2020, OSHA conducted an inspection, number 1495408, of Respondent’s worksite located at Respondent’s worksite at the Sun ‘n Fun Waterpark, 1500 Livingston Road, Naples, Florida 34109.

2. OSHA’s inspection was prompted by Respondent’s reporting to OSHA of a fatal worksite accident occurring on September 29, 2020, when one member of Respondent’s 3-man demolition crew at the Sun ‘n Fun waterpark was crushed by a steel reinforced, poured concrete wall that fell on him after he had cut a horizontal line along the width of its base.

3.
S pecifically, the accident involved the second and final steel reinforced concrete wall, one of two such walls that had been supporting a pedestrian bridge spanning the Lazy River at the Sun ‘n Fun waterpark. The wooden pedestrian walkway and the first wall had already been demolished at the time of the accident.

4. Respondent’s 3-man crew at the Sun ‘n Fun worksite comprised foreman Matthew Norton, laborer
   [WH]
   3 ,
   and the decedent, laborer
   [AG] .

5. The photographs show that the decedent cut a horizontal line near the base of the entire width of the second concrete wall.

6. The concrete wall measured approximately 6 feet high by 10 feet wide by 8 inches deep.

7. The concrete was contained #5 rebar, on 9-inch centers (which means that the rebar had a 5/8-inch diameter, and it was placed every 9 inches both left and right,
   up
   and down). Exhibit 5 (Marked Up As-Built Plan) .

8. The decedent was using a self-contained, gas engine, hydraulic concrete saw cutter, called a 20-inch Diamond Ring Saw.

9. The strength of the poured concrete was 3,000 psi.

10. The Collier County District Twenty Medical Examiner’s report states the cause of death to be blunt force injuries.

(Tr.
9-10)

BACKGROUND

Alan Miller founded
Wildcat approximately 10 years ago and remains its owner (Tr. 431) .
Mr. Miller describes the business as
a “selective demolition, concrete cutting and shoring erection specialty company.” (Tr. 431) .
Concrete cutting generates a pproximately 85% of
Wildcat’s
revenue
(Tr. 432) .
Mr. Miller has
worked in
demolition for 29 years and
started
the company after having worked his way up
from
a
laborer , receiving
training
through the Operating Engineers apprenticeship program (Tr. 436-439) .
The business is a member of the National Demolition Association ,
among other industry groups
(Tr. 438-39) .

Sometime in 2020, Wildcat received an invitation to bid on a demolition project at the
Sun ‘n Fun Waterpark in Naples, Florida (Tr. 454) .
The project involved demolishing a footbridge that spanned a “lazy river”
in the center of the waterpark
( Exh . R-24) .
In addition to the wooden bridge, two concrete
walls ,
serving as
supports
for the footbridge,
were to be removed. 4
One wall was on the side of the lazy river closest to the entrance building,
and
the other was on
the opposite side
of the lazy river
in
an island-like area ( Exh . R-24) .
The general contractor who invited the bid sent Wildcat
a
set of documents including the scope of work and the “as
builts ”
which are
drawings
depicting
how a building or structure was constructed (Tr.
454) .
In conjunction with
its
review of the documents, Wildcat sent two estimators to the site (Tr. 456) .
Ultimately, Wildcat was awarded the job .

On September 16, 2020, p rior to
commencing
work,
Mr.
Miller
visited the site (Tr. 456) .
He visually inspected the
structures to be demolished for
deterioration
or damage (Tr. 457) .
He took
videos
of the site conditions .
The following day,
Mr.
Miller returned with Michael
Nywening , the project manager.
(Tr. 402, 474) .
The two men again
performed
a visual inspection of the footbridge and supporting concrete walls (Tr. 402-04).
Together
they
developed a plan for demolishing the structures (Tr. 404-471 ;
Exh .
J-9, p. 3 ).
The
plan called
for using
a method referred to as “score, break, and remove” 5
to demolish the concrete walls
(Tr. 405) This method involved
scoring
or cutting partially
through
the concrete wall in a grid pattern and then breaking it
with a sledgehammer or machine (Tr. 325-26, 388-91) .
Wildcat memorialized the plan in a scope of work document ( Exh . J-6; Tr. 406, 471).

On September 24, 2020, Wildcat
began
the Sun ‘n Fun job .
The onsite crew for the job comprised three individuals .
Matthew Norton
served as foreman of the job
and t wo laborers,
AG (the decedent)
and WH ,
performed various jobs including concrete cutting and operating machinery .
Wildcat brought three pieces of equipment to the site .
Wildcat used a Brokk 170 radio - controlled demolition robot to remove the footbridge .
Also on site were a Lull
telehandler
or
booming forklift which
Wildcat
used to boom equipment to the island and move heavy debris ,
and a Bobcat mini track loader 85 . 6
(Tr. 461-63)

On
the morning
of the first day, Project Manager
Nywening
me t with Foreman Norton at the jobsite and reviewed the scope of work (Tr. 327, 408;
Exh . J-9, p. 6) .
Over the next
three
days, the Wildcat crew removed the
wooden footbridge with the demolition robot .
By the end of the
third day, the
footbridge
had
been demolished and the wood removed to the dumpsters on site .
During these three days,
Project Manager
Nywening
visited the site twice each day .
He memorialized his visits in a daily report.

On the following Monday, September 28, 2020, the crew
began the project by
demolishing the first wall ,
nearest the entrance building ,
without incident .
On the morning of the next day, Project Manager
Nywening
met with the crew at the worksite .
Debris from the first wall had not been removed and the crew was
in the process of doing so (Tr. 420) .
According to Project Manager
Nywening , once the debris was cleared, the plan was to move the equipment to the island and begin demolition o f
the second wall (Tr. 420) .
Project Manager
Nywening
then left.

After the
crew had
moved
some of the
equipment to the island,
AG began
cutting the second wall. Foreman Norton was
in the parking lot area, moving the forklift and WH was watching the lines and the generator that powered the saw .
As AG cut along the bottom of the wall ,
Foreman Norton saw the wall begin to tip and called out ( Exh . C-5, p. 2) .
The wall continued to tip, falling on AG .
Efforts
to
rescue AG were unsuccessful
and he died of his injuries ( Exh . J-3).

Local police and emergency services were immediately called to the accident scene
where
p olice took statement s
from WH and Foreman Norton .
The following day, the OSHA Fort Lauderdale Area Office initiated its investigation.

OSHA’s
investigation was initially assigned to Compliance Safety and Health Officer (CSHO) Chad Schulenberg .
CSHO Schulenberg , who
was accompanied by
T rainee Karen Alvarez ,
went to the site on
September
30, 202 0 .
They took photographs and measurements and interviewed
Foreman Norton and WH .
Prior to completing the investigation
CSHO Schulenberg left the
agency
and the matter was reassigned to CSHO Reginald Benson .
Upon taking over the investigation,
CSHO Benson discovered CSHO Schulenberg had not preserved his working
file .
CSHO Benson’s efforts to
recover CSHO
Schulenberg’s ’ original interview notes
were
unsuccessful
and he
determined he would have to start his investigation
anew . CSHO Benson
took a second set of interview statements from Foreman Norton and WH .
Based upon the information gathered by CSHO’s Schulenberg and Benson, the Secretary issued
the Citation at issue.

THE CITATION

Item s
1 a and 1b , Citation 1,
as
amended ,
allege violations of § 5(a)(2) of the Act .
Item 1a
reads:

Citation 1, Item 1a: Type of Violation: Serious

29 CFR 1926.850(a): An engineering survey was not performed by a competent person to determine the conditions of the walls and the possibility of unplanned collapse of any portion of the structure prior to permitting employees to start demolition operations:

At 1500 Livingston Road, Naples, Florida, on September 29, 2020, prior to permitting employees to start demolition operations, a competent person did not perform and document in writing an engineering survey of 6’ x 10’ cement walls to determine their condition and the possibility of unplanned collapse, thereby exposing employees to struck-by and crushing hazards.

Date By Which Violation Must Be Abated:   
   April 20, 2021

Proposed Penalty:
         $13,653.00

The Secretary contends , to the extent Wildcat performed an engineering survey, it was inadequate because it did not
take into account
the possibility of unplanned collapse .
He contends this is evidenced by the notation in Wildcat’s scope of work sheet that indicates no shoring was necessary.

Citation 1, Item 1b: Type of Violation: Serious

29 C.F.R. 1926.859(g): During demolition, continuing inspections by a competent person were not made as the work progressed to detect hazards resulting from weakened or deteriorated floors, or walls, or loosened material. Employees were permitted to work where such hazards existed before they those hazards were corrected by shoring, bracing, or other effective means.

At 1500 Livingston Road, Naples, Florida, on September 29, 2020, a competent person did not continually inspect to detect and correct hazards during the demolition of unbraced 6’ x 10’ cement walls, thereby exposing employees to struck-by and crushing hazards.

Date By Which Violation Must Be Abated:
      April 20, 2021

Proposed Penalty :          $0.00

The
Secretary contends
because Foreman Norton was
in an area 40 to 50 yards from AG as
AG
began the process of cutting the
wall,
Foreman Norton
could not have been performing
the
“continuing inspections”
required by the standard.

DISCUSSION

The Secretary has the burden of establishing the employer violated the
cited standard .
To prove a violation of an OSHA standard, the Secretary must show by a preponderance of the evidence that (1) the cited standard applies; (2) the employer failed to comply with the terms of the cited standard; (3) employees had access to the violative condition; and (4) the cited employer either knew or could have known with the exercise of reasonable diligence of the violative condition .
JPC Grp, Inc. , No. 05-1907,
2009 WL 2567337 , at *2
(OSHRC Aug .
11, 2009 ).

Item 1a, Citation 1: Alleged Violation of
29 C.F.R. § 1926.850(a)

In a ddressing Item 1a, Citation 1, the
pivotal
issue
for the court is
whether
the Secretary has met his burden to
establish
Wildcat
failed to comply with the requirements of the cited standard. 7 The standard requires :

Prior to permitting employees to start demolition operations, an engineering survey shall be made, by a competent person, of the structure to determine the condition of the framing, floors, and walls, and possibility of unplanned collapse of any portion of the structure. Any adjacent structure where employees may be exposed shall also be similarly checked. The employer shall have in writing evidence that such a survey has been
performed .

29 C.F.R. § 1926.850(a)

The standard is contained in Subpart T
of Title 29 .
It was
promulgated pursuant to
§ 6(a) of the Act
which
authorized the
Secretary
to adopt existing national consensus standards
without resort to formal rulemaking procedures .
29 U.S.C. §
655(a) .

No where in the standard , or its source standard, ANSI
A10.6 – 1969,
Safety Requirements for Demolition , 8
is the term “engineering survey” defined.

The Commission
addressed the
standard’s requirements in
Ed Miller
&
Sons, Inc .
No. 934, 1974 WL 4291 ( OSHRC July 31, 1974) .
In
Miller , the vice president of the company , who was experienced in demolition , inspected the
structure to be demolished twice,
from which he developed the sequence of the demolition .
Id . at 3 .
He memorialized his
plan and confirmed he had conducted the inspections in a signed memorandum .
Id .
In the memorandum, the
vice president wrote “Mike Regan and I inspected the Union station job today and inspected the
type
of construction and its condition.”
Id . at 4 .
The Commission found this adequate both in
substance and form, rejecting the Secretary’s
argument that
the survey should have , among other things,
defined the structure , referred to the structural integrity, and included plans for
unscheduled
collapses .
Commission judges have followed the guidance of
the Commission’s decision in
Miller .
See
Fabi Constr .
Co . , No. 96-0097, 1998 WL 239344, at 11-14 (OSHRC May 8, 1998)
(ALJ) ; and
American Wrecking Corp. , Nos. 96-1330 and 96-1331, 1998 WL 394907 , at 5 (OSHRC
July 13, 1998)
(ALJ) .

In
Fabi Construction , for example, the
j udge found
the employer’s conduct met the requirements of the standard .
1998 WL 23 9344, at 14-15.
9
The
employer had
reviewed the structural
drawings, made several visual inspections of the structures to be demolished , took photographs and notes during the inspections , and
bore pilot holes into a slab to be demolished to determine how
it
was reinforced .
Id . at 11 -12 .
The judge found
the employer’s determination
that
manual demolition was the “safest method” was sufficient evidence
the employer had considered the possibility of unplanned collapse .
Id . at 14.
The employer produced as written evidence of having conducted the survey , the
job superintendent’s “personal estimating sheet”
which covered the scope of work .
Id . at 12 .
The judge found the estimating sheet met the requirement for written evidence
of a survey.
Id . at
*12, 14.

Wildcat’s pre-demolition actions
mirror
those found compliant by the Commission in
Miller .
Prior to
receiving the contract to perform the demolition job at the Sun ‘n Fun waterpark, Mr. Miller received and reviewed the
set of documents he referred to as the “plan set” that included the as-built drawings
(Tr. 454-55) .
These documents
gave Mr. Miller the
height, size, and thickness of the walls, the psi of the concrete used, and the
steel embedment of the wall
( Exh . J -4 ) .
After Mr. Miller
received the plan set ,
he
sent two
estimators
to
the site
(Tr. 456) .
Next,
Mr. Miller visited the site (Tr. 456) .
During his site visit, Mr. Miller took videos of the site conditions (Tr. 470) .
He visually inspected the structures to be demolished
and observed no
deterioration or damage (Tr. 457 -58 ) .
Mr.
Miller confirmed the
structures on site were consistent with
the
as-built drawings .
Mr. Miller concluded that , given the site conditions, no shoring or bracing was required and th e most effective way to remove the walls was the “score, break, and remove” method (Tr.
459) .
This method, Mr. Miller
believed,
would
keep the wall stable until it was brought down by a piece of equipment (Tr. 459). 10

The following day, Mr. Miller returned with
Project
Manager
Nywening . (Tr. 402, 474) .
The two men again did a visual inspection of the footbridge and supporting concrete walls (Tr. 402-04 ; 474 ). Together
they
agreed on
a plan for demolishing the structures (Tr. 404 ,
471 ) .
Project Manager
Nywening
memorialized his visit in his daily
report ( Exh . J-9, p. 3). Wildcat
also
memorialized the plan in a scope of work document ( Exh . J-6; Tr. 406, 471). 11

Prior to commencing work, Project Manager
Nywening
went over the scope of work and the videos with the crew (Tr. 320, 408) .
On the first day of work on the project, Project Manager
Nywening
went to the jobsite
and met with
Foreman Norton ( Exh . J-9, at p. 5) .

The scope of work document includes
details of the project and how Wildcat intended to complete the job .
It notes site conditions, such as the existence of water and power onsite .
I t specifies
the equipment to be used .
It identifies what structures were to be removed and the intended demolition method .
Finally, the document contains a notation that no shoring was necessary.

The Secretary contends the actions taken by Wildcat were not sufficient to meet
the requirements of §1926.850(a). 12
In support of his allegation Wildcat failed to conduct a compliant engineering survey, the Secretary called William Moor e , an expert in
demolition safety. 13 Mr. Moore testified
to the industry standard for
preparing to perform
demolition work .
He testified
his process is to meet
with the estimator, safety director ,
and foreman of the job and
attempt to “ determine everything that could go wrong on the job and what we were going to do to compensate for any potential hazards.” (Tr. 219)
He testified he use s
the National Demolition Association’s template for an engineering survey as a guide and would
“ fill out every blank” on the form (Tr. 226;
Exh . C -7).
The form is
an eight-page
document that covers
all aspects of a demolition project including, for example, the
condition of the structures to be removed, stabilization plans, environmental issues, and other hazards .
Mr. Moore stressed the importance of having the survey in writing .
He
would hold
a pre-job safety meeting during which the document would be covered and then widely disseminate
it .
The National Demolition Association publishes a
Safety Manual
that covers
a variety of
demolition safety
issues such as
preparatory
activities
and the engineering survey
( Exh . C- 8) .
Mr. Moore testified he follows this manual in his work in the demolition industry.
According to that document,

T he purpose of this survey is to identify any hazards, to determine the condition of the structure, and to evaluate the potential for premature collapse …

The engineering survey provides the demolition contractor with the opportunity to evaluate the job in its entirety. The contractor should prepare a plan for the demolition of the structure, the equipment to do the work, the manpower requirements, and the protection of the public. The safety of all workers on the job site should be a prime consideration.

( Exh . C-8, p. 15) .
Mr. Moore testified
Wildcat’s engineering survey did not meet the requirements of the standard because it did
not
make note of any hazards on site and did not contain a plan for
using
shorin g,
bracing ,
or
other protective measures
(Tr. 239 -40 ).   

Mr. Moore’s testimony does not establish Wildcat failed to meet the requirements of the standard .
Mr. Moore’s testimony focused on
what is missing from Wildcat’s documentation. 14
Mr. Moore
infers
from the lack of notation of existing hazards
or of
a shoring or bracing plan that Wildcat did not
consider the possibility of unplanned collapse .
The
court
declines to draw the same inference. 15
Mr. Miller
credibly
testified
about the steps he took prior to commencing the demolition work which included inspections of the existing conditions of the structures
with a comparison to the as-built drawings .
He conducted a visual inspection
consistent with that
described by Mr. Moore (Tr. 300-02 , 457- 58 ) .
He developed
a plan for demolition of the wall s
he believed would maintain
their
stability
(Tr. 459) .
He chose a method he had used “thousands of times.” ( Tr.
494 ) He
held a meeting with
the project manager , the job
foreman , and the crew
(Tr. 47 6 ).
Taken together,
Mr. Miller took the steps necessary to conduct an adequate engineering survey.

Mr. Moore testified there are four
considerations
in completing
an adequate
engineering survey .
It must cover the work to be performed , identify the h azards at the worksite, address measures
to prevent hazards, and
contemplate the danger of unplanned collapse (Tr. 285) .
Mr. Miller credibly testified he
considered each of these matters
identified by the Secretary’s expert
when developing his plan
for demolition of the concrete walls (Tr.
482 - 86) .
The Secretary
did not
rebut this evidence .
The preponderance of the evidence establishes Wildcat addressed each element of a compliant engineering survey .
Item 1a, Citation 1 is
vacated .

Item 1 b , Citation 1: Alleged Violation of 29 C.F.R. § 1926.85 9 (g)

In Item 1b, Citation 1, the Secretary alleges Wildcat
violated the standard at
29 C.F.R. § 1926.85 9(g) .
The cited standard requires:

During demolition, continuing inspections by a competent person shall be made as the work progresses to detect hazards resulting from weakened or deteriorated floors, or walls, or loosened material. No employee shall be permitted to work where such hazards exist until they are corrected by shoring, bracing, or other effective means.

29 C.F.R. § 1926.859(g) .
The pivotal issue is whether Wildcat violated the terms of the standard .
The Secretary contends
Wildcat violated the standard when Foreman Norton was
40 to 50 yards away from AG, and not observing him
or
the condition s ,
as AG
cut the second concrete wall . 16

The re is little guidance in the
regulatory
history of the standard or Commission precedent on
how the term “continuing inspections” is to be interpreted .
The language of the standard, when read as a whole, suggests that such inspections
are intended to
discover hazards to
which employees may be exposed
that have been
created by the progressing work.
The duty must be discharged by a person capable of detecting
and addressing
hazards.
An employer is responsible for protecting its employees from those hazards that could or should have been detected by a competent inspector .
A performance standard, such as the one at issue here, does not identify specific obligations and therefore must be “interpreted in light of what is reasonable.”   Thomas Indus. Coatings, Inc. ,
No . 97-1073, 2007 WL 4138237 , at 4 ( OSHRC Nov. 1,
2007);
see also
Siemens Energy & Automation, Inc. , No. 00-1052, 2005
WL 696568,
at
6 n. 8 (OSHRC Feb. 25,
2005 ) (employer's exercise of discretion is judged either by a reasonable person or “reasonably prudent employer” standard).  

Foreman Norton was on the job every day during the demolition operations supervising the progress of the job (Tr. 335) .
He confirmed he examined the walls for conditions that could have resulted in premature collapse during cutting operations ( Exh . C-11, p. 3). Project Manager
Nywening
was at the jobsite observing the conditions twice each day
while
work was being performed.
The question before the court is whether a reasonably prudent employer would have done more under the circumstances.

The Secretary contends Wildcat failed to meet its obligation under the standard
because
Foreman Norton was not
always observing the condition of the wall for hazards , most
critically,
during the 20 minutes 17
it took AG to cut across the bottom of the wall
just prior to its collapse .
In support of this contention, the
Secretary relied on the testimony of his expert Mr. Moore
who
found fault in the content and frequency of Wildcat’s inspections. Mr. Moore was asked whether Wildcat’s description of its inspection procedures would constitute continuing inspections (Tr. 245) .
The description the Secretary provided Mr. Moore read (in relevant part):

Except for the occasions during which Mr. Norton left the specific location where the cutting was occurring to perform some other job-related task, Mr. Norton was inspecting the work as it progressed. Additionally, Mr.
Nywening
inspected the work daily and sometimes was at the jobsite more than once per day. These inspections by supervisory personnel were conducted, in part,
to detect hazards associated with the demolition work.

( Exh . J-7 p. 13-14; Tr. 245) (emphasis added) Mr. Moore responded this would not qualify because “they were not inspections for safety …. [ b] ecause
it doesn’t, again, mention any potential hazards or protective measures.” (Tr. 345) Mr. Moore’s conclusory statements are unhelpful .
Mr. Moore does not explain why he believed the inspections by Foreman Norton and Project Manager
Nywening
were “not inspections for safety” given the specific reference, in Wildcat’s description, to the purpose of the inspections as, in part, to detect hazards.

Mr. Moore went on to testify Wildcat’s inspection frequency would not meet the requirements of the standard because Foreman Norton admitted “he wasn’t there all the time.” (Tr. 247, 291-92) Mr. Moore testified
supervision of the progressing work
is
required “as often as necessary”
which ,
he opined ,
was constant in this case
(Tr. 221 , 291 ) .
Mr. Moore’s opinion
was informed by
his
underlying
opinion
that the
manner in which
Wildcat was demolishing the walls was unsafe. 18
However, he based this opinion on
limited and inaccurate information .
Mr. Moore had no first-hand knowledge about the condition of the concrete because he had never been to the site. He was not familiar with
all of
the witness statements (Tr. 262-64) .
He was unsure of AG’s level of experience (Tr. 291-92). Prior to the hearing, he was mistaken about how the first wall had been demolished (Tr. 266, 269) .
Mr. Moore did not explain how this faulty premise might affect his opinion. He testified to the possibility the wall or portions of it could fall but did not explain how or why .
Given the inadequate factual background provided to him and because he
offered
little explanation for the basis of it, Mr. Moore’s opinion is of limited probative value .
See CSA Equip. Co. , No. 12-1287, 2019 WL 1375918, at *5 (OSHRC Mar. 19, 2019) (Commission judge properly discredited expert testimony​​ because expert did not observe procedures at the worksite and his opinion was based on an inaccurate understanding​ of procedures)​​​​.

The question before the court is whether Wildcat acted reasonably under the circumstances.
To answer
this question, the court
borrows from
cases addressing reasonable diligence, as the Commission has done in the past.
See,
e.g., Cent . Fla. Equipment Rentals ,
No. 88-1656, 2016 WL 4088876, at 7 (OSHRC July 26, 2016) ,
citing
Greenleaf Motor Express ,
Inc .,
No. 03-1305, 2007 WL 962961, at 3 (OSHRC
Jan. 9, 2007)
aff’d
262 F.
App’x .
716 (6 th
Cir.
2008)( unpublished); and
Concrete Const. Co ., No. 82-1210, 1985 WL 44803 , at 3-4 (OSHRC Jan. 25, 1985)
aff’d
986 F,2d 1164 (6 th
Cir. 1986) ( looking to cases discussing reasonable diligence to inform its
reasonably prudent employer analysis with regard to noncompliance) .
In doing so, the court finds little
support for the
Secretary’s contention Wildcat failed to meet the requirements of the standard .
The Secretary appears to suggest
Wildcat’s failure to detect the instability of the wall created by cutting straight across the bottom
of it
is
per se
evidence of a lack of diligence.
To the contrary,
the
Commission has held an employer’s failure to detect every hazard does not establish its failure to take reasonable measures to inspect its worksite.
Tex .
A.C.A. Inc. , No. 91-3467, 1995 WL 42340, at 2 (OSHRC Feb. 1, 1995).
Foreman Norton conceded he was aware cutting straight across the bottom of the wall
would create
a hazard (Tr. 357).
He did not know why AG chose to do so (Tr.
356) .
Although
Foreman Norton might have detected the hazard created by cutting across the bottom of the wall
had he been
providing constant oversight,
the Commission has
declined to
equate reasonable diligence with
constant oversight .
Ragnar Benson, Inc ., No. 97-1676, 1999 WL 770809, at *3 (OSHRC Sept. 27, 1999),
citing N .
Y .
State Elec. & Gas
Corp.
v. Sec ’ y of Labor,
88 F.3d 98, 109 (2 d
Cir. 1996) ( “ Insisting that each employee be under continual supervisor surveillance is a patently unworkable burden on employers. ”) .

To the extent the
imposition of a specific inspection requirement in the demolition standards
implies a higher standard of diligence is
required,
the Secretary failed
to
identify circumstances supporting the need for greater oversight than
what
Wildcat provided.
Cf. ,
Sw .
Bell Te l.
Co ., No. 98-1748, 2000 WL 1424806, at *2-3 (OSHRC Sept. 27, 2000) (finding inspections inadequate under 29 C.F.R. § 1926.651(k)( 1 ) ,
which requires excavation inspections be conducted
prior to the start of work and
“as needed throughout the shift” ,
where competent person failed to inspect a trench before allowing employees inside after having been informed of the need for shoring) .
Wildcat planned to remove the
second wall
in the same manner
as the first which, Mr. Miller testified,
kept the wall intact and stable until it was broken by a piece of machinery ( Exh . J-6; Tr. 325; 337 ,
459) .
This was a method Mr. Miller had seen used “thousands of times.” (Tr. 494) For e man Norton stated this was Wildcat’s standard procedure for demolishing walls of equivalent size ( Exh . C-1, pp. 2-3).
And
Foreman Norton testified he
had no reason to believe
AG would
not
follow the same procedure as he had with the first wall and that th is
procedure was safe (Tr. 353). 19
The composition of the two walls was the same ( Exhs . J-4; and J-5). Mr. Miller had seen no damage or deterioration to either wall during his pre-demolition inspections (Tr. 458).

Moreover,
AG
h ad at least 10 years of experience as a concrete cutter wit h
“reputable companies.” (Tr. 328-29; 451) Foreman Norton had observed AG over a few months and found him knowledgeable in concrete cutting (Tr. 329).
See Armstrong Utilities, Inc ., No. 18-0034, 2021 WL 4592200, at 6 (OSHRC Sept. 24, 2021);
citing
MasTec
N. Am., Inc ., No. 15-1574, 2021 WL 2311875, at 3 (OSHRC Mar. 2,
2021)( experience level of employees being supervised is a consideration in determining whether employer acted with reasonable diligence).
The
record
is insufficient to
establish
Wildcat ’ s
conduct was not reasonable
under the circumstances.

The Secretary failed to present sufficient evidence to establish Wildcat was not in compliance with § 1926.859(g). 20 Item 1b, Citation 1 is vacated.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Fed. R. Civ. P. 52(a).

ORDER

Based on the foregoing decision, it is hereby ORDERED:

Items 1a
and
1b, Citation 1,
are
VACATED .

SO
ORDERED.

/s/ _________

Heather A. Joys

Dated:
March 16,
2023                Administrative Law Judge, OSHRC

Atlanta, GA

"

1
The original citation alleged a single serious violation of the
§ 5(a)(1) of the Act
also known as
the General Duty Clause.
The
Secretary
moved to amend
the citation to allege
violations of the
two
referenced demolition standards, grouping the violations for penalty purposes.
The court granted the Secretary’s
unopposed
request to amend by order
of December 16, 2021.

2
To the extent either party failed to raise any other arguments in its post-hearing brief, such arguments are deemed abandoned.

3
Initials are used in place of full names to protect the privacy of individuals.

4
The partially demolished footbridge and supporting concrete walls are depicted in Exhibit J-2, pp. 7-8.

5
Witnesses
used the term “score, snap, and remove”
interchangeably with “score, break, and remove.”

6
During the hearing, witnesses referred to the equipment by its
commercial name and its descriptor
interchangeably.
Witnesses also referred to the Bobcat mini track loader 85 as a “dingo.”

7
There is no dispute regarding applicability of either cited standard to the work being performed.

8
ANSI A10.6-1969 contains a provision
similar to § 1926.850(a).
It reads:

Prior to starting
demolition operations, an engineering survey of the structure shall be made by a properly qualified person to determine the type and
condition of
the
framing, floors, and walls to prevent collapse of any portion of the structure.
When indicated as advisable, any adjacent structure(s) shall also be similarly checked.

ANSI A10.6- 1969,
§4.1.

9
In its post-hearing brief Respondent relies on the judge’s decision
Fabi Construction .
The Commission directed review on the judge’s decision but excluded from review the decision to vacate the alleged violation of § 1926.850(a).
2003 WL 21254205, at *1 (OSHRC May 30, 2003),
aff’d , 370 F.3d 29 (D.C. Cir. 2004). The portion of the judge’s decision addressing the violation of § 1926.850(a) is an unreviewed judge’s decision and, consequently, not binding precedent. Nevertheless, the court finds it instructive.

10
The undersigned found Mr. Miller a credible witness. On the stand, he appeared calm and confident. His responses
were straightforward
and consistent.

11
The
scope of work document covers only the removal of the concrete structures.
It explicitly excludes removal of the wooden footbridge, indicating that would be completed prior.
The
Citation and the
Secretary’s case focus on
demolition of the concrete walls
only.
Whether an
engineering survey and continuing inspections were performed
with regard to
demolition of the footbridge is not at issue.

12
The Secretary did not
argue
Mr. Miller
and Project Manager
Nywening
were
not
competent persons
as that term is defined in the standards.
The term “competent person” is defined in the construction standards as
“o ne who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them. ” 29 C.F.R. § 1926.32(f) .
Given Mr. Miller’s years of training and experience in the demolition
industry and his overall responsibility for each of his company’s jobsites, the undersigned finds he meets the definition of a competent person
(Tr. 436-39) .
Project Manager
Nywening
had
a
similar level of experience in the industry as well as the necessary safety training to qualify as a competent person
(Tr. 395-98) .
The
undersigned did not find the
Secretary’s
expert testimony to the contrary
persuasive .
That opinion was based solely on
Wildcat’s
failure
to predict the wall would fall ,
not information regarding the training or background of any of Wildcat’s management officials
(Tr. 243)

13
Mr. Moore is currently employed as a consultant with
Environmental
Resources Management
(EMS)
performing work as a field safety officer and a demotion manager, overseeing
demolition jobs
(Tr. 210-11).
He has
worked for EMS since 2013.
Prior to that, Mr. Moore was employed for
over 28 years by Brandenburg Industrial Service
starting as a safety director and ending as a vice-president (Tr. 212).
Mr. Moore has a
Bachelor of Science
degree in environmental safety and safety management (Tr. 216).
He
holds
licenses for asbestos remediation and several blasting licenses (Tr. 213-14).
He has been a member of the
American Society of Safety Engineers, the National Safety Council, the Casualty Safety Engineers, and is
currently a
member of the National Demolition Association (Tr. 214).
He has held several leadership positions with the National Demotion Association and received
lifetime achievement awards from the National Demotion Association and the World Demolition Award Group (Tr. 215-16).
He helped write the OSHA field operations manual for demolition, edited a textbook
and the National Demotion Association safety manual (Tr. 216).
He serves on the American National Standards Institute (ANSI)
for demolition (Tr. 216).
The court recognized Mr. Moore as an expert
in demolition safety (Tr. 217).

14
In his post-hearing brief, the Secretary did not argue
Wildcat failed to meet the requirement for written evidence of an engineering survey.
Had he, the argument would have failed.
The Commission has long interpreted the standard to require minimal written evidence an engineering survey was conducted.
It has rejected an interpretation of the standard that would require a written survey or that the evidence of the survey take any
particular form.
That Wildcat conducted a pre-demolition survey is evidenced in writing sufficient to meet the minimal requirements of the standard in the scope of work document and Project Manager
Nywening’s
daily report.

15
Despite Mr. Moore’s outstanding credentials, Mr. Moore’s opinion is given little weight because it is based on limited information.
Mr. Moore reviewed the OSHA file and the statements therein.
Notably, none of the statements taken by CSHO Benson address the pre-demolition engineering survey.
Mr. Moore did not review the depositions of Wildcat’s management employees (Tr. 261-64), He did not know who might have reviewed the as-built plans or
that individual’s
qualifications (Tr. 283-84).

16
The Secretary did not argue in his post-hearing brief that Foreman Norton was not a competent person
under the standard.
Based upon his experience and training, in conjunction with his authority
at
the worksite,
the undersigned finds
Foreman Norton is a competent person
as defined in
§ 1926.32(f)
(Tr. 312-16) .
The testimony of Mr. Moore to the contrary is rejected
for the reasons previously
discussed
(see Tr. 288).

17
The parties disagree on the amount of time it would have taken to cut across the entire bottom of the second wall or how long AG was working without being observed by Foreman Norton.
Because resolution of the issue is not necessary to determine whether Wildcat was in violation of the standard, the court assumes the facts most favorable to the Secretary.

18
Although testifying his
opinion that constant supervision was required would not change if Wildcat was demolishing the wall using the score, break, and remove method or cutting along the bottom (Tr. 253; 295-96),
Mr. Moore conceded, had Wildcat
braced the wall or used a different
method, less frequent inspections
might
have been
acceptable
(Tr. 293).

19
The evidence establishes the first wall was cut along the base, leaving the center uncut (Tr. 269;
Exh
C-2, p. 20). The Secretary relies on the testimony of Trainee Alverez and statements from WH, who did not testify, in support of his contention Foreman Norton had instructed AG to cut along the bottom leaving four to six inches from the ends uncut.
Notes of WH’s statements are vague and inconsistent.
Trainee Alverez’s testimony was less than credible.
Trainee Alverez demeanor was defensive; her answers were evasive. Her notes, the only record of the original interviews retained by the Secretary, are not clear. The preponderance of the credible evidence establishes Wildcat intended to use the same methodology to demolish both walls.

20
Although the amended citation alleges failure to correct hazards, the Secretary focused his arguments on whether Wildcat had performed inspections consistent with the requirements of the standard.
Had the Secretary argued Wildcat failed to take the corrective action required by the second part of the standard, the record would have been insufficient to establish employer knowledge of the violative condition because the Secretary did not present evidence to establish Wildcat knew or with the exercise of reasonable diligence should have known its methodology was unsafe or that AG had engaged in conduct that created a hazard.