Source: Sioux Falls Argus Leader

The construction company that was remodeling the former Copper Lounge building when it collapsed and killed a worker on Dec. 2 will be fined nearly $100,000 by the federal government for a host of violations related to the construction site.

The Occupational Safety and Health Administration levied the fines Monday against Hultgren Construction, citing the company for more than two dozen violations. A second investigation specific to the worker's death remains active and ongoing, an OSHA spokesman said.

Aaron Hultgren, the company's president, declined to answer questions when reached by phone Monday but acknowledged the citation in a brief statement emailed to Argus Leader Media.

"We understand and appreciate the important work OSHA undertakes to help ensure safe and healthy working conditions for American workers. As part of this on-going process, we are currently reviewing the documents and will be in contact with OSHA with our response," he wrote.

A temporary labor agency that provided workers for the project was also cited and fined. Command Center, a national employment service with an office in Sioux Falls, received fines totaling more than $114,000 and more than dozen citations.

The collapse killed Ethan McMahon, 24, who was working for Hultgren. The company was removing a load-bearing wall between the Copper Lounge and the former Skelly’s Bar when the collapse occurred.

The incident sparked a massive search and rescue effort in the heart of downtown as firefighters searched for both McMahon and Emily Fodness, who was in an upstairs apartment. Fodness was trapped in the rubble for three hours.

The 41-page list of citations was signed by Sheila Stanley, OSHA’s area director. The 28 incidents include references to the load-bearing wall thought to be the reason for the collapse.

"The employer had employees and temporary employees engaged in the removal of a load bearing wall and piled the brick and debris in different areas of the floor without ensuring the safe carrying capacities of the floor were not exceeded,” one citation says. “This condition exposed employees to crushing hazards and fall hazards related to floor collapse."

Employees were also exposed to potential falls from the roofs and unsafe scaffolding. The citations note that they were also exposed to asbestos.

Jill James, a former OSHA inspector for the state of Minnesota, reviewed the citations Monday. She said in an email that the inspection was “very comprehensive.”

"Nothing proposed here is outlandish, or new; it’s a part of doing business, just like complying with tax, workers compensation, or other employment laws," said James, who is the chief safety officer for Vivid Learning Systems, an online safety training provider. "The message for employers is to get their safety house in order and if needed, align with resources who can educate you, your employees and work toward prevention practices rather than reacting to that which can be avoided."

The 24-page report against Command Center lists violations ranging from failing to initiate and maintain a safety program and failing to ensure employees wore proper safety gear such as hardhats, goggles, and footwear.

“The exposing employer did not ensure that employees wore protective helmets when exposed to overheard hazards such as, but not limited to, falling tools, material, and debris,” a citation says. “The condition exposed employees to serious head injuries.”

Brendan Simaytis, a corporate attorney for Command Center, said in a statement that the company disagrees with OSHA's findings and plans to appeal. The company also sent its condolences to McMahon's family.

"Command Center and its employees had absolutely nothing to do with the ultimate reason the building collapsed," Simaytis said. "There were no Command Center workers on site at the time of this tragic incident. As a staffing agency, our limited role in this project was to provide workers to work under the direction and supervision of Hultgren Construction. None of the issued citations ascribe any blame to Command Center related to the actual building collapse. We believe the citations and penalties are grossly disproportionate to any activities our employees were involved in at the worksite prior to the collapse."

The fines likely won't be the last word on the incident. OSHA acknowledged a separate ongoing investigation related to McMahon's death. The agency has until June 2 to issue citations in that investigation. Meanwhile, another investigation was conducted by the insurance company.

Waiting for these developments are attorneys. A lawyer representing the Fodness family did not return a phone call Monday. Vince Roche, a lawyer representing McMahon's family, said he was reviewing the citations.

Hultgren Construction wasn't permitted to be performing the type of work that was happening when the building collapsed, according to city officials. Sioux Falls City Attorney David Pfeifle said  he couldn't provide comment Monday afternoon because he hadn't had a chance to review the OSHA citations.

The potential for litigation, he said, still remains and limits his ability to comment.

"Out of respect for our federal counterparts ... it's really hard to comment at all," Pfeifle said.

The fines are OSHA's eighth and ninth largest in South Dakota history. The biggest federal workplace fine in state history was a $4.3 million penalty to John Morrell in 1988.