A federal appeals court on Tuesday denied an appeal requested by a home contractor facing a serious OSHA citation following the electrocution of two workers, one of whom died of his injuries.
In 2016, on a residential construction site in Alpharetta, Georgia, a subcontractor employee supervised by Century Communities Inc. was operating a crane within 20 feet of live overhead power lines, resulting in an electrical arc flash that caused the injuries and fatality, according to documents in Century Communities Inc. d/b/a Century Communities of Georgia LLC v. Secretary of Labor and the United States Department of Labor, filed in the U.S. Court of Appeals, District of Columbia Circuit in Washington, D.C.
OSHA conducted a fatality investigation, finding that Century, which was in charge of site safety, violated safety standard for operating near power lines that requires employers, before beginning equipment operations, to determine “if any part of the equipment, load line or load (including rigging and lifting accessories), if operated up to the equipment's maximum working radius in the work zone, could get closer than 20 feet to a power line,” according to documents.
In 2018, an Occupational Safety and Health Review Commission administrative law judge affirmed the citation and assessed a penalty of $12,675, concluding that Century “had actual or constructive knowledge of the violation and that while none of Century's employees were exposed to the violation, OSHA's Multi-Employer Worksite Policy provided for Century's liability,” documents state.
After the commission declined to exercise its discretion to review the matter, the ALJ's decision became the final decision of the commission.
The appeals court, however, found that “substantial evidence supports (an administrative law judge’s) finding that at least one of Century's managers had actual knowledge of the violation. The ALJ found that testimony by both the crane operator and the subcontractor who survived the accident established it was more likely than not a Century manager had stopped by the worksite on the morning of the incident and had seen the crane was positioned such that it could be operated within twenty feet of the power lines,” documents state, adding that “the ALJ found contrary testimony from a Century manager to be unreliable and untrustworthy due to multiple impeachments and contradictions and ultimately afforded no weight to that testimony.”
“Because the Commission decision under review comports with our law, we deny the petition for review,” the ruling states.
The company and attorneys involved could not immediately be reached for comment.