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Region 1 News Release: BOS 98-189
Thursday, October 1, 1998
Contact: John M. Chavez, (617) 565-2075

The Occupational Safety and Health Administration (OSHA) of the U.S. Labor Department has cited F.L. Merrill Construction, Inc., a contractor based in Pembroke, New Hampshire for alleged Willful and Serious violations of the Occupational Safety and Health Act at a Northwood, N.H., worksite and has proposed penalties totaling $35,900.

According to David May, OSHA area director for New Hampshire, the alleged violations were discovered during a spot inspection conducted August 26, 1998, at a sewer installation site located at the intersection of Rochester Road and Pine View Drive in Northwood and concern cave-in hazards and lack of protective headgear for workers.

"OSHA inspectors observed two employees working in an excavation that was not adequately protected against a collapse of its sidewalls by means of shoring, sloping the soil at a shallow angle or the use of a protective device such as a trench box," said May. "It is essential that effective collapse protection be in place and in use before workers enter a trench since its walls can collapse suddenly and with great force, stunning and burying workers beneath tons of earth before they have time to react or escape."

May noted that the size of the proposed fine stems from the categorization of the collapse protection citation as willful, the most severe category of OSHA citation. OSHA issues willful citations only when it believes based on the information gathered in its inspection that the employer knew what safeguards were required to protect workers but apparently elected not to provide them.

"This employer is no stranger to the OSHA standard requiring collapse protection in excavations, having been cited for violating that particular standard several times over the past five years at various worksites in Concord and Tilton," said May. He specifically noted six prior inspections of company worksites which had resulted in similar citations of varying severity, including: four sites in Concord in 1992, 1993, 1994 and 1998 resulting in alleged serious, willful, repeat and serious violations, respectively; and two sites in Tilton in 1997, both resulting in citations for alleged repeat violations.

"Consequently, in this case," said May, "OSHA has no choice but to issue its strongest sanction. It is unfortunate that this employer seems to be having some difficulty getting and understanding the message that they are legally responsible for providing their employees with a safe work environment."

May explained that excavation safety is the subject of an OSHA national emphasis program. Under that program, OSHA inspectors who encounter an excavation in their work travels will stop and take a look. If no violations are observed, the inspector will continue on. If, however, hazards are apparent, the inspector will open an inspection on the spot and, where violations are established, appropriate citations and penalties will result.

Specifically, the citations and proposed penalties encompass:

One alleged Willful violation, with a proposed penalty of $35,000 for two employees working in an excavation that was not adequately protected against collapse by shoring, sloping or an equivalent means of protection;

One alleged Serious violation, with a $900 penalty proposed, for a worker in the excavation who was exposed to possible head injuries was not protected by a hardhat.

May urged Granite State employers and employees with questions regarding workplace safety and health standards to contact the OSHA area office in Concord at 603-225-1629 and added that OSHA's toll-free, nationwide hotline --1-800-321-OSHA (1-800-321-6742)-- may be used to report workplace accidents or fatalities or situations posing imminent danger to workers, especially if they occur outside of normal business hours.

A willful violation is defined by OSHA as one committed with an intentional disregard of, or plain indifference to, the requirements of the Occupational Safety and Health Act and regulations.

A serious violation is defined as one in which there is a substantial probability that death or serious physical harm could result, and the employer knew, or should have known, of the hazard.

OSHA is empowered by the Occupational Safety and Health Act of 1970 to issue standards and rules requiring employers to provide their employees with safe and healthful workplaces and jobsites, and to assure through workplace inspections that those standards are followed.

The company has 15 working days from receipt of the citations and proposed penalties to either elect to comply with them, to request and participate in an informal conference with the OSHA area director, or to contest them before the independent Occupational Safety and Health Review Commission.