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Ezel / Agency Decisions / 81-1423-commission
OSHRC Commission decision Docket 81-1423 Decided October 28, 1983 Remanded

Capital City Excavating

Willful trenching case remanded for penalty

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This is citable Commission precedent from 1983, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.

Currency note: this decision dates from 1983
The OSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Decision of the Commission
This is a decision of the Occupational Safety and Health Review Commission, the highest level of agency review, citable as Commission precedent. It may have been appealed to a U.S. Court of Appeals after issuance; check subsequent history before relying on it. The full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)

Plain-English summary

The Sixth Circuit held that Capital City Excavating willfully violated the trenching standard at section 1926.652(b) and returned the case to the Commission to assess an appropriate civil penalty. The Commission in turn remanded the matter to the chief judge for reassignment because the original judge was no longer with the agency, and directed further proceedings consistent with the appellate decision.

Decision snapshot

  • Cited standard(s): 29 C.F.R. § 1926.652(b) (trenching).
  • Outcome: Remanded to an administrative law judge for penalty proceedings on the willful violation.
  • Key point: The appellate court's willfulness ruling controlled, leaving only determination of the appropriate civil penalty on remand.

Full text (OSHRC public release)

Docket No. 81-1423

SECRETARY OF LABOR,

Complainant,

v.

CAPITAL CITY EXCAVATING CO., INC.,

Respondent.

OSHRC Docket No. 81-1423

ORDER

This case is before the Commission on remand from the U.S. Court of Appeals for the Sixth
Circuit. The court found that a violation by the Respondent of the trenching standard at
29 C.F.R. � 1926.652(b) was willful and remanded to the Commission for assessment of an
appropriate civil penalty. Donovan v. Capital City Excavating Co., 712 F.2d 1008 (6th
Cir., 1983). We further remand the case to the Chief Administrative Law Judge for
reassignment[[*]] and for further proceedings consistent with the court's decision.

IT IS SO ORDERED.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: OCT 28 1983

The Administrative Law Judge
decision in this matter is unavailable in this format. To obtain a copy of this document,
please request one from our Public Information Office By e-mail ( [email protected] ), telephone (202-606-5398), fax
(202-606-5050), or TTY (202-606-5386).

FOOTNOTE:

[[*]] Judge Cecil Cutler, who originally decided the case, is no longer with the
Commission.

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