DOL Loses Big in Atlantic City Garage Collapse Case

OSHA's penalties against Fabi Construction Inc. in connection with the Oct. 30, 2003, fall of four levels of a 10-story parking garage being built at the Tropicana Hotel and Casino, killing four Fabi employees and injuring 21, were reduced Nov. 27 to less than $10,000 by a federal appeals court. Fabi was facing $98,000 in penalties when it appealed the two original OSHA citations to the Occupational Safety and Health Review Commission, but on March 30, 2006, Administrative Law Judge Covette Rooney knocked the lone willful violation down to a serious violation, reducing its penalty from $70,000 to $7,000.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled unanimously Nov. 27 in Fabi Construction Inc. and Pro Management Group v. Secretary of Labor, No. 9601244, that two General Duty Act violations will stand against Fabi. But the court vacated a $7,000 penalty and serious violation of 29 CFR 1926.703(a)(1), agreeing with Fabi that the Labor Department tried to enforce a new interpretation of the rule in this case -- that permanent structural members are included in the term "formwork." Fabi contended, and the appeals court agreed, that 1926.703(a)(1) applies to formwork and the recognized industry definition of formwork is temporary structures, not permanent concrete slabs.

The court remanded the $7,000 penalty for a serious violation of 1926.703(e)(1) back to OSHRC because ALJ Rooney had raised it from $2,500 without explanation. This may result in dropping this item back to $2,500, which would produce a $9,500 total penalty against Egg Harbor Township, N.J.-based Fabi. Rooney's decision (www.oshrc.gov/decisions/html_2006/04-0776.html) explains in detail why the floors fell and how the construction method used differed from standard industry practice in terms of placement of steel mesh on top of the poured slabs. The shop drawings for the concrete work were not clear on this point, and Rooney said Fabi should have sought guidance from the structural engineer who created them before proceeding. More than one worker on the site questioned the steel mesh arrangement or expressed concern about cracks in the drying concrete floors before they fell, according to her decision.

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