ONEKEY, LLC., OSHRC DOCKET No. 18-0242

Administrative Law Judge Keith E. Bell issued a Decision and Order in this case affirming the citations at issue, and that decision was directed for review on February 5, 2021. On February 3, 2023, the Respondent notified the Commission of its decision to withdraw its Notice of Contest in the case pursuant to Commission Rule 102, 29 C.F.R. § 2200.102. The Commission therefore vacates the Administrative Law Judge’s Decision and Order.

Respondent Onekey, LLC, is a builder, general contractor, and construction management company. One of Respondent’s projects is the development of 300 residential units and commercial space (worksite) along the Hudson River in Poughkeepsie, New York. In early 2017, Respondent implemented a soil compaction plan on the worksite that had been designed by a soil engineering company under contract with Respondent. The soil compaction plan dictated using a “surcharge,” which was described as a “mountain” of soil at least 15 feet high that spanned and overlapped the footprint of each pre-constructed building, to slowly compact and settle the earth beneath it. (Tr. 248.)

On August 3, 2017, portions of a surcharge and an adjacent concrete block wall collapsed on the worksite, killing one of Respondent’s subcontractor’s workers and injuring another. The Occupational Safety and Health Administration (OSHA) investigated the worksite the next day, August 4, 2017. OSHA took the following picture during the inspection on August 4, the day after the accident.

As a result of the inspection of the Poughkeepsie worksite, OSHA issued to Respondent a Citation and Notification of Penalty (Citation) on January 19, 2018. The Citation alleged one serious two-item violation, and one willful two-item violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (OSH Act), and proposed a total penalty of $281,583.00. Respondent filed a timely notice of contest, bringing this matter before the Occupational Safety and Health Review Commission (Commission). A hearing was held in New York City from July 9 – 11, 2019, and was continued in Greenbelt, Maryland from September 10-12, 2019. Both parties filed post-hearing briefs.

Serious Citation 1, Item 1 alleges a violation of 29 C.F.R. § 1926.21(b)(2), which provides that “the employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.” 29 C.F.R. § 1926.21(b)(2). The Secretary alleges that Respondent violated 29 C.F.R. § 1926.21(b)(2) when:

(Citation 6.) The Secretary proposed a $12,934 penalty for serious Citation 1, Item 1.

Serious Citation 1, Item 2 alleges a violation of 29 C.F.R. § 1926.501(b)(12), which provides that:

‘Precast concrete erection.’ Each employee engaged in the erection of precast concrete members (including, but not limited to the erection of wall panels, columns, beams, and floor and roof "tees") and related operations such as grouting of precast concrete members, who is 6 feet (1.8 m) or more above lower levels shall be protected from falling by guardrail systems, safety net systems, or personal fall arrest systems, unless another provision in paragraph (b) of this section provides for an alternative fall protection measure. Exception: When the employer can demonstrate that it is infeasible or creates a greater hazard to use these systems, the employer shall develop and implement a fall protection plan which meets the requirements of paragraph (k) of 1926.502.

Note: There is a presumption that it is feasible and will not create a greater hazard to implement at least one of the above-listed fall protection systems. Accordingly, the employer has the burden of establishing that it is appropriate to implement a fall protection plan which complies with 1926.502(k) for a particular workplace situation, in lieu of implementing any of those systems.

29 C.F.R. § 1926.501(b)(12). The Secretary alleges that Respondent violated 29 C.F.R. § 1926.501(b)(12) when:

(Citation 7.) The Secretary proposed a $9,977 penalty for serious Citation 1, Item 2.

Willful Citation 2, Item 1 alleges a violation of 29 C.F.R. § 1926.701(a), which provides the following:

Construction loads. No construction loads shall be placed on a concrete structure or portion of a concrete structure unless the employer determines, based on information received from a person who is qualified in structural design, that the structure or portion of the structure is capable of supporting the loads.

29 C.F.R. § 1926.701(a). The Secretary alleges that Respondent violated 29 C.F.R. § 1926.701(a) when:

(Citation 8.) The Secretary proposed a $129,336 penalty for willful Citation 2, Item 1.

Willful Citation 2, Item 2 alleges a violation of section 5(a)(1) of the OSH Act. Section 5(a)(1), which is commonly known as the “general duty clause,” requires that each employer “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). The Secretary alleges that Respondent violated the general duty clause when:

(Citation 9-10.) The Secretary proposed a $129,336 penalty for willful Citation 2, Item 2.

The Commission gains jurisdiction to adjudicate an alleged violation of the OSH Act by an employer if the employer is engaged in business affecting commerce within the meaning of section 3(5) of the OSH Act, and, if the employer timely contests the citation. 29 U.S.C. §§ 652(5), 659(c). The record establishes that Respondent, as of the date of the alleged violation, was an employer engaged in business affecting commerce within the meaning of section 3(5) of the OSH Act. 29 U.S.C. § 652(5); Complaint & Answer ¶¶ 2, 3. Respondent also timely filed a notice of contest to the Citation in this case. The Court concludes that Respondent is covered under the Act and that the Commission has jurisdiction over this matter.

Onekey has approximately 200 employees and a net worth of $2 million. (Tr. 852-853.) Its headquarters are in Hackensack, New Jersey and it has projects in Connecticut, New Jersey, and New York. (Tr. 853.) Onekey’s construction projects include multi-family housing, retail, mixed use, and historic restoration. (Tr. 853.) The Poughkeepsie, New York project began in 2010, when Onekey began readying the worksite. The site itself was a “brownfield,” meaning that the land was industrially contaminated, and remediation was necessary to prepare the ground for building use. (Tr. 885.) Remediation included soil testing, removing contaminated soil, and then “the site had to be capped with a minimum of two foot of fill materials.” (Tr. 885.)

Onekey had never worked on a “brownfield” project. (Tr. 853.) It contracted with SESI, a soil engineering company, to help “clean up” the brownfield. (Tr. 886.) During this remediation phase of the project, SESI was responsible for “giving direction” and “to create the clean-up plan” for Onekey to follow. Onekey completed the remediation phase of the site in 2014. (Tr. 886.)

The next phase of the project was the site improvement work. (Tr. 716.) Onekey again retained SESI for its geotechnical services for this phase of the project. (Tr. 888; Ex. C-51 (Onekey/SESI contract).) According to Onekey Director of Operations Finbar O’Neill, SESI engineer Ken Quazza was the lead “in charge of geotechnical in particular” at the worksite and Finbar O’Neill1 worked primarily with Quazza regarding SESI’s geotechnical services during this phase of the project. (Tr. 887.)

To improve the land so it would be sufficient for the planned construction, Quazza developed a plan to compact the soil beneath the footprints of each future building on the worksite. For the purposes of this case, the future buildings at issue here have been named: A, B, C, D, E F, and future townhouses. (Exs. C-4, R-31.) As seen on the map of the worksite, the entire worksite follows along the eastern banks of the Hudson river. (Exs. C-4, R-31.) Buildings B, C and D, the pertinent areas of construction leading up to the time of the accident, were planned to be four-story residential buildings. Buildings B and C were planned to hold 43 units and Building D was planned to hold 50 units. (Ex. C-4.) The footprints for these three building formed a horseshoe configuration along the Hudson River: Buildings B and C were parallel to each other and Building D bridged perpendicularly across the eastern sides of them (parallel to the Hudson River). (Ex. C-4.) An amenities courtyard-like area was planned within the Building B-C-D horseshoe configured area.

The first part of SESI’s soil compaction plan was dynamic compaction, which was “basically dropping a heavy weight from a height up to 50 feet and dropping it onto the ground.” (Tr. 740.) During this phase, SESI was on the Onekey worksite every day inspecting the compaction progress. Once the footprints had been compacted, Onekey leveled the depressions from the dynamic compaction operation and brought the site grades back up to ground elevation, to the bottom of the proposed floor slabs for each building. (Tr. 740-741.) “We had an inspector there full-time when the site was having compacted fill placed on the ground to raise it back up to the elevation of the proposed buildings. And then our services were temporarily halted.” (Tr. 716.) The dynamic compaction phase of SESI’s compaction plan occurred on the site from 2012-2014. (Tr. 893.) Afterward, the second part of SESI’s soil compaction plan began – the surcharge. (Tr. 741.)

According to Quazza, a “surcharge is a temporary load that’s placed on the ground to occur prior to the placement of the building. Once the settlement has occurred that soil – it’s generally soil, the surcharge material is then removed, and the building is then constructed.” (Tr. 699.) As originally designed in 2013, SESI’s surcharge plan called for over 100,000 cubic yards of fill (soil) that Onekey was to ship in by barge up the Hudson River to the worksite. (Tr. 746, 750; Ex. C-46.) Originally, the plan was to first surcharge the footprint of Building A; then Buildings B, C and D simultaneously; then Buildings E and F; and then the future townhouses on the worksite. (Tr. 754.) SESI’s plan called for the fill used to form each surcharge to cover each building’s entire footprint plus extend ten feet beyond the footprint in every direction, and then slope down to the ground. (Tr. 741-742; Exs. C-45, 52, 53.) The fill was to be piled at least 15 feet high and sloped at 45 degrees (a one-to-one ratio) from the top of the fill to the ground. (Id.)

Around 2013-2014, Quazza learned that the simultaneous surcharge plan was impossible to implement. (Tr. 751, 902.) Critically, the necessary amount of fill, over 100,000 cubic yards, proved impossible for Onekey to obtain. (Tr. 751.) Quazza testified that “at the time that the plan was developed we were considering one surcharge on all of the buildings. Once they found out the difficulty in getting the material, they went down to one building at a time.” (Tr. 752.) Quazza then testified that “he only had 40,000 yards of fill instead of 110,000 yards of fill. I only had so much fill. I had enough fill to only put a surcharge on one building footprint” at a time. (Tr. 752.) To accommodate this issue, SESI and Onekey changed the simultaneous surcharge plan to a “rolling” surcharge plan. With this modification, Onekey would transfer the surcharge from one building footprint to another building footprint once compaction was achieved for the first building footprint. Onekey put the rolling surcharge into effect before placing the first surcharge at the site. (Tr. 752, 756, 902.)

According to Quazza, the difference between the simultaneous surcharge method and the rolling surcharge method is that:

in one instance you can start construction sooner…A downside would be that possibly a surcharge could interfere with the construction of a building that had already been surcharged because of the close proximity of the buildings, the 10-foot overlap[,] the 15 more feet additional for the one-on-one slope, the distances between the buildings. You could have surcharges interfering with other building construction, which is just what happened with Building C.

(Tr. 755.) Quazza testified that Onekey never consulted him or raised the issue about what to do about a surcharge overlapping another building’s footprint and interfering with the construction of that building. (Tr. 799.) Quazza testified that he did not realize that this issue existed or how Onekey chose to address it before the accident. (Tr. 800.) He never discussed with Finbar O’Neill or anyone else at Onekey the use of a retaining wall for any of the surcharges. (Tr. 800.) Nor did he discuss the issue of cutting back any surcharge steeper than one-to-one slope. (Tr. 800.) The following testimony by Quazza is noteworthy:

Q: Did you know that Onekey had never worked with a surcharge before working at this location?

A: I had suspicions when Fin and I first started discussing this. We had quite a few discussions on how different things could be dealt with, and so on and so forth. So I got the general feel that he maybe not had done a surcharge prior.

Q: Is it fair that you understood that Onekey and Mr. Finbar O’Neill was relying upon your expertise regarding how to construct surcharges at the site?

As opposed to its full-time presence during the dynamic compaction phase from 2012-2014, SESI was not onsite regularly while Onekey implemented the surcharge plan. According to Quazza, Onekey began “bringing in the surcharge material which would be coming in on truckloads. So, for us to stand there and watch trucks of dirt come in it was not really practical. And the surcharge was then constructed.” (Tr. 716.)

By 2017, having begun the rolling surcharge plan, Onekey was also ready to start building on the remediated worksite. First, Onekey needed to roll the surcharge from the building footprint of one building to another. This took time, and the timing of the removal was controlled by Quazza. (Tr. 765-766.) However, the method by which Onekey removed the surcharge from the building footprints was not controlled by Quazza. (Tr. 763-764.)

In January or February of 2017, Quazza and Finbar O’Neill met on the worksite and stood on top of the surcharge for Building B. (Tr. 766, 800, 919-920.) Finbar O’Neill testified that he brought up the idea of a temporary retaining wall using “bin blocks” with Quazza while discussing construction during the surcharge. (Tr. 896, 930.) Finbar O’Neill claimed that Quazza said that the temporary retaining wall using bin blocks “was a good idea.” (Tr. 896.) Finbar O’Neill clarified that this conversation was in the larger context of a “general discussion” and that “we didn’t get into the real details of the site.” (Tr. 897.) Quazza denied that he discussed the use of any retaining wall for the surcharges with Finbar O’Neill during this conversation. (Tr. 800.) Quazza also testified that he did not see any retaining walls when he stood on top of the surcharge with Finbar O’Neill, and that no surcharge was cut back steeper than a one-to-one angle at that time.2 (Tr. 800.) Notably, around this same time is when Onekey project manager Steve Fiore began working on the worksite. (Ex. C-62 at 10.) In early February 2017, according to Fiore, “[B]uilding B was half of a pile of dirt[,] [B]uilding C was a pile of dirt[,]” and Building D had a “lower pile,” “not much” on it. (Ex. C-62 at 11-13.)

In March 2017, according to Finbar O’Neill, Onekey began building the concrete bin-block “temporary retaining wall” (bin-block wall)3 against the surcharge of Building D, beginning on the footprint of Building B, “to retain the soils to keep everyone safe while they worked on C and B originally before C.” (Tr. 931-932.) The bin blocks were precast concrete blocks, also referred to as “mafia blocks,” that were two feet wide, two feet deep, and six feet long, and weighed 3600-pounds each. (Tr. 78, 80, 83, 463; Exs. C-23, C-24, C-25, C-49 C-62 at 42.) The bin blocks that made up the wall were designed to be an interlocking system, using a “key” or “tongue and groove” system, as they are stacked. (Tr. 1122; Ex. C-62 at 41-42.) According to Fiore, he directed workers to build the wall three bin blocks high at this time. (Ex. C-62 at 35, 40.)

Fiore stated that in late March 2017, the surcharge for Building B was cleared so that Onekey could begin working on Building B’s foundation. (Ex. C-62 at 13.) Onekey then moved the surcharge to Building C. (Ex. C-62 at 13.) On May 2, 2017, Quazza released the surcharge on the southern half of Building C. (Ex. R-54 at 1-4.)

On May 16, 2017, Onekey hired superintendent Robert Tedone. (Tr. 429, 485-486.) Tedone was on the worksite from May 16 until June 28, 2017, when he resigned. (Tr. 485-486.) As the superintendent, Tedone reported to Fiore, who reported to Finbar O’Neill. (Tr. 430.) Tedone testified that he never met Aaron O’Neill. (Tr. 440.) Tedone coordinated with the “trades,” meaning he “assisted with scheduling and job site coordination of which trades coming when, whose performing what, deliveries, that kind of thing.” (Tr. 430.) During his five weeks on the worksite, the foundation on Building B was completed. (Tr. 444.) He testified that he never worked on building the temporary retaining wall himself. (Tr. 441.)

When Tedone began working on the worksite, the temporary retaining wall looked as shown in Exhibit C-33. (Tr. 441-442.) He had concerns about the safety of the wall at one time because it was bowed and tilted. (Tr. 445-446.) The wall was tilted away from the dirt pile, towards the foundation that was being laid on Building B. (Tr. 453.) He saw that the surcharge was pushing against the wall when he stood on top of the surcharge pile and looked down at the wall. (Tr. 455-456.) He went up the surcharge pile on a regular basis observing the worksite, and he “more than once” drove a dump truck of dirt up the surcharge and dumped the dirt for the bulldozer to push it around on the surcharge pile. (Tr. 456-457.) Tedone testified that he reported his safety concerns about the temporary retaining wall to Fiore. (Tr. 445-446.) After his conversation, according to Tedone, Fiore directed workers to “remove at least the top two courses”4 of the wall. (Tr. 452.) He clarified that the workers took “down several courses and put the block back, and then we stored dirt behind it[,]” which, according to Tedone, corrected and straightened the wall at that time. (Tr. 458.)

Tedone also testified that Finbar O’Neill was on the worksite two times per week. (Tr. 430-431.) During his time on the worksite, Finbar O’Neill directed workers to move the surcharge from Building C to Building D.5 (Tr. 435-439; Ex. C-52a.) Tedone testified that there was no controlled access zone, or safe proximity safety rule, regarding the surcharge or the wall while he was on the worksite. (Tr. 466-467.) Tedone testified that he did not see a “shear vertical” wall of dirt while he was on the worksite. (Tr. 491.)

Tedone testified that he and Finbar O’Neill discussed extending the temporary retaining wall along the surcharge from Building B, through the courtyard and heading past Building C. (Tr. 462.) Tedone testified that he told Finbar O’Neill that building the wall that way “without any engineering was going to be a bad idea.” (Tr. 462-463.) He testified that he told Finbar O’Neill the following: “You’re going to have 15 Mexicans working directly under this wall and someone’s going to get killed.” (Tr. 466.) According to Tedone, Finbar O’Neill replied, “Fuck that, it will be fine.”6 (Tr. 466.)

Tedone also testified about the “traverse points” on the worksite. (Tr. 471-474.) A traverse point is set by the surveyor who marks a spot to use as an offset “to have a visible invisible like to make sure you’re running straight.” (Tr. 472.) Traverse points are typically stakes in the ground with a flag on it, they are never moved, and they are protected using “extreme measures” because “you got to refer back to it constantly to make sure you’re running straight, where you’re supposed to be.” (Tr. 472, 477.) He testified that there were several traverse points on the Onekey worksite. (Tr. 472.) A “mason would have used them, again, to either locate the corners of the building or they would have been offsets for him so that he could locate where the corners of the building were going to go.” (Tr. 472.) He agreed that one would “have to walk physically up to it and be near it” to use it; “you would set your equipment right up over it [] and that’s how you would spin your angle and get your lines.” (Tr. 472-473.) Tedone then identified the location of a traverse point that was five feet from the temporary retaining wall. (Tr. 473-475; Exs.C-15(a), C-33(a).)

On June 28 or 29, 2017, Tedone resigned from his job at Onekey. (Tr. 429, 465, 486, 492.) In his place, Onekey hired Aaron O’Neill, Finbar O’Neill’s nephew, as the site superintendent on June 28 or 29, 2017. (Tr. 1012, 1102-1103.) Aaron O’Neill testified that when he arrived onsite at that time, “[B]uilding B had the foundation work completed. It was all stoned out, ready for a concrete slab. Just previous to the pour of the concrete. And [B]uilding C had the foundation just started.” (Tr. 1107.) At that time, there was a surcharge on Building D and “a little bit” of surcharge remaining on the east side of Building C. (Tr. 1107.)

Aaron O’Neill also testified that when he got to the worksite, part of the temporary retaining wall along the surcharge for Building D was already there. (Tr. 1119.) There was a temporary retaining wall “along part of the surcharge on [B]uilding D,” the full length of the east side of Building B and extended “another 20 to 30 feet hearing north.” (Tr. 1107-1108.) Aaron O’Neill did not know who built the temporary retaining wall, who designed it, or where the bin blocks came from, but from the day he started on the worksite on June 28, “we extended the wall on past, to continue on over by [B]uilding C,” in the same manner as the wall had been previously constructed. (Tr. 1119, 1122, 1136.) Other than being away on vacation from July 3 – July 18, he was on the worksite every day until the day of the accident. (Tr. 1128.)

Aaron O’Neill understood that the purpose of the retaining “wall was to keep the workers safe, whenever they’re working near to the surcharge, or come into the building.” (Tr. 1120.) He also testified that the Building D surcharge, as designed (with the 10-foot exceeding the footprint of the building), prohibited work from being done on both Buildings B and C. (Tr. 1119-1121.) Aaron O’Neill testified that the surcharge had been there months before he arrived onsite on June 28, 2017. (Tr. 1128.) He walked “along the western side of the surcharge on [B]uilding D,” where the temporary retaining wall was, “daily, sometimes a few times daily,” from the end of June to the day of the accident. (Tr. 1129.)

Fiore testified that Finbar O’Neill was his boss, and that Fiore considered himself the “lead guy” on the site. (Ex. C-62 at 14, 19.) Fiore testified that Aaron O’Neill supervised the subcontractors. (Id. at 21.) Fiore also testified that Aaron O’Neill decided to build the wall between the footprints for Buildings B and C, that Aaron O’Neill directed the Onekey site employees and workers who installed the wall, and that he (Fiore) did not know why the wall, under Aaron O’Neill’s direction, was four courses high (rather than three). (Id. at 38, 40-41.) Fiore did not believe any engineer was involved with designing the temporary retaining wall on the worksite. (Id. at 40.) The surcharge drawings did not coordinate with his construction drawings of the worksite, and no calculations were performed of the ever-growing surcharge on the temporary retaining wall. (Id. at 44.) Fiore testified that the retaining wall just “evolved” over time. (Id. at 40.) Regarding the surcharge, Fiore testified that his main role was to contact the surveyor to take “elevation shots to monitor the surcharge.” (Id. at 49.) Fiore did not actively monitor the slope of the surcharge, specifying that the “surcharge wasn’t my bailiwick,” and that he was “not a soil guy.” (Id. at 47, 49-50.)

The worksite was busy. According to Respondent, Onekey, SESI, and “a host of third parties, including engineers, inspectors, and subcontractors also performed work at the [worksite] in the months leading up to the accident.” (Resp’t Br. 18.) According to Finbar O’Neill, SESI, M.A. Day (engineering firm), GPI (structure engineer), Larry Lynn (surveyor), and IMTL (testing and inspections) were all “consistently” active on the worksite. (Tr. 921-922, 934, 941.) IMTL tested materials, inspected concrete and rebar for footings, and inspected the framing on the worksite. (Tr. 933-934.) IMTL performed consistent daily, every other day, weekly inspections, depending what work had progressed. They inspected the concrete or the rebar on Building B in July of 2017. (Tr. 934.)

About a month after starting at the site, sometime between July 20 and July 25, 2017, Aaron O’Neill met with an SESI geotechnician who was testing the compaction on the east side of Building C, within 4-10 feet of the surcharge on Building D, and 80-100 feet away from the temporary retaining wall that was being built along the surcharge for Building D.7 (Tr. 1113-1114.) At that time, the temporary retaining wall extended about halfway along the surcharge of Building D. (Tr. 1114.)

According to OSHA Area Director Robert Garvey, OSHA determined that approximately 30-40 workers were on the worksite during the time of the alleged hazardous conditions: 6-8 Onekey employees and the rest subcontractors Onekey had retained. (Tr. 425.) Other subcontractors on the worksite included MG Commercial Concrete and Madeira Framing. MG Commercial Concrete had about eight employees at the site who built foundations: they were supervised by Guido Gonzalez, and included Saul Saban-Jacobo and the fatality victim, Saban-Jacobo’s cousin. (Tr. 262-263; Sec’y Br. 4.) Madeira Framing is owned by Paulo Madeira, who employed about eight people onsite including his brother Jay Madeira. (Tr. 301, 343.) Saban-Jacobo speaks Spanish, and Paulo Madeira and Jay Madeira speak Portuguese. They all testified at the hearing through the use of an interpreter. (Tr. 231-232, 244, 284, 311.)

Saban-Jacobo, a worker for MG Commercial Concrete, testified that he was onsite beginning three m

SECRETARY OF LABOR,
Complainant,
v.	OSHRC Docket No. 18-0242
ONEKEY, LLC,
Respondent.

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 18-0242
ONEKEY, LLC,
Respondent.

OSHRC Docket No. 18-0242