Petition for Writ of Certiorari — Burriss Electrical, Inc. v. Office of Occupational Safety and Health (No. 08-1251)

vs fig) Supreme ( Court, U.S.

081251 APR 7 - 2009

In THOFFICE OF THE CLERK

SUPREME COURT OF THE UNTIED STATES

Burriss Electrical, Inc ........... Petitioner,

Occupational Safety and Health, South

Carolina Department of Labor ............

Respondent.

On Petition for Certiorari to the Supreme

Court of the State of South Carolina

PETITION FOR A WRIT OF CERTIORARI

_—

Charles F. Thompson, Jr.

Malone, Thompson & Summers

339 Heyward Street

Columbia, S.C. 29201

803-254-3300

Attorney for Petitioner

QUESTIONS PRESENTED FOR REVIEW

1) Did the South Carolina Court of Appeals

err in finding that Burriss knowingly violated OSHA

and deliberately subjected employees to serious risk

of harm based on a prior OSHA citation that had

been withdrawn and involved very dissimilar facts?

2) Did the South Carolina Court of Appeals

ignore uncontested evidence that Burriss had no

appreciation of the OSHA standards, or the danger,

and therefore could not have willfully violated

OSHA?

3) Did the South Carolina Court of Appeals

incorrectly find that Burriss deliberately ignored

OSHA when, in fact, the uncontroverted evidence is

that Burriss was very careful about the safety issues

it knew about?

1)

2)

List of Parties

Burriss Electrical, Inc. Burris Electrical Inc.

has no parent corporation and no publicly held

company owns 10% or more of Burris

Electrical Inc.

Occupational Safety and Health, South

Carolina Department of Labor

TABLE OF CONTENTS

Questions ii hig Greg e eeeke Gae i

I 80s oy oe ee oes eee ii

po | er re rer er eer Trees Te 1

Tet OF GORANI. 6 occ ce ccs besawan 2

CE ieee heen eee ae eues 3

hee ab eee Ne ca yee eee 4

Statutes Involved in the Case.................. 5

Staten GEG CARGO ck a hein Veen ees 5

Argument: Reasons Why Certiorari Should be

I ioe cieivnis stata hae ee oe eS

CE ace cS eee eee 17

RE Cw cs 5 nb ae See 18

1. Order of the South Carolina Court of

Appeals

2. Order of the South Carolina Supreme

Court

TABLE OF AUTHORITIES

Cases

A.E. Staley Mfg. Co. v. Secretary of Labor, 295 F.3d

1341 (D.C. Cir. 2002) givkoiierbiestiebutin i

Donovan v. Mica Const. Co., 699 F.2d 431 (8th Cir.

RE ia vies Saauguisuihcenindvesueiiceceiuidanisneeue 11

McKie Ford, Inc. v. Secretary of Labor, 191 F.3d 853

ee ee SI itiuis ds bes ented eiceeeaesiheceus laa 11

St. Joe Minerals Corp. v. Occupational Safety and Fealth

Review Com'‘n 647 F.2d 840, 845 -846 (C.A.8, 1981)....6

Valdak Corp. v. Occupational Safety and Health

Review Com'n, 73 F.3d 1466 (8th Cir. 1996)....... 11

Wright and Lopez, Inc., 8 BNA OSHC 1261, 1980 CCH

OSHD f 24,419 (No. 76-3743, 1980)..................2008. 10

Statutes

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Sree FA Wk EI ICE ie civ ceticsictstdcccscecsancoscavenel 7

Se 0 1, PAE I I Ei cousin covecsssassconncseeseneaets 8

PEPIN Fh RN IED a civvcevcnnycisdssecdsavecesanchanen 8

CR AMOME Oy. 04d HU BOE I opnisvesaveccvessnvescnsscechcuns¥eneed 8

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Nm

OPINIONS BELOW

The opinion of the South Carolina Court of

Appeals is unpublished and is reprinted in the

Appendix hereto.

The order of the South Carolina Supreme

Court denying certiorari is unreported and is

reprinted in the Appendix hereto.

JURISDICTION

This matter was originally heard before an

administrative tribunal of the state of South

Carolina. Under the Occupational Safety and

Health Administration Act, South Carolina

administers OSHA as opposed to the federal

Department of Labor. The tribunal issued its

decision on January 1, 2004 finding in favor of S.C.

OSHA.

Under South Carolina law at the time, appeal

was to a State circuit court. Burris Electrical

appealed. A hearing was held and the circuit court

issued its decision on August 3, 2006 upholding the

decision on the tribunal.

Burris Electrical appealed to the South

Carolina Court of Appeals and that court issued its

decision affirming the circuit court on January 23,

2008 and denied Burris Electrical’s Petition for

rchearing on April 18, 2008.

Burris Electrical filed a writ of certiorari to

have the decision of the Court of Appeals reviewed

by the Supreme Court of South Carolina. The South

Carolina Supreme Court denied the writ, without an

opinion, on January 8, 2009.

This Court has jurisdiction to hear the final

decision of the Supreme Court of the State of South

Carolina.

STATUTES INVOLVED IN THE CASE

(a) Willful or repeated violation

Any employer who willfully or repeatedly violates

the requirements of section 654 of this title, any

standard, rule, or order promulgated pursuant to

section 655 of this title, or regulations prescribed

pursuant to this chapter may be assessed a civil

penalty of not more than $70,000 for each violation,

but not less than $5,000 for each willful violation.

29 U.S.C.A. § 666 (1990)

“Willful violation is nowhere defined in the Act, and

the legislative history is sketchy. Thus, the

Commission and the courts are charged with

determining the meaning of willfulness in light of the

policy and framework of the Act.”

St. Joe Minerals Corp. v. Occupational Safety and Health

Review Com'n 647 F.2d 840, 845 -846 (C.A.8, 1981).

STATEMENT OF THE CASE

Bad facts make for bad law. This Petition

concerns a narrow but extremely important question

about how OSHA violations should be classified.

The lower courts in this case have let the tragic

nature of the underlying facts cheapen the most

egregious classification of “willful violation” and

thereby unfairly blacken the name of the Petitioner.

If the lower decisions in this case are allowed to

stand then a willful violation will be found anytime

an employer does not consult the proper OSHA

standards and willful can be based on prior citations

even though the prior citations was withdrawn by

OSHA and arose from very dissimilar facts. Instead,

the highest regulatory condemnation should be

reserved for cases in which the employer knowingly

violated the law or, by its conduct, demonstrates it

would have violated the law even if it had been

aware of it.

A “willful violation” should be (and _ is)

reserved for employers who either knowingly violate

OSHA or for employers who unknowingly violate

OSHA but the evidence shows they would have

violated it even if they had known of OSHA

requirements. The only evidence in this case is that

Burriss made mistakes that led to a deadly accident.

Burriss never would have willfully violated OSHA

and never would have deliberately exposed its

employees to a dangerous risk.

Burriss is a small, family-run, minority-run,

electrical systems company. Burriss was the

electrical contractor for the building of the

Blythewood High School in Blythewood, South

Carolina in 2002 and 2003. (R. 28, Hearing Tr. 10).

On January 28, 2003 Burriss Electrical was

digging a trench for electrical conduit at the

Blythewood site. The trench was eight foot deep and

was far deeper than any trench Burriss had ever

dug. The operation was being supervised by a

foreman that had no experience in ditches this deep.

On the morning of January 28, several Burriss

employees were working in the trench when a

portion of the. trench wall collapsed. The cave-in

partially buried two of the employees and caused

their deaths. (R. 32, Hearing Tr. 14).

Unbeknownst to Burriss, the trench was

unsafe under OSHA standards for several reasons.

First, OSHA requires a trench over four foot deep to

have the side walls either sloped back or protected

from collapse by a protective box. Second, OSHA

requires a “competent person” (one trained on how to

apply OSHA trenching rules) to inspect the trench

daily. Finally, OSHA requires certain means of

escape no at issue in this case.

Burriss Electrical is owned by Christie

Burriss. The project manager for Burriss Electrical

is her husband Tommy Burriss. (R. 77, Hearing Tr.

59). Mr. Burriss is the only management level

employee in the company in charge of production.

He relies on superintendents at each job site to

manage day to day operations. (R. 77, Hearing Tr.

59). Mr. Burriss visits each site approximately once

a week. (R. 77, Hearing Tr. 59).

It is uncontested that the Burriss Electrical

rarely faced safety issues other than fall-protection

and electrocution. (R. 80-81, Hearing Tr. 62-63).

Burriss Electrical provided safety training on these

issues. (R. 80, Hearing Tr. 62). Other than minor

scrapes, the only significant injury a_Burriss

employee ever suffered was to fall and break an

elbow. (R. 80, Hearing Tr. 62). This occurred some

ten years prior to the cave-in. (R. 80, Hearing Tr.

62).

6

Burriss Electrical had never before dug a

trench greater than two to four feet deep. (R. 81,

Hearing Tr. 63). OSHA’s investigator even admitted

that the trench at the Blythewood cite was

unprecedented for Burriss Electrical. (R. 70,

Hearing Tr. 52). In fact, Mr. Burriss had no idea

that the Blythewood employees had dug the trench 8

feet deep and was “extremely shocked” when he saw

the ditch for the first time. (R. 84, Hearing Tr. 66).

Notably, Mr. Burriss was anticipating the trench

was only going under a three foot foundation. (R. 83,

Hearing Tr. 65). If he had known the digging was

eight feet deep, Mr. Burriss would have stopped the

work and consulted someone with experience in

trenching. (R. 85 Hearing Tr. 67). It is uncontested

that neither Mr. Burriss nor Burriss_ Electrical

(including the supervisor at the Blythewood site) had

experience in trenching deeper than four feet and

were unaware of the OSHA regulations requiring

sloping or protective devices for trenches in excess of

four feet. Likewise, they were not aware of the need

to have a “competent person” (as defined by OSHA

regulations) inspect the trench. (R. 85-87, Hearing

Tr. 67-69).

The accident was simply a tragic accident

born of a lack of knowledge about proper trenching

techniques. There was not one shred of evidence

that anyone with Burriss knew of the OSHA

trenching standards or proceeded despite knowing of

the danger.

Following an inspection of the cave-in,

Complainant issued two citations consisting of five

violations:

Citation 4

1. SCCR 71, 1-1926.651(k)(1) Failure to make

daily inspections of excavations ... by a

competent person,

Citation 3

1. SCCR 71, 1926.21(b)(2) Failure to instruct

each employee [on proper trenching] . . . no

trench hazard recognition and avoidance

safety training provided to employees in

trench in excess of 7 feet deep .. ..

2. SCRR 71, 1-1926.100(a) Failure to require

employees working in areas where there is a

possibility of head injury .. . no protective

helmets worn by 4 employees in trench in

excess of 7 feet deep at Building C area.

3. SCRR 71, 1-1926.651(c)(2) Failed to locate

a stairway, ladder, ramp or other safe means

of egress in trench excavation...

4. SCCR 71, 1-1926.652.(a)(1) Failed to

protect each employee in an excavation from

cave-in by an adequate protection system

fand] SCCR 71, 1-1926.652(b)(1)(i) Failed to

slope excavations at an angle not steeper than

one and one-half horizontal to one vertical...

Following the accident, Burriss Electrical fully

cooperated with OSHA and spent considerable

resources improving its safety program. Burriss

destroyed the trench where the accident occurred

and started over with a new trench that exceeded

OSHA standards. (R. 117-123, Hearing Tr. 101-107).

Burriss Electrical did not contest the validity

of any of the citations and did not contest the

classifications of any of the violations within citation

3. The sole issue contested by Burriss Electrical was

the classification of citation 4 as “willful.”

The Trial Court: ‘The trial court found

willfulness based on evidence that Burriss could

have know of the proper safety standards, should

have. known of them, and had the opportunity to

learn of the appropriate standards. (R 15-17, Order,

pp. 5-7). That court flat ignored the requirement

that it find a knowing violation or that Burriss

proceeded in the face of an appreciated risk. In

addition to misapprehending the appropriate legal

standard, the trial court got very sidelined with an

incorrect perception that Burriss was trying to plead

ignorance as a defense to a finding of willfulness.

The real task, which the trial court ignored, was to

find evidence that Burriss would have proceeded

even if it knew of the applicable safety standards.

The only evidence cited by the trial court that came

close to addressing the OSHA’s unmet burden is

evidence that Burriss Electrical was cited in the past

for not having a competent person. As explained

below, however, this could not be used to support a

finding of willfulness.

The trial court also misapprehended Tommy

Burriss’ testimony as an admission that he knew

(prior to the accident) that his foreman was not a

“competent person” as that term is defined under the

OSHA regulations. In addition the trial court

incorrectly noted as important that Burriss had

opportunity to learn of the trench condition. (R. 16,

Order p. 6). Finally, the trial the court

misapprehended that Mr. Burriss had knowledge

before the accident that the trench was “dangerous”

and “horrifying.” (R. 16, Order p. 6).

The Court of Appeals: The Court of

Appeals continued the errors of the trial court. That

court affirmed the trial court by agreeing that the

prior citation could be used as evidence that Burriss

did know of the requirement to have a competent

person on trenching. Like the trial court, the Court

of Appeals also ignored the uncontested evidence

that Burriss clearly did not know the technical

meaning of “competent person” nor was it aware of

the danger and therefore could not have willfully

violated OSHA. The Court of Appeals disregarded

caselaw making clear that, before a prior incident

could be used to find a willful violation, it must

involve similar factual circumstances. Finally, the

Court of Appeals was clearly wrong in finding that

Burriss ignored OSHA safety standards.

ARGUMENT

The Court Incorrectly Used a Prior Citation as

Evidence that Burriss Knew of the

Requirement for a Competent Person on

Trenching

The touchstone of the court of appeal’s

decision is that Burriss knew of the OSHA

“competent person” standard prior to the 2003

accident because Burriss had been cited, and had not

10

appealed, a citation for the same standard in 2000.

The court reasoned that, therefore, Burriss had

opportunity to learn the standard, should have

known the standard and therefore was consciously

indifferent toward it.’ There are several critical

errors in this chain of logic.

First, Burriss did appeal the 2000 “competent

person citation.” The court of appeals mistakenly

found that Burriss only appealed a citation for a

scaffolding issue that was issued by OSHA at the

same time. However, both citations were issued

under the same “Report Number 0185-01.” (R. 168).

By letter dated September, 20, 2000, Burriss clearly

appealed “Report Number 0185-01.” (R. 170).

Uncontestably, this included both citations and

therefore both citations were appealed.

What happened next is also irrefutable. The

competent person citation disappeared and was

neither discussed, nor pursued by OSHA, nor

incorporated in the settlement agreement that

resolved Burriss’ appeal. (R. 165). The testimony

makes this clear as well. OSHA never discussed the

competent person citation with Burriss. The entire

focus was on the scaffolding citation. (R. 87-89,

Hearing Tr. 69-71). The competent person citation

was not discussed in the informal conference, nor in

the settlement discussions, and was dropped from,

and played no part in, the settlement agreement. (R.

86, Hearing Tr. 68); (R. 87-89, Hearing Tr. 69-71, R.

161, Ex. 1).

It is outrageous that the court of appeals

bases a willful finding on a citation that was dropped

by OSHA. In basing its decision finding a willful

violation based on a prior citation that was dropped

by OSHA, the court is effectively using a dismissed

charge as a prior conviction. This must be incorrect

or else OSHA could always establish willfulness by

simply charging employers with baseless allegations

and then withdrawing them. It is denial of a

fundamental fairness to use prior charges against

employers when those charges are dropped or

dismissed.

Even If The Court of Appeals Could Consider

the Prior Charge, There is Still No Evidence

that Burriss Intentionally Avoided Knowledge

or Consciously Disregarded the Standard

Even if the court could have properly

considered the withdrawn charge, it inappropriately

concluded that Burriss intentionally disregarded this

notice of the proper standard. Despite correctly

noting that a simple “indifference” to the prior

charge or notice of the standard was not enough to

support a finding of willfulness,! the court of appeals

found that Burriss “intentionally disregard{ed]” that

knowledge.

There was no. evidence of intentional

disregard of the standard. In fact, the evidence

makes clear that Burriss simply did not know about

and did not understand the competent person

standard.

Q: Did you know anything about the OSHA

trenching standards?

an Employer's mere familiarity with the requirements of an applicable

standard does not, in itself, establish willfulness.” Wright and Lopez,

Inc., 8 BNA OSHC 1261, 1980 CCH OSHD 24,419 (No. 76-3743,

1980).

A: No

Q: Did you know what a competent person

meant?

A: No.

(R. 85, Hearing Tr. p. 67).

Q: I didn’t remember the one that addressed

the competent person. I remember the one

that addressed the scaffolding issue.

(R. 86, Hearing Tr. p. 68)

A: Basically, the way I interpreted it at the

time of this document and before the

accident that we did not have a competent

person on site ... now that I know what a

competent person definition is by OSHA

and my definition are two different things

(R. 97, Hearing Tr. p. 79).

OSHA did not introduce any evidence to

refute Mr. Burriss testimony on this point. In fact,

OSHA itself is to blame for Mr. Burriss’s failure to

understand or appreciate the prior standard because

OSHA paced no emphasis upon it and dropped the

citation from the report. Had OSHA emphasized

this charge, or had at least not dropped it, it is likely

that Mr. Burriss would have noticed it, appreciated

it, and taken action to correct it.

There is flatly no evidence that Burriss

ignored knowledge gained from a prior citation. The

court of appeals did not cite a single piece of evidence

to support this conclusion.

The Court Failed to Address the Fact that the

Prior Citation Could Not Be Used as Notice

Because tne Factual Circumstances Were

Entirely Different

The court of appeals hinged its decision on the

prior citation for failure to provide a competent

person. However, courts have uniformly held that,

for a prior incident to support a willful finding, the

prior incident must clearly demonstrate, to the

employer, the danger to be avoided. The court of

appeals completely ignored this argument. See

Donovan v. Mica Const. Co., 699 F.2d 431 (8th Cir.

1983) Gob foreman was aware of the prior cave-in

and nevertheless instructed work to _ proceed,

however, there was insufficient evidence of the

nature and extent of the prior cave-in); A.E. Staley

Mfg. Co. v. Secretary of Labor, 295 F.3d 1341 (D.C.

Cir. 2002) (Willful violation found based on plain

indifference where employer was aware that

prisoner had been repeatedly injured by the same

inmate before and took no action to prevent a

recurrence); McKie Ford, Inc. v. Secretary of Labor,

191 F.3d 853 (8th Cir. 1999) (Willful violation

through plain indifference found where employer

knew employees were using a freight-only elevator

and one employee had been injured on the freight

elevator before); Valdak Corp. v. Occupational Safety

and Health Review Com'n, 73 F.3d 1466 (8th Cir.

1996) (Willful violation through plain indifference

found where employer knew that a safety device was

broken and knew that the safety device was the only

thing that prevented the injury involved).

The court ignored this argument probably

because the evidence that was presented makes

clear that the prior citation (even if it had not been

withdrawn) was completely dissimilar to the

Blythewood situation. The prior trench did not

involve a danger to employees, was not under the

14

same circumstances, was a shallow trench, OSHA

did not discuss the citation with Burriss, imposed no

penalty, and OSHA dropped the citation from the

final settlement. Therefore, the prior situation was

completely unlike the Blythewood situation and,

therefore did not put Burriss on nctice of the danger.

The Court Erred in Finding that Burriss Made

No effort to Aquaint Itself with Safety

Standards

The court of appeals also erred in finding that

there was evidence that Burriss made no effort to

acquaint itself with safety standards. To the

contrary, the record is clear that Burriss was well

aware of the dangers common to its operations, e.g.,

electrocution and fall protection. It is uncontested

that the Burriss Electrical rarely faced safety issues

other than fall-protection and electrocution.

Q: Before this accident, What were your

primary concerns about safety?

A: I would say fall protection and

electrocution.

A: .. . We had training on fall protection. We

discuss heat related injuries and [ would visit

the jobsites a lot of times and would

communicate to the guys, say I feel there’s a

potential issue here...

(R. 80-81, Hearing Tr. 62-63).

In fact, there was no evidence submitted by

OSHA that Burriss was unaware of other OSHA

regulations. The trial judge and the court of appeals

misread the testimony on this point. What the

1S

OHSA witness testified was that Burriss was

unaware of the trenching standards. (R. 70). Thus,

the court of appeals and the trial court, erred in

finding Burriss was not aware of the regulations or

safety standards in general.

CONCLUSION

What the court of appeals has done is to

cheapen the willful classification and make it

applicable based on a prior citation even though that

prior citation was withdrawn and was completely

disimilar. The decision also makes the willful

classification apply to any case in which the

employer could have learned of the applicable OSHA

citation and failed to do so. This would make it

applicable in any case. Instead, this Court should

correct this misapplication and re-establish that

willful only applies when an employer deliberately

violates OSHA or the evidence is such that, even if it

had known of the correct OSHA standard, it would

have violated it anyway.

Respecifully submitted

Charles F. Thompson, Jr.

Malone, Thompson, Summers & Ott

339 Heyward Street

Columbia, S.C. 29201

803-254-3300

Attorney for Appellant

May 7, 2008

16

APPENDIX

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Burriss Electrical, inc., Appellant,

Vv.

Office of Occupational Safety and Health, South

Carolina Department of Labor, Licensing and

Regulation, Respondent.

Appeal From Lexington County

Clyde N. Davis, Jr., Circuit Court Judge

Unpublished Opinion No. 2008-UP-070

Submitted January 2, 2008 — Filed January 23, 2008

AFFIRMED

Charles F. Thompson, ie. of Columbia, for

Appellant.

Joseph N. Connell, of Lugoff, for Respondent.

PER CURIAM: Burriss Electrical, Inc. (Burriss)

appeals from a South Carolina Occupational Safety

and Health Review Board (the Review Board)

decision finding Burriss in willful violation of the

South Carolina Occupational Safety and Health

Regulation 71, 1-1926.651(k)(1)(1991)[1]. After two

employees were killed when a vertical wall of an

earthen trench collapsed, the Office of Occupational

Safety and Health in the South Carolina

Department of Labor, Licensing and Regulation (the

17

Department) cited Burriss for four serious violations

and one willful violation of the South Carolina

Occupational Safety and Health Regulation (the

Act). Burriss appeals the citation for the willful

violation, arguing that (1) the Review Board

misapplied the legal standard for willful conduct in

reaching a finding of willfulness; and (2) under an

appropriate application of the standard there exists

no substantial evidence to support a finding Burriss

committed a willful violation. We affirm.[2]

FACTS

Burriss is an _ electrical systems contractor.[3]

During 2002 and 2003, Burriss served as the

electrical contractor for the building of the

Blythewood High School in Blythewood, South

Carolina. At the Blythewood site, Burriss dug a

trench approximately 121 feet long in order to install

feeder conduit for power and data communications

underneath the building. Roughly eighty feet of the

trench measured from six to eight feet deep, making

that portion of the trench wall essentially vertical.

On the morning of January 28, 2003, a portion of the

trench wall collapsed on several Burriss employees

working in the trench. The cave-in partially buried

two of the employees and caused their deaths. The

Department sent an inspector to conduct a fatality

inspection of Burriss’ Blythewood site. As a result of

the inspection, Burriss was cited for four serious

violations (Citation 3 parts 1, 2, 3, and 4) and one

willful violation (Citation 4).[4] The violations are as

follows:

Citation 3 (Serious)

1. SCCR 71, 1-1926.21(b)(2) - Failure to instruct each

employee in the recognition and avoidance of unsafe

conditions. . . no trench hazard recognition [or]

avoidance safety training provided to employees in

trench in excess of 7 feet deep...

2. SCCR_ 71, 1-1926.100(a) - Failure to require

employees working in areas where there is a

possibility of head injury ... to be protected by

helmets [in that] . . . no protective helmets [were]

worn by 4 employees in [a] trench in excess of 7 feet

deep...

3. SCCR 71, 1-1926.651(c)(2) - Failed to locate a

stairway, ladder, ramp or other safe means of egress

in trench excavation that are 4 feet or more in depth

4. SCCR 71, 1-1926.652(a)(1) - Failed to protect each

employee in an excavation from cave-in by an

adequate protection system [and] SCCR 71, 1-

1926.652(b)(1)G) - Failed to slope excavations at an

angle not steeper than one and one-half horizontal to

one vertical...

Citation 4 (Willful)

1. SCCR 71, 1-1926.651(k)(1) - Failure to make daily

inspections of excavations . . . by a competent person

for evidence of a situation that could result in

possible cave-ins,...

A competent person is defined by the Act as:

[O]ne who is capable of identifying existing and

predictable hazards in the surroundings, or working

conditions which are unsanitary, hazardous, or

dangerous to employees, and who has authorization

19

to take prompt corrective measures to eliminate

them. In order to be a competent person for the

purpose of this standard one must have had special

training in, and be knowledgeable about soils

analysis . . . the use of protective systems, and the

requirements of this standard.

S.C. Code Regs. 71, 1-1926.650(b) (1991).

Burriss filed a notice of protest and a hearing was

held before a single Review Board member. At the

hearing, Burriss did not contest the four serious

violations under Citation 3. The only issue before

the Review Board member was the classification of a

willful violation under Citation 4.

At the hearing, Tommy Burriss testified he had been

to the Blythewood site a week prior to the excavation

of the trench. He stated it was his understanding

the trench was to be just over three feet deep. He

further testified when he finally saw the trench on

the day of the cave-in he was “extremely shocked to

see that ditch that deep.” He said “[i]t was

horrifying” and “dangerous.” He stated that had he

been at the site he “would have told people to get out

of {the] ditch . . . [t]here’s just no way [he] would

have exposed anybody to that.”

When asked whether, at the time of the cave-in, he

was aware of the Act’s trenching regulations

requiring a competent person to perform daily

inspections, Tommy Burriss stated he was not aware

of the regulations, nor did he have a copy of the

OSHA standards, general standards, or construction

standards. Yet, Tommy Burriss was questioned

about an August 2000 citation issued at a Burriss’

worksite at Stivers’ Jeep. Burriss had both erected

20

scaffolding and dug a trench at the Stivers’ Jeep

worksite. With respect to the scaffolding, the

Department cited Burriss for failure to install a

guardrail along the sides and end of the scaffolding

platforms, classified the violation as “serious,” and

proposed a $300 fine. With respect to the trench, the

Department cited Burriss for failure to perform daily

inspections by a competent person pursuant to

Regulation 71, 1-1926.651(k)(1) of the South

Carolina Code. The Department classified the

violation as “other than serious” and did not impose

a fine therefor. Burriss protested the citation for the

scaffolding violation and eventually entered a

settlement agreement wherein Burriss agreed to pay

a $120 fine and “provide refresher training for its

employees in fall protection.” But, because no

penalty was proposed for the citation for the trench

violation, Burriss did not protest the trench

violation.

Tommy Burriss admitted he read the Stivers’ Jeep

citation for lack of a competent person. Yet, at the

time of the Blythewood site accident, Tommy Burriss

testified he maintained the belief his _ site

superintendant, David Marshall was “a competent

person upon my definition.” He admitted at the

hearing, in hindsight, “now I know what a competent

person definition is by OSHA and my competent

person definition are two different things.”

The Review Board member upheld the “willful”

classification in Citation 4. Burriss filed a petition

for review by the entire Review Board. The petition

was denied. Burriss then appealed the matter to the

circuit court. The circuit court affirmed the Review

Board’s denial of discretionary review as well as the

Review Board member’s order upholding the citation

and corresponding penalty. This appeal follows.

STANDARD OF REVIEW

This court’s review of an administrative agency’s

findings of fact is limited. The court “shall not

substitute its judgment for that of the agency as to

the weight of the evidence on questions of fact” when

those facts are supported by substantial evidence.

S.C. Code Ann. §1-23-380(A)(6) (2005){5]; Dorman v.

Dep’t of Health & Envtl. Control, 350 S.C. 159, 164-

65, 565 S.E.2d 119, 122 (Ct. App. 2002). In

determining whether the agency’ decision was

supported by substantial evidence, this court need

only find, looking at the entire record on appeal,

evidence from which reasonable minds could reach

the same conclusion that the administrative agency

reached. DuRant v. S.C. Dep’t of Health & Envtl.

Control, 361 S.C. 416, 420, 604 S.E.2d 704, 706-07

(Ct. App. 2004). The mere possibility of drawing two

inconsistent conclusions from the evidence does not

prevent a _ finding from being supported by

substantial evidence. Id. at 420, 604 S.E.2d at 707.

Further, the burden is on the appellant to prove

convincingly that the agency’s”. decision is

unsupported by the evidence. See Waters v. S.C.

Land Res. Conservation Comm’n, 321 S.C. 219, 226,

467 S.E.2d 913, 917 (1996).

A court can reverse an agency’s findings, inferences,

conclusions, or decisions if they are “clearly

erroneous in view of the reliable, probative and

substantial evidence on the whole record,” or

“arbitrary or capricious or characterized by abuse of

discretion or clearly unwarranted exercise of

discretion.” S.C. Code Ann. §1-23-380(A)(6) (2005).

Further, a court may reverse where an agency’s

decision is affected by an error of law. Id.

LAW/ANALYSIS

Burriss asserts the circuit court misapplied the legal

standard for a willful violation and argues, under an

appropriate application of the standard, there is no

substantial evidence to sustain a citation for a

willful violation of the Act. We disagree.

The Act itself does not define “willful” nor has this

court had an opportunity to interpret its meaning.

In its decision, the Review Board member defined a

wilful violation as “committed voluntarily with

intentional disregard or demonstrated plain

indifference to the Act,” citing Occupational Safety

and Health Law, Mark A. Rothstein, West’s

Employment Law Series, St. Paul, Minn. 1998,

§315. See also Valdak Corp. v. Occupational Safety

and Health Review Comm’n, 73 F.3d 1466, 1468 (8th

Cir. 1996) (finding to support a classification of

“willful” there must be substantial evidence the

employer, intentionally disregarded or was plainly

indifferent to the requirements of the Act);

Intercounty Constr. Co. v. Occupational Safety and

Health Comm’n, 522 F.2d 777, 780 (4th Cir. 1975),

cert. denied, 423 U.S. 1072 (1976). When faced with

a problem of statutory construction, we accord great

deference to the interpretation given the statute by

the agency charged with its administration. See

Dunton v. S.C. Bd. of Exam’rs in Optometry, 291

S.C. 221, 223, 353 S.E.2d 132, 133 (1987) (“The

construction of a statute by the agency charged with

its administration will be accorded the most

respectful consideration and will not be overruled

absent compelling reasons.”).

In the context of occupational safety and health

laws, willfulness requires more than the constructive

knowledge or mere knowledge that would suffice for

a non-willful violation, but does not require a

showing of malicious intent. Intercounty Constr.

Co., 522 F.2d at 780, cert. denied, 423 U.S. 1072

(1976). “An act may be ‘willful’ if the offender shows

‘indifference’ to the rules; he need not be consciously

aware that the conduct is forbidden at the time he

performs it, but his state of mind must be such that,

if he were informed of the rule, he would not care.”

AJP Constr., Inc. v. Sec. of Labor, 357 F.3d 70, 74

(D.C. Cir. 2004)(citation omitted).

Employers are presumed to be familiar with

standards that affect their business; therefore,

ignorance or even misunderstanding of the

standards does not excuse noncompliance. Sec. of

Labor v. Hallmark Excavating, Inc., 6 OSHC 1898

(1978). Similarly, an omission or failure to act is

willful, if it is done voluntarily and intentionally.

Havens Steel Co. v. Occupational Safety and Health

Comm'n, 738 F.2d 397, 401 (10th Cir. 1984). °

Furthermore, a prior warning from OSHA may be a

factor in determining if willfulness exists. Valdak,

73 F.3d at 1469.

Burriss contends the circuit court’s decision contains

various misapplications of the willful standard and a

misinterpretation of the evidence and testimony

presented to the Review Board member.

The Review Board member found sufficient evidence

to sustain a willful violation of the Act as follows:

24

The preponderance of evidence shows that [Burriss]

demonstrated plain indifference to the Act in many

ways ... If not intentional disregard, [Burriss’] clear

indifference to the Act is very apparent by the

uncontested absence of knowledge of safety and

health standards applicable or potentially applicable

to a rapidly growing commercial electrical

contracting business, lack of possession of copies of

the OSHA standards for general industry or

construction, lack of [{Burriss]-provided training of

employees and supervisors for all potential hazards

of the job, reliance on general contractors to provide

adequate safety training for one’s employees, lack of

attention to the warning represented by a previous

citation related to a specific trenching safety practice

that would have helped eliminate other violations,

and lack of attention to the practices of other nearby

contractors at the same job site as to trenching

safety.

The circuit court likewise relied on similar evidence

to uphold the finding of willfulness. The court stated

the fact “[{[Burriss] made no effort to acquaint

anyone, including itself, with the occupational safety

and health regulations . . . [and] did not even possess

a copy of the occupational safety and health

standards” evidenced Burriss’ plain indifference to

general safety considerations.

We find there is evidence of a willful violation from

the complete absence of knowledge by Burriss of the

safety and health standards applicable to its

business at the time of the cave-in. Burris does not

dispute he was previously cited for various violations

of OSHA standards, one of which was simular to the

citation at issue herein. As indicated, the circuit

court found Burris made no effort whatsoever to

acquaint himself or anyone else with the applicable

standards.

An intentional] disregard or plain indifference to the

required standards suffices to demonstrate a willful

act. One cannot be aware of the existence of

regulatory standards, have the means to review and

learn them, consciously fail to do so and then use

lack of knowledge as an excuse. To willfully turn

one’s head to knowledge and to understanding the

requirements of the law after being exposed to a

Similar citation in the past is tantamount to a

conscious act, a conscious disregard, which would

meet the definition of a willful act. One’s act of

avoiding knowledge or completely disregarding it

might also be labeled as an intentional and

voluntary act. Arguably, some form of indifference,

in and of itself, without more, may not rise to the

level of a willful act. However, we need not reach

that question since the type of indifference herein

indeed rises to the level of a willful act or conscious

disregard of the existence of the standards and is

much more than just a misunderstanding or a mere

negligent or careless act. The policy of the law does

not provide a shield to one who is consciously aware

of a regulatory scheme but intentionally disregards

or chooses to disavail himself of, or avoid, such

knowledge or requirements. To do otherwise would

defeat the intent and goals of the regulatory scheme.

Because we find this evidence alone sufficient to

support a finding of willfulness, we need not

determine whether the circuit court erred in its

application of the willful standard or interpretation

of the other evidence as suggested by Burriss.

Accordingly, the circuit court’s order is

AFFIRMED.

HUFF and PIEPER, JJ., and GOOLSBY, A.J.,

concur.

[1] The text of Section 71, 1-1926.651(k)(1) does not appear in

the South Carolina Code of Regulations. Instead, subarticle 7

indicates South Carolina law incorporates the federal

Occupational Safety and Health Act (OSHA) Regulation 29

C.F.R. §1926, with a few exceptions. S.C. Code Regs. ch.71,

subart. 7 (1991). This is the case with many other South

Carolina Occupational Safety and Health Regulations. See e.g.

S.C. Code Regs. ch.71, subarts. 6 & 8 (1991).

{2] We decide this case without oral argument pursuant to Rule

215, SCACR.

{3} Burris is a family-owned business with Tommy Burriss as

project manager and his wife, Christine Burriss, as president.

[4] In addition to citing an employer for a violation, the

Department can classify the violation as: repeat, serious, or

willful. S.C. Code Ann. §41-15-320 (Supp. 2006). Additional

penalties are applied if any of these heightened classifications

are used. Id.

[5] This court notes Act 387, effective July 1, 2006, has since

modified S.C. Code Ann. §1-23-380 and certain appellate

procedures. However, we review Burriss’ claim pursuant to

S.C. Code Ann. §1-23-380(A)(6) (2005) rather than S.C. Code

Ann. §1-23-380(A)(5) (Supp. 2007) due to the fact the case arose

under the prior appellate procedure. Regardless, as applied to

this case, the only difference between the two statutes is the

numbering of the statutory provisions.

THE SOUTH CAROLINA COURT OF APPEALS

Burriss Electrical, Inc., Appellant,

v.

Office of Occupational Safety and Health, South

Carolina Department of Labor, Licensing and

Regulation, Respondent.

The Sinsaihie Clyde N. Davis

Lexington County

Trial Court Case No. 2004-CP-32-01804

OREDER DENYING PETITION FOR REHEARING

PER CURIAM: After careful consideration of the

Petition for Rehearing, the Court is unable to

discover that any material fact or principle of law

has either been overlooked or disregarded and hence,

there is no basis for granting a rehearing.

It is therefore ordered that the Petition for

Rehearing be denied.

/s/ Thomas E. Huff

/s/ Daniel Pieper

/s/ C. Paul Short

Columbia, S.C.

April 18, 2008

THE SUPREME COURT OF SOUTH

CAROLINA

Burriss Electrical, Inc., * -pellant,

Vv.

Office of Occupational Safety and Health, South

Carolina Department of Labor, Licensing and

Regulation, Respondent.

The Honorable Clyde N. Davis

Lexington County

Trial Court Case No. 2004-CP-32-01804

ee ee

OREDER DENYING PETITION FOR WRIT OF

CERTIORARI

Petition for Writ of Ceriorari Denied.,

/s/ Jean H. Toal C.J.

For the Court

January 8, 2009