                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-1583
                                   ___________

Dakota Underground, Inc.,               *
                                        *
             Petitioner,                *
                                        * Appeal from the Occupational
      v.                                * Safety and Health Review
                                        * Commission.
Secretary of Labor,                     *
                                        *
             Respondent.                *
                                   ___________

                             Submitted: November 15, 1999
                                 Filed: January 7, 2000
                                  ___________

Before WOLLMAN, Chief Judge, LAY, and BOWMAN, Circuit Judges.
                             ___________

BOWMAN, Circuit Judge.

     Dakota Underground, Inc. seeks review of the Occupational Safety and Health
Review Commission's determination that Dakota violated the Occupation Safety and
Health Act of 1970 ("OSHA"), 29 U.S.C. §§ 651-678 (1994), and its concomitant
assessment of penalties. We affirm in part, reverse in part, and remand.

                                         I.

      Dakota is in the excavation business. In August 1997, a Dakota crew of four
men, including Gary Rolstad, the foreman, were replacing a water main in Fargo, North
Dakota. On the 13th of that month, OSHA Compliance Officer Earle Lagro conducted
an unscheduled inspection of the worksite. On Lagro's recommendation, the Secretary
of Labor cited Dakota with four violations of OSHA regulations. Dakota objected to
the citation, resulting in a hearing before an Administrative Law Judge. The ALJ
affirmed three of the four violations and assessed penalties. Dakota sought
discretionary review by the Occupational Safety and Health Review Commission,
which was denied, making the ALJ's Decision and Order the final order of the Review
Commission. See 29 U.S.C. § 661(j) (1994). Dakota then sought review in this Court.
See id. § 660(a) (allowing direct review in Court of Appeals).

       The three citations at issue in this appeal relate to the dangers of working in and
around trenches. The "ladder violation" charged that at least one Dakota worker did
not have a safe means of egress from the trench in which he was working. The "water
violation" alleged that water had accumulated in one trench, and that Dakota failed to
protect an employee adequately from the hazards associated with this water. The
"trenching violations" charged that Dakota did not protect several workers from cave-in
by adequate means such as shoring-up the trench with supports or sloping the walls of
the trench. The ALJ classified all the violations as "willful." See 29 U.S.C. § 666
(1994) (categorizing violations as "willful or repeated," "serious," and "not serious").
In determining the penalties, the ALJ assessed $23,000 for the ladder violation,
$40,000 for the water violation, and $70,000 for the trenching violations.

       On appeal, Dakota challenges at least some aspect of each of the three
violations. With regard to the ladder violation, Dakota disputes the characterization of
the violation as "willful" and also appeals the penalty. Dakota questions whether the
water violation occurred at all. Dakota does not disagree that the trenching violations
occurred or that they were "willful," but it does seek a reduction in the penalty
assessed. Finally, Dakota argues that the ladder, water, and trenching violations should
have been "grouped," with only one penalty assessed.


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                                          II.

        We begin with the ladder violation. In relevant part, the governing regulation
requires that a "stairway, ladder, ramp or other safe means of egress shall be located
in trench excavations [of a certain size] so as to require no more than 25 feet . . . of
lateral travel for employees." 29 C.F.R. § 1926.651(c)(2) (1999). The ALJ found that
a Dakota worker, Lawrence Moran, was working in a trench without access to a ladder
or any other means of egress. Thus, he was exposed to "immediate" risk of "burial
from collapsing trench walls." Decision & Order ("D&O") at 6.

       Dakota argues that ladders were available to its employees at the Fargo worksite,
that the ladders were moved periodically so that they would be close to employees as
the employees worked, and that, at worst, Dakota negligently failed to move one ladder
for a short period of time. Therefore, Dakota urges us to reverse the finding that the
ladder violation was "willful." After hearing conflicting testimony, the ALJ rejected
these arguments, and we affirm his conclusion.

       The ALJ's finding of willfulness is conclusive if supported by substantial
evidence on the record as a whole. See 29 U.S.C. § 660(a) (1994); Valdak Corp. v.
OSHRC, 73 F.3d 1466, 1468 (8th Cir. 1996). While willfulness is not defined by
statute, we affirm a finding of willfulness if there is substantial evidence that Dakota
intentionally disregarded or was plainly indifferent to the requirements of the OSHA.
See Valdak, 73 F.3d at 1468.

       When OSHA Compliance Officer Lagro arrived on the scene, he saw that there
was no ladder in the portion of the trench where Moran was working. Lagro returned
to his vehicle for a video camera and his credentials. Later, as Lagro was thoroughly
examining the site and taking video footage, one of the Dakota workers placed a ladder
near Moran. Gary Rolstad, Dakota's foreman at the site and the "competent person"
responsible for OSHA compliance, see 29 C.F.R. § 1926.650 (1999), could see Moran

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during this time. The ALJ found that Lagro's testimony and the video footage "clearly
refuted" Rolstad's testimony that a ladder was always placed within arm's reach of
workers. D&O at 6.

        The ALJ's determination that the ladder violation was willful is supported by
substantial evidence. Dakota previously had been cited for multiple violations of
OSHA trenching violations, several of them being willful. See D&O at 5. Past
violations of similar, but not necessarily identical, regulatory provisions, "show
[Dakota's] knowledge as to the requirements of the Act and Regulations and the
exposure of its employees to serious injury or death resulting from a failure to comply."
Western Waterproofing Co. v. Marshall, 576 F.2d 139, 145 (8th Cir.), cert. denied, 439
U.S. 965 (1978). Moreover, the fact that Moran worked without a ladder in clear view
of Rolstad demonstrates that Dakota condoned or ignored this specific violation
because the knowledge and actions (or inactions) of Rolstad, as the competent person
responsible for OSHA compliance at the site, are attributable to Dakota. See Globe
Contractors, Inc. v. Herman, 132 F.3d 367, 373 (7th Cir. 1997). These factors,
combined if not alone, require that we affirm. See id. Even if Dakota's claim that it
complied with the ladder regulation at other times was true, it would not negate the
ALJ's finding of willfullness with respect to this violation. See Valdak, 73 F.3d at 1469
("If an employer knowingly permits a serious hazard to exist, it has acted willfully even
if the workplace is otherwise safe."). This is especially true where, as here, the ALJ
pointed to evidence that Dakota generally fostered a working environment in which
safety regulations were frequently ignored or even mocked. See D&O at 8.

       Dakota waived its argument concerning the penalty assessed for the ladder
violation because it did not raise the issue in its application to the Review Commission.
See 29 U.S.C. § 660(a); General Carbon Co. v. OSHRC, 860 F.2d 479, 486 (D.C. Cir.
1988) ("[Section 660(a)] expressly forbids us to consider arguments not advanced to
the Commission."). The statute excuses such "failure or neglect" only in "extraordinary
circumstances." 29 U.S.C. § 660(a). Dakota points to no such circumstances here.

                                           -4-
                                          III.

      Dakota also objects to the citation for the water violation. The relevant
regulation provides:

      Employees shall not work in excavations in which there is accumulated
      water, or in excavations in which water is accumulating, unless adequate
      precautions have been taken to protect employees against the hazards
      posed by water accumulation. The precautions necessary to protect
      employees adequately vary with each situation, but could include special
      support or shield systems to protect from cave-ins, water removal to
      control the level of accumulating water, or use of a safety harness and
      lifeline.

29 C.F.R. § 1926.651(h)(1) (1999).

       In light of the regulation, the question for the ALJ was whether the precautions
Dakota undertook were adequate to protect its workers from the hazards of working
in the trench where water was accumulating or had accumulated. The regulation
cautions that "adequacy" is a case-by-case determination, so "adequacy" must be
judged in relation to the hazards of water accumulation in a particular situation.
Therefore, a reasoned decision finding a violation of § 1926.651(h)(1) requires at least
some description of the hazards present and some explanation why the employer's
precautions were not adequate. See 5 U.S.C. § 557(c)(3)(A) (1994) (requiring formal
adjudications to include "findings and conclusions, and the reasons or basis therefor,
on all material issues of fact, law, or discretion presented in the record").

       The ALJ made no findings about what the "hazards posed by water" were in this
case, nor about whether Dakota's precautions were "adequate" to meet them. Instead,
the ALJ stated only that "Dakota does not dispute the existence of the cited violation."
D&O at 7. Dakota's brief to the ALJ and the transcript of the hearing, however, plainly

                                          -5-
show that Dakota made no such concession. See Closing Br. of Resp't at 9 ("Dakota
was not in violation of § 1926.651(h)(1)."); Tr. of Hr'g at 48 (statement of counsel for
Dakota) ("The evidence will show that the violation did not occur."). The Secretary
of Labor does not now argue to the contrary.

         Given the decision's inadequacy, we cannot assess the correctness of the ALJ's
apparent determination that a violation occurred, nor can we evaluate the ALJ's
characterization of the violation as willful. Accordingly, the ALJ's determination
regarding the water violation cannot stand and we vacate that portion of the Decision
and Order. See Duane Smelser Roofing Co. v. Marshall, 617 F.2d 448, 449-50 (6th
Cir. 1980) (vacating order for lack of adequate factual findings); cf. Builders Steel Co.
v. Marshall, 575 F.2d 663, 667 (8th Cir. 1978) (vacating order because factual findings
were inadequate to judge reasonableness of regulation). We also vacate the associated
penalty and remand the matter for further proceedings consistent with this opinion. See
Duane Smelser Roofing, 617 F.2d at 450; Builders Steel, 575 F.2d at 667; see also
Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (stating general rule
of remand where agency action cannot be affirmed on the current record); Dickson v.
Secretary of Defense, 68 F.3d 1396, 1407 (D.C. Cir. 1995) ("Because the [agency]
only listed the facts and stated its conclusions, but did not connect them in any rational
way, the [agency's] decisions are arbitrary and capricious. Where an agency has failed
. . . to explain the path it has taken, we have no choice but to remand for a reasoned
explanation." (citation and footnote omitted)).

                                           IV.

       We turn next to the trenching violations. The regulation in question commands
that "[e]ach employee in an excavation shall be protected from cave-ins by an adequate
protective system." 29 C.F.R. § 1926.652(a) (1999). For instance, sufficiently sloped
trench walls can protect against cave-in, see id. § 1926.652(b), as can timber supports,
see id. § 1926.652(c)(1). In this case, Dakota chose to use trench boxes to protect its

                                           -6-
employees. These structures help prevent an employee from being swallowed up by
a cave-in, see id. § 1926.650, but they offer no protection unless the employee is
actually working inside the box.

       The ALJ found that "at least two employees in three different locations were
observed working in conditions that exposed them to immediate burial from collapsing
trench walls." D&O at 6. Specifically, the ALJ found, "due to the employer's lax
enforcement of safety rules . . . employees routinely left the protection of the trench
boxes." Id. "The sudden collapse of the 8 to 10 foot trenches could bury an employee
without warning; the probable outcome of a cave-in in a narrow, deep trench is death."
D&O at 11. The Secretary chose to "group" these three trenching violations in its
citation and the ALJ imposed the maximum penalty—$70,000—for the grouped
violations, which he described as "egregious." Id.

       We affirm an assessment of penalties under OSHA unless unwarranted in law
or without justification in fact. See Valdak, 73 F.3d at 1470. Penalties for each willful
violation may be between $5,000 and $70,000. See 29 U.S.C. § 666(a). The penalty
to be assessed is to be determined giving regard to four factors: (1) the size of the
business of the employer; (2) the gravity of the violation; (3) the good faith of the
employer; and (4) the history of previous violations. See id. § 666(j).

      The ALJ imposed the maximum penalty based on the second factor, gravity, and
concluded that a reduction in amount for "size, history, or good faith" was not
warranted. D&O at 11. "[T]he gravity of a particular violation may warrant the
assessment of the maximum penalty, even though the employer may rate perfect marks
on the other three criteria." Bush & Burchett, Inc. v. Reich, 117 F.3d 932, 940 (6th
Cir.), cert. denied, __ U.S. __, 118 S.Ct. 46 (1997). Here, Dakota hardly has perfect
marks. Rather, Dakota has a history of related OSHA violations and failure to comply
with OSHA settlement agreements. See D&O at 5. Moreover, this violation was
admittedly willful, which by definition is the absence of good faith. See United States

                                           -7-
v. Ladish Malting Co., 135 F.3d 484, 491 (7th Cir. 1998) ("Efforts to make its
workplace safe may show that an offense was not wilful; but if the deed was wilful,
then there is no residual room for an appeal to 'good faith.'"). Dakota's size may not
weigh in favor of the maximum penalty. But given the other factors, we do not hesitate
to conclude that the ALJ was well within his discretion in assessing such a penalty.

                                            V.

       The Secretary's citation did not propose "grouping" the ladder, water, and
trenching violations and the ALJ assessed penalties which, if combined, would exceed
the statutory maximum for a single violation. Dakota argues that the violations should
have been grouped by the ALJ, necessarily resulting in a lower penalty.

       In its discretion, the Review Commission sometimes groups violations together
and assesses a single penalty even when the Secretary proposes multiple penalties. See
Pentecost Contracting Corp., 17 O.S.H. Cas. (BNA) 2133, 2135 (1997). The Review
Commission has exercised this discretion in cases where the citations involve "similar
violations that could be cured by a single act of abatement." Id. The Secretary urges
that we review the decision not to group very deferentially, if at all. It is plain that the
ladder and trenching violations each require different acts of abatement, such as proper
placement of a ladder and proper use of a trench box. Therefore, we need say no more
than that, under even the most exacting standard of review, we would find no error in
the failure to group the ladder and trenching violations. Given the absence of findings
by the ALJ concerning the water violation, we cannot evaluate the decision not to
group it with the other violations. The issue may be raised on remand.

                                            VI.




                                            -8-
      We affirm the final order of the Review Commission, as found in the Decision
and Order of the ALJ, in all respects, except for the water violation and the associated
penalty. We remand the matter for further consideration on those points.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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