Judge Vacates Citation for Failure to Establish Exposure

Summary

OSHA 30/30 with Manesh Rath
Episode: Judge Vacates Citation for Failure to Establish Exposure
Date: April 30, 2026
Host: Manesh Rath (Partner, Keller and Heckman LLP)
Guest: Ben Idzik

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Episode Overview

This episode examines a recent administrative law judge (ALJ) decision that vacated an OSHA citation against Pooler Enterprises, an excavation company, due to OSHA’s failure to prove employee exposure to a hazardous condition. Host Manesh Rath and guest Ben Idzik break down the facts, legal arguments, decision, and practical lessons for employers about exposure, citation defense, and best practices for site inspections.

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Key Discussion Points and Insights

1. Case Background and Facts

[00:00 – 05:49]

• The incident took place at a construction site in Penfield, New York, where excavation was being performed to lay a water main.
• A compliance officer, acting under OSHA’s National Emphasis Program for Excavations, conducted a random site inspection.
• The only person present was the general contractor's supervisor; later, two supervisors from the subcontractor (Pooler Enterprises) met with the officer: Mr. Jackson (site supervisor) and Mr. Kinsman (pipe supervisor).
• The officer noted a trench over six feet deep without required cave-in protections (shoring, benching, or trench boxing) and issued a citation.

2. OSHA’s Argument

[06:12 – 08:36]

• OSHA alleged Pooler Enterprises violated excavation safety standards by failing to provide proper cave-in protections.
• The compliance officer testified that Jackson and Kinsman indicated someone had been—or would be—in the trench during water leak testing.
• OSHA argued that the depth and lack of protection established both violation and exposure.

3. Pooler Enterprises’ Defense: No Employee Exposure

[08:53 – 10:40]

• Pooler countered that there was no employee exposure; no staff needed to enter the trench for the water pressure test at that stage of work.
• Both Jackson and Kinsman testified that the testing could be conducted without entering the trench.
• The central defense: “You haven’t shown that any of our employees were exposed to the hazard. No entry, no violation.”
  “Unless you have entry into the excavation or somebody walking right at the edge of the excavation, there’s no hazards to any of the employees, and thus there’s no violation.” – Manesh Rath [09:32]

4. Legal Framework: The Four OSHA Elements

[07:19 – 08:53]

• OSHA must prove four elements to sustain a citation for violating a specific standard:
  1. The standard applies to the condition.
  2. The requirements of the standard were violated.
  3. One or more workers had access to the hazardous condition (employee exposure).
  4. The employer knew or should have known of the violation.
• If any element is missing, the citation is not valid; here, element 3 (exposure) was in dispute.

5. Key Testimony and Credibility Issues

[10:40 – 14:38]

• The compliance officer’s testimony about worker exposure was inconsistent with his field notes and Jackson and Kinsman’s accounts.
• The ALJ found Pooler’s witnesses credible: “Their testimony was very clear on that. They walked through … the procedure involved for testing the leak for every step… both of their testimonies matched…” — Manesh Rath [11:58]
• Compliance officer’s claim that entry was required was not documented: “He may have overstated that. The judge … very graciously said, well, at the very best, his recollection may not be reliable.” — Manesh Rath [14:05]

6. ALJ Decision and Legal Standard for Exposure

[12:31 – 14:59]

• The ALJ ruled in Pooler’s favor, highlighting the lack of evidence for either actual or reasonably predictable employee exposure.
• Testimony and documentation supported that no worker entered or needed to enter the trench during the relevant period.
• Hearsay versus direct observation was a factor; the ALJ found Pooler’s direct employee testimony more credible.

7. Practical Takeaways for Employers

[14:59 – 20:52]

• Document Thoroughly:
  • Employers should take their own contemporaneous notes, photographs, and videos during OSHA inspections to support their narrative if contested.
    “Document the inspection contemporariously … if the citation ultimately goes before the ALJ, is to be able to back up your version of events with more than just testimony.” — Ben Idzik [15:00]
• Educate on Procedures:
  • Be ready to explain each step of operational procedures to both the compliance officer and the ALJ to avoid misunderstandings about hazards.
• Multiple Witnesses:
  • Have more than one employee participate in inspection meetings when possible; it strengthens credibility if multiple witnesses can corroborate the employer’s version.
• Prepare All Evidence:
  • Gather all exonerating evidence related to each of OSHA’s four elements—especially evidence showing lack of exposure.
• Don’t Argue During the Opening Conference:
  • Cooperate and provide accurate information, but save legal arguments for later stages. “At an opening conference … I think that at an opening conference it’s important to remain truthful, to help the compliance officer … But to try and win a case in an opening conference is probably a misplaced ambition and that that ought to be done later.” — Manesh Rath [19:37]

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Memorable Quotes & Moments

• On the burden of proof:
  “OSHA has to prove all four. You only need to show that one of them does not apply for the citation not to be valid.” — Ben Idzik [09:47]

• On the importance of clear procedures:
  “The compliance officer just assumed facts not supplied to him … critical for employers … to prepare as clear a presentation of the procedure as possible.” — Manesh Rath [15:39]

• On credibility and evidence:
  “The more evidence that an employer is able to provide, it generally is helpful in terms of contesting a citation.” — Ben Idzik [18:09]

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Timestamps for Key Segments

• Introduction and Agenda – [00:00 – 03:01]
• Case Facts – [03:01 – 05:49]
• OSHA’s Inspection and Citation – [04:04 – 06:12]
• OSHA’s Legal Elements & Focus on Exposure – [07:19 – 08:53]
• Employer’s Defense and Witness Testimony – [08:53 – 11:58]
• ALJ Decision and Standards for Exposure – [12:31 – 14:59]
• Employer “What to Do” Section – [14:59 – 20:52]

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Lessons & Practical Guidance

• Meticulous Documentation: Always match OSHA’s recordkeeping during inspections.
• Train Supervisors: Educate all supervisory staff on procedures and the importance of accurate communication during OSHA contacts.
• Present Strong Evidence: In case of contesting a citation, bring corroborated, direct evidence and multiple witnesses.
• Cooperative, Not Argumentative: Maintain professionalism during inspections and conferences; legal arguments belong in later proceedings.
• Preempt Misunderstandings: Proactively clarify operational procedures and when employees are genuinely exposed to hazards.

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This episode provides invaluable insight for employers, legal counsel, and safety professionals on responding to OSHA citations—especially those hinging on the necessity and evidence of employee exposure. The Pooler Enterprises case is expected to serve as a reference point for future litigation and compliance strategy.

Transcript

[A]

In Penfield, New York, a suburb of Rochester, New York, a construction site was underway when a US Occupational Safety and Health Administration compliance officer happened along the construction site and seeing an excavation, conducted an inspection. The only person there at the time was the supervisor for the general contractor. They conducted their inspection together. At the opening conference, the compliance officer asked to meet with the staff for the excavation subcontractor. There they discussed the excavation and the compliance officer issued a citation alleging a failure to properly shore or protect the excavation or trench against the possibility of cave ins. The excavation company contested the citation. We're going to discuss OSHA's theory of the case as well as the employer's defense on on this edition, the April 29, 2026 edition of the OSHA 3030. Well, welcome everyone. I'm Manish Rath. I'm an attorney at the law firm Keller and Heckman in Washington, D.C. for about 31 years I've been engaged in representing management in the field of occupational safety and health law and other areas of workplace law. And we've been doing the OSHA 3030 for 13 or 14 years. Every single month we put on a 30 minute program covering a developmental area in the field of occupational safety and health law. I'm very fortunate because today I'm joined by my good friend and colleague Ben Idzik. Ben, welcome to the show.

[B]

Thanks for having me. Manish, always a pleasure.

[A]

Well, it's my pleasure and I think we got a great topic, Ben. This goes to the employer's defense that whether or not the condition fit the scope of a standard and whether or not the employer had failed to meet the requirements of a standard. If there's no employee exposure, the employer argued in this case, Pooler Enterprises, you can't issue a citation that's not a violative condition. And so we're going to talk about that, that defense, this employer exposure defense in today's edition of the OSHA 3030. I think it's a really important concept to discuss Amongst our OSHA3030 community and I think it's a really important one for the judge to have considered in this case. So I think Pooler Enterprises is going to be an extremely helpful case for employers and OSHA law practitioners on both sides, the agency side as well as the employer side, for years to come. Why don't we start by talking about what we're going to talk about? Yeah.

[B]

So we'll begin as always with the facts of the case and then also discuss the events that precipitated the citation.

[A]

Right. And then we'll talk about what osha's argument was in issuing a citation, as well as Pooler Enterprises defenses.

[B]

And we'll conclude with how the ALJ decided the case and with the what Employers should do section where we provide some practical takeaways that folks in the 3030 community should come out with this case.

[A]

Yeah, I think that's. I've always felt like that's the most critical part of our program. I mentioned, Ben, that we've been doing this for 13, 14 years. All of our prior episodes are housed on our website, khlaw.comosha3030. And you can also find this as a podcast as well as housed in YouTube. So when you go to our website, khlaw.comsocial3030, you can see all of the prior episodes organized by year. And what you'll find is a video and the slides and audio so that you can just play it along as if you were joining us live. All right, so let's go ahead and get into the facts of the case. I think the first thing to talk about this is a construction site in Penfield, New York, near Rochester. And what's happening at this particular work site is, at least with respect to Pooler Enterprises, is that there's an excavation activity underway in order to lay the water main for. For this future building site.

[B]

Right. And so admonish, like you mentioned in your intro, the compliance officer entered this work site, I think was part of a randomized inspection that was conducted in the area.

[A]

There's a national emphasis program, as you know, for excavations entrenching. And so anytime a compliance officer sees a construction site where excavation or trenching appears to be present, they can just stop and conduct that inspection in accordance with that national emphasis program or regional emphasis program.

[B]

Yeah. So the compliance officer entered the work site and walked around with the site's general contractor. And during that walk around, the compliance officer noticed a excavated trench which, like you mentioned, housed a main water line that was dug by the vent in this case, which would be Pooler Enterprises.

[A]

Right. And the only person during this walk around, as you said, was a supervisor from the general contract contractor. And this is important because after the walk through, the compliance officer conducts an opening conference and at the opening conference asks if he can speak with staff from the excavation company, Pooler Enterprises. Right.

[B]

It was during the walk around that when the compliance officer noticed that the trench was was not provided with any cave in protections, the compliance officer took photographs. But then, like you said, later addressed it. In the, in the opening conference, that was a.

[A]

According to the way the judge described the facts. That opening conference was the first time the compliance officer had an opportunity to meet with folk from Pooler Enterprises. And so the two people he met with from Pooler Enterprises were the site supervisor and the pipe supervisor who was directly supervising that task. And so he met with them, they discussed the excavation, they discussed whether or not there were protections like shoring or benching or trench boxing. And. And there were not any of those features present. And the compliance officer afterwards issued a citation for failure to provide for cave in protections.

[B]

I think the interesting part is during the opening conference, the compliance officer discussed with the two employees you mentioned, Manish would be Mr. Jackson and Mr. Kinsman, why the trench was open. And they discussed that the pipe in the trench was being tested for water leaks. And that is going to come up later in the argument section, I think improves critical as to why this citation was ultimately beginning.

[A]

Right. Testing for water leaks is a critical next step after laying down the water pipe. So he issues a citation. He claims later that when he interviewed them that they had stated that there was activity that was going to take place involved with that testing that would have involved entry into the excavation. But at the time he interviews them, they don't say anything of the kind. This is important and we're going to discuss that a little more later. But at the time of the opening conference, the only thing that was discussed was this is a trench, it's greater than five feet. There's no shoring, there's no benching, there's no trench boxing. And on that, he concluded that a violation existed. I think that that part of the opening conference is really critical because. And you guys here in the OSHA 3030 community have seen this slide before, but for those of you who are catching us as a podcast, I'll go through it. There are four elements that OSHA has to establish when they. They allege a violation of a specific standard. These are different from under the general duty clause, but they have to be able to show that the scope of the standard applies to the condition that they're alleging a citation for. Right.

[B]

And to that end, the standard has to be violated. Has to be violated.

[A]

The requirements of the standard need to be violated. That's right. And then the next one is that one or more workers had access to the cited allegedly hazardous condition. In other words, that there was exposure to an employee of an allegedly hazardous condition.

[B]

Right. And this is the point that's at issue, particularly in this case, and the fourth element would be that the employer knew or should have known with reasonable diligence that there was a violated condition that existed.

[A]

Employer knowledge is always a required element for the agency here. As you say, Ben, the folks at Pooler really wanted to focus the judge's attention on one of those four elements, that there was no employee exposure to any alleged hazardous condition. Osha, when they go before the administrative law judge, made the argument that they took measurements, they took photographs, the excavation was greater than 5ft. Indeed, I think it was like something more well over six feet, six and a half feet deep. And that there was no shoring, that there was no benching, tapering away, getting wider and wider as you go out, and that there was no trench box. The trench box, to me, for a narrow, deep cut, seems to be the gold standard for worker protection. And the compliance officer said that demonstrates that there was a violation. Those are the elements that I need to show.

[B]

Right. And what's critical is that in terms of exposure, the compliance officer testified to the lj, saying that Jackson and Kinsman told him during this opening conference, presumably that Kinsman was in the trench prior to the inspection that the compliance officer

[A]

conducted for the purpose of testing water pressure. What Kinsman may have said was, we were engaged in testing for leaks. It was maybe in the compliance officer's visualizing how that must be done that he assumed that that required entry into the. Into the excavation. But indeed, that wasn't necessary at all. You can test for leaks without entering the excavation. Houler's defense was it doesn't matter if the trench was greater than 5ft and that there was no trench box or shoring. There was no employee who was going to be exposed to the hazard. Unless you have entry into the excavation or somebody walking right at the edge of the excavation, there's no hazards to any of the employees, and thus there's no violation. That. That I think is the essence of. Of the pool of defense. They didn't raise four, five, six defenses. They just said there's. There's really one problem with your case. You haven't shown that there's any employee exposure.

[B]

Yeah. And that's because with the elements that we saw before, you only need. OSHA has to prove all four. You only need to show that one of them does not apply for the citation not to be valid. So with what Pooler said, like you were mentioning Manish, is that the employers didn't have to enter the trench at that point to conduct the testing. And I think with both the employees, which provided testimony during the proceeding, they explained the normal process of how this testing takes place. And they made it clear that at that juncture, no one had to enter the trench, therefore, there wasn't exposure. And I think a critical point that certainly the ALJ stressed in his decision was that the compliance officer admitted that Jackson and Kinsman's statements were not. That they were employees in the trench, that these were not in his field notes. So there wasn't a contemporary account to back up with what the CEO was testifying at the time.

[A]

That's really critical. And I think what may have happened, giving the compliance officer the benefit of the doubt, is that he testified that when he had the opening conference, that Jackson and Kinsman said, well, yeah, we need to enter the excavation in order to test for leaks, when in fact, all they said was, we need to test for leaks. What Pooler said in their defense is, yeah, we may have said we need to test for leaks, but you don't need to enter the excavation for that. This is really critical because what the agency needs to show in order to show exposure is they need to show either that there was actual exposure or that exposure is reasonably foreseeable based on an operational necessity. So if the compliance officer was able to establish that in order to test for leaks it was necessary to enter the excavation, then he may have actually made his case for employee exposure, even if he never observed any exposure himself. That was what the administrative law judge said. But if, as Jackson and Kinsman had both testified, you can test for leaks, you can insert the pipe with machinery, and there doesn't need to be any entry into the trench, into the excavation, by any worker, then that missing component. In fact, what they've done is establish the opposite. And there's a missing component, therefore unemployee exposure. They've demonstrated the opposite, that it was not operationally necessary for any employee to ever enter that excavation in its unit protected state. And I think that their testimony was very clear on that. They walked through in their testimony the procedure involved for testing the leak for every step of the excavation, and both of their testimonies matched, in addition to their testimony about how that opening conference went, which was at variance with the compliance officer's recollection. You made a good point, by the way, that his recollection was different from his own field notes.

[B]

So when we get to the ALJ's decision, we look at the point of law that you mentioned, Manish. In order to show exposure, you have to show either that an employee was actually exposed to danger while the inspection was taking place, or that it was reasonably predictable for the employee for the employees to be exposed to the danger that the standard is meant to protect against.

[A]

Critical to opportunities for the compliance officer, not just observation of his own, but can show through operational necessity that would have happened, that exposure would have happened. So let's talk about the administrative law judge's decision.

[B]

Yeah, yeah, so we see that, like we just mentioned, that exposure is the key here. And there really wasn't any other evidence but the credibility of the witnesses. We have the account of this compliance officer, and we have the accounts of Jackson and Kinsman. So that's what the case went down to. And the ALJ observed the inconsistency of the CO's testimony in terms of that. He stated that Jackson and Kinsman told him that Kinsman was in the trench prior to the inspection. And with what Jackson and Kinsman saying, that was not the case. They were not needed there. And because of that inconsistency, I think the ALJ really came down on the side of Pooler in this case.

[A]

So the credibility of the compliance officer was also, unfortunately at question, because the first thing he said, and I think he overstated it, was when I met with them at the opening conference. They said they needed to enter the excavation in order to test for leaks. Then when the Pooler Enterprises attorney asked him, can we see your field notes? The compliance officer went through his field notes and said, oh, oh, I don't see it in here. I may have overstated that. The judge, giving them benefit of doubt, very graciously said, well, at the very best, his recollection may not be reliable.

[B]

And there's also an interesting side note on the credibility issue. In terms of the idea of what is hearsay, we see that for all the OSHA nerds out there, we see that what the CEO is saying is he's speaking to a hearsay fact. So he's saying that Jackson and Kinsman told me that this happened. By contrast, what the two Pooler employees are saying is that this is actually what happened. It's their own observation. So I think to your point, Mohnish, that also went to the idea of who's more credible.

[A]

That's a great catch. That's a very good point, that his testimony is about what they said. And you're right, their testimony was not only what they said in the opening conference, but what actually happened during the operation. That's a really good catch. Okay, so the administrative law judge on these bases found a deficiency in the four elements and vacated the citation. We should talk about what employers should do in light of the Pooler Enterprises case.

[B]

Yeah, I think the first point, and this comes up, I think, frequently with these, with these citation contests, is to ensure to the best of your ability to document the inspection contemporariously. So whoever the person that is either at the opening conference or walking around during the inspection, that they take the same notes of the same portions of the OSHA inspector stops at, take photos that the same photos that the OSHA inspector takes, videos and so forth. And the point here is to be able to, if the citation ultimately goes before the alj, is to be able to back up your version of events with more than just testimony.

[A]

I think that's right. And I think that another thing that employers can do in light of the Pooler Enterprises case is to be prepared to educate the administrative law judge or the compliance officer as to every step of the procedure that the employer is undertaking at the work site so that there isn't this misunderstanding that we saw in the Pool Enterprises case. The compliance officer just assumed facts not supplied to him that if there was a water leak test, that that required entry into the excavation. And indeed, that was just sort of filling in the gaps of the picture that was being depicted for him. And I think it's really critical for employers going forward to learn from that and say we need to prepare as clear a presentation of the procedure as possible, both for the compliance officer as well as the administrative law judge.

[B]

And I think another point, I think similar to the one I raised before, is when there's an opportunity to do so, try to get more than one employee to participate in an inspection or in an opening conference. And again, the idea is here to have more than one person backing up what the version of the events is. I think, as we see here, I don't think it was explicitly stated by the alj, but I think it did make a difference at the fact that there was one compliance officer's testimony, but also testimony of Kinsman and Jackson saying the same thing in concert. And I think that definitely helped in terms of the credibility of Pooler's defense.

[A]

Yeah, I think that's right. I think that two people not only made for two witnesses, but even in the opening conference, it allowed both of them to supply helpful information to the compliance officer to better educate the compliance officer. And so to the extent that they each were able to contribute varying aspects of their own expertise, that was probably helpful as well. I think the next thing that Employers ought to consider in the Pooler Enterprises case is to look for all of the evidence that does exonerate the employer in any of those four elements. And if it goes to employee exposure or the lack of employee exposure, to prepare all of the evidence you can possibly prepare, including this idea of walking through, educating the judge on the operational procedures. Because remember, the compliance officer, according to this administrative law judge, need not prove that he observed or she observed employee exposure. They can establish exposure because if they can establish that it was operationally necessary for an employee to eventually enter the excavation even after the compliance officer had left the site. So it's important to prepare all of that evidence and to make that clear presentation of the evidence.

[B]

And I think finally we can say that even though it's difficult sometimes to get folks off the job site to adjust schedules to juggle that around, but do your best to present more than one witness if a case goes before an alj. Again, we see that the more evidence that an employer is able to provide, it generally is helpful in terms of contesting a citation.

[A]

Yeah, I think that's a great point, Ben. And there's always this balance that employers and their counsel try to strike as to a compromise between putting on a sufficiency of evidence and running a defense economically. And so the number of witnesses is obviously going to be something that you have to debate, that you're going to prepare, how many witnesses you're going to prepare and how many of them you're going to bring to trial. But as a general rule, if multiple witnesses are corroborating a truth, then I think it's important to heavily weigh that in calculating what is the right way to effectively mount a defense. And so I know it's tough, but employers have to consider making sure that if they present a defense like a lack of employee exposure, that they do so not only with sufficiency of evidence, but, you know, with an overwhelming case that's just clear cut, even for an administrative law judge that may be doubting, doubting the defense initially. Well, those are the kinds of things that we think are critical in this case, the lessons that we can take away, that you can walk back to your workplace after this program and make your compliance program just a little bit stronger. The other thing I'd say is when you go into an opening conference, I think the other lesson that Kinsman and Jackson teach us is when you go into an opening conference, a lot of employers try their best to make their winning case right then. And there's, and I don't think that that is the best opportunity to try and disprove anything that the compliance officer is alleging at this stage. They may just be considering all of the facts. I think that at an opening conference it's important to remain truthful, to help the compliance officer be cooperative in helping them understand the facts accurately. But to try and win a case in an opening conference is probably a misplaced ambition and that that ought to be done later. Once you have successfully participated in an opening and closing conference in a manner that's truthful, succinct, helpful to the compliance officer. I think that that's the best you can hope to achieve in those conferences and not to try and win a case, you know, straight from a home plate, to try and round all of the bases at once.

[B]

I think we see a similar principle come up with traffic tickets. You know, we don't want to argue with the police officer. If there's a case to be made, you can make it later.

[A]

There's always a risk that in arguing with the compliance officer you just appear argumentative or obstructionist and that may not be the intention that you had supplied that helpful information with. So lots to consider. And I think Jackson and Kinsman did a good job and the administrative law judge did an excellent job in analyzing the employer exposure case effectively. Well, that's today's OSHA 3030. We have sister programs that you should know about. The Reach 3030 and the Tosca 3030 on the Tosca 3030 on May 13th at 1pm Eastern and the Reach 3030 on June 10th at 10am Eastern. These are great programs. If your organization is responsible for complying with these legal schema, then you should please forward on information about the Reach 3030 and task of 3030 to your colleagues within your organization. Once again, as we always do, we ask that when you get an invitation to the next OSHA 3030 that you forward it on to at least three other people each time within your organization. Safety professionals in house counsel and at other organizations. Your help in spreading the good word has been the lifeblood of the program and will continue to be, hopefully for another 13 or 14 years. So thank you for that and please keep doing so. Our next program will be on May 20th at 1pm Eastern. We look forward to seeing you then. We thank you for participating in the ocean 3030. I want to thank Ben Idzik and on behalf of Ben and myself, thank the staff here at Keller and Hackman who helped put this program on. We look forward to seeing you on May 20th for another episode of the OSHA 3030. And until then, stay safe, Sam.