Dakota Underground, Inc. v. Secretary of Labor

BOWMAN, Circuit Judge.

Dakota Underground, Inc. seeks review of the Occupational Safety and Health Review Commission’s determination that Dakota violated the Occupational 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…