In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-3697

LAKELAND ENTERPRISES OF

RHINELANDER, INCORPORATED,

Petitioner,

v.

ELAINE L. CHAO, Secretary of Labor,

Respondent.

____________

Petition for Review of an Order

of the Department of Labor.

No. 02 CB 1909

____________

ARGUED OCTOBER 26, 2004—DECIDED MARCH 28, 2005

____________

Before EASTERBROOK,ROVNER,andSYKES, Circuit Judges.

SYKES, Circuit Judge. This is a review of a decision of the

Occupational Safety and Health Review Commission

(OSHRC) assessing a $49,000 civil penalty against Lakeland

Enterprises of Rhinelander, Inc., for willful violation of 29

C.F.R. § 1926.652(a)(1), which requires that workers in

excavation trenches be protected from cave-ins. Lakeland

argues that the evidence collected at its excavation site

should have been suppressed because the surprise inspec-
2 No. 03-3697

1 29 C.F.R. § 1903.7(a) instructs as follows: “At the beginning of

an inspection, Compliance Safety and Health Officers shall present their credentials to the owner, operator, or agent in charge

at the establishment; explain the nature and purpose of the

(continued...)

tion by a compliance officer from the Occupational Safety

and Health Administration (OSHA) was conducted without

a warrant. Lakeland also challenges the administrative law

judge’s (ALJ) exclusion of certain expert testimony and

attacks the sufficiency of the evidence regarding the code

violation and the ALJ’s finding of willfulness. We deny the

petition for review.

I. Background

Lakeland is a northern Wisconsin sewer and water

contractor. In August 2002 the company was engaged in an

excavation project to install sewer and water lines on a

public street in the Mill Creek Industrial Park development

in Marshfield, Wisconsin. The citation at issue here arose

from an August 28 impromptu inspection conducted by

Chad Greenwood, an OSHA compliance officer who was

driving by the industrial park project and noticed the excavation in progress. Greenwood parked his car, walked past

some traffic cones blocking street traffic from the site, and

observed Lakeland employee Ron Krueger excavating a

trench with a backhoe. Greenwood also observed another

Lakeland employee, Tony Noth, working at the bottom of

the trench. The trench contained neither a ladder nor a

trench box, a device used to prop up the walls and prevent

collapse.

Greenwood began videotaping the scene, at which point

Jim Gust, the project superintendent, asked him to step back

and informed him that the road was closed. Greenwood

explained that he was an OSHA compliance officer and

indicated the nature of the inspection.1

 While Gust and
No. 03-3697 3

1 (...continued)

inspection; and indicate generally the scope of the inspection and

the records specified in § 1903.3 which they wish to review.”

2 Greenwood’s testimony at the administrative hearing attributes

a 48-degree slope to the south wall, and this discrepancy between

his report and his testimony is unexplained. The discrepancy does

not matter, however; both a 48-degree slope and a 49-degree slope

are too steep for the soil type. See pp. 11-13, infra.

Greenwood were speaking, Noth began climbing up one of

the walls of the trench. Greenwood observed loose dirt falling back into the trench, apparently unsettled by Noth’s

feet as he scaled the slope. Krueger later admitted that he

knew Noth was not supposed to be working in the trench

and that he failed to remove him. After Noth climbed out of

the trench, Krueger told him he should not have been

working in the trench without a trench box. Krueger then

resumed the excavation.

The slope of the trench walls concerned Greenwood. Sloping is “a method of protecting employees from cave-ins by

excavating to form sides of an excavation that are inclined

away from the excavation so as to prevent cave-ins.” 29

C.F.R. § 1926.650(b). Eyeballing the trench, Greenwood

believed the walls were too steep and there was a fair

chance they could collapse. Greenwood measured the slope

of the trench walls and recorded a west wall slope of 35

degrees, an east wall slope of 50 degrees, a north wall slope

of 38 degrees, and a south wall slope of 49 degrees.2

 After

Greenwood left, Lakeland employees measured the trench

wall slopes and produced a different result for the south

wall only: Lakeland’s measurement found the south wall to

be sloped at 45 degrees.

Greenwood also measured the length and width of the

trench at the surface and found that it was approximately

31 feet wide, east to west, and 39 feet long. However, because Krueger had widened the trench in the process of
4 No. 03-3697

“grooming” it after Noth climbed out, the 31-foot-width

measurement overstated the width of the trench at the time

Noth was in it. Greenwood testified the “grooming” process

added about 5 feet to the width of the trench. Lakeland

contended the trench was actually 34 feet wide and 38 feet

long. There is no dispute the trench was approximately 18

feet deep and 6 feet wide at the bottom.

In addition to his other measurements, Greenwood also

took soil samples. Not all soil is the same, and different

types of soil will behave differently under the pressure of

holding up a trench wall. See Globe Contractors, Inc. v.

Herman, 132 F.3d 367, 369 (7th Cir. 1997). For instance, a

trench dug in firm clay will hold up better than a trench

dug in loose, sandy soil. In addition to the composition of

the soil, several other factors contribute to soil’s relative

stability, including water saturation levels, fissures, and

previous digging in the soil. OSHA recognizes such soil differences by classifying soil into several categories. Type A

soil is the most stable, followed by Types B and C. OSHA

regulations allow trenches dug in Type A soil to be sloped

up to 53 degrees (3⁄4 horizontal to 1 vertical); walls dug in

Type B soil may be sloped no steeper than 45 degrees (1

horizontal to 1 vertical), and in Type C soil no steeper than

34 degrees (11⁄2 horizonal to 1 vertical). See 29 C.F.R.

§ 1926, subpt. P, app. B.

Greenwood’s soil samples came from a “spoil pile”—a pile

of soil that had been removed from the trench. His field

tests found the soil was Type B. He also sent two soil samples to an OSHA lab, which classified one sample as Type

B and the other as Type C. After Greenwood left the site,

Krueger took his own soil samples and sent them to a private engineering firm, STS Consultants; the firm classified

the soil as Type A. Later, when the trench had been filled

in, STS took on-site samples which it determined to be both

Type A and B soil.

Based on the soil samples and Greenwood’s measurements

of both the soil quality and the trench dimensions, OSHA’s
No. 03-3697 5

3 The code provision states as follows: “Each employee shall be

protected from cave-ins by an adequate protective system designed in accordance with paragraph (b) or (c) of this section.” 29

C.F.R. § 1926.652(a)(1). Subsection (b) prescribes requirements for

trench sloping systems, and subsection (c) prescribes requirements for other protective devices such as shield systems (trench

boxes).

office in Madison, Wisconsin, issued three citations to

Lakeland, including the citation at issue on this review—

willfully permitting an employee to work in a trench without adequate protection (inadequately sloped trench walls),

in violation of 29 C.F.R. § 1926.652(a)(1).3

 Lakeland timely

contested the citations, see 29 U.S.C. § 659(c), and an ALJ

conducted a two-day evidentiary hearing. Lakeland moved

to suppress the evidence from the inspection, asserting that

Greenwood’s search of the excavation site violated the

Fourth Amendment because it was conducted without a

warrant. The ALJ denied the motion, concluding that

Lakeland had no right of privacy on the excavation site

because “that land and that road was [a] public road that

they [Lakeland] did not own,” and further that “it was covered by the open fields doctrine.” The ALJ also concluded

that any Fourth Amendment claim was waived because

Lakeland did not object to the inspection and ask for a

warrant at the site.

On the merits, Lakeland disputed both the soil type and

the dimensions and slope of the trench, and also maintained

that any violation of 29 C.F.R. § 1926.652(a)(1) was not

willful because it had a safety program in place and had

attempted to comply in good faith with the applicable

regulations. Greenwood testified for the Secretary of Labor.

The Secretary also called three expert witnesses: two OSHA

soil analysts and an OSHA engineer. Krueger, Gust, and

Lakeland President Gary Taylor testified for Lakeland. The

company also presented the testimony of Thomas O’Neill,
6 No. 03-3697

a soil engineer at STS Consultants; Harry Butler, a safety

consultant; and a union operating engineer familiar with

Lakeland’s jobsites. The ALJ affirmed all three citations

and held that the trench wall violation was willful.

The ALJ rejected the testimony of Krueger, Gust, and

Taylor as “neither credible nor plausible,” and accepted the

Secretary’s evidence regarding soil type and trench dimensions over the evidence produced by Lakeland’s tests and

measurements. The ALJ found the on-site testing done by

Lakeland after the inspection was nothing more than a

“post-facto reconstruction of the facts,” and concluded that

Greenwood’s measurements and soil tests, which were contemporaneous with the alleged violation, more accurately

reflected both the trench’s dimensions and its soil classification. The ALJ also held Lakeland’s violation of the

trench wall safety regulation was willful because: (1)

Greenwood’s videotape depicted “a deep, dangerous trench

with steep sides, with visibly running soil”; (2) Krueger and

Gust were trained supervisory personnel with “years of

trenching experience” and were aware of Noth’s improper

presence in the trench; and (3) Lakeland had a history of

trenching citations. The ALJ assessed a penalty of $49,000.

Lakeland petitioned for discretionary review by the Occupational Safety and Health Review Commission. Review was

declined, the ALJ’s decision became the final order of the

Commission, and Lakeland sought review in this court. See

29 U.S.C. §§ 659(c), 660(a), 661(j).

II. Discussion

A. Fourth Amendment

Lakeland argues that Greenwood’s warrantless inspection

violated the Fourth Amendment and that the evidence

seized in the inspection should have been suppressed. The

ALJ denied Lakeland’s suppression motion, concluding that

Lakeland had no right of privacy on a jobsite on a public
No. 03-3697 7

roadway and that the excavation site was covered by the

“open fields” doctrine. The ALJ also found waiver because

Lakeland did not object to the inspection and ask for a warrant at the scene.

As a threshold matter, it is an open question in this

circuit whether the exclusionary rule applies to OSHA civil

enforcement proceedings. Donovan v. Fed. Clearing Die

Casting Co., 695 F.2d 1020, 1023 (7th Cir. 1982) (applying

a good faith exception without directly deciding the applicability of the exclusionary rule). In INS v. Lopez-Mendoza,

468 U.S. 1032, 1050 (1984), the Supreme Court held that the

exclusionary rule does not apply to civil deportation actions.

The Court applied the framework established in United

States v. Janis, 428 U.S. 433 (1976), for determining the

applicability of the exclusionary rule in noncriminal contexts. The Court initially noted that it had “never applied

[the exclusionary rule] to exclude evidence from a civil proceeding, federal or state.” Lopez-Mendoza, 468 U.S. at 1041-42

(quoting Janis, 428 U.S. at 447). The Janis framework,

reiterated in Lopez-Mendoza, requires courts to “weigh the

likely social benefits of excluding unlawfully seized evidence

against the likely costs” of suppression. Lopez-Mendoza, 468

U.S. at 1041 (citing Janis, 428 U.S. at 446).

The Court in Lopez-Mendoza limited its inquiry on the

“benefit side of the balance” to the exclusionary rule’s primary purpose of deterring Fourth Amendment violations,

because “the ‘prime purpose’ of the [exclusionary] rule, if not

the sole one, ‘is to deter future unlawful police conduct.’ ” Id.

(quoting Janis, 428 U.S. at 446). On the “cost side of the

balance” the Court focused on the “loss of often probative

evidence and all the secondary costs that flow from the less

accurate or more cumbersome adjudication” that results

from suppression. Id.

The Court considered the deterrence value of applying the

exclusionary rule in deportation cases to be only marginal,

because “the INS has already taken sensible and reasonable
8 No. 03-3697

steps to deter Fourth Amendment violations by its officers.”

Lopez-Mendoza, 468 U.S. at 1050. On the other hand, the

Court considered the costs of applying the exclusionary rule

in the deportation context to be “high” because suppression

would overburden immigration judges, result in the loss of

reliable evidence and “oversuppression” of evidence lawfully

obtained, and “would compel the courts to release from

custody persons who would then immediately resume their

commission of a crime through their continuing, unlawful

presence in this country.” Id. at 1048-50.

The Court noted that “[a]pplying the exclusionary rule

in proceedings that are intended not to punish past transgressions but to prevent their continuance or renewal would

require the courts to close their eyes to ongoing violations

of the law.” Id. at 1046. Employing an example with

potential relevance in the OSHA enforcement context, the

Court said: “[p]resumably no one would argue that the

exclusionary rule should be invoked to prevent an agency

from ordering corrective action at a leaking hazardous

waste dump if the evidence underlying the order had been

improperly obtained.” Id. The Court concluded that “the

Janis balance between costs and benefits comes out against

applying the exclusionary rule in civil deportation hearings

held by the INS.” Id. at 1050.

The Fifth and Sixth Circuits have applied Lopez-Mendoza

in the context of OSHA civil enforcement proceedings and

have drawn a distinction between proceedings to order

corrective action against unsafe working conditions and

proceedings to assess monetary penalties against employers

for past OSHA violations. In Smith Steel Casting Co. v.

Brock, 800 F.2d 1329, 1334 (5th Cir. 1986), the Fifth Circuit

held that the exclusionary rule is not applicable in OSHA

proceedings that seek to terminate or remediate occupational

health and safety violations. The court also held, however,

that “the exclusionary rule applies where the object is to

assess penalties against the employer for past violations of
No. 03-3697 9

OSHA regulations.” Id. In Trinity Industries, Inc. v. OSHRC,

16 F.3d 1455, 1462 (6th Cir. 1994), the Sixth Circuit followed

Smith Steel and held that the exclusionary rule applies to

OSHA penalty proceedings.

We need not decide here whether to join the Fifth and

Sixth Circuits in distinguishing between corrective and

punitive OSHA proceedings for purposes of the applicability

of the exclusionary rule. Lakeland loses even if the rule

applies in this context. The excavation site in question was

a public street, not Lakeland’s private property; there is no

reasonable expectation of privacy in an open trench dug on

a public roadway. See L.R. Willson & Sons, Inc. v. OSHRC,

134 F.3d 1235, 1238-39 (4th Cir. 1998) (no reasonable expectation of privacy on construction jobsite easily observable by

passersby); Donovan v. A.A. Beiro Const. Co., Inc., 746 F.2d

894 (D.C. Cir. 1984) (no expectation of privacy in construction areas open to plain view by the public); Marshall

v. Western Waterproofing Co., Inc., 560 F.2d 947, 951 (8th Cir.

1977) (no reasonable expectation of privacy in construction

site scaffolding readily observable by public); Accu-Namic,

Inc. v. OSHRC, 515 F.2d 828, 833 (5th Cir. 1975), cert. denied,

425 U.S. 903 (1976) (no violation of construction contractor’s

Fourth Amendment rights because trench inspection

occurred on public street).

Moreover, the ALJ correctly concluded that any Fourth

Amendment objection was waived because Lakeland did not

object to Greenwood’s inspection and request a warrant at

the scene. The evidence indicates that although Gust

initially told Greenwood that the road was closed, when

Greenwood identified himself as an OSHA compliance officer

and announced the reason for his presence, Lakeland employees acquiesced and cooperated in the inspection. Although perhaps more properly characterized as consent

rather than waiver, the ALJ’s conclusion that Lakeland

waived any Fourth Amendment objection to the inspection

is consistent with case law in this circuit. See Kropp Forge
10 No. 03-3697

Co. v. Sec’y of Labor, 657 F.2d 119, 122 (7th Cir. 1981)

(“Since Kropp’s representatives were present at all times

during those inspections and did not raise any objections

when informed of the intended sampling, any Fourth

Amendment objection to those surveys was waived.”).

B. The Violation

On the merits, Lakeland challenges the sufficiency of the

evidence to support the ALJ’s findings on the trenching

violation, and also contends the ALJ erroneously prohibited

one of its experts from testifying about the physical characteristics of the trench. The ALJ’s factual findings are

conclusive if supported by substantial evidence in the record

considered as a whole. Sierra Resources, Inc. v. Herman,

213 F.3d 989, 992 (7th Cir. 2000). Credibility determinations are not overturned unless contradicted by incontrovertible evidence. Id. (citing Faultless Div., Bliss &

Laughlin Indus., Inc. v. Sec’y of Labor, 674 F.2d 1177, 1182

(7th Cir. 1982)). The ALJ’s evidentiary decisions are

reviewed for abuse of discretion. Freeman United Coal Min.

Co. v. Benefits Review Bd., U.S. Dept. of Labor, 909 F.2d

193, 196 (7th Cir. 1990) (ALJ has broad discretion in the

admission of evidence).

Taking Lakeland’s arguments in reverse, we cannot see

how the ALJ’s limitation on the expert’s testimony was

reversible error. Harry Butler, Lakeland’s safety consultant,

testified about his safety consulting work at Lakeland and his

experiences at other Lakeland jobsites. When his direct

examination turned to the jobsite in question in this case,

counsel for the Secretary objected to two questions: one

asking whether the soil at the trench site had been previously disturbed, and the other asking the witness about the

north-south position of the trench on the excavation site, by

reference to a photographic exhibit. Each objection was

based on the expert’s lack of personal knowledge, his
No. 03-3697 11

testimony having previously established that he had never

actually seen the trench but only reviewed the documentary

record of the citations.

Lakeland argues Butler should have been permitted to

answer these questions because an expert need not have

personal knowledge about the facts upon which he bases his

opinion. See Fed. R. Evid. 703; Nutrasweet Co. v. X-L

Engineering Co., 227 F.3d 776, 789 (7th Cir. 2000); see also

29 C.F.R. § 2200.71 (Federal Rules of Evidence are applicable in OSHRC proceedings); DCS Sanitation Management,

Inc. v. Occupational Safety & Health Review Comm’n, 82

F.3d 812, 814-15 (8th Cir. 1996). This is correct, but immaterial on this review. The questions to which objections

were sustained asked about facts that were testified to by

other witnesses. The expert’s answers would have been

cumulative, so no harm was done in excluding them. The

ALJ did not categorically exclude Butler’s opinion testimony.

Lakeland’s counsel did not follow up by asking Butler to

render an opinion about the safety of the trench based on

facts in the documentary record or testified to by other witnesses; it appears that the entire line of questioning was

simply dropped. Any evidentiary error was harmless.

As to the sufficiency of the evidence of the code violation,

Lakeland acknowledges the deferential standard of review

but invites us to take what amounts to a fresh look at the

evidence. As it did before the ALJ, Lakeland argues here

about the soil classification and the adequacy of the trench

wall slopes. With respect to the soil classification, Lakeland

would have us substitute its soil samples and test results

for OSHA’s. The ALJ accepted Greenwood’s soil samples as

more accurately reflecting the soil composition at the time

of Noth’s exposure in the trench. The ALJ’s reasons for preferring OSHA’s samples over Lakeland’s are not suspect:

Greenwood’s samples came from an undisturbed pile of soil

that had been removed from the trench, while Lakeland’s

samples were collected later, after Krueger finished groom-
12 No. 03-3697

ing the excavation, and also included borings taken outside

the immediate area of the trench and thus appeared to the

ALJ to be “calculated to mislead.”

In addition, the ALJ found that Lakeland’s soil test results did not comport with the visual evidence of the excavation. The judge’s written decision notes that “Greenwood’s

videotape show[s] a steep excavation made entirely in loose

sandy soil.” Given two competing analyses of soil classification, the ALJ was entitled to credit OSHA’s over

Lakeland’s, and his reasons for doing so are supported by

the record. The ALJ’s finding of fact that the trench soil was

a mixture of Type B and Type C is supported by substantial

evidence.

As to the slope of the trench, Lakeland takes issue with

Greenwood’s measurement of the trench’s south wall slope.

Greenwood testified the south wall slope was 48 degrees, a

measurement he arrived at by using an engineering rod and

a protractor. Type B soil requires a slope no steeper than 45

degrees (1 horizontal to 1 vertical), and Type C soil requires

a slope no steeper than 34 degrees (11⁄2 horizontal to 1

vertical). Lakeland calculated the south wall slope at 45

degrees. The company argues that its measurement was

more reliable than Greenwood’s because it is difficult for

one person using an engineering rod and protractor to get

an accurate measurement, and the company used three

employees to take its measurement.

Lakeland also contests the width and length of the trench.

Greenwood testified that the trench was 31 feet wide and 39

feet long; this measurement was taken after Krueger had

completed “grooming” the excavation, which added 5 feet to

the trench’s width. Lakeland contends the trench was 34

feet wide and 38 feet long. The parties agree that the trench

was 6 feet wide at the bottom and 18 feet deep.

Lakeland’s argument about the inaccuracy of Greenwood’s

rod-and-protractor measurement misses the mark, because
No. 03-3697 13

the ALJ relied upon the evidence of the trench’s length,

width, and depth to determine the slope violation. The judge

noted that in Type B soil an 18-foot-deep trench, 6 feet wide

at the bottom, would have to be at least 42 feet long to

comply with the Type B soil requirement of wall slopes no

greater than 45 degrees (1 horizontal to 1 vertical or 18 + 6

+ 18). Anything less than 42 feet would involve at least one

wall sloped too steeply. For a trench in Type C soil, the ALJ

observed, a 60-foot length would be necessary to maintain

the required trench slope of 34 degrees (11⁄2 horizontal to 1

vertical or 27 + 6 + 27). Accordingly, the ALJ held, accepting either Lakeland’s measurements of the length and

width of the trench or Greenwood’s, the walls were too steep

for the regulatory standard. At either 38 or 39 feet long, the

trench fell short of the 42-foot length that would be required

for Type B soil and the 60-foot length required for Type C

soil.

Furthermore, regardless of the dispute over the slope of

the south wall, the parties agreed that the east wall of the

trench was sloped at 50 degrees, well in excess of the required 45 degrees for Type B soil and 34 degrees for Type C

soil. Having rejected Lakeland’s contention that the soil was

classified as Type A, the undisputed 50-degree slope of the

east wall violated the applicable standard. The ALJ’s

conclusion that Noth was exposed to a cave-in hazard in

violation of 29 C.F.R. § 1926.652(a)(1) was supported by

substantial evidence.

C. Willfulness

Willful OSHA violations can result in fines of up to

$70,000. See 29 U.S.C. § 666(a). “An OSHA violation is

willful if it is committed with intentional disregard of, or

plain indifference to, the requirements of the statute.”

Caterpillar, Inc. v. OSHRC, 122 F.3d 437, 440 (7th Cir.

1997) (citing Valdak Corp. v. OSHRC, 73 F.3d 1466, 1468
14 No. 03-3697

(8th Cir. 1996)). We review the ALJ’s fact-finding on the

issue of willfulness under the substantial evidence rule; the

ALJ’s decision on willfulness will be sustained if it is not

arbitrary and capricious and is in accordance with the law.

Id.

The ALJ found willfulness here largely because Noth was

working in the inadequately sloped trench in plain view of

two Lakeland supervisors—Krueger and Gust. Krueger

never told Noth to get out of the trench, although upon

Noth’s exit Krueger warned him that he should not have

been in it without a trench box in place. There was evidence

that Noth was in the trench to protect a sewer line from

breaking during the excavation. The ALJ concluded that

“[a]t worst Gust and Krueger expected or encouraged Noth

to enter the trench to protect the pipe from breakage; at

best they acquiesced to Noth’s presence in the trench.” In

Globe Contractors, we held that ignoring obvious violations

of OSHA safety standards amounts to “plain indifference”

for purposes of a finding of willfulness. Globe Contractors,

132 F.3d at 373. It is undisputed that Lakeland supervisors

knew Noth was in the trench without adequate protection

from cave-in and did nothing to eliminate the obvious

danger or remove him from the trench. That, in itself,

constitutes plain indifference to the requirements of the

statute and regulations.

But there was more to the ALJ’s willfulness finding—it

was also based on Lakeland’s history of OSHA citations.

Greenwood testified Lakeland had received six OSHA citations since 1990, including one for a trench-related fatality

in 1996. Lakeland disputes the number of citations, asserting that some were dismissed and one was settled.

Lakeland concedes at least three prior citations, however,

including the one relating to the trenching fatality. The ALJ

concluded Lakeland’s citation history demonstrated that the

contractor possessed a “heightened awareness” of its

responsibility to comply with OSHA safety regulations, thus
No. 03-3697 15

providing further support for a finding of willfulness. This

conclusion cannot be characterized as arbitrary and capricious. The ALJ’s willfulness finding was supported by

substantial evidence, was consistent with applicable law,

and was not arbitrary and capricious.

For the foregoing reasons, the petition for review is

DENIED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-28-05