Lunda Construction's dispute over lead citations comes to close

Daily Reporter (Milwaukee), Mar 3, 2003 by Chris Thompson

Lunda Construction Co. on Wednesday wrapped up its dispute over lead citations on the completed Sixth Street Viaduct project, agreeing to pay $35,500 in fines, but the firm could face more time in court.

The Occupational Safety and Health Administration on Dec. 10, 2001, issued $250,500 in 14 lead citations and one crane-and-derrick citation to Lunda, the Black River Falls firm that was a prime contractor on the $50 million design/build bridge project in Milwaukee. The original fines dropped to $35,500 following a round of settlements, a trial in October and an administrative law judge ruling on Jan. 10.

Zenith Tech, Waukesha, the second prime on the site, has already settled two lead citations that totaled $2,750.

Both Lunda and OSHA let the Feb. 18 appeal deadline pass without action, and with OSHA's Review Commission letting the case stand by its Wednesday deadline, the judge's ruling became final.

Lunda's dispute with OSHA over the citations focused on a host of lead-related issues, including lead exposure, the use of historical data when anticipating lead levels on a project, personal lead- monitoring requirements, lead emissions in aerial cutting vs. ground cutting, mandates for eating lunch away from contaminated areas and the use of a HEPA vacuum vs. shoe coverlets.

Gary Kaas, Lunda's safety director, said that with the case closed, it's time to look to the future rather than dwelling on the lawsuit. He did, however, say that Lunda maintained its integrity throughout the entire process.

"We were true to ourselves and our employees, and we were honest throughout the whole investigation," he said. "We never compromised the safety or health of our employees. We just want to move forward."

More lawsuits

Apart from the closure of the OSHA case, Lunda is facing a slew of environmental charges filed by the state departments of Natural Resources and Justice. The state filed the lawsuits on Oct. 16 in Rusk, Washburn and Sawyer counties.

While each case details separate circumstances, the common thread is that Lunda was performing railroad bridge-replacement projects for Wisconsin Central Ltd., Rosemont Ill. The cases include both civil and criminal charges against Lunda, two of its employees and Wisconsin Central, according to court reports.

In Sawyer County, Lunda and its project supervisor, Loyd Holum, face one criminal charge for allegedly placing sheet pilings and earthen fill in the Little Weirgor Creek without a DNR permit during a bridge project. A second charge alleges that Lunda conducted an open burn of railroad ties, aerosol cans, rubber matting, oil filters and plastic bottles.

The Little Weirgor Creek project began on Sept. 20, 2000. A trial for that case is scheduled for July 16 in Sawyer County Circuit Court.

That same project also drew two sets of civil charges against Lunda and Wisconsin Central. The first round of charges includes:

* violating the bridge permit by conducting construction work in the creek during winter;

* failure to stabilize soil at an unoccupied site;

* failure to install silt fencing;

* violation of riprap requirements;

* unlawful grading of a bank stream; and

* unlawful dredging.

The second round of civil charges in Sawyer County covers:

* operation of an unlicensed solid-waste disposal facility;

* failure to provide notification of discharge of hazardous substances; and

* failure to take remediation action.

The civil charges are scheduled for trial immediately following the criminal case in Sawyer County.

Rusk and Washburn counties

Lunda, company foreman John Ostrowski and Wisconsin Central face a criminal charge in Washburn County. And the two companies face a civil charge from the same project.

According to court records, both charges stem from Lunda's railroad bridge-replacement project over the Frog Creek in April 2000, and they deal directly with Lunda's construction of a temporary bridge over the creek without a DNR permit.

Those cases are scheduled for trial in Washburn County Circuit Court on May 27 and 28.

The Rusk County case, which focuses on the lack of a silt fence during Lunda's bridge-replacement project over the Jump River, went to trial and was dismissed on Jan. 21. The state, which asked for $37,000 in penalties for Lunda and $7,400 in penalties from Wisconsin Central, appealed the decision on Feb. 14, but no trial date has been set.

Tom Dosch, the assistant attorney in DOJ's environmental protection unit, said that the maximum penalties for all of the charges for both companies would add up to more than $1 million. While he said the state would not seek the maximum in the upcoming cases, he couldn't say what the final penalty request might be.

Getting settled

Chris Fox, corporate counsel for Lunda, admitted the company made some mistakes on the bridge projects but pointed out that the company has won several state awards for project performance and is committed to improvement.

"We do between 700 and 800 projects a year and, occasionally, mistakes are made," he said. "We're putting different things in place to alleviate those mistakes. We take this seriously, and we're trying to work it out."