WILLIAMS CONSTRUCTION COMPANY

OSHRC Docket No. 11526

Occupational Safety and Health Review Commission

November 14, 1977

[*1]

Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

Buford Williams, Owner, Williams Construction Co., for the employer

Kenneth Newman, Oklahoma Municipal Contractors Association, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge Robert N. Burchmore, dated July 1, 1975, is before this Commission for review pursuant to 29 U.S.C. 661(i). Review was directed on whether the evidence supported Judge Burchmore's affirmance of a repeated-serious violation for noncompliance with 29 C.F.R. 1926.651(c) and (q). n1 Judge Burchmore assessed a penalty of $1,800 for this violation. Except for the penalty assessment, which is reduced to $750, the Judge's decision is affirmed.

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n1 Section 1926.651, specific excavation requirements, provides in pertinent part:

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(c) The walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by a shoring system, sloping of the ground, or some other equivalent means.

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(q) If it is necessary to place or operate power shovels, derricks, trucks, materials, or other heavy objects on a level above and near an excavation, the side of the excavation shall be sheet-piled, shored, and braced as necessary to resist the extra pressure due to such superimposed loads.

[*2]

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The respondent was engaged in the installation of underground water and sewage lines in Tulsa, Oklahoma. An excavation dug for this purpose was the subject of the citation. It had a diameter of about 30 feet and was about 14 feet deep. Test samples revealed that the upper four feet of the cavity was composed of soft and unstable soils. n2 Moreover, the wet conditions which permeated the excavation and vibrations from a backhoe operating near the west bank further decreased the stability of the upper soils.

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n2 There was uncontraverted evidence that the lower depths of the excavation were composed of shale and rock.

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Two of the respondent's employees were observed working within the excavation. The cited standards mandate that those employees should have been protected against the apparent danger from moving ground by measures such as shoring or sloping. Although three sides of the excavation were sloped back to some degree, the north [*3] wall was vertical and threatened to collapse. There was a substantial possibility that death or serious physical harm conld result from a cave-in.

The Commission finds that the above-described evidence establishes that the respondent violated both standards and that the violation was serious. The respondent argues that the violation should not be characterized as a repeated one. Implicit in that argument is a contention that the penalty is excessive. See J. A. McCarthy, Inc., 76 OSAHRC 65/A2, 4 BNA OSHC 1358, 1976-77 CCH OSHD para. 20,813 (No. 8985, 1976). The Commission agrees that a $1,800 penalty is excessive.

The Secretary's excavation standards prescribe no specific sloping or shoring techniques, requiring only that such protective measures be sufficient to abate the danger from moving ground. Seward Construction Company, Inc., 77 OSAHRC 75/C5, 5 BNA OSHC 1422, 1977-78 CCH OSHD para. 21,803 (No. 8684, 1977). Although it is clear that the respondent has violated the cited standards by neglecting to apply any precautionary measures to the north wall, credit must be given for the respondent's attempts to secure the remaining sides of the excavation. Consequently, [*4] in consideration of those good faith efforts to comply, the Commission finds that it is appropriate to reduce the penalty to $750.

In view of the reduction in the penalty assessment, the Commission will not address the repeated characterization of the violation. A maximum penalty of $10,000 is authorized for a repeated violation. n3 However, a penalty of $750 is less than the $1,000 authorized for serious or nonserious violations. n4 Therefore, the question of whether the violation should be classified as repeated need not be addressed by the Commission. Penn Central Transportation Co., 77 OSAHRC 15/F4, 4 BNA OSHC 2033, 1976-77 CCH OSHD para. 21,540 (No. 13084, 1977).

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n3 29 U.S.C. 666(a).

n4 29 U.S.C. 666(b) and (c).

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Accordingly, a $750 penalty is assessed in lieu of the $1,800 penalty assessed by the Judge. As so modified, the Judge's decision is affirmed.