CARL E. WIDELL & SON; L. FERIOZZI CONCRETE COMPANY; L & S STEEL SERVICE, INC.

OSHRC Docket Nos. 15185; 15263; 15325 (CONSOLIDATED)

Occupational Safety and Health Review Commission

March 11, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, USDOL

Charles F. Duffield, for the employer

Virginia Fiorentino, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the [*2] significance of unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

DECISION AND ORDER

James A. Magenheimer, for the Secretary of Labor

Charles F. Duffield, for the Respondent, Carl E. Widell & Son

William W. Tadley, for the Respondent, L. Feriozzi Concrete Company

Virginia Fiorentino, for the Respondent, L. & S Steel Service, Inc.

Chodes, Judge:

STATEMENT OF THE CASE

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 659) in which the respondents are contesting citations issued on September 22, 1975, by the complainant under the authority vested by section 9(a) of the Act (29 U.S.C. 658(a)). [*3] The citations allege that as the result of the inspection of a place of employment located at the excavation site of the Pleasantville Pumping Station, Old Turnpike Road, Pleasantville, New Jersey, the respondents were alleged to have violated section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof (29 U.S.C. 655).

Pursuant to the enforcement procedure set forth in section 10(a) of the Act (29 U.S.C. 659(a)), the respondents were notified on September 22, 1975, of the proposed penalties for all alleged violations. Although respondents were issued citations for serious violations and citations for nonserious violations, respondents contested only the citations for serious violations which charged violations of the standard set forth at 29 C.F.R. 1926.651(c). A penalty of $600 was proposed against each of the respondents. Inasmuch as the respondents did not contest the citations for nonserious violations, these citations became the final order of the Commission under the provisions of section 10(a) of the Act (29 U.S.C. [*4] 659(a)).

SUMMARY OF THE EVIDENCE

The worksite involved herein was an excavation, basically 48 feet square and 27 feet deep, on the construction site of the Pleasantville, New Jersey Pumping Station (Exhibit C-1). The site was inspected by Joseph A. Nyce, one of the complainant's compliance officers on September 17, 1975.

The controversy in the cases relates to the stability of the west side or wall of the excavation. The southern half (approximately) of the wall was soil made up of brown gravel fill for the top 8 feet, dark grey organic swamp material for the next 4 or 5 feet below and about 14 feet of fine white sand below that (TR. I-16). Mr. Nyce estimated that the fine sand which formed the lower 14 feet of the west wall (shown on Exhibit C-2) sloped back a distance of 2 feet. He arrived at this measurement from a distance of 30 feet by relating the slope to the vertical piling supporting the concrete structure. The slope of the entire west wall as shown on Exhibit C-2 was estimated in the same way as 7 feet. Mr. Nyce acknowledged that his measurements were not exact and could have been slighly off (TR. I-16-19, 73-76). Thomas C. Manley, resident engineer for the [*5] county sewage authority, owners of the project being built, testified that for approximately 18 feet from the bottom of the wall the slope was 1/2 (horizontal) to 1 (vertical) (TR. I-111).

Joseph Rosch, vice president and construction manager for respondent Widell, estimated that at the southwest corner (indicated by the letter "D" on Exhibit R-6) the slope was 1/2 to 1 when he examined the wall on September 18, 1975, the day after the inspection. He felt that it was a good slope and that the material would stand (TR. II-58-60).

On the date of inspection the exterior concrete forms were in place for the foundation of the building to be erected and workmen were installing rebars (reinforcing steel bars for poured concrete) (TR. I-9, 10, 16). An employee of respondent Widell was observed wire brushing rebars approximately in the center of the excavation and also about 5 feet from the west bank (TR. I-20). An employee of respondent Feriozzi was seen checking form work for alignment within 3 feet of the west wall (TR. I-21, 25, Exhibit C-4). Four or five employees of L & S Steel were placing steel rebars which brought them within 10 or 15 feet from the west wall (TR. I-21, 22, 28, [*6] Exhibits C-3, 8).

The question arose whether there was a possibility that water could affect the stability of the walls of the excavation (TR. I-116, 117). To obviate this possibility 10 wells, 12 inches in diameter and 50 feet long with pumps were installed to dewater the excavation and keep it dry. A Mercoid float was placed in the excavation so that if water entered, the float would float in the water and turn to create an electrical current connected with the Pleasantville Police Department burglar alarm system. A standby generator was tied to a manual transfer switch that could run all the equipment. Also, a watchman service was employed (TR. II-38-41).

Mr. Nyce was of the opinion that the angle of repose (the greatest angle above the horizontal plane at which a material will lie without sliding) n1 for the southern section of the west wall was 1 to 1 (45 degrees) based on the federal standards which are set forth in Table P-1 under 29 C.F.R. 1926.562. On this basis, after discussion with the OSHA area director, it was decided that the slope of the west wall was a serious violation (TR. I-41-44).

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n1 29 C.F.R. 1926.653(b).

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Richard S. Kessler, an engineer specializing in soil and foundation engineering, testified as an expert on soils in behalf of the respondent Widell. Preparatory to testifying Mr. Kessler reviewed the drawings and documents associated with the foundation for the pumping station, assembled data on the project and the size and geometry of the excavation. n2 A test pit was dug immediately adjacent to the southwest corner of the excavation on December 29, 1975, to a depth of 24 feet. The different soils encountered were examined and classified. The changes between each strata and the boundaries between different soil types were logged and their elevations determined. Field tests were run and undisturbed samples of the soil were taken from the test pit (TR. III 62-65).

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n2 Mr. Kessler's investigation data acquisition, analysis of the construction slope as to stability, the methods used, results of his analysis and his conclusions are contained in Exhibit R-1 entitled "Investigation and Analysis Construction Slope Stability Pleasantville Pumping Station Pleasantville, New Jersey."

[*8]

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The geometry of the slope at the southwest side of the excavation was determined by scaling from known measurements shown on photograph Nos. 1 and 2 of Exhibit R-7 taken on September 18, 1975, the day after the inspection (TR. II-62). The slope is depicted in Figure 1, on page 10 of Exhibit R-1. The slope of the sand and clay materials which made up the upper part of the embankment was determined to be 1 to 1 and for the lower part consisting of fine sand, 1 to 3 (TR. III-68, 69).

Analysis of the soil established that for a depth of 2 1/2 feet the soil was silt and gravel of loose to medium compact density. Below that for a depth of 6 1/2 feet the soil was basically grey coarse to fine sand with the same density as the top 2 1/2 feet. On a scale of 100 this represented a relative density of 50 percent. The next layer of soil was black and brown organic silt and clay with 30-40 percent peat and vegetation for a consistency or density rating of medium to stiff. Below the 14 foot depth the soil was light grey sand with a trace of silt. The top 2 feet had a density of loose to medium compact and [*9] below that to the bottom of the test pit (about 24' 10") the density was medium compact (TR. III-71-75, Exhibit R-1, pages 17, 18 and 39).

A slope stability analysis which determines the magnitude of the forces causing a mass to move and the magnitude of the forces resisting the movement of the mass was made. Page 11 of Exhibit R-1 is a chart entitled "Factors of Safety for Selected Failure Surfaces" which shows the factors of safety for various failure surfaces of the embankment. The range was from a minimum safety factor of 1.16 at a section from the left failure plane to a maximum of 10.5 for an overhang in the slope about one foot (TR. III-81-84).

Mr. Kessler's expert opinion, based on his observations, tests and analyses was that the slope on the southerly part of the west embankment had an inherent margin of safety and there was not a likelihood of imminent movement of a mass of soil into the excavation and that employees could work right at the toe of the slope (TR. III-87, 116). Mr. Kessler's analysis and opinion were based on the assumption that the ground water was maintained below the bottom of the excavation (TR. III-93). The assumption is supported by the evidence [*10] in the record (TR. II-38, 41).

Mr. Manley testified that a safety factor of 1.2 was low and that he would look for a safety factor of 2 or above (TR. III-136, 137). Contrariwise, Mr. Kessler testified that for a construction site where there was supervision and control of variables, an adequate margin of safety would be 1.1 (TR. III-149).

One positive factor favoring the stability of the slope was the effect of arching due to the confinement of the slope between the corner of the excavation and the concrete block, in stabilizing the forces preventing movement of a mass into the excavation, but this was not taken into account by Mr. Kessler in arriving at his conclusions (TR. III-86).

The question was raised whether the presence of equipment or material on the ground adjacent to the slope would affect stability of the slope. Mr. Posch testified that all materials needed in the excavation had to be taken over the top, but there is no evidence that this caused vibrations or otherwise weakened the west bank so as to affect stability (TR. III-111, 115, 118).

The northern half (more or less) of the west side of the excavation consisted of a concrete structure (variously referred to [*11] as an Imhoff tank, a slab and as a concrete block) on pilings which was originally part of a treatment plant that was demolished in 1960. The block was 108 feet overall, 6 feet to 30 inches thick and heavily reinforced. n3

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n3 Prior to the inspection of the worksite the block had to be broken about 25 feet back from the face of the excavation to allow for the installation of an influent pipeline (TR. III-143). Mr. Kessler testified that this would not affect the safety factor of the west bank (TR. III-150).

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With respect to the concrete block, Mr. Manley was of the opinion that, based on what "we were told," the piles upholding the concrete block were 25 feet in length with 3 or 4 feet sticking into the ground which did not provide much lateral strength to support the block (TR. I-131). n4 Mr. Manley considered the concrete block dangerous based on his observations and employee complaints, but he did not take any action to determine whether the situation was in fact dangerous (TR. I-153-157).

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n4 Joseph Posch, respondent Widell's vice president and construction manager, testified that the pilings were driven down a minimum of 5 feet below the subgrade (TR. II-58).

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The earth underneath the concrete structure was excavated for about 3 feet back from the excavation. A wooden barrier made up of 2 by 6's (shown on Exhibit C-9) was put there to keep small pieces of debris from annoying employees and not as shoring (TR. II-72, 73). Aside from this barrier there was no other shoring (TR. I-38).

The concrete structure was monitored from July, 1975, to January, 1976, with a transit to determine whether there was any movement. No movement was observed and the structure was considered stable (TR. II-65-68, TR. III-51, 52).

DISCUSSION

The issue respecting all three respondents is whether they violated the standard set forth at 29 C.F.R. 1926.651(c) which, under the heading "Specific excavation requirements" provides:

The walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded [*13] by a shoring system, sloping of the ground, or some other equivalent means.

The respondents allegedly violated the standard by failing to guard the west wall of the excavation, there being no contention on the part of complainant that any of the other walls of the excavation exposed employees to danger.

To prevail in this proceeding complainant has the burden of proving that respondents exposed their employees to danger "from moving ground." Mr. Nyce, the compliance officer, recommended the citations on the basis that the slope of the southerly side of the wall of bank was not sloped to the angle required by Table P-1 under 29 C.F.R. 1926.652. According to the table which is headed "Approximate Angle of Repose for Sloping of Sides of Excavations" the angle of repose for average soils is 1 to 1 or 45 degrees.

It is contended that Table P-1 has no application in the instant case because respondents are charged with failing to guard an excavation whereas the Table is included in 29 C.F.R. 1926.652 which is headed "Specific trenching requirements" (underlining supplied). Since Table P-1 purports to provide only "approximate" angles of repose and the heading to the Table refers [*14] to "excavations" it would appear that the Table could be of value as a guideline in appropriate cases.

Whatever relevance Table P-1 has to the determination of whether respondents violated the pertinent standard must be in the context of the hazard contemplated by the standard, that is to say, the "danger from moving ground." It is this vital element of proof that is lacking in support of a finding that a violation took place. Admittedly, the angle of repose on the southerly side of the west slope in its entirety was less than 1 to 1 as recommended in Table P-1 for average soils, but the evidence does not establish a danger that the ground would move. On the contrary Mr. Posch, respondent Widell's vice president and construction manager stated that the slope was a good one. Soil tests conducted by Mr. Kessler, an expert in this field, led to his conclusion that the west bank had an inherent margin of safety so that employees could safely work at the bottom of the slope.

The testimony of Mr. Manley, resident engineer for the owners of the project, that the margin of safety considered adequate by Mr. Kessler was not good enough is entitled to and did receive consideration. However, [*15] in light of Mr. Kessler's qualifications as a soil expert, the weight of the evidence preponderates in favor of the opinion expressed by Mr. Kessler.

With respect to the concrete block facing the excavation in the northerly part of the west wall, there is no hard evidence that there was a danger of movement. Mr. Manley was of the opinion that the situation was dangerous because he felt that the pilings supporting the block did not provide sufficient lateral strength and he had received complaints from employees. On the other hand, Mr. Posch testified that the pilings were driven at least 5 feet below the subgrade, the concrete structure was monitored by transit for movement and none found, and Mr. Posch considered the structure stable.

It is concluded that the record does not sustain a violation of the standard by any of the respondents.

FINDINGS OF FACT

On the basis of the citations, notices of proposed penalty, notices of contest, pleadings, the testimony adduced at the hearing and the representations of the parties, it is concluded that on the basis of the record as a whole, a preponderance of the evidence supports the following finding of fact:

1. Respondents have [*16] not denied allegations in the complaint that materials and supplies used by respondents were manufactured outside the state of incorporation, New Jersey, and that respondents are engaged in business affecting commerce within the meaning of sections 3(3) and 3(5) of the Act. Accordingly, these facts are deemed admitted under the provisions of Rule 33(b)(2) of the Rules of Procedure of the Occupational Safety and Health Review Commission.

On September 17, 1975, employees of the respondents working in the excavation on the worksite involved herein were not exposed to danger from moving ground from the walls and faces of the excavation.

CONCLUSIONS OF LAW

1. The respondents at all times material hereto were engaged in business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2. The respondents at all times material hereto were subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.

3. Respondents did not violate the occupational safety and health standard set forth at 29 C.F.R. [*17] 1926.651(c).

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record it is

ORDERED that citations issued to each respondent on September 22, 1975, for violation of the standard set forth at 29 C.F.R. 1926.651(c) and the proposed penalties of $600 for each respondent, are hereby vacated.

JOSEPH CHODES, Judge, OSHRC

Dated: July 20, 1976

Hyattsville, Maryland