JOE RICHTER, CONTRACTOR, INC.
OSHRC Docket No. 15774
Occupational Safety and Health Review Commission
November 2, 1977
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Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
T. A. Housh, Jr., Regional Solicitor, USDOL
Joe H. Richter, President, Joe H. Richter Contractor, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Chairman:
A decision of Administrative Law Judge Vernon Riehl is before the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter "the Act"]. The Judge affirmed a citation alleging a nonserious violation n1 of section 5(a)(2) of the Act for failure to comply with the standards at 29 CFR § 1926.100(a) and 29 CFR § 1926.652(h), and a citation for "serious" violation of section 5(a)(2) of the Act for failure to comply with the standards at 29 CFR § § 1926.652(c) and (e), and 29 CFR § 1926.651(i)(1). n2 Total penalties of $65 were assessed for the nonserious citation and $200 for the "serious" citation.
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n1 We note that item 2 of the citation for nonserious violation alleging a failure to comply with § 1926.152(a)(1) was withdrawn by the Secretary before the issuance of the Judge's decision. The item is hereby vacated.
n2 The standards cited by the Secretary read as follows: § 1926.100 Head protection.
(a) Employees working in areas where there is a possible danger of head injury from impact, or from falling of flying objects, or from electrical shock and burns, shall be protected by protective helmets.
§ 1926.651 Specific excavation requirements.
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(i)(1) In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.
§ 1926.652 Specific trenching requirements.
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(c) Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot horizontal. When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion.
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(e) Additional precautions by way of shoring and bracing shall be taken to prevent slides or cave-ins when excavations or trenches are made in locations adjacent to backfilled excavations, or where excavations are subjected to vibrations from railroad or highway traffic, the operation of machinery, or any other source.
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(h) When employees are required to be in trenches 4 feet deep or more, an adequate means of exit, such as a ladder or steps, shall be provided and located so as to require no more than 25 feet of lateral travel.
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Respondent filed a petition for discretionary review contending that the Judge erred by affirming the alleged violations. The petition was granted and submissions were invited on the following issues n3:
1. Whether the Judge erred in affirming items 1 and 3 of the citation for nonserious violation for failure to comply with § 1926.100(a) and § 1926.652(h)?
2. Whether the Judge erred in affirming the citation for serious violation of the Act for failure to comply with § § 1926.652(c) and (e) and § 1926.651(i)(1)?
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n3 A direction for review was also issued by former Commissioner Moran which did not specify any issues.
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For the reasons that follow, the Judge' decision, is modified.
I.
On October 23, 1975, a safety inspection was conducted at a worksite in Joplin, Missouri, where respondent was replacing old telephone conduit with plastic pipe in a trench. The trench was 8 feet deep, n4 31 feet long, 8 1/2 feet wide at the bottom, and [*3] 11 1/2 feet wide at the top. Although the trench was 31 feet long, the actual work area was only 18 feet in length. The remaining 13 feet was taken up by earth ramps from the trench at either end. The ramps were the only means of exit from the trench provided by respondent.
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n4 The exact depth of the trench was disputed by the parties. The Secretary argued at the hearing that the depth was measured at 10 1/2 feet. Respondent disputed that measurement, claiming that it was reached by including a 2 1/2 foot deep hole in a corner, at the bottom of the trench, which contained a water pump. Excluding that one isolated spot, respondent contends that the trench was 8 feet deep. The Judge did not resolve the dispute, finding only that the trench was more than 5 feet deep. Our review of the evidence indicates that respondent's measurements better reflect the actual configuration of the trench and, therefore, we find the trench to be 8 feet deep.
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The soil was composed essentially of clay, although it contained some gravel [*4] as backfill as a consequence of the site having been previously excavated. Inside the trench was an uncovered concrete box, three feet wide and three feet deep, that ran the length of the trench. The box had been previously installed by the telephone company to protect conduit lines. An abandoned sewer line in the bottom of the trench was discharging water. Additional water may also have entered the trench from a creek about seven feet away. A sump pump was installed in a hole at the bottom of the trench to remove the accumulated water.
The north wall of the trench was sloped to an undetermined angle. n5 The south wall, however, was vertical and adjacent to a heavily traveled n6 concrete road. Neither wall was shored nor braced. The compliance officer testified that spoil, consisting of muddy soil, four feet high and five feet wide was located at the edge of the north wall. Respondent's superintendent, nowever, testified that spoil was scattered over an area of 50 feet, but that the main part of the spoil pile was recessed two feet from the trench's edge.
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n5 The Secretary contends that the trench, as a whole, was neither shored nor sloped. It is respondent's position, however, that although the south wall was vertical, the north wall was sloped in accordance with the requirements of § 1926.652(c). The Judge did not resolve the dispute. We find that the north wall was adequately sloped under the standard.
n6 The compliance officer testified that he observed trucks and other heavy vehicles traveling in the road.
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The compliance officer observed that the three employees in the trench were not wearing head protection. He testified that there was a danger of head injury from falling objects, such as pieces of pipe and clumps of soil from the spoil pile. Respondent's superintendent testified that the employees usually wore hard hats, but that they were not wearing any protection at the time of the inspection because there was nothing either swinging overhead or likely to fall on them.
In affirming the citation for "serious" violation, Judge Riehl concluded that respondent's trench was neither shored nor sloped n7 and that no additional precautions were taken to prevent slides or cave-ins caused by vibrations by traffic from the adjacent roadway. He noted that the hazardous condition was exacerbated by the water entering the trench, which was undercutting the trench wall, and by the superimposed weight of the spoil pile. Accordingly, he held that respondent failed to comply with the standards at § § 1926.652(c) and (e) and § 1926.651(i)(1). Although the Secretary proposed a $500 penalty for the "serious" violation, [*6] the Judge concluded that respondent's generally fine safety record and safety program warranted lowering the assessment to $200.
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n7 See note 4 supra.
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Regarding the citation for nonserious violation, the Judge held that the failure of the employees to wear protective helmets exposed them to a danger of injury from falling or flying objects, such as large clods of earth from the spoil pile, and pieces of pipe, in violation of the requirements of § 1926.100(a). He also concluded that respondent failed to comply with § 1926.652(h) by failing to provide the employees working within the trench, with an adequate means of exit located so as to require no more than 25 feet of lateral travel. n8 The Judge concluded the $65 total penalty for the nonserious citation to be appropriate.
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n8 In his finding of fact No. 11 the Judge states that:
Respondent failed to provide employees, working in this trench, with an adequate means of exit located so as to require no more than 25 feet of lateral travel.
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II.
Respondent argues on review that the Judge erred by affirming the various items. Regarding the alleged failure to comply with § 1926.100(a) for the nonuse of head protection, respondent argues that the Judge erred by finding that the three employees within the trench were exposed to the possibility of head injury. Respondent contends that the plastic pipe it was installing weighed only 1/2 pound per foot, and was too light to have caused any head injury to its employees. n9 Moreover, respondent states that its employees worked within the open concrete box in the center of the trench. Therefore, it is argued, the employees were never under anything that could fall on them.
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n9 The pipe was in 20-foot lengths.
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We are not persuaded. The compliance officer testified that he observed employees without head protection working on the sides of the trench outside of the concrete box. His testimony is clearly supported by Secretary's [*8] Exhibit G-3 (photograph) which shows employees working outside of the box while not wearing hard hats. The compliance officer also testified that sections of the pipe would be handed down to employees in the trench. Moreover, the compliance officer stated that the spoil pile, which contained large clods of earth, began on the north edge of the trench. The clods of earth, as well as sections of the plastic pipe, clearly could have fallen on the unprotected heads of the employees. Respondent's contention that the plastic pipe and clods of soil were too light to cause injury is specious. Although the plastic sections of pipe may perhaps not have weighed enough to have caused injury, we conclude that a cold of soil of an indeterminate weight could possibly cause some injury to the head of an employee.
Respondent also argues that it provided its employees with an adequate means of egress from the trench. Respondent notes that the work area of the trench was only 18 feet long, the remaining 13 feet being comprised of the two earth ramps, one at either end. Because the beginning of each ramp was within 25 feet of the employees, it is argued, the Secretary failed to establish the violation. [*9]
We find that the ramps themselves were not an adequate means of egress. Accordingly, it is not necessary to determine whether the maximum 25-foot lateral travel distance of the standard is to be measured from the beginning or end of the means of egress.
In Paul Hutchinson & Sons, 76 OSAHRC 62/A2, 4 BNA OSHC 1327, 1976-77 CCH OSHD para. 20,783 (No. 3301, 1976) the Commission held that an earth ramp could be an adequate means of egress if "it was sloped at such an angle that employees could walk in or out without difficulty." An earth ramp, as well as any other means of egress that may be provided, must be adequate for emergency escape as well as routine egress from the trench. Thus, when determining the adequacy of an earth ramp as a means of egress the condition of the ramp and its accessibility, as well as its slope, must be considered. See D. Federico Co., 4 BNA OSHC 1790, 1976-77 CCH OSHD para. 21,233 (No. 9879, 1976).
Although neither party adduced the slope of the two ramps, respondent contends on review that the west ramp was sloped to a 30-degree angle and the east ramp to 45 degrees. Respondent's superintendent stated that both ramps were sufficiently sloped [*10] to enable employees to walk out of the trench. The compliance officer, with between 200-300 trench inspections to his credit, testified, on the other hand, that the ramps were inadequate. He testified without rebuttal that the sewer line in the trench caused the trench to fill with water overnight, and that the sides of the trench were wet. Moreover, the Secretary's Exhibit G-3 clearly shows pipe blocking the exit to the east ramp.
Although the superintendent's testimony indicates that the ramps were adequate for routine egress, we find that the preponderance of the evidence establishes that they were not adequate for emergency escape. It is clear that while employees could routinely climb over the pipes and up the steep 45-degree slope of the east ramp, the procedure would have been inadequate if the trench had begun to collapse. See D. Federico Co., supra. Although the west ramp was less steep and was not blocked, it too was not adequate for emergency escape. Respondent's Exhibit R-1, a scale diagram of the trench prepared by respondent's engineer, shows that the discharging sewer pipe was located about one-fourth the way up the west ramp. Thus, not only was [*11] the ramp wet from overnight flooding, but it is reasonable to infer that it remained in a wet and muddy condition during the day due to the flow of water from the sewer pipe. Such a ramp does not meet the requirements of § 1926.652(h). See D. Federico Co., supra.
Respondent next condends that the Judge erred in holding a failure to comply with § 1926.652(c). n10 According to respondent, the 3-foot high concrete box that ran along the length of the trench, and in which the employees were working, was equivalent to solid rock, thereby reducing the depth of the trench comprised of hard or compact soil to 5 feet. Therefore, it is argued, no sloping was required to meet the requirements of the standard.
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n10 See note 4, supra.
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Respondent also relies upon Old Forge Construction Co., Inc., 76 OSAHRC 40/C8, 4 BNA OSHC 1049, 1975-76 CCH OSHD para. 20,545 (No. 3491, 1976). There, the Commission noted that a citation for failure to comply with § 1926. 652(c) in a 6-foot deep trench, dug in hard or compact [*12] soil could not be affirmed because the top 18-24 inches of the trench was comprised of a pavement material equivalent to rock or cemented lime in which no sloping is required under § 1926.652. According to respondent, it makes no difference whether the concrete was on the top or bottom of the trench and that the item should therefore be vacated.
We do not agree. First, we note that respondent's diagram of the trench (Exhibit R-1) clearly shows that the concrete box was several feet from the south wall, and therefore could not contribute to the stability of the trench. In Old Forge, the earth above the 5-foot level was equivalent to rock or cemented lime. Here, however, the walls of respondent's trench were comprised of hard or compact material requiring shoring according to the express provisions of § 1926.652(c). Even if the concrete box abutted the trench wall, it would not have had the effect of reducing the depth of the trench. Under the mandate of § 1926.652(c), respondent would still have had to shore the wall or slope it above the 5-foot level.
Respondent also relies on Old Forge for the proposition that the existence of concrete paving along the south wall [*13] of the trench precluded the need for additional precautions, as required by § 1926.652(e). Respondent also calls our attention to the Secretary's Exhibit G-7, which shows a barricade above the south wall, as proof that respondent diverted traffic from the trench, thereby reducing the vibration.
In Old Forge, the rock-like material extended to a level below which sloping or shoring is required. No comparable evidence exists here. In Old Forge the trench was only six feet deep, and two feet of the six feet consisted of pavement. Respondent asks us to conclude that of the 8-foot depth, at least three feet of the south wall was comprised of pavement. But there is no supporting evidence for this.
There is also no support for respondent's argument that the barrier depicted in Exhibit G-7 diverted traffic sufficiently to reduce vibration. n11 No evidence was adduced on this point at the hearing. Without any support, the argument fails.
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n11 We note that the barrier could have been placed merely as a warning to drivers that a trench was located adjacent to the roadway.
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Finally, respondent contends that it did not fail to comply with § 1926.651(i)(1). Respondent makes four arguments in support of its position. First it contends that it exceeded the requirements of the standard by storing the spoil "a safe distance from the trench." Second, respondent states that the north wall of the brench, on which the spoils pile was located, was adequately sloped and was composed of hard and compact soil. Thus, respondent contends that the spoils pile did not exert a superimposed load on the trench. Respondent also argues that the spoil pile did not present a hazard because "the spoil was scattered back from the trench for as much as 50 feet," and the men inside the trench were protected by the walls of the concrete box. Finally, respondent questions whether the cited standard, listed under the section entitled "Specific excavation requirements" is applicable to a trench.
We find no merit in respondent's arguments. The evidence clearly establishes that the spoil pile was located within two feet of the trench. The compliance officer testified unequivocally that the pile was located at the edge [*15] of the trench. Moreover, although respondent's superintendent testified that the spoil was scattered over an area of 50 feet, he did not refute the Secretary's contention that there was spoil material located at the edge of the trench. Indeed, his only testimony on the issue was a statement that "the main dirt started back two foot [sic] from the ditch, the high pile" (emphasis added).
Respondent's contention that the slope of the north wall combined with the composition of the soil eliminated any danger from the superimposed load is inappropriate. Similarly, we reject the argument that the employees were not exposed to the hazard of falling soil. It is enough to note that the requirements of the standard are not predicated on the existence of unstable soil or an insufficiently sloped trench. Rather, a 2-foot clearance is required between an excavation opening and the spoil pile regardless of the nature of the excavation. Moreover, contrary to respondent's assertion, the evidence establishes that employees worked outside of the concrete box. Even when working inside the box, however, the employees were exposed to the hazard. The trench walls rose five feet above the [*16] open top of the concrete box. Therefore, it is apparent that an employee in the box could have been injured by falling soil. See D. Federico Co. Inc., 4 BNA OSHC 1790, 1976-77 CCH OSHD para. 21,233 (No. 9879, 1976).
Finally, we note that the Commission has held that § 1926.651(i)(1) is applicable to trenches. Dobson Bros. Constr. Co., 76 OSAHRC 28/A2, 3 BNA OSHC 2035, 1975-76 CCH OSHD para. 20,429 (No. 3847, 1976).
Regarding the penalties, we find that the Judge properly applied the factors enumerated in section 17(j) of the Act in assessing a total penalty of $65 for the nonserious citation and $200 for the serious citation.
Accordingly, it is ORDERED that the citations are affirmed. Penalties of $65 for the nonserious citation and $200 for the serious citation are assessed.