SEAWARD CONSTRUCTION CO., INC.

OSHRC Docket No. 8684

Occupational Safety and Health Review Commission

May 5, 1977

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor

Robert A. Shaines, for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge Donald K. Duvall, dated March 26, 1975, which is attached hereto as Appendix A, n1 is before this Commission for review pursuant to 29 U.S.C. 661(i). Review was directed on whether Judge Duvall erred in vacating a citation which alleged that respondent had violated 29 U.S.C. 654(a)(2) by failing to comply with the occupational safety standard codified at 29 C.F.R. 1926.651(c). For the reasons which follow, we answer that question in the negative and affirm his decision.

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n1 Chairman Barnako does not agree to this attachment.

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The above-cited standard provides:

"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." [*2]

The citation alleged that respondent had not adequately sloped, shored, or taken other precautions to protect two employees working in a sewer excavation from the danger of moving ground.

At the time of the inspection, one employee was in the middle area of the excavation. The excavation at this location measured 8 feet 7 inches deep and 16 feet 3 inches wide at the top. The other employee was working in the northern area of the excavation where the excavation measured 6 feet to 8 feet 2 inches deep and about 8 feet 9 inches wide at the top. The soil in both locations was essentially similar, consisting principally of compacted gravel backfill topped with 12 inches of concrete. The excavation was adjacent to a road where traffic passed and was located 30 to 40 feet from a river. Because of its proximity to the river, there were pools of tidal water in the bottom of the excavation.

Judge Duvall held that a violation was not established because the evidence showed that neither employee was exposed to danger from moving gound. He interpreted "moving ground" to mean ground in an excavation, which when not properly shored or sloped, will pose a danger of falling, sliding, or caving [*3] in on employees within the excavation. He concluded that the employee working in the middle area of the excavation was not exposed to this danger primarily because of the breadth of the excavation at this location, the limited shoring that was in place, and the testimony of respondent's witnesses about the stability of the soil. He determined that the employee working in the northern area of the excavation was not exposed to the danger primarily because he was standing in an area of essentially stable soil where the banks of the excavation were topped with concrete and reinforced by intersecting iron pipe and a concrete duct. In addition, he found the testimony of respondent's witnesses, who had testified that no danger of a cave-in was posed, consistent and reliable. For these reasons, as well as the fact that some portions of the excavation had been open for about a week with no evidence of cracks or cave-ins, he rejected complainant's claim that the banks of the excavation were subject to collapse because of the erosive action of tidal water or because of the movement of traffic on an adjacent road.

On review, complainant does not take issue with the Judge's fact finding, [*4] but argues that the decision of the Judge should be reversed because the facts, as found by the Judge, establish that "a danger from moving ground" existed as a matter of law. Complainant makes two principal arguments in support of this claim. The first is that unless the walls of an excavation are sloped to the degree of repose appearing in Table P-1 of the trenching standards codified at 29 C.F.R. 1926.652 or are shored in a manner which meets the specifications contained in Table P-2, which also appears in 1926.652, a danger of moving ground exists as a matter of law. Complainant maintains that this construction is warranted because Table P-1 is entitled "Approximate Angle of Repose for Sloping of Sides of Excavations," and because Table P-2, which is headed "Trench Shoring - Minimum Requirements," requires shoring for all soils except solid rock, hard shale or hard slag.

We find that neither the language of 29 C.F.R. 1926.651(c), the standard respondent is charged with violating, nor the two tables referred to by complainant justify the construction complainant advocates. The language of 29 C.F.R. 1926.651(c) clearly does not indicate that a danger of moving ground [*5] exists whenever sloping or shoring are absent. Instead, it requires those precautions only when a danger of moving ground exists.

Moreover, Tables P-1 and P-2 are contained in and specifically applicable to the trenching standards in 1926.652. The 1926.651 excavation standards neither contain nor refer to these tables or any other specific requirements for sloping or shoring. Furthermore, the tables are illustrative and do not override the specific provisions contained in 1926.652. United States v. Dye Construction Co., 510 F.2d 78, 81 (10th Cir. 1975); Secretary v. Adams and Mulberry Corp., 17 OSAHRC 410 (1975). n2

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n2 We note that the heading "excavation" in Table P-1 may be explained by the fact that the standards define a trench as a type of excavation. 29 C.F.R. 1926.653(n).

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Because of the absence of specific sloping and shoring requirements for excavations, the question to be determined when a danger of moving ground is shown is whether the degree of sloping and shoring is adequate to protect [*6] employees working within the excavation. Cf. Secretary v. West Coast Construction Co., OSAHRC Docket No. 7454, December 30, 1976. This question, however, need not be reached unless a danger of moving ground is first established.

Based on the evidence of this case, the Judge concluded that no danger from moving ground was present. His conclusion is supported by the preponderant evidence and we therefore accept it. Secretary v. Okland Construction Co., OSAHRC Docket No. 3395, February 20, 1976.

Complainant's second argument is that certain conditions this were present at this excavation, among which were water, backfill, and traffic on an adjacent road, also establish a danger of moving ground as a matter of law. Complainant advocates this position because other excavation standards, specifically 29 C.F.R 1926.651(e), (h), (j), and (m), direct that these conditions be carefully considered in determining an angle of repose of in designing a shoring system.

We are likewise unpersuaded by this argument. Determination of whether a danger of moving ground exists is a question of fact. The resolution of this question requires assessment of all conditions that exist [*7] at thw worksite and evaluation of expert testimony about the dangers that may or may not be present. The Judge, weighing all the evidence in this case, decided the excavation was safe despite the existence of the conditions complainant cites. This conclusion, as we have previously noted, is supported by the preponderant evidence. Secretary v. Okland Construction Company, supra.

Accordingly, the Judge's decision is hereby affirmed.

CONCURBY: CLEARY

CONCUR:

CLEARY, Commissioner, CONCURRING:

I concur in the disposition of this case.

I agree that the Secretary has not proved a danger from moving ground as a matter of law for the reasons assigned by the majority. I am filing a separate opinion to state only that in my view the majority's reliance upon Okland Constr. Co. is unnecessary. The Secretary's brief argues only an issue of law, and abandons the issues of fact raised in his earlier petition for discretionary review. For comment on the precedential value of Okland Constr. Co. see Derr Constr. Co., No. 4179 (April 26, 1977) (Cleary, Commissioner, concurring in part and dissenting in part), Zidell Exploration Inc., No. 12408 (May 2, 1977) (dissenting opinion).

Appendix [*8] A

DECISION AND ORDER

Jerrold Solomon, U.S. Department of Labor, for Complainant

Robert A. Shaines, for Respondent

DUVALL, D. K., Judge, OSAHRC

This is a proceeding pursuant to sections 9 and 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called "the Act") contesting two citations for alleged serious and non-serious violations of certain occupational safety and health standards and related proposed penalties under the Act. Complainant issued the citations to the respondent in June 5, 1974 on the basis of an inspection made on May 30, 1974 of respondent's work place, being a sewer excavation at the United States Navy Submarine Base, Groton, Connecticut.

The first citation alleged serious violation of the occupational safety and health standard set forth at 29 CFR 1926.651(c) in that "employer failed to assure that 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. Location: Groton Submarine Base - Pier Area - two men working in unprotected excavation that was more than five feet deep." [*9]

The citation for three alleged non-serious violations, as amended on June 13, 1974, stated as follows: item 1, 29 CFR 1926.28(a) - Employer failed to require the use of protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees. Location: Groton Submarine Base, Excavation Near Piers - East side of excavation (1) mason chipping brick without eye protection. Item 2, 29 CFR 1926.152(a)(1) - Employer failed to assure that only approved containers and portable tanks shall be used for storage and handling of flammable and combustible liquids. Location: West Side of Excavation Near Compressor - not an approved gas can.

At the hearing in this matter, held on October 23, 1974, at Hartford, Connecticut, complainant was permitted to amend the foregoing citation for alleged non-serious violations by striking item 3 which, for that reason, has not been stated above. Over respondent's objection, complainant was also permitted to amend item 1 of the same citation and paragraph 3(1) of the complaint herein, to include in the description of the violation of 29 CFR [*10] 1926.28(a) reference to 29 CFR 1926.102(a), specifying eye protection as the equipment needed to be used. For the alleged serious violation, a $700 penalty was proposed; a $35 penalty was proposed for item 1, and no penalty was proposed for item 2 of the citation for non-serious violations.

By way of pleading and stipulations, the respondent admitted that it was a corporation organized under the laws of the State of Maine with the principal office located at Portsmouth, New Hampshire; that it is engaged in business as a general and utility contractor; that in 1974 its volume of business was approximately nine million dollars; it employed approximately 360 employees (of whom 12 were employed on the work site here) who regularly receive, handle and work with goods which have moved in interstate commerce; and that it is therefore engaged in a business affecting commerce within the meaning of section 3(5) of the Act (Tr. 8).

Based on the pleadings and stipulations of record, the issues for decision herein are:

(1) Whether respondent violated the standard 29 CFR 1926.651(c) under sections 5(a)(2) and 6 of the Act as alleged;

(2) Whether the aforesaid violation, if found, was a serious [*11] violation under section 17 of the Act as alleged;

(3) Whether respondent violated the standards 29 CFR 1926.28(a) and 29 CFR 1926.102(a) under sections 5(a)(2) and 6 of the Act as alleged;

(4) Whether respondent violated the standard 29 CFR 1926.152(a)(1) under sections 5(a)(2) and 6 of the Act as alleged;

(5) If violations are found, whether the proposed penalties of for the serious violation and $35.00 for the non-serious violations are appropriate under section 17 of the Act;

(6) If violations are found, whether the standards 29 CFR 1926.28(a) and 29 CFR 1926.152(a)(1) are too vague to be enforceable under the Act;

(7) If violations are found, whether the citations should be dismissed for the alleged failure of complainant's compliance officers to identify themselves properly under section 8(a) of the Act, and 29 CFR 1903.7(a);

(8) If violations are found, whether the citations should be dismissed because the inspection was conducted in an unreasonable manner in violation of section 8(a)(2) of the Act and 29 CFR 1903.7.

Discussion

Respecting issue (1), 29 CFR 1926.651(c) provides:

"(c) The walls and faces of all excavations in which employees are exposed to danger [*12] from moving ground shall be guarded by a shoring system, sloping of ground, or some other equivalent means."

It has been fairly stated that the purpose of the aforesaid standard is to prevent workers in excavations from being hurt or killed by falling walls and that "moving ground" means ground in an excavation wall which, when not properly shored or sloped, will pose a danger of falling, sliding or caving in upon employees within the excavation. Coggins and Sons, Inc., OSAHRC Docket No. 2507, 7 OSAHRC 811, 825 (April 8, 1974). The absence from this cited standard, in its entirety and subsection (c) in particular, of specific requirements, stimulates and indeed increases the exercise of individual and varying judgments in assessing facts and determining whether violations of that standard have occurred. Warner Brothers, Inc., OSAHRC Docket No. 4029, 7 OSAHRC 1273, 1277 (April 25, 1974).

Unrebutted testimony of compliance officers Smith and Stanton indicated that on May 30, 1974, they conducted an OSHA inspection of respondent's work site, which was an irregularly shaped, three-pronged sewer project excavation converging on a manhole on the U.S. Submarine Base at Groton, [*13] Connecticut. The inspectors concentrated their attention on two sections of the excavation where they observed two of respondent's employees at work, namely, in the mid area where employee Piacenza was tending a sump pump drain (Exhibit C-1) and the northern area where employee Sawyer was digging (Exhibit C-2). In the C-1 area, the excavation was about 8 feet 7 inches deep and 16 feet 3 inches wide at the top (Tr. 101, R-7). Shoring of the west and east sides of the excavation in this area consisted of two metal crossbars jacked against 3 X 12 inch planking with a 6-inch bearing surface (Tr. 193). The west wall was vertical, topped with 12 inches of concrete (4-inch bituminous, 8 inches reinforced concrete) and the soil was essentially compacted gravel and backfill (Tr. 137, 195, 237-239, 247; Exhibits C-1 and 2). The east wall in this area had some slope and was also concrete topped, with ladder access (Exhibits C-3 and 5).

Between the northern (C-2) area and the mid (C-1) area there were a 3 feet by 3 feet concrete electric duct and an 8-inch cast iron pipe joining the west and east walls (Exhibits C-2, 4). In the C-2 area the excavation was 6 to 8 feet 2 inches deep and [*14] about 8 feet 9 inches wide at the top (Exhibit R-7; Tr. 101). The soil here was cinder type backfill more pulverized and flaky, with sand and silt and blacker in color due to an earlier oil spill (Tr. 51, 102, 144-145; Exhibits C-2, 4). The inspectors observed a large chunk of material fall into the water from the hole undercutting the road, about 4 feet from employee Sawyer (Tr. 52, 103, 145; Exhibit C-2). The entire excavation was subject to the rise and fall of tidal waters, it being within 30-40 feet of the piers in the river (Tr. 41, 138). The roadway adjacent to the west wall continued to carry traffic, including trucks (Tr. 49).

On the initial question of whether there was danger of moving ground to respondent's employees in the excavation, respondent's pipe foreman (Bruce Rafter) testified that despite the tide water action just a few stones had fallen and the walls had not cracked, even though the excavation had been open a week (Tr. 160, 181). In Mr. Rafter's opinion (based on 6-7 years experience with respondent), the excavation was big enough so that there was no danger of collapse (Tr. 153, 168). Project manager Cummings, a quality control engineer with experience [*15] on sewer construction projects and running soil analysis tests for the State of New Hampshire, testified that in his opinion, based on his on-site observations and soil tests in the area of this excavation, there was no problem or danger of cave-in, sloughing or cracking in this particular excavation because the soil was very stable, being a very clean type gravel, compacted fill, consisting of uniform gravel, very few fines and silt or clay particles (Tr. 182-184, 197-198, 201, 204, 215-216). Mr. Cummings further stated that the falling material seen by the inspectors in the area shown in exhibit C-2 was due to the manner in which the backhoe dug that particular hole, where no pump was working to evacuate the water; the soil itself was not unstable (Tr. 199-200).

Mr. Cummings also testified that he and Superintendent Bernier look at every excavation to see what safety requirements are necessary. On this excavation they suggested use of one of the 50 trench jacks they had available as a safety precaution to minimize the effect of any cave-in (Tr. 204). The presence of pipelines precluded use of the available trench box (Tr. 203, 246).

By virtue of the relative stability of the [*16] soil, the limited shoring, the breadth of the excavation, and the ladder access in the C-1 area of the excavation, I can find no exposure to danger from moving ground as to respondent's employee observed in that particular area. As for the northern (C-2) area, the excavation was narrower, but less deep and the concrete topping on the banks and the concrete duct and cast iron pipe added stability to the area immediately to both sides and behind employee Sawyer shown in the photograph (Exhibit C-2). While the soil in this area appears more silty and less gravelly than in the mid area, it is essentially the same cinder-type of backfill based on Mr. Cummings' testimony, to which I give greater credence because of his superior knowledge of the soil conditions existing in that locality. While Inspector Stanton testified that he had seen employee Sawyer on the other (north) side of the pipe (Exhibit C-7), not between the pipe and the duct as shown in C-2, Mr. Sawyer denied that he had ever been on the north side of that pipe (Tr. 102, 148-149). Mr. Sawyer's testimony was corroborated by foreman Rafter, who had been present at the site at all material times (Tr. 175). In Mr. Rafter's [*17] words, to which I give full credence:

"Well, like in this picture here, number 2, we had been digging with the backhoe. As soon as we got down deep enough, we were going to put our shoring in there so the man could go in this side of the pipe" (Tr. 174-175).

Complainant argues that the employee's position, even as shown in Exhibit C-2, was precarious in the circumstances. He was hemmed in between the pipe and the concrete duct, with walls 6-8 feet high on each side, tidal water underfoot, and motor vehicle traffic moving over the adjacent concrete topping the west wall. At the time, a backhoe was digging under another duct at the north end of the excavation 4-5 feet north of the pipe in such a manner as to cause instability in the confined area of the hole being dug partially under the road (Tr. 199-200; Exhibit C-2). While the soil in that hole moved (Tr. 52, 103, 137, 145), this movement did not constitute a danger to employee Sawyer because he was standing substantially back from the moving ground in an area of essentially stable soil with walls reinforced with concrete and intersecting iron pipe and concrete duct. The erosive effect of the tidal water action and the movement [*18] of vehicular traffic on the adjacent road had, in my view, been substantially discounted by the fact that this area of the excavation had been open for a week without any substantial evidence of cracking or cave-in. If there had been dangerous ground movement, it appears that the pipe and duct would have been mountable by the employee for quick egress (Exhibit C-2).

With 18 years of diverse construction experience (Tr. 242-243), Superintendent Bernier also raised practical and common sense arguments:

"You can't put shoring in a four foot area and then excavate it with the backhoe with a 16 foot reach. You have to initially get it down to within a foot or two and then you put your sheathing jacks and planking in. Then the men go in and they tunnel underneath or finish tunneling underneath the utility edge that is there" (Tr. 244).

"You could have dropped 40 ton ball on it and there was no way with the concrete duct work that was three and a half feet thick, high and thick square, that you couldn't have knocked out there with a D9 bulldozer . . . you don't shore that . . . you have got to use common sense . . ." (Tr. 246-247).

I find these arguments reasonable and persuasive, [*19] especially when weighed in conjunction with the orderly and fairly comprehensive safety program and procedures utilized by respondent (Tr. 175, 220-225, 230-233, 249-251, 261-262; Exhibit R-8), the shoring equipment (jacks, planking and trench box) it had available on the job, and the consistency and credibility of the testimony of respondent's witnesses respecting the nature and composition of the soil and the procedures and operations on this excavation.

Finding that complainant has not sustained its burden of proving a violation of this alleged violation of the Act, there is no need to consider the issue of its seriousness (issue (2)) or the appropriateness of the proposed penalty therefor (issue (5)).

Respecting issue (3), the cited standard 29 CFR 1926.28 provides as follows:

"(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

(b) Regulations governing the use, selection, and maintenance of personal protective and lifesaving equipment are described under [*20] Subpart E of this part."

29 CFR 1926.102 of Subpart E provides in part:

"(a) General. (1) Employees shall be provided with eye and face protection equipment where machines or operations present potential eye or face injury from physical, chemical, or radiation agents.

(2) Eye and face protection equipment required by this Part shall meet the requirements specified in American National Standards Institute, Z87.1-1968, Practice for Occupational and Educational Eye and Face Protection."

Inspector Smith's unrebutted testimony was that a third employee of respondent was sitting on the rim of a manhole in the excavation chipping mortar and brick with a hammer without any eye or face protection (Tr. 52-53, 104; Exhibit C-3). Superintendent Bernier and foreman Rafter testified that safety glasses were available to employees at the work site, that employee Taylor, a regular employee experienced in the business, had been instructed in their use, and Mr. Taylor and all employees were instructed to wear protective glasses, and that when slackness in the use of safety glasses is noticed it is discussed at biweekly safety meetings with the foremen who are reminded to "let the boys know that [*21] they are a little slack on the safety glasses" (Tr. 177-179, 249, 250, 259-262). Absent a showing of unusual or isolated employee departure from customary procedures or instructions which could not reasonably be anticipated, the employer is responsible for enforcement of duly promulgated occupational safety and health standards under the Act (National Realty and Construction Company, Inc., OSAHRC Docket No. 85, 1 OSAHRC 731, rev'd (489 F2d 1257 CA-D.C. 1973); Ecology Constructors, Inc., OSAHRC Docket No. 2842, 5 OSAHRC 198 (1973)). Here employee Taylor's failure to use the available safety glasses while exposed to the eye hazard of chipping mortar and brick was reasonably foreseeable by respondent and, in part, was noticed at the time by respondent's foreman who evidently did not require the employee to wear the glasses (Tr. 178-179).

The issue (6) of the validity of the standard set forth at 29 CFR 28(a) must also be decided in complainant's favor. Respondent's argument that the standard section 1926.28(a) was lacking in specificity and not in compliance with section 8(a) of the Act was remedied by complainant's amendment of the citation for non-serious violations at [*22] the outset of the hearing adding section 1926.102(a), which motion was granted and is hereby confirmed as legally proper in the circumstances (Tr. 10-13, 17-20). Rule 33(a), Commission Rules of Procedure; Rule 15, Federal Rules of Civil Procedure; Hoffman Construction Company, OSAHRC Docket No. 644 (January 31, 1975); Modern Automotive Service, Inc., OSAHRC Docket No. 1641, BNA 1 OSHC 1544 (February 27, 1974); Ryder Truck Lines, Inc., 497 F2d 230 (5th Cir. 1974).

Respecting the penalty of $35.00 proposed for the aforesaid protective glasses standard violation, the record is devoid of any documentary or testimonial evidence to support the allegations contained in the complaint (p. 4) that the proposed penalty was determined upon consideration of the gravity of the violation, respondent's good faith, size of business, and history of previous violations, as required by section 17(j) of the Act. The penalty assessment should be made on the record as a whole rather than on the less complete information available at the investigatory stage and on which the Secretary based his penalty proposal. Southern Indiana Gas and Electric Company, OSAHRC Docket No. 456, 7 OSAHRC [*23] 85, 88 (March 5, 1974).

In any event, in view of the testimonial evidence indicating respondent's good faith safety efforts, both generally and with respect to employee protection from this particular hazard (Tr. 177-179, 249, 250, 259-262), the relatively few number of affected employees, and the stipulation of no history of previous violations (Tr. 9), I would vacate the proposed penalty. Accord, Southern Indiana Gas and Electric Company, supra.

Respecting issue (4), the standard set forth at 29 CFR 1926.152(a)(1) provides:

"Only approved containers and portable tanks shall be used for storage and handling of flammable and combustible liquids. Approved metal safety cans shall be used for the handling and use of flammable liquids in quantities greater than one gallon, except that this shall not apply to those flammable liquid materials which are highly viscid (extremely hard to pour), which may be used and handled in original shipping containers. For quantities of one gallon or less, only the original container or approved metal safety cans shall be used for storage, use, and handling of flammable liquids."

Inspector Smith's unrebutted testimony, corroborated by Inspector [*24] Staton, was that the container at the work site used for the gasoline mixture to fuel the water pump was not an approved container (Tr. 56-60, 85-88, 169-172). Superintendent Bernier testified that an approved can had been previously ordered, but the supplier could not fill the order promptly (Tr. 248-249). The evidence of record did not show that respondent had exercised due diligence or its best efforts (i.e., with other suppliers) to secure the required approved container. The assessment of no penalty for this violation is appropriate, based on due consideration of the factors specified in section 17(j) of the Act.

Respecting issue (7), a preponderance of the evidence of record shows that the OSHA inspectors did not fail to present their credentials and properly identify themselves in substantial compliance with section 8(a) of the Act (Tr. 42-43, 61-62, 69, 72-73, 76, 115, 155, 186, 251). Section 8(a) of the Act provides in pertinent part as follows:

"In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized -

(1) to enter without delay and at reasonable times any factory, [*25] plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee."

Section 1903.7 of the OSHA Regulations and Procedures (Vol. 29, CFR) provides in pertinent part:

"(a) Subject to the provisions of 1903.3, inspections shall take place at such times and in such places of employment as the Area Director or the Compliance Safety and Health Officer may direct. 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 inspection; and indicate generally the scope of the inspection and the records specified in 1903.3 which they wish to review . . .

"(b) Compliance Safety and Health Officers shall have [*26] authority to take environmental samples and to take or obtain photographs related to the purpose of the inspection, employ other reasonable investigative techniques, and question privately any employer, owner, operator, agent or employee of an establishment.

"(c) . . . Compliance Safety and Health Officers shall comply with all employer safety and health rules and practices of the establishment being inspected, and they shall wear and use appropriate protective clothing and equipment.

"(d) The conduct of inspections shall be such as to preclude unreasonable disruption of the operations of the employer's establishment.

"(e) At the conclusion of an inspection, the Compliance Safety and Health Officer shall confer with the employer or his representative and informally advise him of any apparent safety or health violations disclosed by the inspection. During such conference, the employers shall be afforded an opportunity to bring to the attention of the Compliance Safety and Health Officer any pertinent information regarding conditions in the workplace."

The evidence that the inspectors took a photograph of the cited excavation as they approached the site immediately prior to identifying [*27] themselves to the foreman did not invalidate this inspection since the subject matter and time sequence of the photo-taking made it essentially incidental to a valid inspection under section 8(a) of the Act (Consolidated Installations Corp., OSAHRC Docket No. 4058, 9 OSAHRC 562, 566 (June 24, 1974); Kement and Son Construction, Inc., OSAHRC Docket No. 4012, 8 OSAHRC 276, 281 (May 6, 1974)).

Similarly, the blustery, boisterous, and intemperate manner in which at least one of the OSHA inspectors conducted this inspection, while not to be condoned or emulated, was not so disruptive and provocative as to prejudice respondent's opportunity, both at the time of inspection and subsequently, to be adequately informed of the alleged violations and to be heard in explaining the facts and circumstances relevant to such allegations. While Inspector Smith would not discuss the inspection with Mr. Cummings because of the former's not unreasonable confusion respecting the latter's status and responsibility at the work site, Mr. Cummings did assist Inspector Stanton in making measurements of the excavation. Superintendent Bernier participated fully in the inspection and closing conference [*28] (Tr. 61-64, 69-76, 114-122, 133-136, 244-246, 251-252).

Inspector Smith's failure to wear a hard hat in an area designated but not posted by respondent as a hard that area (Tr. 159, 245) may have been violative of 29 CFR 1903.7(c) but, in my judgment, such an apparent violation, even when considered in the context of this generally disruptive inspection, does not warrant the extreme sanction of dismissal of the citations herein.

Findings of Fact

The record herein, as a whole, contains reliable, probative, and substantial evidence to support the following findings of fact:

1. On May 30, 1974, three of respondent's employees, Messrs. Sawyer, Piacenza, and Taylor were working in a sewer excavation, which was respondent's work site located 30-40 feet from piers in the river at the Groton Submarine Base, Groton, Connecticut (Tr. 40, 47-53, 100, 132, 138, 148, 249-250). The excavation was irregularly shaped and ranged in depth and width from 8 feet 7 inches deep and 16 feet 3 inches wide at the top where Mr. Piacenza was standing (as shown in Exhibit C-1) to 6 to 8 feet 2 inches deep and 8 feet 9 inches wide at the top where Mr. Sawyer was standing (as shown in Exhibit C-2) (Tr. [*29] 101, 102, 149, 196-197; Exhibits C-1, C-2, C-7, R-7).

2. The excavation had been dug in a concrete topped area so that the top of the west and east walls consisted of 4 inches of bituminous on top of 8 inches of reinforced concrete. Motor vehicle traffic, including trucks, moved over the road adjacent to the top of the west wall. A 3 foot by 3 foot concrete covered electric duct and an 8 inch cast iron pipe joined the east and west walls in the northern part of the excavation shown in Exhibit C-2. At the time of the OSHA inspection on May 30, 1974, respondent's backhoe was on top of the northern end of the excavation digging under another duct under the roadway there. The bottom of the excavation contained pools of tidal water, which came up out of the ground. Employee Sawyer was digging between the concrete duct and pipe as shown in Exhibit C-2, a few feet back from the hole being dug by the backhoe (Tr. 41, 138, 160, 175, 195-197, 254; Exhibits C-1, C-2, C-4).

3. In the area shown in Exhibit C-1, the vertical west wall and the somewhat sloped east wall were supported in part by 3 X 12 planking with a 6-inch bearing surface backed by two metal crossbar jacks, which was the [*30] only shoring in the excavation. Employee Piacenza was attending to the operation of a water pump in this area at the time of the inspection (Tr. 96, 193; Exhibits C-1, C-5, C-6).

4. The soil under the concrete in the west and east walls was basically a uniform gravel with a few fines, silt and clay particles and compacted cinder-like fill with little or no plasticity based on soil tests. It was essentially very stable soil, the only instability being in the hole being dug by the backhoe at the northern end of the excavation, mainly due to the digging process itself. In this immediate area at least one large chunk of material fell into the water from the top or sides of the hole being dug. The rest of the excavation had been open about one week and no cracks or cave-ins had been observed there during that time, although a few stones had fallen (Tr. 52, 103, 145, 160, 174, 181, 197-198, 237-241; Exhibit C-2).

5. A trench box was available at the work site but could not be used due to the ducts and pipes in the area of the excavation when work was in progress. Additional planking and trench jacks were also available on site (Tr. 203, 246).

6. Employee Taylor was sitting on [*31] the edge of an old manhole on the east side of the excavation chipping mortar while not wearing any safety glasses or face protection, although safety glasses were available at the work site. Employee Taylor had been previously instructed by respondent's supervisors to wear safety glasses when performing such work, and Foreman Rafter observed employee Taylor's failure to follow instructions on this occasion without taking any corrective action (Tr. 52-53, 177-179, 249-250, 259-260; Exhibit C-3).

7. The container used at the work site to contain a gasoline mixture for fueling the water pump motor did not have a self-closing lid, double insulated walls, or a flashback arrestor as required in an approved can to prevent explosion (Tr. 56-60, 85-88, 169-172). Approved containers were on order by respondent prior to the inspection and the supplier had indicated delayed delivery (Tr. 248-249).

8. The allegation that the proposed penalty of $35.00 for the violation found in finding 7 above was determined upon consideration of the gravity of the violation, respondent's good faith, size of business, and history of previous violations (Complaint, p. 4), is unsupported by probative evidence [*32] of record.

9. This record contains no substantial evidence to support respondent's allegation that the standard set forth at 29 CFR 1926.152(a)(1) is unenforceably vague.

10. The OSHA Compliance Officers Smith and Stanton took one photograph of the cited excavation just before presenting their credentials to Foreman Rafter, Superintendent Bernier, and Quality Control Engineer Cummings, and thereafter took other photographs during their inspection of the work site (Tr. 42-43, 61-62, 186).

11. Compliance Officer Smith conducted his inspection of the work site in a boisterous, intemperate and profane manner. After some preliminary conversation with Mr. Bernier and Mr. Cummings, Mr. Smith refused to talk further with the latter because of Mr. Smith's honest belief, based on statements made by Mr. Cummings, that the latter was not respondent's agent in charge at the work site. Mr. Smith refused to wear a hard hat in a non-posted area when advised by respondent's superintendent that it was a hard hat area (Tr. 159, 245). Mr. Bernier participated in the walk-around inspection and closing fonference conducted by Messrs. Smith and Stanton (Tr. 61-64, 69-76, 133-136, 186-189, 244-246, [*33] 252).

Conclusions of Law

1. At all times material hereto respondent was an employer engaged in a business affecting commerce within the meaning of sections 5(a) and 3(5) of the Act, and the Commission has jurisdiction of the parties and the subject matter herein under section 10 of the Act.

2. At all times material hereto respondent was subject to the requirements of the Act and the occupational safety and health standards promulgated thereunder pursuant to section 6 of the Act, including the standards cited herein.

3. Complainant has not proved by a preponderance of the evidence of record that on May 30, 1974, at the cited work site respondent violated the occupational safety and health standard set forth at 29 CFR 1926.651(c) under sections 5(a)(2) and 6 of the Act.

4. On May 30, 1974, at the cited work site, respondent violated the occupational safety and health standard set forth at 29 CFR 1926.28(a) and 1926.102(a) under sections 5(a)(2) and 6 of the Act.

5. On May 30, 1974, at the cited work site, respondent violated the occupational safety and health standard set forth at 29 CFR 1926.152(a)(1) under sections 5(a)(2) and 6 of the Act.

6. The assessment of no [*34] civil penalties for the aforesaid violations is appropriate under section 17 of the Act.

7. The standards set forth in conclusions 4. and 5. above have not been proved to be unenforceably vague by a preponderance of evidence of record.

8. Respondent has not proved by a preponderance of the evidence of record that on May 30, 1974, complainant violated the standards set forth at 29 CFR 1903.7 and section 8(a) of the Act with respect to the requirements for presenting credentials and the manner of conducting an inspection.

ORDER

1. Complainant's citation number 1 issued on June 5, 1974, for serious violation of 29 CFR 1926.651(c) under sections 5(a)(2) and 6 of the Act is vacated.

2. Violation item numbers 1 and 2 of complainant's citation item number 1, as amended, are affirmed. Violation item number 3 of the same citation is vacated.

3. Complainant's notification of proposed penalty issued on June 5, 1974, is modified by vacating the proposed penalty for the alleged serious violation, assessing no penalty for non-serious violation item number 1, and striking the alleged non-serious violation item number 3. The proposed no penalty for non-serious violation item number [*35] 2 is affirmed.

Dated: March 26, 1975

Hyattsville, Maryland

DONALD K. DUVALL, Judge, OSAHRC