FEAZELL CONSTRUCTION CO.

OSHRC Docket No. 8697

Occupational Safety and Health Review Commission

June 2, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge William J. Risteau, dated March 5, 1975, is before this Commission for review pursuant to 29 U.S.C. 661(i).

Having examined the record in its entirety, we find no prejudicial error therein. Accordingly, the disposition below is hereby affirmed.

[The Judge's decision referred to herein follows]

RISTEAU, JUDGE: This is a proceeding pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act), contesting citations issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of the Act. The citations allege that as the result of an inspection on June 10, 1974 of a workplace under the ownership, operation or control of the respondent, located at Old Highway 80, Arlington, Texas, and described as: "Trenching and excavation," respondent violated section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.

The citations which were issued on June [*2] 12, 1974 allege that the violations resulted from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register and codified in 29 CFR 1926. The description of the alleged violations contained in said citations states:

NONSERIOUS VIOLATION

Item No. -- Standard -- Description

1 -- 29 CFR 1926.561[sic](i)(1) -- Excavated material was not effectively stored at least 2 feet or more from the edge of the excavation at the following location: Spoil bank approximately 6.0 feet high on the east side of excavation.

2 -- 29 CFR 1926.651(y) -- All ladders used on excavations were not in accordance with subpart L of this part. 14'0" aluminum ladder used at the following location was not positioned so that the side rails extended at least 36" above landing: Located at old Highway 80 approximately 40 feet south of apron of new Highway 80 approximately 60 feet east of Electric Co. pole #1130.

The standards promulgated by the Secretary provide as follows:

Item No. -- Standard

1 -- 1926.651 -- (i)(1) In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 [*3] feet or more from the edge of the excavation

2 -- 1926.651 -- (y) All ladders used on excavation operations shall be in accordance with the requirements of Subpart L of this part

SERIOUS VIOLATION

Item No. -- Standard -- Description

1 -- 29 CFR 1926.651(c) -- The walls of the excavation in which employees were exposed to danger from moving ground at the following location were not guarded by a shoring system, sloping of the ground, or some other equivalent means: Roadway of old Highway 80 approximately 40 feet south of apron of the new Highway 80, approximately 60 feet east of Electric Co. pole #1130.

The Standards promulgated by the Secretary provide as follows:

Item No. -- Standard

1 -- 1926.651 -- (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

Pursuant to the enforcement procedure set forth in section 10(a) of the Act, respondent was notified by letter dated June 12, 1974 from Charles J. Adams, Director of Area 1730, Occupational Safety and Health Administration (OSHA), United States Department of Labor, setting [*4] forth proposed penalties for the alleged violations as follows:

NONSERIOUS VIOLATIONS:

SERIOUS VIOLATIONS: Item 1

$700

After respondent contested this enforcement action and a complaint had been filed, the case came on for hearing at Dallas, Texas, on October 29, 1974.

DISCUSSION

The record establishes that the excavation under consideration was approximately 14 feet deep, 29 feet long, 25 feet, 9 inches wide at the top, and 22 feet wide at the bottom. There was no shoring or other means of support for the excavation walls, which consisted of backfill soil and were sloped at a "slight" angle (Ex. C 3-6). While some of the evidence would seem to indicate different dimensions for the bottom of the trench, with a corresponding change in slope, the photographic evidence (Ex. C 4 -- 6) substantiates the dimensions and configuration set forth above.

CITATION FOR SERIOUS VIOLATION

This alleged violation deals with the exposure of respondent's employees to hazard from "moving ground" in the walls and faces of the excavation. The presence of such hazard is again clearly shown by the photographs, which show standing water in and near the excavation and soil which has sloughed [*5] from the walls (C 3 -- 6). Instability of the soil in the trench area is further shown by the testimony of respondent's machine operator, who stated that rain the night before the inspection had washed part of the spoil bank in the direction of the excavation.

Moreover, it is quite clear that a hazardous situation of considerable gravity was involved. Death or serious physical harm can well occur when the walls of an excavation such as that here described collapse. Respondent's employees had been in the excavation each day over a period of two or three weeks prior to the inspection. And although, as respondent has pointed out, the walls may have stood over an extended period of time, it cannot be concluded from that fact alone that a cave-in would not occur in the future.

As to penalty, the record shows that respondent had previously been cited for a violation of the Act, but that the citation and proposed penalty had not become a final order of this Commission at the time of the inspection. Respondent was considered "very cooperative" by the inspector. When these facts are considered along with the gravity of the violation, it must be found that a penalty of $700 [*6] is appropriate in this case.

CITATION FOR NONSERIOUS VIOLATIONS

The evidence (Ex. C 2 -- 3) establishes that excavated material was not stored at least two feet from the edge of the excavation. Likewise, it is clear that the ladder in the excavation did not extend at least 36 inches above the ground level landing (Ex. C 3 -- 4). Items 1 and 2 of this citation must accordingly be affirmed. Further, in view of the close relationship between the hazards resulting from these violations and that from the serious violation, zero penalties are appropriate.

FINDINGS OF FACT

1. Respondent does not deny the facts upon which the jurisdiction of this Commission rest.

2. On June 10, 1974 employees of respondent were at work at a construction site at United States Highway 80, Arlington, Texas.

3. Work at that location included the digging of an excavation (hereafter referred to as "the excavation") which was 14 feet deep, 29 feet long, 25 feet wide at the top, and 22 feet wide at the bottom; the excavation was dug in backfill soil.

4. On June 10, 1974 the soil comprising the walls of the excavation constituted moving ground in that water seepage had occurred, causing sloughing. [*7]

5. The walls and faces of the excavation were not adequately shored, sheeted, braced or sloped so as to guard persons within from danger due to moving ground.

6. The failure to shore or brace or to slope adequately the sides of the excavation resulted in a situation wherein respondent's employees in the excavation were exposed to death or serious physical harm from cave-in.

7. Respondent could, with the exercise of reasonable diligence, have known of the work hazard to its employees resulting from its failure to shore, brace, or adequately slope the excavation.

8. The gravity of the work hazard was high; respondent's employees had worked in the excavation from time to time over the two week period preceding June 10, 1974.

9. On June 10, 1974, excavated material was not effectively stored at least two feet from the edge of the excavation.

10. On June 10, 1974, the side rails of a ladder in the excavation did not extend at least 36 inches above the ground level landing.

11. The work hazards resulting from the situation described in Findings No. 9 and 10 above were of low gravity.

CONCLUSIONS OF LAW

1. Respondent, by failure to deny, is an "employer" and a person engaged [*8] in a business affecting interstate commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970; this Commission has jurisdiction over the parties and the issues raised by the citations.

2. On June 10, 1974 respondent violated section 1926.651(c) of Title 29, Code of Federal Regulations, a safety standard promulgated by the Secretary of Labor pursuant to the Occupational Safety and Health Act of 1970; this was a "serious" violation, as defined in the Act.

3. A penalty of $700 for violation of the above Regulation is appropriate.

4. On June 10, 1974 respondent violated Sections 1926.651(i)(1) and 651(y) of Title 29, Code of Federal Regulations; these were "nonserious" violations.

5. Zero penalties are appropriate for the violations referred to in Conclusion 4, above.

ORDER

On the basis of the preceding Findings of Fact, Conclusions of Law, and the entire record, it is hereby ORDERED that Items No. 1 and 2 of the Citation for nonserious violation (citation No. 3) n1 issued on June 12, 1974, be AFFIRMED along with the proposed zero penalty. It is further ORDERED that the citation for serious violation (citation No. 4) be AFFIRMED [*9] and the proposed penalty of $700 be assessed. n1

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n1 Citations 1 and 2 are covered in the decision of this Judge in Docket No. 8696 against the same respondent.

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