SECRETARY OF LABOR,
BLAND CONSTRUCTION COMPANY,
OSHRC Docket No. 87-0992
Before: FOULKE, Chairman; WISEMAN, Commissioner.
BY THE COMMISSION:
After an inspection at the site of a trenching fatality in Austin, Texas, the Secretary of Labor ("the Secretary") issued to Bland Construction Company ("Bland" or "the company") a citation alleging failure to slope or shore the topsoil and bedrock of the trench wall where the fatality occurred. The Secretary's citation classified the alleged violation as repeated and proposed a penalty of $1,260. Bland contested the citation, after which the parties attempted, without success, to settle the case. The Secretary then filed a complaint with this Commission, which assigned the case to Administrative Law Judge Louis G. LaVecchia, for a hearing.
One month prior to the hearing, the Secretary filed an amended complaint. It reclassified the alleged violation as willful, and it added a second allegation of willful violation, in a different trench, excavated entirely in soil, at the same worksite. The Secretary proposed penalties of $10,000 for the two alleged violations. The judge permitted the amendments and, after the evidentiary hearing, affirmed the two citation items. He assessed the proposed penalties, for a total of $20,000.
Bland petitioned the Commission for review of the judge's decision, and review was directed on the following issues:
(1) Whether the Secretary's second citation item, concerning different trench at the same worksite, was issued with reasonable promptness;
(2) Whether the Secretary's amendment to add the second citation item was proper;
(3) Whether the Secretary established noncompliance as alleged in the first citation item, to the extent that it concerns the sloping or shoring of the bedrock;
(4) Whether Bland knew or with the exercise of reasonable diligence could have known that the bedrock was unstable;
(5) Whether the two citation items were properly classified as willful; and,
(6) Whether the penalties for the two citation items were appropriate.
For the reasons set forth in this opinion, we affirm the judge's decision as to the first four issues, but we reverse it as to the fifth issue and make an appropriate modification of the penalty.
The Bedrock Trench
We will separately address the two citation items. The issues relating to the second citation item (that is, issues Nos. 1 and 2, which relate only to it, and Nos. 5 and 6, insofar as they relate to it) will be addressed in the next part ("II") of our decision. In this part, we will address the issues relating to the first citation item (issues Nos. 3 and 4, which relate only to it, and Nos. 5 and 6, insofar as they relate to it). We begin with the question of whether the Secretary proved that the bedrock of the trench where the fatality occurred was unstable and required protection (issue No. 3).[[1/]]
Was the Bedrock Unstable?
The cited standard is 29 C.F.R. § 1926.652(b),[[2/]] which refers to a table ("Table P-1") of "Approximate Angles of Repose for Sloping Sides of Excavations." According to Table P-1, "Solid Rock, Shale or Cemented Sand and Gravels" can remain at 90 degrees; that is, solid rock can remain vertical. Rock that is not solid or, in the terminology of the standard, rock that is "unstable," must be shored or sloped.
To establish a violation of a standard, the Secretary must show by a preponderance of the evidence that: (1) the cited standard applies, (2) its terms were not met, (3) employees had access to the violative condition, and (4) the employer knew or could have known of it with the exercise of reasonable diligence.
See, e.g., Trumid Construction Co., 14 BNA OSHC 1784, 1788, 1990 CCH OSHD ¶ 29,078, p. 38,859 (No. 86-1139, 1990). In this case, the parties do not dispute the cited standard's applicability and the fatally injured employee's access (exposure) to the bedrock trench. Also, as we will discuss in this section of our opinion, there is no real dispute among the witnesses that the bedrock was unstable where it collapsed. Having allowed it to remain vertical, Bland did not meet the terms of the cited standard. Bland's knowledge of the instability is, however, a substantial question, which we will discuss in the next section.
The evidence of instability can be briefly stated. One wall of the bedrock trench, which was fourteen feet deep, composed of ten feet of limestone bedrock below four feet of topsoil, and excavated in an essentially vertical condition, suddenly collapsed due to relatively slender but lengthy fractures in the rock, approximately two-thirds of the way down the wall. A large wedge of rock slid out of the wall, bringing with it a cascade of smaller pieces, rubble and soil. The parties' witnesses disputed whether fractures had been visible before the cave-in, but the witnesses did not substantially dispute that the rock that caved-in must have been unstable. For example, one of the Secretary's expert witnesses, William Howard, a civil engineer employed by Trinity Engineering and Testing Corporation, regarded the collapse as proof that the rock was not solid. One of Bland's expert witnesses, Paul Cravens, a manager of geotechnical engineering for Raba-Kistner Consultants, Inc., testified, "It failed, and therefore it must have been unstable." Another of Bland's witnesses, Al Haegelin, a trenching contractor who had worked on several projects in the immediate vicinity, and who had viewed Bland's cave-in approximately a week to ten days afterward, testified, "If it collapsed, I assume it's unstable."
Bland adduced considerable testimony to show that the limestone formation in which the bedrock trench was excavated, the "Austin Chalk" formation, was "hard" and generally "solid," and that it had successfully withstood vertical trenching techniques for many years. Also, as we will describe in greater detail below, Bland adduced testimony from many witnesses, laymen and experts, that there were no visible fractures on the surface of the trench walls subsequent to the cave-in. Accordingly, Bland argues, we must reverse the judge's finding that the bedrock was unstable where it collapsed. We disagree, however, because none of Bland's evidence in any way controverts the sound testimony to which we have referred, positing that the fact of the collapse demonstrates an instability at that location. Moreover, Bland's other expert witness, Dr. Carl Raba, a construction and environmental consultant with Raba-Kistner Consultants, Inc., testified that there are unstable areas in the Austin Chalk and that a lack of visible fractures in the rock that remained intact after the collapse did not absolutely prove anything about the condition of the rock that collapsed. In our view, therefore, the record shows that Bland was excavating through unstable rock, requiring sloping or shoring. The Secretary established a failure to comply with the cited standard's terms.
Could Bland Have Known of a Potential for Instability?
As we have indicated, the far more substantial question is whether the Secretary established knowledge of the bedrock's instability (issue No. 4). That Bland had no actual knowledge is clear and undisputed, but the parties vigorously dispute whether, with the exercise of reasonable diligence, Bland could have known of the unstable condition of the rock being excavated. The record on this issue is lengthy and detailed.
Almost immediately after the cave-in, Bland's backhoe operator began enlarging the trench, by cutting back and sloping both walls, so that volunteer and professional rescuers could safely enter the trench to rescue or remove the body of the employee. There were only two witnesses to the visual appearance of the trench walls prior to this work to enlarge the trench. One, Kevin MacDonnel, a volunteer firefighter, stated that the rock was "fractured limestone," having [l]ots of cracks and fissures." The other witness, Artis Howard, an experienced employee, testified that he would not have entered the bedrock trench because its walls were visibly stratified. That is, they were composed of visible layers.
Many other witnesses viewed the cut-back walls and testified without exception that they showed no visible fractures. For example, the Secretary's compliance officer, Juan Padron, of the Occupational Safety and Health Administration ("OSHA"), described the rock as "essentially a uniform bed of material" in which he noticed no fractures or other signs of instability. Joe Bland, president of the company, gave similar testimony as to his observations during the inspection. Brian Schnelle, a trenching contractor familiar with the Austin Chalk, gave similar testimony as to observations that he made during a visit the next day, by invitation of President Bland.
Bland's two experts gave the most detailed testimony along these lines. Within the week after the cave-in, they examined the cut-back walls. Scrutiny of their surfaces and the debris on the trench bottom disclosed one sign of instability: an iron stain, signifying a fracture, on the underside of the large wedge of rock that slid out of the wall. The experts suggested, therefore, that the sole visible sign of discontinuity might have been a narrow band of iron staining buried in the trench wall, where it could not have been seen by the backhoe operator as he excavated the trench.
Experts for the Secretary never viewed the trench, as it had been backfilled by the time that they came to the worksite to take core borings. Civil engineer Howard and Gardiner Atkinson, Jr., a self-employed geotechnical engineer, drilled three core borings of undisturbed limestone, each sixteen to twenty feet deep, within several feet of where the trench walls had been. Immediately prior to the hearing, a third expert, Peter Allen, an associate professor of geology at Baylor University, examined the core borings and the geological features in the vicinity, in order to discuss them in his testimony.
According to these experts, the borings contained many natural fractures that were close-spaced and inclined, indicating considerable instability. There were iron stains and slickened sides, the latter of which are grooves or traces of past movement at a discontinuity. The rock was highly weathered. The experts considered the fractured borings representative of the portion of Bland's trench wall that collapsed.[[3/]]
Also, Professor Allen analogized to two exposed walls of Austin Chalk, which he had examined approximately one-half of a mile from Bland's trench. One was a natural wall along a creek. The other was an old excavation site. Both were severely weathered and greatly fractured, showing slickened sides and "marly" (mixed limestone, clay and sand) seams. The professor believed, and civil engineer Howard agreed, that the limestone around Bland's trench would have had a similar appearance if it were exposed.
Bland's trench was in a zone of earth faults, named the Balcones Fault zone, which Professor Allen described as being "a series of faults, most of which are down to the east, although there are some down to the west." There was one mapped fault trace approximately 1,200 feet from the trench. Four others were more distant. According to geotechnical engineer Atkinson, there might also have been unmapped ones. Along these faults, extensive movements of earth material have produced numerous fractures. According to Professor Allen, the incidence and spacing of fractures vary throughout the Austin Chalk. In the vicinity of a fault trace, there can be one or two fractures every two to three feet; farther away, there can be one fracture every ten feet. Throughout the formation, therefore, fractures might be widely spaced, but never absent.
Other witnesses substantially agreed. Engineer Atkinson characterized the Austin Chalk as "highly faulted." Engineer Howard submitted that Bland could generally have anticipated fractures due to the faults passing through the Austin Chalk, for, although parts of the formation can be solid and not inherently unstable, the formation is mainly unstable. Walter Cunningham, an OSHA compliance officer who had made numerous inspections of excavations in the area, testified that there are solid portions, but that they become unstable during excavation by backhoe. Contractor Haegelin disagreed, but his testimony was explicitly general:
[I]t's fractured overburden typically in this area, the
zone we are referring to where it gets into a solid mass,
it generally has stayed in a solid mass with varying
degrees of fractures above it.
Engineering consultant Raba submitted that the Austin Chalk is a mainly stable formation, in which instability would be the exception rather than the rule. Upon cross-examination, however, he conceded "a probability" that some portions are very unstable.
Having closely examined the evidence, we decline to find that, prior to the cave-in, there were visible fractures or other signs of discontinuity in the bedrock of the trench wall. We do not rely on any of the expert testimony or testimony from other persons who viewed the site after the rescue work had been completed, as this work altered the conditions at the site and, therefore, cannot reveal what they were before the cave-in. Also, we do not rely on the testimony of the two eyewitnesses in regard to the appearance of the area immediately after the cave-in, as we find that their testimony lacks the requisite specificity.
The testimony of Bland's experts is soundly reasoned as far as it goes, and it leads us to believe that one vivid sign of a fracture was hidden from view, inasmuch as the band of iron staining on the large rock wedge was apparently buried in the wall prior to the cave-in. The testimony of Bland's experts and that of other witnesses further indicates that there were substantially unfractured sections of rock in the area through which Bland was excavating, for the witnesses found what appeared to be solid rock walls during their examinations in the week or so after the cave-in. The crucial difficulty is that these walls are not necessarily representative of what had been visible either immediately before or immediately after the cave-in. A short time after the cave-in, the rescue work necessitated further excavation to widen the trench and altered the trench walls to some unspecified extent. Although we have the testimony of Bland's experts that they could see where the wedge of rock had come out of one wall, we have no other evidence clarifying what parts of the walls would have been visible prior to the cave-in.
The volunteer firefighter, Kevin MacDonnel, and the employee, Artis Howard, who arrived at the worksite immediately after the cave-in, viewed the walls in an overall way and testified that the walls displayed visible signs of discontinuity. The judge relied on their testimony, but we decline to do so. Employee Howard observed that there were visible layers, called "strata," in the rock of the trench walls. Therefore, he testified, he would not have entered the trench. However, the testimony of William Howard, an engineer and one of the Secretary's expert witnesses, indicates that stratification is a natural, geological characteristic of a sedimentary rock, such as limestone or chalk, which is composed of materials deposited in layers. The cited standard and Table P-1 do not specify that stratified or sedimentary rock must be sloped, or that stratification is an indicator of instability. An OSHA training pamphlet, in evidence in this case, states only that "faults in the strata" (emphasis added) can render a rock formation unstable during trenching operations. Moreover, although there was some testimony in this case obliquely suggesting that rock strata might not remain intact, there was no testimony that geologists, or other experts in the field of excavation safety recognize visible strata as clear evidence of instability. Professor Allen testified that he would want to closely examine all "visible discontinuities," including horizontal ones, but he also testified that chalk "probably would be hunky-dory" for a vertical wall, as long as there were no fractures or discontinuities. Similarly, engineer Howard testified that strata or sedimentation does not necessarily indicate instability. On the basis of this record, we simply decline to find that an employer who observed that the rock was stratified would have known that the rock was unstable. We note the absence of any evidence that the strata contributed in any way to the trench failure in this case.
Volunteer firefighter MacDonnel's testimony referred to fractures, cracks and fissures in the rock walls. He qualified his description of the rock walls, however, with the words, "What I could see of them." When he made his observations, he was standing at the top of the trench, on the east side, facing the west wall that had collapsed. Because he was observing a wall that had been affected by the cave-in, we do not know whether he was seeing a surface that would have been visible prior to the collapse. Also, we must take into account that the upper four feet of the trench was topsoil and a material that contractor Haegelin called "fractured overburden." As contractor Haegelin indicated, and consultant Raba explained in greater detail, the Austin Chalk is becoming weathered and is deteriorating along its upper surface. Therefore, it is topped by a layer of fractured rock and clay, as well as topsoil. Of course, all unstable material such as fractured rock, clay, and topsoil must be sloped or shored, but Bland was charged with a separate violation for failure to protect the upper four feet of topsoil. See note 1 supra. We therefore do not include evidence pertaining to the upper four feet in our consideration of the allegation relating to the bedrock. Inasmuch as firefighter MacDonnel's testimony is qualified and does not specify that he noticed fractures extending down into lower portions of the trench, we decline to give it dispositive weight.
We note that the particular fractures discussed by witnesses at the hearing, see n. 3 supra, seem to have been in the upper part of the trench, and we also note that the photographs in which the Secretary's experts saw fractures present problems of angle and point of view similar to the problems with firefighter MacDonnel's testimony. Taking into account these factors and the alteration of the trench walls as the rescue proceeded, we conclude that the Secretary has failed to establish that Bland could have known, from any signs in the trench, that the rock was unstable.
However, the Austin Chalk's potential for instability was well understood before the collapse, and on that basis we find that, with the exercise of reasonable diligence, Bland could have known of the unstable condition of the rock. This record shows, virtually without dispute, that the Austin Chalk is extensively fractured due to earth movement along fault lines passing through it. In fact, there were several mapped fault traces within a mile of Bland's trench. Although consultant Raba testified that the effects of a fault would not be significant at a distance of 3,000 feet, here there was one fault trace only approximately 1,200 feet away, which is less than a quarter of a mile from the trench site. The length of the portion of Bland's trench that was affected by the cave-in was approximately fifteen feet. This could include at least one fracture, and perhaps as many as five to ten, given Professor Allen's testimony that, typically, there is one fracture every ten feet, and that nearer a fault the incidence rises to one or two every two to three feet. Therefore, even though there might be relatively solid and stable areas within the Austin Chalk as a whole, we find that Bland could not reasonably have relied on an expectation that such areas would exist or extend throughout the length of the bedrock trench that the company was creating in this case.
Bland argues that, before the cave-in, the trenching industry considered the Austin Chalk stable for vertical trench walls. Bland presents considerable, substantial testimony in support of its position, which is examined in our review of the issue of willfulness. For decisional purposes at this point, it is sufficient to note that contractor Haegelin's testimony, asserting that the rock has "generally stayed in a solid mass," is typical of the industry's assessment of the Austin Chalk's condition.
Whatever the practice of an industry, however, we must hold that members of it are required to take into account all available, factual information relating to whether hazardous conditions exist, or reasonably could exist, where work is being performed. While we do not doubt President Bland's sincerity in conscientiously following industry practice, his testimony at the hearing was that he knew about the fault zone and understood "what a fault is." This testimony shows that, with the exercise of reasonable diligence based on what he knew, President Bland could have recognized a need for protection along the length of the bedrock trench that his company was excavating. Neither an employer nor its industry can afford to estimate the stability of a rock formation by the lack of collapses if, as here, there is a sufficient body of knowledge about the geological conditions to predict a substantial possibility of instability. See, e.g., Union Boiler Co., 11 BNA OSHC 1241, 1244, 1983-84 CCH OSHD ¶ 26,453, p. 33,606 (No. 79-232, 1983), aff'd, 732 F.2d 151 (4th Cir. 1984) (employers must "exercise[ ] reasonable diligence to detect" conditions and must "inspect and perform tests to discover safety-related defects"); cf. AccuNamics, Inc.v. OSHRC, 515 F.2d. 828, 835 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976) (knowing of nearby backfill, and being able to discover crumbly sand in the trench walls, the employer could have known to provide more complete protection); S. Zara and Sons Contracting Co., 10 BNA OSHC 1334, 1339, 1982 CCH OSHD ¶ 25,892, pp. 32,398-32,399 (No. 78-2125, 1982), aff'd, 697 F.2d 297 (2d Cir. 1982) (culpability where an employer decided to slope all excavations to 45 degrees, for it did not take into account the possibility of unstable soil); Frank Irey, Jr., Inc., 5 BNA OSHC 2030, 2032, 1977-78 CCH OSHD ¶ 22,283, p. 26,838 (No. 701, 1977) (knowing of wet soil, the employer should have made "a more prudent analysis of the available soil data").
Accordingly, the Secretary has established that, with reasonable diligence, Bland could have known of violative conditions throughout the area of the bedrock trench. The Secretary has met her burden of proof for the alleged violation.
Was the First Citation item Willful?
Having upheld the allegations of the first citation item, we must decide its classification (issue No. 5), which the Secretary alleges was willful. The meaning of the "willful" classification is well-settled:
Although the Act itself does not define "willful," we
the Fifth Circuit] recently joined a majority of the
other circuits . . . in adopting the Commission's
definition of willful conduct. "[F]or OSHA purposes, we
define a willful violation as one involving voluntary
action, done either with an intentional disregard of,
or plain indifference to, the requirements of the statute
RSR Corp. v. Brock, 764 F.2d 355, 362 (5th Cir. 1985), quoting Georgia Electric Co. v. Marshall, 595 F.2d 309, 319 (5th Cir. 1979). AIso, Keco Industries, Inc., 13 BNA OSHC 1161, 1163, 1986-87 CCH OSHD ¶ 27,860, p. 36,472 (No. 81-263, 1987), quoting Simplex Time Recorder Co., 12 BNA OSHC 1591, 1595, 1984-85 CCH OSHD ¶ 27,456, p. 35,571 (No. 82-12, 1985), aff'd 766 F.2d 575 (D.C. Cir. 1985) ("voluntarily with either an intentional disregard for the requirements of the Act or plain indifference to employee safety"); D.A.&. L. Caruso, Inc., 11 BNA OSHC 2138, 2142, 1984-85 CCH OSHD ¶ 26,985, p. 34,694 (No. 79-5676, 1984) (the employer "either intentionally disregarded the terms of the cited standard or was plainly indifferent to them").
"[S]imple failure to discover or eliminate a violation is not sufficient to demonstrate that the violation is willful in nature." Simplex Time Recorder,12 BNA OSHC at 1596, 1984-85 CCH OSHD at p. 35,572. Also, simple familiarity with the applicable standard is not proof of willfulness. Wright and Lopez. Inc., 8 BNA OSHC 1261, 1265, 1980 CCH OSHD ¶ 24,419, p. 29,777 (No. 76-3743, 1980).
The parties' evidence is extensive and complex. Our initial paragraphs will consider Bland's understanding of the cited standard's requirements regarding treatment of rock. We will then review industry practice and the Secretary's enforcement practice.
Bland's understanding of the cited standard's requirements had been established by prior citations, a training seminar, and an OSHA training pamphlet. Approximately one year before Bland received the citation in this case, Bland received two citations alleging various trenching violations, including two instances of failure to perform sloping or shoring, apparently in soil. After receiving the first of these citations, Bland asked the compliance officer who made that inspection, Walter Cunningham, to conduct a training seminar for Bland's employees, to ensure that they understood the trenching requirements.[[4/]] Compliance Officer Cunningham did conduct such a seminar concerning the trenching standards, including the cited standard. The seminar was attended by Bland's equipment operators (including the backhoe operator who excavated the trench involved in this case), foremen, superintendents and officers (including President Bland).
In testimony at the hearing in this case, Compliance Officer Cunningham described the substance of his instruction on sloping or shoring rock:
I pointed out that the [cited] standard specifically
stated that it had to be solid rock, and that in ...
the Austin area, I found that a lot of contractors seemed
to feel that where it says rock on that [T]able P-1, it's
any type of rock. It has to be with solid rock . . . .
Compliance Officer Cunningham recalled having explained that drilling and shooting can cause fractures in a solid area of rock. He did not, however, testify that he expressed the same view regarding the use of a backhoe. He also had not recommended taking core borings. In his testimony, Compliance Officer Cunningham explained that, during the informal conference following his inspection of BIand's operations and prior to the seminar, he had recommended that Bland take core bearings before beginning a trenching project. During the later seminar, however, the compliance officer had not mentioned a need to perform preliminary core borings.
Other testimony at the hearing in this case indicates that Bland's president and vice president did not realize that Compliance Officer Cunningham meant that, in general, trenches in the Austin Chalk must be sloped or shored if they were being excavated by backhoe. President Bland testified that, at the seminar, many questions were asked about sloping in rock, because trenching through rock comprised a substantial percentage of the company's work. According to President Bland, Compliance Officer Cunningham replied that rock could remain vertical. Also, the compliance officer did not give any special instructions concerning the presence of faults. Therefore, during the inspection that gave rise to this case, President Bland and the company's vice president, Johnny Ulmer, both told Compliance Officer Padron that they believed it was permissible to use vertical walls in the Austin Chalk. In his testimony, Compliance Officer Padron emphasized the apparent genuineness of their belief.
At the seminar, the participants received an OSHA training pamphlet entitled, "Excavating and Trenching Operations." It states:
The types of soil must be identified to determine proper
protective measures . . . . Even hard rock sometimes can
be hazardous; faults in the strata can make it unstable
President Bland testified that, since the seminar, he has become generally familiar with the pamphlet's contents. Also, on the basis of his experience, he knew of the Balcones Fault zone, knew "what a fault is," and knew that, "[i]f rock shows any signs of being unstable, it can be hazardous." As he stated in his testimony, "That's pretty common knowledge."
Because the depths at which rock could be encountered varied, President Bland relied on the company's backhoe operators and foremen to evaluate the conditions and create an adequate slope. President Bland held weekly safety meetings with the foremen, and the foremen generally came to the worksites each day, to check the work.
The backhoe operator who excavated the bedrock trench was Gregorio Reza. He had worked for Bland for twenty-five years, without an accident, and had been trained primarily by experience and on-the-job instruction. His only formal instruction had been the seminar concerning trenching, where he had received the OSHA training pamphlet. The seminar and the pamphlet were in English, which operator Reza could not understand. However, President Bland explained in his testimony that operator Reza would have learned from the instructive diagrams drawn by Compliance Officer Cunningham at the seminar and that, back on the job, the company's bilingual foreman, Isidoro Flores, would have "shared the information within that [OSHA training] booklet with Mr. Reza, as well as the many other Mexican-American citizens that . . . work for our company." President Bland also thought that he had probably asked OSHA for a pamphlet written in Spanish, but had been told that none was available.
Industry practice emphasized on-the-job evaluation of rock stability. Two of the Secretary's experts, engineer Howard and Professor Allen, gave testimony recommending that contractors take preliminary core borings, rather than rely on on-the-job observation of conditions. Upon cross-examination, however, engineer Howard agreed that a contractor would not be "in error" if a trench caved-in due to "an unseen joint." This witness also suggested that a contractor could reasonably presume the solidity of any rock that did not evidence any "obvious" discontinuities.
This testimony, revealing engineer Howard's acceptance of on-site scrutiny, is representative of all of the testimony that was given relating to industry practice. Consultant Raba testified that his practice was to study the depth and location of a trench, ascertain its proximity to any fault, then "leave it to the individual interpretation of people in the field to look for anomalies." Moreover, as he explained, "[t]hose people in the field would not necessarily be professional, or college educated." President Bland testified that he had never retained a geologist and that he had always relied on the backhoe operator's observations. Compliance Officer Cunningham did not know whether any Austin-area trenching contractor had ever consulted a geologist before beginning a trenching project. He gave extensive testimony showing that he relied on on-site scrutiny during his inspections. More importantly, upon cross-examination, Compliance Officer Cunningham firmly agreed that, if a backhoe operator does not see any fractures "after he lifts his bucket out," while excavating a trench, the operator can conclude that the rock is solid and does not require protection. Another witness, Richard Keskinen, employed by the Department of Labor as a safety supervisor for OSHA's Austin area office, gave testimony that, if a rock had no visible fractures, "[i]t was solid."
On the basis of the evidentiary record as a whole, Judge LaVecchia found that industry practice was to slope or shore "when trench walls are fractured and cracked." Our review of the record confirms this finding. Testimony from the local trenching contractors, particularly Al Haegelin and Brian Schnelle, stated that contractors used vertical rock walls unless there were visible discontinuities or other indicia of instability. Consultant Raba gave extensive testimony to this effect, based on his experience and on his own survey of local practices, which was made shortly before the hearing.[[5/]] Also, upon cross-examination, the Secretary's experts, civil engineer Howard and geotechnical engineer Atkinson, indicated awareness of vertical trenching practices in the Austin Chalk. Engineer Atkinson even agreed that it was a generally accepted practice. Neither witness mentioned having seen vertical walls where, because of visible fractures, sloping or shoring would obviously have been required. Only Compliance Officer Cunningham suggested having seen vertical rock walls in a unstable condition.[[6/]]
On the whole, the testimony regarding OSHA's enforcement practice indicates that it had been moving along much the same track as industry practice. That is, OSHA had been requiring employers to slope or shore rock only if it had visible fractures. OSHA had not been consistently requiring protection for rock in the vicinity of a fault, or rock being excavated by backhoe. In their testimony, the compliance officers maintained that OSHAs policy was to require protection for all rock that had not been excavated by rock saw. Compliance Officer Cunningham testified to this effect, and safety supervisor Keskinen testified that he disallowed vertical rock walls altogether: "I have never run into that situation" where they would be permissible. However, Jay Watkins, an employee of Lewis Contractors, testified concerning an occasion when Supervisor Keskinen had not issued a citation for vertical rock walls. During an inspection conducted by Supervisor Keskinen, the employee had pointed out that the company's excavator was specially equipped to dig solid rock. At first, Supervisor Keskinen had explained that, "if an excavator could dig [the rock], it wouldn't be considered solid." In the end, however, after he and at least one compliance officer had closely examined the walls, they merely instructed the contractor to watch for the appearance of cracks.
From a similar experience, trenching contractor Schnelle had interpreted OSHA's standards to allow vertical rock walls if not visibly cracked. He knew of several OSHA inspections permitting this practice. After one such inspection at his own worksite, he was notified that the citation for vertical walls in the Austin Chalk "would not be pursued."
Compliance Officer Padron testified that, in his own opinion, Bland and any trenching contractor would be justified in leaving any rock walls vertical as long as they showed no sign of instability. Geotechnical engineer Atkinson was "not aware" of OSHA ever having prohibited vertical walls in the Austin Chalk. Nor were Vice President Ulmer and President Bland, according to President Bland's testimony regarding his own understanding, and according to Compliance Officer Padron's testimony regarding his discussions with the company's managers during the inspection in this case. As we have mentioned, Compliance Officer Padron emphasized that the managers had seemed to hold their belief in good faith.
President Bland testified that, because he read in newspapers that OSHA had not issued citations for vertical rock walls, he thought that the collapsed trench's vertical walls were permissible in the Austin Chalk. More significantly, President Bland made independent observations of trenching practices in the area.[[7/]] Also, at some time prior to the inspection in this case, OSHA had inspected, but had not cited, another of Bland's trenches, this one having thirteen-foot vertical walls of limestone excavated by the same type of backhoe later being used at the collapse.
Judge LaVecchia upheld the Secretary's willful classification. He found that Bland knew of the need to protect rock that is not solid, but failed to assure that the backhoe operator received more than minimal training, in a way that effectively conveyed the requirements of the cited standard. "Whether or not Reza understood the OSHA requirements is not apparent." The judge inferred that the backhoe operator did not understand the requirements because "Reza continued to trench vertically" even though the walls were "visibly fractured." The judge rejected Bland's contention that it "believed it was conforming to industry practice" because "area contractors do not vertically trench when trench walls are fractured and cracked."
Contrary to the reasoning of the judge, we have found that the evidence does not establish that the bedrock portions of the trench walls were visibly fractured. If there were no visible fractures in the bedrock, Bland's vertical trenching practices conformed to industry practice. Although conformance with industry practice is not a defense to a charge of willfulness, the evidence also indicates that it was OSHA's practice in the Austin area to require sloping or shoring in rock only if there were visible fractures. Bland had learned of OSHA's approach at the seminar OSHA gave at the company's request and by paying close attention to local trenching practices and the outcomes of OSHA inspections in the Austin Chalk. Based on this evidence we find that Bland had a reasonable, good faith basis for believing that its own practices conformed to OSHA's requirements. Such belief by an employer negates a finding of willfulness. Keco Industries, 13 BNA OSHC at 1169, 1986-87 CCH OSHD at p. 36,478, citing RSR Corp., 11 BNA OSHC 1163, 1172, 1983-84 CCH OSHD ¶ 26,429, pp. 35,550-35, 551 (No. 79- 3813, 1983), aff'd, 764 F.2d 355 (5th Cir. 1985).[[8/]] Thus, we reverse the judge's decision and find a violation, but we decline to characterize it as willful.
An Appropriate Penalty
The penalty remains for our consideration. The Secretary did not allege that, if not willful, the first citation item was serious. We note, however, that for either a serious or an other-than-serious violation, the maximum penalty is the same, $1,000. Bland, a family-owned company, has fewer than 100 employees, and its annual gross income varies considerably. The company has taken measures toward compliance with the trenching requirements. Compliance Officer Padron testified that the fact that Bland correctly sloped part of the topsoil in the bedrock trench demonstrates good faith. Furthermore, in his opinion, Bland would not have known to slope the bedrock because it showed no signs of instability. However, President Bland did know of the danger that faults in rock pose, and the company has a prior history of violation, including failure to comply with the sloping and shoring requirements with respect to soil. Also, several employees, in addition to the employee who died, had entered the bedrock trench on the morning of the accident, and a collapse of rock indisputably presents a very grave risk of death or serious physical harm. Primarily because of the gravity of the violation, we assess the maximum penalty of $1,000.
The Soil Trench
We turn now to the second citation item, which the Secretary interjected into this case by filing an amended complaint, along with a motion to amend the citation and the original complaint. Judge LaVecchia granted the motion to amend. Bland takes exception to that ruling, arguing that the amendment was prejudicial, particularly because the new citation item was not added to the case with reasonable promptness. Whether the citation item was issued with reasonable promptness and whether the amendment bringing it into the case was proper are issues Nos. 1 and 2 of the Direction for Review (see our list, at the outset of this opinion). We will now address these two issues.
Was Bland Prejudiced by the Addition of a Second Citation Item?
The requirement that a citation be issued with reasonable promptness is found in the governing statute, the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"). Section 9(a) of the Act states: "If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a . . . standard . . . he shall with reasonable promptness issue a citation to the employer." Section 9(c) of the Act further provides: "No citation may be issued . . . after the expiration of six months following the occurrence of any violation." Construed together, these provisions indicate that a citation issued within the six-month limitation period is generally considered to have been issued with reasonable promptness unless an employer demonstrates that, in its particular case, the length of time taken to issue the citation was unreasonable.[[9/]]
To show a lack of reasonable promptness, an employer must establish prejudice to the defense of the case. A lapse of time of less than six months "cannot operate to exclude evidence obtained in [an] inspection when there is no showing that the employer was prejudiced in any way," for "[t]he manifest purpose of the Act, to assure safe and healthful working conditions, militates against such a result." Accu-Namics, Inc. v. OSHRC, 515 F.2d at 833, quoted in Stephenson Enterprises. Inc. v. Marshall, 578 F.2d 1021, 1023 (5th Cir. 1978). Therefore, the Commission has held that a citation will not be vacated on "reasonable promptness" grounds unless the employer shows prejudice. E.g., Stripe-A-Zone, Inc., 10 BNA OSHC 1694, 1982 CCH OSHD ¶ 26,069 (No. 79-2380, 1982).
The Commission has also held that the Secretary's prehearing amendment should be permitted unless the employer's preparations to defend would be prejudiced. Anoplate Corp., 12 BNA OSHC 1678, 1687, 1986-87 CCH OSHD ¶ 27,519, p. 35,685 (No. 80-4109, 1986), citing United Cotton Goods, Inc., 10 BNA OSHC 1389, 1390, 1982 CCH OSHD ¶ 25,928, p. 32,454 (No. 77-1894, 1982). A judge's order permitting an amendment will be upheld on review unless shown to have been an abuse of discretion. Anoplate, 12 BNA OSHC at 1687, 1986-87 CCH OSHD at p. 35,685, citing TRG Drilling Corp., 10 BNA OSHC 1268, 1982 CCH OSHD ¶ 25,837, p. 32,319 (No. 80-6008, 1981).
Where an amendment adds new factual issues against which an employer is unprepared to defend, a judge may allow the amendment if the prejudice can be cured. The question is whether, in the time remaining until the hearing, or during a reasonable continuance of it, the employer can prepare its defense. See Anoplate, 12 BNA OSHC at 1687, 1986-87 CCH OSHD at p. 35,685; United Cotton Goods, 10 BNA OSHC at 1390, 1982 CCH OSHD at p. 32,454; Daniel International Corp., 9 BNA OSHC 1980, 1984, 1981 CCH OSHD ¶ 25,492, p. 31,790 (No. 15690, 1981), rev'd on other grounds, 683 F.2d 361 (11th Cir. 1982); Brown & Root, Inc., Power Plant Division, 8 BNA OSHC 1055, 1057-59, 1980 CCH OSHD ¶ 24,275, p. 29,569 (No. 76-3942, 1980); P.A.F. Equipment Co., 7 BNA OSHC 1209, 1212-13, 1979 CCH OSHD ¶ 23,421 (No. 14315, 1979), aff'd, 637 F. 2d 741 (10th Cir. 1980); Pukall Lumber Co., 2 BNA OSHC 1675, 1677-78, 1974-75 CCH OSHD ¶ 19,433, pp. 23, 198-99 (No. 10136, 1975) (lead and concurring opinions).
Thus, the first two issues for review, the procedural issues relating to the second citation item, present a single factual question. Bland contends that the Secretary's delay in citing conditions in a trench different from the one that had been the principal object of the inspection had the effect of prejudicing the company, for the Secretary added to the case new factual issues against which the company was unable, because of changed conditions at the late date of the new citation item, to prepare a defense.
It is virtually undisputed on this record that substantially all of the Secretary's evidence in support of the second citation item was gathered during discovery rather than during the inspection. The compliance officer came to the worksite on April 21, 1987, because of the fatality that had occurred that morning, when the wall of the bedrock trench had caved-in. In the course of his inspection, Compliance Officer Padron walked approximately 70 feet along the bedrock trench to the soil trench, which adjoined the bedrock trench at an excavation for a manhole. The compliance officer visually examined the manhole excavation and a segment of the soil trench leading away from it. Approximately 100 feet from the manhole, the soil trench had been backfilled.
According to Compliance Officer Padron's testimony at the hearing, he did not make a further study of conditions in the manhole excavation and the soil trench because he did not see any employees working in the area. Therefore, in his discussions with Bland's president and vice president, he did not direct their attention to any improper trenching procedures in the soil trench. He discussed the bedrock trench, only. He took samples and measurements of the bedrock trench, but not of the soil trench. At the hearing, therefore, the compliance officer's testimony about the soil trench consisted entirely of estimates regarding its dimensions and soil conditions.
Immediately after the inspection, Bland retained its two experts to perform their independent inspection and study of the bedrock trench. Consultant Raba and engineer Cravens came to the worksite within several days of the compliance officer's inspection. They removed bedrock samples and extensively videotaped and photographed the bedrock trench. Both experts entered the bedrock trench and walked in it to the manhole excavation and soil trench. However, the experts did not study the soil trench. As expert Raba testified, "I looked at it in general terms, turned back, and principally worked in the area of the accident." Having taken no samples of the soil trench and having made no measurements there, the experts were unable at the hearing to give any specific testimony about the soil trench's condition. Expert Raba could state only that he had not seen any signs of improper trenching practices.
Approximately one month after the compliance officer's inspection, the Secretary retained her own experts to examine the topsoil and bedrock where the fatality had occurred. Geotechnical engineer Atkinson and civil engineer Howard came to the site on May 18, 1987. By then, Bland's trenches had been entirely backfilled. The experts took one core boring in the vicinity of the cave-in. Thereafter, on June 9, 1987, approximately three weeks after the core boring and approximately 1 1/2 months after the compliance officer's inspection, the Secretary issued the citation concerning the bedrock trench.
Subsequent discovery disclosed to the Secretary that Bland's employees had been in the soil trench. Therefore, on October 5, 1987, approximately 5 1/2 months after the compliance officer's inspection, the Secretary sent her experts back to the site to obtain more core borings. The experts took two borings near the cave-in, and numerous others in the vicinity of the manhole excavation, as well as in the adjoining soil trench. Thereafter, the Secretary brought the soil trench into this litigation by filing the amended complaint, on October 20, 1987, only one day short of six months after the compliance officer's inspection.[[10/]]
Bland filed a response, opposing the amendment on the basis of surprise, but Bland did not argue any prejudice.[[11/]] Almost a full month remained until the hearing, which was scheduled to begin on November 18, 1987. Accordingly, Judge LaVecchia ruled: "[T]he respondent has ample time in which to prepare its defense to the amended complaint."[[12/]] Two weeks after the amendment and two weeks before the hearing, the Secretary requested a postponement to conduct additional discovery. Bland opposed the request, indicating that discovery had been adequate:
Respondent has identified the address[es] of all employee
witnesses. All employees who were present at the
accident site at the time of the accident have already
been deposed. Complainant has indicated that it does not
wish to depose Respondent's expert witness. A delay of
one month or six weeks in this matter will prejudice
Respondent. First, it will result in increased expense
to Respondent. Second, it will perpetuate the burdensome
and oppressive tactics employed by Complainant.
The judge denied the Secretary's postponement request. On October 14, 1987, just four days before the hearing began, the Secretary directed her experts to take another series of core borings, this time in the vicinity of the segment of the soil trench that had been backfilled at the time of the compliance officer's inspection. All of the core borings were discussed in testimony by the Secretary's experts.
At the hearing, the Secretary presented the testimony of Claude Ricks, an investigator for the Travis County Attorney's Office, and Roberto Velez, one of Bland's employees. Neither party questioned the backhoe operator about the soil trench. Bland's president and vice president, in their testimony, demonstrated limited knowledge of the conditions in the soil trench.
In short, Bland had scant evidence to defend against the Secretary's allegations of violations in the soil trench. It does not necessarily follow, however, that Bland was prejudiced. Prejudice arises where the moving party achieves an unfair advantage or where the opposing party is deprived of a fair opportunity to present evidence. Secretary of Labor v. Arco Chemical Co., 921 F.2d 484, 488 (3d Cir. 1990). It is only this consequent, undue imbalance that justifies disallowing an amendment. See Wedgewood v. Fibreboard Corp., 706 F.2d 541, 546 (5th Cir. 1983). In this case, however, there was no such undue imbalance. Both parties were compelled, by circumstances that developed without the fault of either party, to operate under basically the same set of advantages and disadvantages. Compare Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 598-99 (5th Cir. 1981) (moving party's delay in amending resulted from a reasonable, though erroneous, belief that a legal theory was unnecessary to the case, not from a design to gain tactical advantage).
At the time of the inspection and thereafter, while one segment of the soil trench was still open, apparently neither party was aware of a need for experts or other knowledgeable representatives to make measurements and perform other studies of the conditions in the soil trench. At the hearing, therefore, neither party had photographs, soil samples, or measurements to offer into evidence. The Secretary's whole case consisted of certain indirect evidence only, which Bland could have examined, replicated, and countered. For example, the Secretary's experts had not seen the open trenches, but Bland's experts had actually walked in them and, however briefly, had viewed the earth materials of the walls. Therefore, Bland's experts had a potentially better basis than did the Secretary's experts for giving testimony indicating that the Secretary's core borings corroborated their own impressions. Bland could have enhanced this advantage by making its own soil study immediately following the Secretary's amendment. Bland's core borings would have been approximately concurrent with the Secretary's, at 5 1/2 to seven months after the compliance officer's inspection. Moreover, if necessary, Bland could have joined the Secretary in requesting a postponement of the hearing for further discovery; the need "to prepare its defense" could have justified the judge's favorable consideration of a joint motion for postponement.
The Secretary had the testimony of the investigator associated with the Travis County Attorney's office, and Bland had no comparable witness. However, Bland's supervisors and employees who had worked in the vicinity of the soil trench were, apparently, all available to testify. Bland asserted, in opposing the Secretary's motion for postponement of the hearing that "Respondent has identified the address[es] of all employee witnesses" and that "[a]ll employees who were present at the accident site at the time of the accident have already been deposed." As the Secretary stated in her brief, "[T]he Secretary was able to find witnesses," but Bland "has not shown that it tried unsuccessfully to locate any of its employees who may have had knowledge of the trench." Moreover, Bland neither contended nor established that the employees who excavated the soil trench could no longer recall its dimensions. In particular, as the Secretary suggests, the backhoe operator's availability for questioning undercuts the company's prejudice argument.
We find that Bland has not shown any prejudice arising from the belated addition of the second citation item.[[13/]] The belated introduction of a new charge is not to be preferred, and we believe that the federal government should avoid conducting its enforcement proceedings in any way that may give the appearance of unfairness and result in unfairness. Finding no unfairness in this case, however, we affirm Judge LaVecchia's decision holding that the citation was issued with reasonable promptness and allowing the Secretary's amendment.
Was the Second Citation Item Willful?
The merits of the violations alleged in the second citation item are not in issue on review. There remains for consideration, however, the issue of whether the item was properly classified as willful (issue No. 5).
The record is not replete with evidence supporting the willful classification. As we have discussed, Bland had received two citations prior to the citation in this case, which alleged failure to slope or shore trenches excavated in soil. Unquestionably, therefore, the company knew of the standards. Bland's supervisory personnel received instruction in trench safety at the seminar conducted by Compliance Officer Cunningham. Also, as President Bland's testimony indicates, the foremen were responsible for conveying safety instructions to the employees. The fact that the backhoe operator had performed some correct sloping tends to indicate that the foremen had provided substantially correct information to the employees concerning how to comply with the trenching standards, and Table P-1, when making a trench in soil.
At the hearing, the Secretary's attorney questioned whether the company's instruction had been sufficient: "So that's the words you use? Just slope it according to P-1?" President Bland replied: "Well, the O.S.H.A. booklet is the guideline for trenching operations throughout the United States of America, and that's--that's what we rely upon." President Bland, who had seen many of backhoe operator Reza's trenches, believed they were correctly sloped. Employee Velez agreed that the backhoe operator had been working safely, having observed in general that the trenches had been sloped and entry prohibited until the sloping was finished.
The Secretary finds significance in the facts that the walls of the soil trench were "silty clay," yet the backhoe operator "trenched vertically without any support at all." This is not entirely correct. Although the backhoe operator did not adequately slope the soil trench, the testimony tends to indicate that he did slightly slope some portions of it. Therefore, absent evidence of other, earlier instances of noncompliance, and absent evidence that supervisory personnel had observed them, thereby becoming aware that the backhoe operator lacked understanding of the requirements of OSHA's trenching standard or was disobeying it, we decline to uphold the Secretary's willful classification regarding the present instance.
An Appropriate Penalty
We turn, finally, to the penalty for the second citation item. The Secretary did not allege that, if not willful, the second citation item was serious. As we have noted, however, the maximum penalty, $1,000, is the same for either a serious or an other-than-serious violation. We assess the maximum penalty because of Bland's history of prior violation and the gravity of the conditions in the soil trench. The record shows that one employee had entered the trench, which was eight to nine feet deep, only three feet wide at the bottom, and only slightly sloped. The likelihood of death or serious injury to an employee in a cave-in is high. See Calang Corp., 14 BNA OSHC 1789, 1794, 1990 CCH OSHD ¶ 29,080, p. 38,873 (No. 85-0319, 1990).
Accordingly, we affirm the two citation items and assess a penalty of $1,000 for each item. We reverse the decision of the judge classifying the items as willful violations.
Edwin G. Foulke, Jr.
Donald G. Wiseman
Dated: May 1, 1991
SECRETARY OF LABOR
BLAND CONSTRUCTION COMPANY
OSHRC DOCKET NO. 87-0992
DECISION AND ORDER
Anthony G. Parham, Esq., of Dallas, Texas,
for the Complainant.
D. Douglas Brothers, Esq., and Michael
McGinnis, Esq., of Austin, Texas, for the
DECISION AND ORDER
Louis G. LaVecchia, Judge:
This proceeding arises under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. sec. 651 et seq.), also referred to as the "Act."
On April 21, 1987 Bland Construction Company was in the process of constructing a wastewater line at the 12200 block of Burnet Road, Austin, Texas, when a portion of a trench wall collapsed, killing one of its employees. As a result of an inspection and investigation by the Occupational Safety and Health Administration ("OSHA"), Respondent was issued a citation for a "repeat" violation of 29 CFR 1926.652(c). The proposed penalty was $1260.00. Respondent timely contested the citation. A complaint, answer, and amended answer were subsequently filed. Thereafter, on October 20, 1987, the Secretary moved to amend the citation and complaint to allege a "willful" violation of 29 CFR 1926.652(c) or, alternatively, 29 CFR 1926.652(b), and a new "willful" violation of 1926.652(b). The total proposed civil penalty was raised to $20,000. The Secretary's motion was granted, and the Respondent filed a second amended answer.
From November 18 to 20, 1987, and November 23 to 25, 1987, a hearing was held in the matter in Austin, Texas. Both parties have filed posthearing briefs. The theories and arguments advanced by each have been fully considered. There were no intervenors in the action.
The respondent has admitted that (i) it is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act; (ii) the Occupational Safety and Health Review Commission ("the Commission") has jurisdiction over the parties and the case; and (iii) the Act and Occupational Safety and Health standards at 29 CFR Part 1926 apply to Bland Construction Company. (Respondent's Second Amended Answer, par. 2, 3, 9, 17, 25.)
The specific trenching standard at 29 CFR 1926.652(b) provides:
* * * *
(b) Sides of trenches in unstable or soft material, 5
feet or more in depth, shall be shored, sheeted, braced,
sloped, or otherwise supported by means of sufficient
strength to protect the employees working within them.
See Tables P-1. P-2 . . .
The specific trenching standard at 29 CFR 1926.652(c) provides:
* * * *
(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.
In its brief and throughout the hearing Bland has argued that: (1) 29 CFR 1926.652 is unconstitutionally vague; (2) the allegations in the amended citation are untimely; and (3), the amended complaint is improper. These preliminary arguments will be considered at the outset.
Respondent argues that the 1926.652 is vague and does not provide - reasonable notice of the conduct proscribed. (Respondent's Second Amended Answer, p. 4, par. 32, 33; (Tr. 754-757; 996; 1074-1076.) Respondent's argument must be rejected. When 1926.652 is read together with Tables P-1 and P-2, its meaning is sufficiently precise to put employers on notice of what is required in terms of sloping, shoring or otherwise supporting particular trenches. Furthermore, the Commission has considered, construed, and enforced 1926.652(b) and (c) on numerous occasions. E.g., John R. Jurgensen Co., 12 BNA OSHC 1889, 1986 CCH OSHD ¶ 27,641 (No. 83-1224, 1986); D.A. & L. Caruso, 11 BNA OSHC 2138, 1984 CCH OSHD ¶ 26,985 (No. 79-5676, 1984); Heath & Stich, 8 BNA OSHC 1640, 1980 CCH OSHD ¶ 24,580 (No. 14188, 1980); Connecticut Natural Gas Corp., 6 BNA OSHC 1796, 1978 CCH OSHD ¶ 22,874 (No. 13964, 1978).
Respondent attempts to buttress its contentions of vagueness by noting that OSHA's safety supervisor, Richard Keskinen, told two underground utility contractors that the standard was not all that certain (Tr. 996, 1068-1070). However, the remarks of OSHA's safety supervisor do not constitute a concession by the Secretary that 1926.652 is unenforceably vague. Keskinen's statements appear to have been made informally and, in any case, do not have the force and effect of law. See Power Systems Division, United Technologies Corp., 9 BNA OSHC, 1813, 1981 CCH OSHD ¶ 25,350 (No. 79-1552, 1981).
For the above reasons, I dismiss Respondent's "vagueness" argument as being without merit.
Respondent next contends that the amended citation allegations violate sections 9(a) and 9(c) of the Act. (R. Br. 14-15.) Section 9(a) requires that citations be issued with "reasonable promptness" and section 9(c) places a six-month statute of limitations on the issuance of citations. Respondent notes the alleged violations occurred on April 21, 1987 and the original citation was issued on June 6, 1987. On October 21, 1987, the Secretary moved to amend the citation and complaint. It is Respondent's position that, although the motion to amend was made exactly six months after the accident, "the record is silent" as to when the actual amendment was filed. (R.Br. 14-15.) Thus, Respondent believes the amendment was untimely.
There are several problems with Respondent's position. First, regarding Respondent's claim of untimeliness, it is clear that the Secretary filed the motion to amend and the amendment on October 21, 1987, which is exactly six months from the date of the accident. Section 9(c) of the Act states, "No citation may be issued under this section after the expiration of six months following the occurrence of any violation" (emphasis added). Thus, the Secretary's filing of the amendment on October 21, 1987 is within the six month statute of limitations. Even if it were not, the Commission has held that section 9(c) of the Act does not prohibit the amendment of an already issued citation more than six months after the occurrence of an alleged violation. CMH Co., 9 BNA OSHC 1048, 1980 CCH OSHD ¶ 24,967 (No. 78-5954, 1980). An amendment to a claim arising out of conduct described in the original pleading relates back to the date of those pleadings, in this case, June 6, 1987. Fed.R.Civ.P. 15(c); Structural Painting Corp., 7 BNA OSHC 1682, 1979 CCH OSHD ¶ 23,817 (No. 15450, 1979).
Second, regarding Respondent's contention that the Secretary failed to issue the citation with "reasonable promptness," it is Respondent's burden to establish that it has been prejudiced by the delay in its ability to prepare and present its case. Daniel International Corp., Brown and Williamson Project, 9 BNA OSHC 1980, 1981 CCH OSHD ¶ 25,492 (No. 15690, 1981); Stephenson Enterprises, Inc. v. Marshall, 578 F.2d 1021, 1023 (5th Cir. 1978). In this case, Bland has argued that the amendment alleges a new willful violation in an area of the worksite that is not even in the area of the fatal accident. Respondent feels it was not given prior notice that this new area would be involved in the dispute. It believes that the amendment factually alters the original charges and is manifestly unfair to Bland. (R.Br. 3-4; 15-16.)
It should first be noted that the amended complaint alleges violations at two of Respondent's trenches at the Centrum Project: (i) a trench measuring two feet and three inches at the top and bottom, 88 feet in length and 10-14 feet in depth (Complaint, par. VII(C) and VIII(C) [hereinafter "Item 1(a) of citation 1]), and (ii) a trench "adjacent to and east of the 88 feet section of trench cited on June 6, 1987" (Complaint, par. IX(C) [hereinafter "Item 1(b) of citation 1"]). Item 1(a) encompasses the accident site. Item 1(b) encompasses the area from Station 8+78.87 (Invert B-5), which was approximately 88 feet from the point of collapse, to approximately 65 feet east of Station 7+49.20 (Invert B-4). In the original citation, Respondent was cited for allegedly violating trenching standards in the area described in Item 1(a).
Despite Respondent's claims to the contrary, it does not appear that the amendment changes the thrust of the Secretary's claim. The original citation and complaint gave Respondent notice that the allegedly hazardous condition was the employees' exposure to a trench cave-in as a result of the unshored and unsloped walls of the trench described in Item 1(a). In the amended citation, the Secretary reiterates the above allegation, although it pleads in the alternative a violation of 1926.652(c) or 1926.652(b), and further alleges that the hazard of a cave-in existed on this date at the trench area described in Item 1(b). The factual basis of the Secretary's original and amended charges appear to be the same. However, it is Respondent's position that its defense would have been "substantially different" if it had known of the charge in the amended pleading. It contends that the alleged violations described in Item 1(b) involve new areas with different soil conditions and trenching procedures. (R.Br. 16. )
Assuming Respondent is correct, and the alleged violations described in Item 1(b) do not arise out of the same conduct or occurrence as the original citation, the amendment is still proper. The Commission has consistently approved the granting of prehearing amendments where there is no showing by the objecting party that it would be prejudiced. United Cotton Goods, 10 BNA OSHC 1389, 1982 CCH OSHD ¶ 25,928 (No. 77-1894, 1982); Western Massachusetts Electric Co., 9 BNA OSHC 1940, 1981 CCH OSHD ¶ 25,470 (No. 76-1174, 1981); P.A.F. Equipment Co., 7 BNA OSHC 1209, 1979 CCH OSHD ¶ 23,421 (No. 14315, 1979), aff'd 637 F.2d 741 (10th Cir. 1980). In this case, the Respondent has failed to demonstrate how it was prejudiced by the amendment. It is clear that Respondent was given fair notice of the alleged violations in the item 1(b) areas. They are described in the amended complaint. If Respondent was uncertain of what was being alleged, it could have filed a motion for a more definite statement; however, it did not. It could have also requested a continuance to conduct discovery on these new allegations.[] Again, it did not. (Indeed, in a prehearing telephone conference, Bland opposed the Secretary's motion for a continuance and asserted it was ready to try the case.) Consequently, it is difficult to see how Respondent was prejudiced by the amendment.
Finally, Respondent argues that the alleged violations of Item 1(b) were not properly pleaded. Respondent argues that compliance officer Juan Padron ("the CO") made no measurements of these areas, nor observed any violations of proper trenching techniques. (R. Br. 3-4; 15-16.)
Respondent's argument can be dismissed. The evidence establishes that the information regarding these areas was not available to the CO at the time of the inspection. (Tr. 358-359; 415-418.) Additionally, even if Padron did not actually observe the violations in question, thus violating OSHA's Field Operation Manual procedures (Tr. 381-384; 411-412), the Commission has held that failure to follow the manual does not preclude the Secretary from citing an employer. H-30, Inc., 5 BNA OSHC 1715, 1977-78 CCH OSHD ¶22,050 (No. 76-752, 1977), rev'd on other grounds 597 F.2d 234 (10th Cir. 1979). The manual, which contains only guidelines for the execution of enforcement operations, does not have the force and effect of law, nor does it accord important procedural or substantive rights to individuals. P.A.F. Equipment Company, Inc., supra; FMC Corporation, 5 BNA 1707, 1977-78 CCH OSHD ¶ 22,060 (no. 13155, 1977). If the violation alleged by the Secretary proved by credible and substantial evidence, it matters not whether the CO actually observed the conditions which are alleged to be violative of the Act. "Noncompliance with the instructions in the manual is therefore not a basis for invalidating a citation." H-30, supra.
With these preliminary questions disposed of, the main dispute remaining between the parties involves the composition and stability of the trench walls. A summary of the relevant testimony follows.
The Relevant Evidence
On April 21, 1987, Respondent's machine operator, Gregorio Reza, was operating a backhoe at the trench described in Item 1(a) of the citation. Between 8:30 am and 9:00 am, Reza stopped his excavating work in order to straighten out a light that was used to check the trench' s grade Victor Nazario, a laborer with Bland Construction Company, had entered the trench at this time. He had just started taking grade pole measurements when the west wall of the trench collapsed. Nazario was killed. (Tr. 243-250; 367; 599-600.)
It is undisputed that, at the place where Nazario stood, the trench was 14 feet deep and 27 inches wide at the bottom for a distance of 10 feet. The walls of the trench were 10 feet high and vertical (90 degrees from the horizontal). (R.Br. 1-2; C.Br. 1; 4.) The trench walls were not shored, sloped or otherwise supported. From the ten foot level of the walls to the surface (a distance of four feet) the trench wall was composed of silty clay. Although the top of the west wall of the trench was sloped, there was some disagreement whether the top of the east wall was similarly laid back. (R.Br. 2, 6; C.Br. 7-8.)
Eighty-eight feet from where Nazario was killed (at Station 8+78.87), the trench opened to a large circular depression that had been dug to install a manhole (Invert B-5). The vertical trench walls at this position were 14 feet deep and consisted of silty clay or stiff to very stiff clay. (R.Br. 16-17; C.Br. 2.) Further down the line of the open trench, and approximately 65 feet east of Station 7+49.20 (Invert B-4), the trench consisted of vertical walls of silty clay for the entire depth of seven to eight feet. (C.Br. 2; Tr., 905-906.)
The Secretary alleges that Respondent violated 1926.652(b) or (c) at four places. Point one denotes the two 10 foot high vertical trench walls at the point of collapse. (C.Br. 1; 4-7.) Point two denotes the top four feet of the east wall at the place where Nazario stood in the trench, (C.Br. 2; 7-8.) Point three denotes Invert B-5, and point four identifies the 65 foot area east of Invert B-4. (C.Br. 2; 8-9; Ex. C-36.)
Regarding the composition of the trench walls at the point of collapse, the testimony is in conflict.
Juan Padron was the CO who inspected the site. Padron has been employed with OSHA for four years. He inspects approximately 10 trenches each year, and has inspected five or six trenches in which accidents have occurred, (Tr. 352-356.) Padron testified that he took two soil samples from the trench. Field Sample No. 1 (B24125) was obtained by hand and came from the top 32 inches of the east wall of the trench (i.e., point two), (Tr. 392-393; 430-431.) Field Sample No. 2 (B24126) came from the west face of the trench, below the failure and four feet from the trench bottom (point one). (Tr. 393; 430-431.) This sample was obtained by excavator, and consisted of three pieces of rock and several smaller pieces of material. (Tr. 396-7.) Padron sent both samples to the OSHA laboratory in Utah for analysis by Dr. Allen Peck.
Although Padron said he could distinguish between rock and soil (Tr. 390-391), his testimony was puzzling: Padron first said the material at point one was "hard and compact soil" and he could break it with his hands (Tr. 400-401; 404); however, he later testified that the material was "hard as hell" and was rock (Tr. 403-404). Padron did concede that he knew little about soil analysis. (Tr. 397; 402.)
Dr. Allen Simmons Peck analyzed the soil samples taken by Padron. Dr. Peck has been employed with the Laboratory Division of OSHA for 12 years. He analyzes approximately 300 soil samples a year. Dr. Peck has a Bachelor's degree in Chemistry, and a Masters and Ph.D. in Metallurgical Engineering, with a minor in mineralogy. (Tr. 207-209.)
Dr. Peck analyzed the Bland soil samples on April 28, 1987. After performing a gradation analysis, an X-ray defraction analysis, an infrared analysis, as well as recording the percent of moisture, Dr. Peck classified Sample No. 1 as clay silt with an angle of internal friction of 32 degrees. (Tr. 216-221; 227.) He did not take the angle of repose. (Tr. 229.)
Field Sample No. 2, taken from the bottom four feet of the west wall, was run through similar tests. (Tr. 221-222; 228.) Additionally, Dr. Peck determined the material's mineralogy and durability in water. (Tr. 222.) He found the material to be fractured, durable in water, and classified it as gravelly rock. (Tr. 223.) Dr. Peck determined the angle of repose for this sample from the smaller particles of material because the three larger pieces would not stabilize. (Tr. 230-231.) The angle of repose was 39 degrees. (Tr. 223-224.)
Dr. Peck testified that, although Sample No. 2 contained solid rock, he considered the entire sample to be a collection of fractured rock. (Tr. 225-226.) He admitted that, if the sample had been scraped from a wall of material by backhoe, thereby fracturing it, his soil report would not be accurate. (Tr. 235-238.)
Dr. Peter Martin Allen, an expert called by the Secretary, testified regarding the geology of the trench. Dr. Allen is an Associate Professor of Geology at Baylor University's Department of Geology in Waco, Texas. (Tr. 77.) He has a B.A. and Master's degree in Earth Science, and a Ph.D. in Geology. He has worked as a private consultant for, among others, the City of Dallas and the Super Collider project. (Tr. 77-79.) Dr. Allen familiarized himself with the case by visiting the accident site and performing a reconnaissance of the site geology. Both he and William Howard of Trinity Engineering found an excavation slope in close proximity (geologically) to the accident site, examined the surface materials, made measurements, and took photographs. (Tr. 80- 82.) They secured a topographic map of the area, as well as an aerial photograph from the City of Austin. (Tr. 81.) Dr. Allen said that he read several articles concerning fracture patterns and defects in rock as related to proximity to faulting. He also reviewed photographs of the site and viewed a video tape of recovery operations taken by the Austin Fire Department. (Tr. 81; 83; Ex.R-24.)
Dr. Allen's testimony centered on his analysis and findings regarding several core borings taken from the site. The locations of the core borings, Borings B-1, C-1 to C-5, and D-1 to D-6, are depicted on Exhibit C- 36. Additionally, Gardner "Tim" Atkinson, a mechanical engineer who was present when each boring was drilled, testified as to the exact locations of each boring. (Tr. 269- 270; 274-280; 281; 286-287.) Core Boring B-1 was obtained on May 18, 1987 (Tr. 274). The C borings were taken on October 5-6, 1987 (Tr. 270), and the D borings were taken on November 14, 1987 (Tr. 281).
Borings B-1, C-1 and C-2 were approximately 16 feet deep (Tr. 101) and were drilled in close proximity to (within 13.7 feet of) the area of collapse (Tr. 130-131; 274- 275; Ex. C-36). Dr. Allen testified that the material comprising these borings consisted of fill on the top (4.7 to 6.7 feet), which was excluded from his analysis, and fractured limestone (highly weathered Austin Chalk) below the fill. (Tr. 94; 101-107; 126-127; 129-131.) Dr. Allen said the rock quality of these three borings was representative of the basic rock quality of the material comprising the trench walls, given the short distance between the trench and the boring locations.[] (Tr. 130-131.) The rock quality designation ("RQD") of the boring rock material ranged from very poor to fair.[] (Tr.102, 105.) This was due to the number of fractures, iron staining and slickened sides.[] (Tr. 102-105.)
On cross examination, Dr. Allen admitted that, at certain points, Borings B-1 and C-2 had an excellent RQD. (Tr. 179-181.) However, he said that he would not give the borings an overall excellent rating. He explained that vertical borings oftentimes miss vertical defects in the rock and, consequently, the stability of the rock is overestimated. (Tr. 563-565; 567.) In a run, one could find good RQD, but still find a lot of fractures. Thus RQD alone cannot be used to determine rock stability. (Tr. 566- 567.)
Dr. Allen testified that, typically, the closer one gets to a fault, the greater the number of fractures. He estimated Respondent's trench to be 1200 feet from a mapped fault. (Tr. 108-111.) Although he said the amount of fracturing in a rock is related to stability, he conceded that he would need an engineer's help in evaluating rock stability. (Tr. 153; 163-164; 571.)
Dr. Allen did not consider the limestone in Borings B-1, C-1 and C-2 to be solid rock. (Tr. 141-142.) He classified Austin Chalk to be soft rock, and said the stability of soft rock depended on the number of discontinuities present. (Tr. 159-160.)
Dr. Allen examined Exhibits C-6, C-7 C-8, C-23 and C-31 (photographs of the trench) as well . He said he could see fractures in the material depicted in the photographs that were similar to, and consistent with the discontinuities and fractures of material in the borings. (Tr. 131-132.) He believed that the discontinuities in Exhibits C-6 to C-8 were visible to people digging the trench. (Tr. 143; 145-147.)
William "Bill" Howard, a geotechnical engineer with Trinity Engineering, was another expert called by the Secretary. Howard has a B.S. and Masters degree in Civil Engineering. He has completed geotechnical courses for a Ph.D. (Tr. 616-616. ) Howard has worked with limestone formations and studied their stability. (Tr. 617.) He admitted his lack of familiarity with the Austin area. (Tr. 659; 665-669; 676-679; 698-699.)
Howard visited the Centrum project with Dr. Allen and was present when the core borings were drilled. (Tr. 620.) His conclusions are a result of his analysis of the core borings and photographs of Bland's trench.
Howard testified that, although not all parts of the Austin Chalk Formation are inherently unstable, they are potentially so. (Tr. 681; 695.) In his opinion, the trenches dug by Respondent at the Centrum project were unstable. (Tr. 618.) He recited several factors he deemed important in determining stability, i.e., an examination of the core borings; a visual observation of the trench; the experience of the contractor with a particular formation; the available geotechnical reports; the recommendations of engineers; and the relevant trenching laws. (Tr. 683-684.) The fact that a trench wall collapsed is another indication of its instability. (Tr. 731-732.) Difficulty in excavating material may also indicate instability. However, Howard noted that difficulty in excavating trench material does not necessarily mean the material is solid. (Tr. 716.)
Regarding the trench walls at point one, Howard testified they were comprised of highly fractured weathered limestone, which is potentially unstable material. (Tr. 626-627.) He noted that the instability of core borings C-1 and C-2 was evidenced by the fracture zones and large number of horizontal and inclined fractures. (Tr. 632-637; Ex. C-71.) He said the material composing the trench walls at point one was not hard and compact soil, nor was it solid rock. (Tr. 636- 637; 690; 730-731.) The material was limestone, which is a sedimentary rock. (Tr. 690; 693.)
In order to abate the hazard of collapse, Howard suggested that the employer slope the sides a minimum of 45 degrees from the horizontal (one-to-one), use trench shields, or shore the sides. (Tr. 640.)
Gardner Atkinson testified that he had observed the walls of locator trench and that they appeared to be weathered limestone. (Tr. 298.) Atkinson, who is an engineer formerly employed with Trinity Engineering and Testing Corporation (Tr. 267), measured the locations of the core borings. He testified that he is familiar with the geology of the Centrum Project and that the Austin Chalk Formation is highly faulted. (Tr. 306.)
Carl F. Raba, a principal of the firm Raba-Kistner Consultants, was called as an expert witness for the Respondent. (Tr. 841-2.) Dr. Raba has a B.S., Masters and Ph.D. in Civil Engineering, with majors in Soil Mechanics and Foundation Engineering. (Tr. 843; Ex. R-21.) He first visited the Centrum site on April 25, 1987. (Tr. 845-846; 855.)
While at the site, Dr. Raba and his staff surveyed the land, logged the trench walls, obtained samples from the trench, and photographed the area. (846-847.)
Regarding the trench samples Dr. Raba obtained, R-3 was from the west wall (Tr. 875), R-25 was from the east wall (Tr. 876), and R-26 was from the piece of rock that slid out of the west wall to the bottom of the trench. (Tr. 847; 877-878.) Dr. Raba said the coloration apparent on R-26 is iron staining, which indicates a discontinuity at this point. However, Dr. Raba believed that the operator would not have been able to see this iron staining because he felt it probably was not exposed in the trench prior to the failure. (Tr. 857; 879; 979.) He said he could not detect any other discontinuities in the west wall. (Tr. 853-854; 964.)
Dr. Raba's analyses of the samples taken from the trench are depicted on Exhibits R-32 and R-33. He concluded that the material comprising the trench walls was hard. (Tr. 800-801; 897-899; 951-952.) He classified it as rock, specifically limestone belonging to the the Austin Chalk Formation. (Tr. 895; 907.) In his opinion, the Austin Chalk has demonstrated its stability in the past (Tr. 902-905; 907; 942); however, he later admitted that some parts of the formation could be very unstable. (Tr. 942-943.)
Dr. Raba conceded that only a small percentage of his firm's activities. involves slope stability analysis. (Tr. 925.) He said that his firm did not do a RQD on the samples because they had not drilled any core borings. (Tr. 926.) Although he said that the hardness of the material is one indicator of whether or not a trench wall will fall, he conceded that the existence of fractures in a wall is an important factor. (Tr. 927.) He admitted that there could have been discontinuities and fractures on the west trench wall that he did not uncover. (Tr. 931.)
Paul Cravens, Raba-Kistner's manager of geotechnical engineering for the Austin region, also testified for Respondent. He has a B.S. in Civil Engineering. (Tr. 1008-1009.) He has taken no courses in rock mechanics and only one in geology. (Tr. 1023.)
Cravens took measurements at the Centrum project on April 23, 1987. (Tr. 1009.) Those measurements are reduced to representations on Ex. R-29 to R-31. Cravens testified that, when he entered the site, he observed the condition of the trench walls in the failure area. He testified that the east wall was nearly vertical and was composed of hard limestone. The west wall was inclined and also hard limestone. (Tr. 1014-1015.) He said that he saw nothing in the trench to give him cause for concern; he found no iron staining in the intersection between the failure plane and trench wall; he saw no evidence of a fracture plane. (Tr. 1015-1017.)
The nonexpert witnesses who viewed the trench at point one testified that the material in the trench was rock. Two of the witnesses -Gregorio Reza and Roberto Velez- were Bland employees who had worked at point one. They claimed the material was hard rock. (Tr. 266; 495.) Reza said it took him two hours to dig five to ten feet (Tr. 266).
Kevin MacDonnel, a volunteer E.M.S. responder and firefighter who was paged to the site shortly after the cave-in, testified that wall on the east side of the trench appeared to him to be fractured limestone and caliche. (Tr. 23-27; 33.) He said the wall contained "lots of cracks and fissures" and that it was "gravelly, soft, basically the same type of material that had collapsed ..." (Tr. 33.)
James Eliot, an Austin firefighter who took part in the recovery operations on April 21, 1987, described the material in the trench as "mainly rock" with "some black dirt and debris." (Tr. 200.) He described the rock as ranging in size from pebbles to "stones that would barely fit in the trench." (Tr. 200; 202.)
Artis Howard, a former Bland employee, was at the site shortly after the accident. (Tr. 502-506; 508.) He said that the east wall had three feet of topsoil and, beneath that, one layer of rock. Howard testified that his view of the wall was obstructed due to the cave-in. (Tr. 512-513.)
Brian Schnelle, a utility contractor, viewed the trench on April 22, 1987. He said that he saw no defects in the trench wall (Tr. 992-993.)
Al Hagelin, an underground utility contractor, drove by the Centrum site one week to 10 days after the accident. (Tr. 1052-1053.) He described the general rock material in the area as Austin Chalk limestone with varying levels of overburden (topsoil, fragmented rock and clay). (Tr. 1056.) He thought the limestone was solid.
Although the parties agree that the top four feet of the east wall at the point two was composed of clay, they disagree as to whether it was laid back. Three of the four witnesses who observed the trench prior to the time its original configuration was obscured in recovery operations, testified that the east wall at point two was not sloped.
Kevin MacDonnel said that after being paged to the site on April 21, 1987, he approached the trench from the east side and walked to the edge. A worker was in the trench, attempting to dig Nazario out. (Tr. 27; 38.) MacDonnel saw the collapsed west wall (Tr. 27.) and, although he could not determine if the top of the west wall had been laid back (Tr. 69), he said that the east wall at point two was not sloped. (Tr. 28; 30-32; Ex. C-1.) (He testified that the east wall north of the accident site sloped at a 30-45 degree angle. (Tr. 30-32; 69.) MacDonnel remained on the site for two hours, and left before Nazario's body was recovered. (Tr. 40.) He said that none of the photographic exhibits (Ex. C-3 to C-31) depicted the area as it existed at the time he observed the trench. (Tr. 68.) He testified that the excavator used to recover the body changed the original configuration of the site. (Tr. 39-40; 69.)
James Eliot arrived at the worksite around 10:30 to 11 am on April 21, 1987. (Tr. 197.) The excavator was not being used when Eliot first arrived, and he stayed on the site until the end of the recovery operation. (Tr. 198). Eliot said, when he looked into the trench, he saw that the west wall had collapsed. (Tr. 199.) He described the east wall at the point of collapse as not being as sloped as the northern portion of the wall. (Tr. 200; 206-207.)
Gregorio Reza testified that, at the time of the cave-in, he had not completed sloping the east wall of the trench. (Tr. 257.) He admitted that the east wall was not sloped very much, as he had only taken several bucketfuls of material from the east bank prior to the accident. (Tr. 258.)
Artis Howard arrived at the site around 10 am on April 21, 1987. (Tr. 508.) He walked within 10 feet of the edge of the wall that had collapsed. (Tr. 509.) He described the east wall as vertical, with a "natural slope on it from the top." (Tr. 511.) He said that he had seen the east wall prior to the time the backhoe was used to recover Nazario's body from the trench, although he claimed some of the crew had gone to the site with shovels prior to the time he had arrived. (Tr. 525-526.) Howard's testimony regarding if and how much the east wall was sloped was difficult to understand. He testified that the east wall was vertical; however, he said that the top one and one-half to three feet was composed of loose topsoil, thus the wall was not entirely vertical . (Tr. 532; 535.) He testified on recross that the wall was sloped. (Tr. 537.)
The video taken at the trench site during rescue/recovery operations indicates some sloping; however, this video was made during recovery operations and the original configuration of the trench is not apparent, (Ex. R-24.)
Points Three and Four
The CO did not walk to the area described as point four (or the D cores). (See Ex. C-36.) However, the CO did observe conditions at point three (station 8+78.87). (Tr. 360-2; 382-3.) He estimated the distance from the top of the trench to the bottom at station 8+78.87 to be 10-14 feet. The material around invert B-5 was silty clay or soil-like sand. The sides of the trench were not sloped but vertical. (Tr. 360-362.)
Dr. Allen examined the borings taken at points three and four. Borings C-3 to C-5 were drilled east of point three. (Tr. 277-279; Ex. C-36.) The D core borings were drilled east of station 7+49.20. (Tr. 281; 286-287; Ex. C-36.) Dr. Allen testified that Borings C-3, C-4 and the D- series all contained fill and below that, silty clay, or, according to Table P-1 of 1926.652, clays, silts, and loams. (Tr. 111-115; 120-126.) (Boring C-3 and C-4 contained approximately 5 feet of fill, while boring C-5 consisted entirely of backfill, Tr. 111-114. The D borings all had less than two feet of backfill, (Tr. 120-126.) He felt that the silty clay material found in these borings were unlikely to be "radically different" from the material at points three and four given the proximity of the borings to the actual trench sites (Tr. 140.) The reason for the different soils found in these borings as compared to B-1, C-1 and C-2 was due to the fact that Borings C-3, C-4, C-5 and the D series were taken along an old stream course as evidenced by a low spot from Station 8+78.87 to 7+49.20. (Tr. 127; 546-547.)
Bill Howard also ran laboratory tests on borings C-3 to C-5 (Tr. 621.) Like Dr. Allen, Howard concluded that the material was a stiff to medium firm sandy and silty clay. (Tr. 625.) He testified that the material found in core boring C-3 was representative of the trench material between stations 8+78.87 and 7+49.20. Boring C-3 consisted of a sandy and silty clay. Howard said that the proper slope would be 2 to 1 (26 or 27 degrees from the horizontal). (Tr. 643-644.) In his opinion, the material in the trench was unstable. (Tr. 645-646.)
Regarding the D cores, Howard testified that this material was clay, silty clay and backfill. (Tr. 647.) He felt that it, too, was not stable. An appropriate slope would be 27 degrees from the horizontal. (Tr. 648; 650.)
Claude Ricks, an investigator for the Travis County Attorney's Office, arrived at Respondent's worksite at 11:35 am on April 21, 1987. (Tr. 330.) He observed the walls of the trench at station 8+78.87 and said that the material comprising the walls appeared to be "a loose-type soil, sandy-type clay material -light kind of tannish color." (Tr. 334-335; 339.) Ricks estimated the excavation to be approximately 10-12 feet deep. (Tr. 335; 338.) The walls were not sloped, but "straight up and down." (Tr. 339.) He said there was an inch or two of groundwater at the bottom of the excavation. (Tr. 334; 350.)
Ricks also observed the trench running from station 8+78.87 (Invert B-5) to station 7+49.20. The trench walls here were also vertical. (Tr. 341-342; Ex. C-26.) He estimated the depth of this trench, which contained backfill, to be six to eight feet. (Tr. 342.) A pipe was already in place from station 7+49.20 (Invert B-4) to Invert B-5.
Roberto Velez, an employee of Bland, testified that, on the day prior to the accident, he and some other employees were laying 200 feet of pipe in the area of station 8+78.87, and the area of the D-3, D-4 and D-5 core borings as depicted on Exhibit C-36. (Tr. 491-494.) Velez estimated the width at the top of the trench running from D-3 to D-5 to be 5 feet. He said the depth of this same stretch of trench was 8-9 feet. (Tr. 494.)
Carl Raba testified that he walked to the area of station 8+78.87 when he visited the site on April 25, 1987. He said the walls of the trench were sloped at one-to-one. (Tr. 858; 866-867.) Dr. Raba said that the trench walls appeared to be composed of clays, "stiff to very stiff in consistency." (Tr. 905.) He classified the soils as hard and compact with an angle of repose of 45 degrees, or one-to-one. (Tr. 905-906.)
(a) Item 1(a): Points One and Two
The main issue involves the composition of the trench walls at point one. Witnesses for each side testified that the material was not "hard and compact soil." (Tr. 141-142; 225-226; 298; 690; 895; 1014-1015.) Consequently, 1926.652(b) appears to be the applicable standard.[]
To establish noncompliance with 1926.652(b), the Secretary must show that (1) the trench is at least five feet deep, (2) a significant portion of the trench wall is composed of soft or unstable soil, and (3) the trench is neither shored nor sloped appropriately from the bottom of the trench. John Jurgensen Co., supra at 1986 CCH OSHD ¶ 27,641, p. 35,964; National Industrial Contractors, supra at 1981 CCH OSHD ¶ 25,743, p. 32,132. "Unstable soil" is defined under 1926.653(q) as "Earth material, other than running, that because of its nature or the influence of related conditions, cannot be depended upon to remain in place without extra support, such as would be furnished by a system of shoring."
It is uncontroverted that the 88 foot trench referred to in item 1(a) of the citation was over five feet deep and was not shored or sloped from the bottom. The trench walls were vertical. Employee access to the trench was established.[]
The first question to be resolved is whether the trench walls at point one were unstable (fractured) limestone or solid rock? If the former, Respondent violated the standard by failing to shore or slope the trench walls; if the latter, Respondent was exempted from the shoring and sloping requirements of 1926.652(b) under Table P-1. Austin Bridge Co., 7 BNA OSHC 1761, 1766 n. 11, 1979 CCH OSHD ¶ 23,935 at 29,022 n. 11 (No. 76-93, 1979).
In determining the stability of the trench walls, it does not avail the Respondent that in the opinion of its employees the material at point one was "hard." The testimony of expert witnesses called by both the Secretary and the Respondent establishes that hardness is only one factor in determining trench stability. Even Carl Raba (Respondent's expert) agreed that the presence of fractures in the wall is a decisive factor. In examining the evidence, it is clear that the trench walls at point one were highly fractured.
Both Peter Allen, a geologist, and Bill Howard, a geotechnical engineer, noted the presence of numerous fractures and discontinuities in the core borings taken from the site. Although there is no evidence that these borings were not representative of the actual trench materials, it must be noted that the C and D cores were drilled approximately six months after the accident. Nonetheless, both men's findings are corroborated by photographic evidence taken of the trench at the time of the accident. These photographs reveal numerous fractures and discontinuities in the trench wall. Similarly corroborative is Dr. Allen Peck's soil analysis of Field Sample No. 2. Dr. Peck concluded that the material at point one was fractured with an angle of repose of 39 degrees. (His findings are consistent also with the testimony of CO Padron, who said he could break the material with his hands, and the testimony of Kevin MacDonnel, who said the material at point one was fractured.)
Additionally, Bill Howard and Dr. Allen noted that the Austin Chalk Formation is potentially unstable. Carl Raba did not disagree. Both Howard and Dr. Allen stated that the amount of fracturing (and instability) increases as one approaches a fault zone. Gardner Atkinson, a mechanical engineer familiar with the geology of the Centrum project, testified that the Austin Chalk Formation is highly faulted. In fact, a mapped fault was located 1200 feet from the accident site.
Finally, the fact that the trench wall did collapse is another indicator of its instability.
Although the trench walls at point one are found to be unstable, no violation of 1926.652(b) can be established, however, unless it is also known that Bland could reasonably have known of this instability.
Although Cravens and Dr. Raba said they did not believe the operator would have seen any signs of instability, the Secretary's evidence on this issue is more persuasive. The defects in the trench walls are apparent in the photographs of the site as well as the video tape of recovery operations. (C.Br. 5.) Kevin MacDonnel, the volunteer firefighter who observed the condition of the trench walls soon after the accident, described them as having "lots of cracks and fissures." Although MacDonnel is not an expert, there is no reason to doubt his credibility. In any case, Dr. Allen testified that the fractures and discontinuities in the limestone were visible. More telling is the testimony of a former Bland employee with years of trenching experience. Artis Howard stated that he would not have sent employees into the trench given the condition of the trench walls. (Tr. 516-517.)
Given the above, it follows that Gregorio Reza, the person responsible for sloping Respondent's trenches (Tr. 261-262) and the person who observed the condition of the trench walls prior to the accident, knew or should have known of the hazard of a cave-in. Similarly, Isidor Flores, Reza's foreman who had stopped by the accident site at least once that morning, was also on notice. (Tr. 260-261.) Because Reza and Flores are both supervisors at the site, their knowledge may be imputed to Bland Construction Company.
Indeed, one may not even have to impute knowledge to Respondent: Respondent clearly established that it considered vertical trenching through limestone to be a very safe and accepted practice. (R.Br. 9-10; 14.) Respondent considered this procedure safe because it has had no injuries or failures (that it was aware of) in the past. (R.Br. 9-10.) Be that as it may, the trenching standards are not based on how long a trench will remain safe and stable. Sections 1926.652(b) and (c) unambiguously inform employers that some protection is required in any trench five feet or more in depth that is excavated in soil. Connecticut Natural Gas Corp, 6 BNA OSHC 1796, 1978 CCH OSHD ¶ 22,874 (No. 13964, 1978). The standards assume that the walls of any trench excavated in soft and unstable or hard and compact soil are subject to a cave-in at any given time and without warning. The employer is not given the option of guessing how long the walls will remain stable. The employer is required to take protective measures whenever the standards apply.
Furthermore, even though Bland's conduct may have conformed to normal industry practice,[] this is not relevant if the standard unambiguously prescribes different conduct. Cleveland Consolidated, Inc., 13 BNA OSHC 1114, 1117, 1987 CCH OSHD ¶ 27,829 p. 36,428 - 36,429 (No. 84-696, 1987.) Inasmuch as the standard cited here is specific and unambiguous, the testimony as to industry practice is no defense to the violation.
Because a violation of 1926.652(b) was established at point one, a discussion of a violation of the same standard at point two may appear needless. Suffice it to say, even if the trench wall material at point one were solid rock, therefore not required to be sloped under Table P-1, Respondent would still have been in violation of 1926.652(b). Three of the four witnesses who saw the trench wall at point two said it was not laid back . The fourth witness, Artis Howard, equivocated on this issue; consequently, his testimony can be accorded little weight. As for the video taken by the Austin Fire Department, any apparent sloping of the east wall at the point of collapse was due to recovery efforts. Two witnesses -Eliot and MacDonnel- viewed the trench prior to the commencement of recovery operations, and both men stated that point two was not sloped.
Finally, the backhoe operator, Gregorio Reza, admitted that he had not finished sloping the east wall prior to the cave-in.
Because point two consisted of silty clay with an angle of repose of 32 degrees, it was unstable material under Table P-1, and thus needed to be sloped. As the weight of the evidence establishes that it was not, a violation at point two has been established.
(b) Item 1(b): Points Three and Four
It is conceded that the trench was over five feet deep and that it was not shored. Employee access to these trench areas was established by Roberto Velez, who had laid pipe at points three and four. The Secretary's expert witnesses testified that the material comprising the trench walls was silty clay. Silty clay is considered unstable material under Table P-1 and is required to be shored and braced. Respondent's expert witness, Carl Raba, testified that the material at point three was clays, "stiff to very stiff in consistency." He classified it as "hard and compact soil" with an angle of repose of 45 degrees or one-to-one. However, clays are specifically listed under Table P-1 as unstable material, thus 1926.652(b) is the applicable standard.
Even if Carl Raba's classification of the material at point three is correct (and the applicable standard is 1926.652(c)), the weight of the evidence establishes that the trench walls were not sloped. The witnesses who viewed points three and four on April 21 or 22, 1987 testified that the trench walls were vertical and not sloped. The only witness who testified otherwise was Carl Raba, and he visited the trench site on April 25, 1987. Thus, the evidence still favors the Secretary even if the standard at issue is 1926.652(c).
Because the trench walls were not shored, sloped, or otherwise supported, and because the employer was aware (through Reza and Flores) of the violative condition, yet did nothing to limit employee access to the trench, a violation of 1926.652(b) has been proven.
Nature of the Violation
The Secretary originally considered the alleged violation to be a "repeat" violation. As previously indicated, the citation and complaint were amended to alleged two willful violations of the trenching standards.
A willful violation is one that is "committed voluntarily with either an intentional disregard for the requirements of the Act or with plain indifference to employee safety." A.C. Dellovade, Inc., 13 BNA OSHC ----, 1987 CCH OSHD ¶ 27,786 (No. 83-1189, 1987); Asbestos Textile Co., 12 BNA OSHC 1062, 1984 CCH OSHD ¶ 27,101 (No. 79-3831, 1984); D. A. & L. Caruso, Inc., 11 OSHC 2139, 1984 CCH OSHD ¶ 26,985 (No. 79-5676, 1984.)
A number of factors have been considered by the Commission deciding the issue of willfulness, including an employer's knowledge of the standard; his reason for noncompliance; good faith efforts made to comply; established procedures for compliance; responsibility for compliance; previous violations of the same standard; warning from workers at the site; precautions taken to protect employees; the isolated acts of employees or supervisors; and employee training. E.g., Asbestos Textile Co., Inc., supra., Mobil Oil Corporation, 11 BNA OSHC 1700, 1983-84 CCH OSHD ¶ 26,699 (No. 79-4802, 1983).
Bland had been previously cited for violation of the same standard in July 1986 (Ex.C-51; Tr. 447-450) and was therefore familiar with the standard's requirements. (Indeed, Joe Bland, the company president, testified that he read and understood OSHA's trenching requirements. Tr. 593-594.) Additionally, Walter Cunningham, the CO who had cited Bland for the 1986 trenching violations, testified that he had held an informal conference with Respondent regarding the citations (Tr. 450-451), and that he had conducted a seminar for Bland employees explaining the trenching regulations. In that seminar, which was held in July 1986, Cunningham specifically discussed Table P-1 and how to trench in rock. He informed Respondent that fractured rock is not solid rock and that Bland needed to take adequate protective measures. (Tr. 453-454; 467-468.)
Despite this, Respondent entrusted responsibility for sloping the trenches to Gregorio Reza, who had received no trench safety training (other than Cunningham's seminar), spoke no English and could not read or write. Whether or not Reza understood the OSHA requirements is not apparent. What is apparent is that Reza continued to trench vertically through fractured limestone, and that Respondent approved. No adequate explanation was proffered for Bland's failure to comply with the standard, other than it believed it was conforming to industry practice. However, the evidence regarding industry practice indicates that area contractors do not vertically trench when trench walls are fractured and cracked. (Tr. 993-994; 1059-1060; 1068; 1094-1102.) And, as discussed supra, the walls of Respondent's trench at point one were visibly fractured. No explanation was offered for Bland's failure to slope the trench at points three and four.
The above facts demonstrate that Bland either intentionally disregarded the terms of the cited standard or was plainly indifferent to them. Consequently, the willful violations of 1926.652(b) will be affirmed. The proposed penalty of $10,000 for item 1(a) and $10,000 for item 1(b) will similarly be affirmed.
FINDINGS OF FACT
All findings of fact relevant and necessary to a determination of the contested issues have been found specially and appear above. See Rule 52(a) of the Federal Rules of Civil Procedure. Proposed findings of fact of conclusions of law that are inconsistent with this decision are DENIED.
CONCLUSIONS OF LAW
1. The Commission has jurisdiction over the parties and subject matter of the proceedings.
2. Respondent is engaged in a business affecting commerce and is an employer within the meaning of the Act.
3. Respondent was in willful violation of 29 CFR §1926.652(b) at the area described in Item 1(a).
4. Respondent was in willful violation of 29 CFR §1926.652(b) at the area described in Item 1(b).
Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, it is ORDERED that:
Item 1(a) of the citation is affirmed, with a civil penalty of $10,000 imposed for the violation.
Item 1(b) of the citation is affirmed, with a civil penalty of $10,000 imposed for the violation.
Louis G. LaVecchia
Dated: September 23, 1988
[[1/]]The first citation item also alleged that the topsoil where the fatality occurred required protection, and the judge so found. Review was not directed as to that finding.
[[2/]]Since the citation, the Secretary has enacted new standards governing excavation safety (new Subpart P, entitled "Excavations"). The old standard, cited in this case, provided:
Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. See Tables P-1, P-2 (following paragraph (g) of this section).
[[3/]] On the basis of a city fire department video tape of the rescue operation, Professor Allen testified that he ''thought" he noticed fractures--"but the video tape is a little fuzzy." On the basis of photographs taken by the local police, Professor Allen and engineer Howard opined that there were visible fissures. President Bland disagreed: "They were in the very most upper portions . . . . [T]he backhoe having dug for an hour and a half or two hours, [it] would have probably . . . made an untold number of digging passes out of that trench, excavating a shallow pass each time . . . . "
[[4/]] Compliance Officer Cunningham testified that Bland's request was the first by an Austin-area contractor, and that it demonstrated interest in understanding the safety regulations. President Bland explained: "I felt like we were probably unfamiliar with the laws as they existed, and it would be necessary to have that seminar for us to become familiar." Attendance had been "mandatory for anybody who wanted to stay with our company," for [w]e had to learn to abide by the O.S.H.A. standards."
[[5/]]Consultant Raba interviewed Raba-Kistner's Austin staff, two contractors, officials of Austin city agencies that employ trenching contractors and the director of the Associated General Contractors (AGC) of Austin. He had previously viewed several vertical trenches in the Austin Chalk where, having considered any nearby faults and visible fractures, he had not recommended shoring or sloping.
[[6/]]The expert testimony affirmatively indicates that, in the Austin area, prior to Bland's cave-in, there had not been any trenching failures of vertical cuts, and we have no evidence of any failures. Bland had worked on nearby projects where trenches were approximately as deep as the bedrock trench in this case. The limestone was similar in appearance and there had been no signs of instability. According to Bland's president, approximately 75-80% of the company's trenching work during the last three years, or approximately 1 million feet, had been in the Austin Chalk. Also, the company had been doing utility contracting since the late 1940's without any other fatality or "disabling" injury.
[[7/]] According to his testimony, President Bland, when bidding on a project, judged the earth material by his own local experience and by observation of nearby work by other trenching contractors. He, along with other local contractors, believed that it was safe to make vertical trenches in the Austin Chalk because it was a "commonplace practice," without any failures. In this vein, we note civil engineer Howard's testimony that successful experience with vertical limestone could suggest that there was no reason to be concerned that it might prove to be unstable.
[[8/]] The Secretary, citing Donovan v. Capital City Excavating Co., 712 F.2d 1008, 1010 (6th Cir. 1982), and F.X. Messina Corp. v.OSHRC, 505 F.2d 701, 702 (1st Cir. 1974), asserts that "[g]ood faith is inapplicable to a determination of willfulness." We respectfully disagree. As the Supreme Court recently stated, where "the standard for the statutory willfulness requirement is the 'voluntary, intentional violation of a known legal duty,"' the government has the burden of "negating a defendant's claim that because of a misunderstanding of the law, he had a good faith belief that he was not violating" the law. Cheek v. U.S., 111 S.Ct. 604, 610 (1991). Good faith is not inapplicable to the analysis.
[[9/]] Cf., Todd-Shipyards-Corp. v. Secretary of Labor, 566 F.2d 1327, 1330 (9th Cir. 1978) ("the six month statute of limitations found in section 658(c) protects the employer, while the 'reasonable promptness' language of section 658(a) is designed to protect the employee"); Coughlin Construction Co., 3 BNA OSHC 1636, 1638, 1975-76 CCH OSHD ¶ 20,106, p. 23,924 (No. 5303, 1975) ("If anybody is adversely affected by a delay in issuance of a citation, it is the employees who are exposed to the hazard [the Secretary] seeks to eliminate")
[[10/]] Rule 8(d) of the Commission's Rules of Procedure, 29 C.F.R. § 2200.8(d), states: "Filing is deemed effected at the time of mailing . . . ." The Secretary mailed the amended complaint on October 20, 1987.
[[11/]] Bland argued that the amendment should not be allowed because, upon deposition, the compliance officer had testified that he had not found any violations other than in the bedrock trench, examined during his inspection. Bland's review brief argues that the inspection did not provide notice to Bland that any area other than the bedrock trench was being investigated. We note, however, that the Secretary has authority to issue citations "upon . . . investigation. . . . " See H.B. Zachry Co. v. OSHRC, 638 F.2d 812 (5th Cir. 1981); 29 U.S.C. § 658(a). Moreover, surprise or delay alone, without a showing either of a dilatory motive on the part of the moving party or of prejudice to the opposing party's ability to prepare for trial, are insufficient grounds for denying an amendment. U., 803 F.2d 202, 210 (5th Cir. 1986).
[[12/]]Bland asserts that the judge erred in ruling immediately, before having received Bland's response. However, Rule 40(c) of the Commission Rules of Procedure, 29 C.F.R. § 2200.40(c), provides: "A procedural motion may be ruled upon prior to the expiration of the time for response. A party adversely affected by the ruling may within five days of service of the ruling seek reconsideration." The judge forwarded a copy of his order to Bland, and upon receiving Bland's response, the judge considered and overruled it.
[[13/]]Bland argues that the Secretary failed to file a "formal amendment." However, neither the Commission Rules nor the Federal Rules of Civil Procedure require anything more than the filing of a motion and an amended pleading, which the Secretary filed. Bland further argues that "[n]o citation was ever issued, nor proper notice given, within six months of April 21, 1987." However, having been filed within the statutory limitations period, the Secretary's "Amended Complaint" operated as a citation. See P & Z Co., 7 BNA OSHC 1589, 1591-92, 1979 CCH OSHD ¶ 23,777, p. 28,830 (No. 14822, 1979) (an amendment serves as a citation to provide actual notice of a claim). The Secretary's "Amended Complaint," together with the Secretary's "Motion for Leave to Amend Complaint and Citation," gave plain notice of an intent to cite a second claim relating to the one inspection. The Secretary described the claim "with particularity [as to] the nature of the violation" and the "standard . . . alleged to have been violated." 29 U.S.C. § 658(a). If the description was insufficient, Bland could have filed a motion for more definite statement or a motion to dismiss for failure to state a claim upon which relief could be granted. See Fed.R.Civ.P. 12(e) & (b), respectively.
[] In United Cotton Goods, supra, the Commission held that, in the absence of employer prejudice, it is appropriate to grant a pretrial amendment and continuance to cure any resultant surprise.
[] Dr. Allen said these three borings were approximately the same distance away from the fault as the trench in issue. Additionally, all three borings had the same general relationship to the underlying shale, (Tr. 130.)
[] According to Dr. Allen, the rock quality designation measures the number of four inch pieces of intact rock all over the length of the core. It is a ratio of these core lengths. A RQD of 0-25 denotes very poor rock quality; 25-50, poor; 50-75, fair; 75-90, good; and, 90-100, excellent. (Tr. 96.)
[] The fracturing is due to the existence of underlying shale and past Balcones faulting. The underlying shale causes the chalk on top to become brittle and fracture. As for the past faulting, Dr. Allen testified that, typically, the closer one gets to the fault, the greater the number of fractures. (Tr. 108-111.)
[] Even if the trench was dug in "hard and compact soil," some protection (e.g., shoring, sloping) would still be required under 1926.652(c).
[] Although Gregorio Reza's testimony indicated that Nazario should not have been in the trench (Tr. 260), this vague allegation of employee misconduct can be dismissed. Peza admitted that other employees had been in the trench performing their work earlier that morning. (Tr. 248.) Additionally, Roberto Velez testified that he was working in that trench on April 21, 1987. (Tr. 499.) Thus, it is most likely that Nazario was only performing his work duties at the time of the fatal accident. In any case, there is insufficient evidence to establish employee misconduct.
[] Respondent called several area contractors who testified
that vertical trenching through limestone is a common practice. (Testimonies of Brian
Schnelle, Tr. 994; Al Haegelin, Tr. 1059-1060; Jay Watkins, Tr. 1068-1069.) However, these
individuals also stated that if the trench wall was cracked or fractured, they would not
trench vertically. (Tr. 993-994; 1059-1060; 1068.) It might also be noted that the the
Secretary's rebuttal witness, Bob Long, a pipefitter welder with 25 years' experience,
said that most contractors do slope or shore trenches dug in hard limestone that are more
than five feet deep. (Tr. 1094-1102.)