HARDY CONSTRUCTION COMPANY

OSHRC Docket No. 1053

Occupational Safety and Health Review Commission

August 20, 1974

[*1]

Before VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order directing review of a decision rendered by Judge John J. Morris. By his decision Judge Morris found Respondent in non-serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") for having violated the provisions of 29 C.F.R. 1926.652(c). No penalty was assessed. In addition Judge Morris vacated that portion of the Complainant's citation alleging a violation of 29 C.F.R. 1926.652(a).

We have reviewed the record including the Judge's decision and the brief filed on review by Respondent. n1 We find no prejudicial error therein.

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n1 Complainant petitioned the Commission for discretionary review of the Judge's decision. However, Complainant has failed to file a brief on review.

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The Commission specifically rejects that portion of the Judge's decision whereby he concludes that the term "bank" as set forth [*2] in 29 C.F.R. 1926.652(a) n2 refers to that part of the soil which is removed in digging the trench and which is placed alongside the trench. Such material constitutes spoil piles. A bank is defined as a mass of soil rising above the digging level. n3 We have previously held that in order to avoid redundancies in the standards, it is necessary to interpret digging level as the point at which digging is commenced. Gerstner Electric, Inc., Docket No. 997 (August 1, 1974). Thus, 1926.652(a) is applicable where excavation commences in other than flat ground or immediately adjacent to other than flat ground. Gerstner Electric, supra.

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n2 The standard provides, as follows:

Banks more than 5 feet high shall be shored, laid back to a stable slope, or some other equivalent means of protection shall be provided where employees may be exposed to moving ground or cave-ins. . .

n3 29 C.F.R. 1926.653(c)

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Accordingly, it is ORDERED that the decision of the Judge be and the same is hereby affirmed.

CONCURBY: CLEARY

CONCUR:

[*3] CLEARY, COMMISSIONER, concurring: I concur in the disposition of this case.

I do not, however, agree with the explicit rejection by my colleague of Judge Morris' construction of the term "bank," to the extent that that rejection implies that soil removed in the digging of a trench may not be subject to the requirements of the standard at 29 CFR 1926.652(a). The earth removed from a trench may, in some instances, be included in a bank.

On the other hand, I would not limit the meaning of the term "bank," as does Judge Morris, exclusively to the soil removed. Clearly, the standard at 29 CFR 1926.652(a) is applicable where the trench is dug in ground which is not level. See Gerstner Electric, Inc., No. 997 (August 1, 1974).

[The judge's decision referred to herein follows]

MORRIS, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651, et seq., hereafter called the Act) contesting certain Citations issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act.

The Citations allege that Complainant inspected a workplace under the ownership, [*4] operation or control of Respondent, located in Laurel, Montana, and described as follows: a trenching excavation for fire water line at the Farmers Union Central Exchange.

It is further alleged that Respondent violated Section 5(a)(2) of the Act by failing to comply with occupational safety and health standards promulgated by Complainant, pursuant to Section 6 thereof. Immediate abatement was proposed.

The contested Citation was issued on June 7, 1972 as the result of an inspection of June 7, 1972 and it is alleged that the standard violated was duly published in the Federal Register and subsequently recodified in the Code of Federal Regulations at 29 CFR 1926.652(a) and (c).

The description of the violations alleged in Citation for serious violation Number 1 states as follows:

On June 6, 1972, on northeast side of tank-farm for Farmers Union Central Exchange, Laurel, Montana, employees were observed working in trenches more than 5 feet in depth and 8 feet or more in length. Employer had failed to shore or otherwise support the sides of trenches, or to slope trenches to adequate angle or repose.

The Citation alleges that the standard violated is codified at 29 CFR 1926.652(a) [*5] & (c).

The standards as promulgated by the Secretary are as follows:

(a) Banks more than 5 feet high shall be shored, laid back to a stable slope, or some other equivalent means of protection shall be provided where employees may be exposed to moving ground or cave-ins. Refer to Table P-1 as a guide in sloping of banks. Trenches less than 5 feet in depth shall also be effectively protected when examination of the ground indicates hazardous ground movement may be expected.

(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.

Pursuant to the enforcement procedure as set forth in Section 10(a) of the Act, the Respondent was notified by letter dated June 7, 1972 from the Area Director of the Occupational Safety and Health Administration, [*6] U.S. Department of Labor; said Area Director proposed to assess a penalty for the violations alleged herein in the amount of $550.00

After Respondent contested this enforcement action, and a Complaint and an Answer having been filed by the parties, the case came on for hearing in Billings, Montana on October 19, 1972. No parties desired to intervene in the proceedings; all notices, including the notice of hearing was duly posted (Tr. 6).

STATEMENT OF JURISDICTION

Respondent in its amended answer admitted the allegations in paragraph 3 of the Complaint to the effect that Respondent regularly receives in commerce goods, materials and supplies which have originated outside the State of Montana and its employees regularly handle and work on goods that have been shipped or received in commerce within the meaning of the Act. The record further reflects that Respondent uses the mails and other facilities of Interstate Commerce (Complaint, paragraph 3; Respondent's amended answer, paragraph 1; Tr. 4, 5). It accordingly follows that Respondent is an employer in the meaning of the Act and that the Occupational Safety and Health Review Commission has jurisdiction of the parties [*7] and subject matter in this litigation.

EVIDENCE

Gordon F. LaFournaise, a Compliance Officer for the Occupational Safety and Health Administration of the United States Department of Labor (Tr. 8, 9) inspected the worksite in question on June 7, 1972, (Tr. 8, 9, 12). In the company of Respondent's Superintendent he observed an employee of Respondent in a ditch (Tr. 12, 16). Two men were working in a trench that measured 6 feet 3 inches in depth and 34 inches in width (Tr. 15). The Compliance Officer estimated the trench to be some 20 feet in length (Tr. 15). The Citation issued related to the depth of the trench (Tr. 27) and it did not relate to the bank above ground level (Tr. 28).

In order to bring the ditch in compliance with the standard it would have been necessary to slope the trench back 1 foot 3 inches above the five foot level; it should slope back on a 1/2 to 1 ratio (Tr. 17, 29). The vertical distance that would have to be shaved would be 16 inches (Tr. 29) (Respondent's Exhibit 4). The horizontal distance would have been six inches. [Respondent's exhibit 3 shows the darkened areas which would have to be shaved off to comply with the regulations (Tr. 37).] [*8] [Complainant's exhibit G is free hand drawing showing the areas that would be cut back in order for this trench to be in compliance with the standard.] On Complainant's exhibit G these areas as outlined in red and marked as red triangles and marked respectively "A" and "B".

In the opinion of the Compliance Officer the main hazard that in not sloping or cutting back there would be a cave-in or falling off of the sides of the trench and a person could be pinned to the other side (Tr. 17). The Compliance Officer felt that the greatest problem of a cave-in could occur from those parts that were not sloped back (Tr. 19). If these areas were to slough off and a man were bending over he could be caught in the upper part of his body, possibly his head, and could possibly sustain crushing injuries (Tr. 22). Testimony indicated that workmen in the trench are not likely to be bent more than at a 45 degrees angle (Tr. 33). The Compliance Officer admitted that he was not a soil expert and couldn't state that the area in question could cause a cave-in (Tr. 37). The volume of dirt represented by the triangle under discussion falling a distance could possibly cause serious injury or death (Tr. [*9] 39). The worksheet as to other than serious violations contains a category for gravity ratings. These ratings are A, B, C and X and a Compliance Officer on the basis of such a scale would rate this as a "C" gravity situation (Tr. 45). No one was injured on the job (Tr. 48). The triangular under discussion would fall two feet if it sloughed off and this could cause a bump on the head and possibly a concussion (Tr. 56); it could possibly cause other injuries (Tr. 56). The triangles under discussion have an area of .429 square feet (Tr. 59).

Witness Vernon Strahm, Area Director for the Occupational Safety and Health Administration testified that the sloughing off of the triangular areas were the primary reasons for the issuance of the Citation (Tr. 64) and other options available were trench boxes and shields (Tr. 64). The Area Director testified that the trench would be in compliance if a triangle 8 inches on one side and 16 inches on the other side had been cut (Tr. 82). Respondent's basic position was that the trench did not comply with regulations but Respondent challenged whether the violation was a serious one (Tr. 7 -- 8). Respondent's evidence indicated that [*10] Respondent had an active safety program (Tr. 91). Respondent had prepared a list of the number of points covered by the regulation that had been circulated to employees (Respondent's Exhibit 6). The General Superintendent of Respondent stated that beginning in September, 1971 they had conducted three meetings pertaining to safety of about an hour each; some lasting two hours (Tr. 98). The foremen are also instructed to conduct safety meetings on various projects (Tr. 98). Respondent had never had a man killed on the job (Tr. 100) and no deaths or serious injuries were involved at the worksite in issue in this case (Tr. 101). After the Compliance Officer made his inspection Respondent shored the trench (Tr. 101).

The entire length of the trench that had been inspected by the Compliance Officer was 450 feet (Tr. 103). In the Area where the trench was 6 foot, 3 inches deep you could see a general rise in the ground for an area of about 20 feet (Tr. 103). The general superintendent classified the soil as hard compact stable soil. Respondent had done excavation work in this general area for the last 20 years (Tr. 106). The only reason for any employees to go into the [*11] ditch was to clean out the lumps at the bottom left from the back hoe operation (Tr. 115).

A consulting engineer testified for Respondent and indicated that from a recent test of a 20 foot length of trench dug to a depth of 6 foot 3 inches and located 15 feet from the area of the alleged violation the soil was classified as firm, moist clay (Tr. 107, 131). In his professional opinion the failure or collapse of the trench in question was more likely to occur along a line shear which he drew on exhibit G (Tr. 133). The testimony indicated that the area of a triangle 16 inches by 8 inches on the legs of a right triangle is less than a square foot, approximately .45 square feet. A trench 6 foot 3 inches deep and 34 inches wide would have an area of about 20 square feet (Tr. 136). In his opinion a failure to cut out a 8 inch by by 16 inch triangle would have a very minor effect on the probability of a cave in (Tr. 136, 137). A one foot long triangle of the area under discussion would weigh 40 to 45 pounds (Tr. 143). In the opinion of the soil expert there was a possibility which he distinguished from a probability of injury (Tr. 146). In the opinion of Respondent's soil expert [*12] the presence of the unshaved portion of the trench would have a minor effect on the prossibility of the collapse of the trench (Tr. 151); on a percentage basis he estimated the effect to be 5% although he could be off as much as 100% (Tr. 151-154).

As to the proposed penalties the evidence indicated that the unadjusted initial penalty was $1000 (Tr. 23). This was reduced 20% for good faith, 5% for size and 20% for previous history for a net proposed penalty of $550.

ISSUES

Respondent urges that 29 CFR 1926.652(a) and (c) are unconstitutionally vague and conflicting in that an employer who complies with (c) by sloping the sides of the trench above the 5 foot level can nonetheless be cited for a violation of subsection (a) for failing to slope from the bottom of the trench (Respondent's Brief).

As to the foregoing argument it is this Judge's view that subparagraph (a) and (c) of 29 CFR 1926.652 are not in conflict nor unconstitutionally vague. Subparagraph (a) relates to "banks" where employees may be exposed to moving ground or cave-ins. A bank is defined at 29 CFR 1926.653(c) as "a mass of soil rising above a digging level." This Judge construes the term "bank" to be [*13] that portion of the soil which is removed in digging the trench and which is placed alongside the trench. With this construction of subparagraph (a) the sections are not in conflict. To put it another way: in digging a trench the excavator must take the necessary precautions prescribed in 29 CFR 1926.652(a) where employees are exposed to moving ground or cave-ins by cutting back from the bottom of the "bank." From this interpretation it follows that the illustration of the angle of repose in Table P-1 referred to in the cited standard is technically erroneous in that it illustrates the angle of repose as being from the bottom of the trench. Subparagraph (c) relates to sides of trenches in hard or compact soil. In such a situation and in lieu of shoring, the sides of the trench above the 5 foot level may be sloped to prevent collapse but shall not be steeper than a one foot rise to each 1/2 foot horizontal. In the instant case Complainant's Compliance Officer, LaFournaise and Area Director Strahm, correctly interrupted subparagraph (c) when they testified that Respondent would have been in compliance with the regulations if the sides of the trench above the five foot [*14] level had been sloped on a ratio of one half foot horizontal to one foot rise (Tr. 28 -- 29, 82). The evidence of record was that the citation against Respondent related to that part of the trench from ground level down and the citation was not issued because of conditions occurring above ground level (Tr. 28 -- 29). From the foregoing it is apparent Respondent did not violate subparagraph (a) of 29 CFR 1926.652.

Respondent raised an additional issue as to whether the Review Commission can determine constitutional issues. The law is clear that while this Commission has no power to decide constitutional questions as to the Act itself ( Panitz v. District of Columbia, 72 App. DC 131.112 F2d 39; Fasgate Company v. Kirkland, D.C., S.D., Fla, 19 F. Supp 152, it may decide and determine constitutional applicability, Davis, Administrative Law Treatise, Sec. 20.04. It is this Judge's ruling that 29 CFR 1926.652(a) and (c) are not constitutionally infirm as vague, indefinite, of conflicting and Respondent's point is denied.

The remaining issues raised by Respondent were whether the violation of 29 CFR 1926.652(c) was a serious violation and whether the proposed penalty was [*15] properly assessed. These issues will be disposed of in the evaluation of the evidence.

Section 17(k) of the Act provides as follows:

For the purposes of their Section a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations or processes which have been adopted or are in use, in such place of employment unless the employer did not and could not with the exercise of reasonable diligence know of the presence of the violation.

In the instant case the determinative portion of the Section 17(k) is the requirement that a serious violations exists if. . . . "there is a substantial probability that death or serious physical harm could result. . . ."

In this case Respondent's trench had an overall legth of 450 feet (Tr. 103). For some 20 feet the trench measured 6 foot 3 inches which was due to a general rise in the ground (Tr. 15, 103). The trench was 34 inches in width (Tr. 15). The soil was stable (Tr. 106) and to bring the trench into compliance with 29 CFR 1926.652(c) it would be necessary [*16] to slope the trench back 1 foot 3 inches above the 5 foot level on a 1/2 to 1 slope (Tr. 17, 29). The vertical distance to be shaved would be between 15 and 16 inches (Tr. 29) [Respondent's Exhibit 3]. The resultant triangle would be 8 inches on one side and 16 inches on the other (Tr. 82, Respondent's Exhibit 4). A one foot long triangle of this area would weigh 40 to 45 pounds. (Tr. 143).

Under Commission Rule 2200.73(a) the burden of proof rests with the Complainant's Secretary to prove that there is substantial probability of death or serious physical harm as required by 17(k) of the Act. Complainant's case fails in this respect in that the evidence shows possibility rather than probability. There "could," be a cave-in (Tr. 19); a man could "possibly" sustain injuries (Tr. 22, 56). A volume of dirt such as this could "possibly" cause death or injury (Tr. 39). Respondent's soil expert estimated the effect of the unaloped area of the trench would be approximately the same as its weight volume (namely 5%); failure to cut the 8 inch by 16 inch section would have minor effect (Tr. 136, 137). Complainant has failed to meet the burden of proving there was a serious [*17] violation and the citation and proposed civil penalty of $550 should be vacated.

The immediate issue presented is whether this Judge may find a citation to be of a non serious nature when the citation alleges a serious violation. In the case of Secretary of Labor v. Wetmore and Parman, Inc.

1.c. 7: . . . we believe ourselves without authority, absent the consent of the Secretary, to find a violation of a degree higher than that charged by the Secretary.

The above cited case is not controlling as basically it states that the lesser alleged violation cannot form a basis to find a violation of a higher degree (absent the consent of the Secretary). However, this Judge rules on the converse principle which is that the greater includes the lesser. In other words, where the Secretary alleges a serious violation of a standard the Review Commission has the statutory mandate to adjudicate the case and to find a non serious violation if one exists on the facts. This in effect is what the Commission has done from its inception.

The next issue is the appropriateness of a penalty, if any, to be [*18] assessed against Respondent. It is this Judge's view that the establishment of a penalty under circumstances as in this case are discretionary. In this case the principal purpose of the Act was accomplished in that Respondent immediately shored the trench after the inspection by the Compliance Officer (Tr. 101). In Secretary of Labor v. Nacirema Operating Company, Inc. Secretary v. National Realty and Construction Company, Inc.

1.c. 6: In determining the gravity of a violation, several elements must be considered: (1) the number of employees exposed to the risk of injury; (2) the duration of the exposure; (3) the precautions taken against injury, if any; and (4) the degree of probability of occurrence of an injury.

In this case the only reason for an employee to go into the ditch was to clean out lumps left from the back hoe operation (Tr. 115). The inference and the [*19] evidence is that at best 2 employees would be exposed (Tr. 16); further, the duration of the exposure was minimal considering that 20 feet out of a total of 450 feet (Tr. 103) were in violation. This Judge considers the probability of the occurrence of an injury to be minimal in that the soil excess in violation of the standard could only be a 5% contributing factor to a cave-in (Tr. 153-154). In view of the foregoing this Judge declines to exercise his discretion and declines to assess any monetary penalty against Respondent.

FINDINGS OF FACT

1. Respondent Hardy Construction Company is now and was at all times herein mentioned incorporated under the laws of the State of Montana and engaged in business regularly receiving goods, materials and supplies from other states and said Respondent used facilities of interstate commerce. (Complaint, paragraph 3; Respondent's amended answer, paragraph 1; Tr. 4, 5).

2. On June 7, 1972 an employee of Respondent was working in a trench which measured 6 feet 3 inches in depth and 34 inches in width for a distance of 20 feet of a total of 450 feet (Tr. 8, 9, 12, 15, 16, 103).

3. The sides of the trench were hard, compact and stable [*20] (Tr. 106).

4. The citation issued related to the depth of the trench and not to the bank above the ground level (Tr. 27, 28).

5. The sides of the trench were not shored or otherwise supported (Tr. 17, 29, 101).

6. The sides of the trench were not sloped above the five foot level (Tr. 17, 29).

7. To bring the trench into compliance with the standard it would be necessary to cut back a horizontal distance of six inches and a vertical distance between 15 and 16 inches (Tr. 29, 37 82; Complainant's Exhibit G; Respondent's Exhibit 3).

8. The area of the triangle described in the preceding paragraph is .429 square feet (Tr. 59) and it would have a minor effect (5%) on the probability of a cave-in (Tr. 136, 137, 153-154).

9. Respondent immediately complied by shoring the trench (Tr. 101).

10. One or two employees were exposed in cleaning out lumps left from the back hoe operation (Tr. 115).

CONCLUSIONS OF LAW

1. Respondent is, and was at all times relevant to the issues herein, engaged in a business affecting commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970 (Facts, Paragraph 1).

2. Respondent is and was at all times herein [*21] mentioned, an employer within the meaning of Section 3(5) of the Act and subject to the provisions of Section 4(a) and 5(a) of the Act and standards promulgated under Section 6 (Facts, paragraphs 1 and 2).

3. Respondent did not violate 29 CFR 1926.652(a) (Facts, paragraph 4).

4. Respondent violated 29 CFR 1926.652(c) (Facts, paragraphs 2, 3, 5, 6).

5. Complainant has failed to carry the burden of proof to establish that there was a substantial probability that death or serious physical harm could result from the violation of 29 CFR 1926.652(c) (Facts paragraph 7, 8; Act; Sec. 17(k).

6. The violation of 29 CFR 1926.652(c) was non-serious.

7. The Occupational Safety and Health Review Commission has discretionary authority to access a civil penalty for a non-serious violation though the proposed penalty sought was for an alleged serious violation (Act Sec. 17(j)).

8. The discretionary authority should not be exercised where Respondent immediately complied and where the gravity of the offense was minimal (Facts, paragraphs 9, 10).

ORDER

Based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED:

1. Citation Number 1 for alleged serious [*22] violation of 29 CFR 1926.652(a) is vacated.

2. Citation Number 1 for alleged serious violation of 29 CFR 1926.652(c) is vacated and in lieu thereof an other than serious violation of 29 CFR 1926.652(c) is determined.

3. The proposed civil penalty of $550 for the alleged serious violation of 29 CFR 1926.652(a) and (c) is vacated.