DON HELVIG, d/b/a DON HELVIG EXCAVATING

OSHRC Docket No. 14379

Occupational Safety and Health Review Commission

January 18, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry C. Mahlman, Assoc. Reg. Sol., USDOL

L. J. Schirado, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed Judge's decision. [*2] Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

DECISION AND ORDER

Ann M. Noble, for the Complainant

L. J. Schirado, for the Respondent

Carlson, Judge, OSAHRC:

This is a proceeding brought under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.), hereinafter referred to as "the Act". By two citations issued July 14, 1975, complainant alleged that respondent violated section 5(a)(2) of the Act through a failure to comply with two construction safety standards published at 29 CFR, Part 1926. The citations resulted from an inspection which was conducted on July 9, 1975 at a site where respondent was engaged in excavating work. A single [*3] violation of a "serious" character was charged in citation number 2; citation number 3 charged a single item of a "nonserious" nature. The pertinent portion of citation number 2 reads as follows:

29 CFR 1926.652(b) - On or about July 9, 1975 the employer failed to provide a shoring system, sloping of the ground to the proper angle of repose or some other means of equivalent protection for employee who was exposed to trench side collapse while working in a trench in excess of 5 feet in depth.

The cited standard provides:

1926.652 - Specific trenching requirements. (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 (following paragraph (g) of this section).

The pertinent portion of citation number 3 reads:

29 CFR 1926.652(h) - The required adequate means of exit such as a ladder or steps was not provided and located so as to require no more than 25 feet of lateral travel by the employees working in the trench in excess of 4 feet in depth.

The cited standard provides: [*4]

1926.652 - Specific trenching requirements. (h) When employees are required to be in trenches 4 feet deep or more, an adequate means of exit, such as a ladder or steps, shall be provided and located so as to require no more than 25 feet of lateral travel.

Complainant proposed a $500 penalty in connection with the serious violation and a $50 penalty for the nonserious matter.

The citations were duly contested and hearing was held at Bismarck, North Dakota on January 14, 1976. There were no appearances on behalf of any affected employees. A post-hearing brief was filed on behalf of complainant; respondent elected not to do so. No jurisdictional facts were put in issue by respondent's answer.

REVIEW OF THE EVIDENCE

The essentially undisputed evidence herein discloses that respondent is the sole proprietor of a small excavating business headquartered in Mandan, North Dakota. He ordinarily has two or three employees. The business produces gross revenues of approximately $100,000 with net income to respondent of about $23,000. On July 9, 1975 respondent was engaged in digging a sewer line trench in a mobile home park located in the southeast portion of Mandan. [*5] On that date the trench was inspected by a compliance officer employed by complainant. At the time of inspection the trench was open for a distance in excess of 100 feet, and a backhoe was continuing the excavation. The compliance officer maintained that the depth of the trench varied from 8-1/2 to 9 feet, but admitted that he relied for these figures on information given him by respondent's backhoe operator. Respondent's witnesses maintained that the trench depth was approximately 7 feet. It was clear from the testimony and from photographic evidence that the lip of the trench was well over the head of the single employee of respondent who was in the trench leveling the bottom with a shovel at the time of the compliance officer's visit. This activity took place near the end of the trench where the backhoe was working. Two additional employees had also worked in the same segment of the trench (Tr. 143). The measured top width of the trench at this point was 9 feet.

The undisputed evidence further showed that the lowest 3 to 4 feet of the trench walls were cut vertically. From this point the walls were sloped outward to some degree. The compliance officer estimated the slope [*6] to be approximately 15 degrees from the vertical. There was no substantial variation in the trench configuration throughout its length. No shoring or bracing was present at any point within the trench.

The most crucial evidence in this case concerns the character of the soil in which the trench was dug. Complainant called Mr. George Toman, a graduate civil engineer of many years' experience, and also city engineer for Mandan, who testified at length concerning the soil within the mobile home court site. As city engineer, it was his duty to approve plans for sewer and water line construction. The expertise of Mr. Toman was recognized by both parties, though they draw conflicting inferences from his conclusions.

Mr. Toman tied his testimony to soils studies and surveys done by various governmental agencies (Compl. Ex. 2, 3 and 4). Based on these as well as his own familiarity with the specific area in question, he offered classifications of the soil from several standpoints. The soil in the northern part of the 10 to 12 acre mobile home court was old riverbed sediment which gradually phased into sandy clays or sands with occasional clay lenses toward the south of the area (Tr. [*7] 23-24). The distinctions between the north and the south, however, were minor except for differences in the water table. Toward the north considerable water was present in the soil, making it highly fluid; toward the south it tended to be dry and therefore more stable (Tr. 34-35, 41-42). In strict geological terms the soils within the project area could be classified as "Havre silt loam" and "Havre fine andy loam" (Tr. 29). A less technical description preferred by the expert was that of "silty-clay", "clay loam", or simply "sandy soils" (Tr. 35). As among five general categories ranging from "solid rock, shale or cemented sand and gravels" on the one extreme, to "well rounded loose sand" on the other, the witness ranked the Havre loams in the middle as "average soils" (Tr. 33). There was no rock, cemented sand, or shale present within the area in question (Tr. 41-42). He further characterized the soil in general terms as "soft" (Tr. 47).

Mr. Toman had not seen the particular trench with respect to which respondent was cited, but on the basis of his study of the large color photographs which were received in evidence (Compl. Ex. 5 through 9), he was of the view that the soils [*8] in the trench walls were stable and unlikely to collapse since they appeared dry and there was no evidence of sloughing (Tr. 44-46).

The compliance officer testified that he believed the soil to be "soft" and to present a hazard of collapse. Such a collapse, in his view, would likely result in serious or fatal injuries to persons in the trench. He spoke in terms of burial and suffocation.

With respect to the alleged ladder violation, the compliance officer testified that no ladder was in the trench. The employee who was working on the trench floor was observed to climb out on the incline made by the backhoe as it dug. The hoe operator swung the bucket to the side to permit this. The compliance officer stated that a ladder was necessary to make possible a speedy exit from the trench in the event of an emergency should a collapse or some sign of instability appear elsewhere in the trench. He was of the opinion that a ladder would be of no assistance in the event of an unheralded collapse in the very part of the trench where an employee was working. He indicated that the incline immediately in front of the backhoe was not an adequate means of exit since, ordinarily, the bucket [*9] and stick of the backhoe would partially block access.

Respondent, two of his employees, and a landscaper who had been in the trench all maintained that they had in fact entered and exited the trench without difficulty by scrambling up and down the walls. They did not believe that this presented any hazard and further felt that such a technique was better suited for emergency exit than use of a ladder, which they maintained would be slower.

Respondent's evidence showed that the trench had been open for less than a day at the time of inspection. There had been no precipitation for approximately a week, and the soil was dry. Respondent testified that he was usually present about 90% of the time while work was in progress and personally supervised the project. He also indicated that he determined the extent, if any, to which trench walls should be sloped, based on his five years' experience in excavation work. He had instructed his employees to slope walls if loose or sloughing material were noted, and indicated that much was left "to their own knowledge and experience" (Tr. 110-111).

OPINION

I.

The real controversy in this case is bound up in the differing perceptions [*10] of the parties as to what the standard requires. By way of argument counsel for complainant emphasized the expert testimony which characterized the trench sides as "static" or "stable". Thus, he contends, there was no ". . . probability that they would cave in or subside so as to create any reasonable or plausible threat or danger to any employer. . . ."

Complainant asserts that the standard dictates in absolute terms the safety precautions necessary for various soil types; and that the prescriptions of the standard must prevail over personal judgments of respondent, once a certain soil type is found to exist.

Complainant is clearly correct. True, complainant's expert did not believe it probable that the trench walls would fall down. It was in that sense that he used such terms as "stable". But he also made it clear that this stability had a fickle quality and could disappear with the introduction of such factors as "vibration" (Tr. 46). Far more important, however, was his straightforward classification of the soil as "soft" and "average". This classification was nowhere challenged. Table P-1, which is a part of the cited standard, requires a 1 to 1 slope for "average" soils [*11] where sloping is chosen as the method of protection. Respondent employed no other method, and the degree of sloping was demonstrably inadequate. The top width of the trench was a mere 9 feet, and the bottom 4 feet of the walls were vertical. A sloping in accordance with the standard would have resulted in a minimum top width in excess of 16 feet.

I should note that the facts support the proposition that collapse of the trench was not "probable". But the Secretary's statutory mandate to safeguard employees against work injuries would be ill-served indeed were he to limit his standards in a way which would protect only against those accidents most likely to occur. The trenching standards rightly insist upon a wide (rather than a minimal) margin of safety because of the patently grim consequences of trench cave-ins. The record here clearly shows noncompliance with the cited standard.

II.

The compliance officer's testimony that the likely result of a collapse would be death or serious injury to employees in the trench was not disputed. Likewise, there was no question that respondent had knowledge of the condition of the trench and the fact that his employees were working on [*12] its floor. Therefore, both requisites for establishment of a "serious" violation as set out in Section 17(k) of the Act are satisfied n1.

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n1 Section 17(k) provides: "For purposes of this 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."

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III.

We now turn to the nonserious ladder infraction alleged. Again, the evidence convinces me that the standard was violated. Respondent defends on the basis that no ladder was necessary because it was easy to scramble up the trench walls. Thus, according to respondent, there was an "adequate means of exit" as required by the standard. The undisputed facts concerning the [*13] configuration of the trench, however, persuade me that egress up either face of the trench involved a far more arduous and demanding physical feat than the climbing of a ladder. The bottom 3 to 4 feet of the trench sides, it must be remembered, were vertical; and the slope above that was not great. It is not doubted that respondent's young employees were content to exit the trench as they said they did; but one must sharply doubt whether in the excitement or panic of an incipient trench collapse their method would prove as reliable as a ladder or steps. The plain implication of the standard is that where a trench more than 4 feet deep is not provided with a ladder or steps, it must have some means of exit allowing employees to leave with the same degree of ease and reliability provided by a ladder. No such alternative was available in respondent's trench.

IV.

We now consider penalties. Section 17(j) of the Act requires that four factors be weighed in determining an appropriate penalty: the size of respondent's enterprise, his prior history of violation, his good faith, and the gravity of the violation itself. Of these, "gravity" is ordinarily entitled to primary weight. In [*14] my view the gravity of the serious violation falls within the moderate range. The trench was one which required either shoring or far greater sloping, but complainant's own expert did not see much of a chance for a cave-in because of the dry condition of the soil. For this reason, together with the small size and limited economic resources of respondent's enterprise, I find $300 a reasonable penalty for the serious violation n2.

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n2 Complainant, in calculating his proposed penalty of $500, gave the maximum credits permissible under his internal guidelines for size, good faith and prior history.

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Weighing the evidence in the light of the statutory criteria, I find that $50 is an appropriate penalty for the ladder violation.

FINDINGS OF FACT

Upon the entire record, and pursuant to the foregoing discussion, the following findings of fact are entered:

1. At the times material hereto respondent was engaged in the excavation of a sewer line trench in Mandan, North Dakota.

2. The trench, dug to a depth of 7 feet [*15] in soft soil, was neither sloped in the manner prescribed by 29 CFR 1926.652(b), nor was it in any fashion shored.

3. Three of respondent's employees were working within the trench on or about July 9, 1975 while it was in the condition described above, and such employees were thus exposed to a substantial probability of death or physical serious harm in the event of a collapse or cave-in.

4. The probability of a collapse was not high.

5. Respondent knew or should have known of the condition of the trench and the presence of his employees within it.

6. The employees within the trench were not provided with a ladder or steps as a means of exit as prescribed by 29 CFR 1926.652(h), nor were other adequate means of exit available.

7. Respondent is a small employer who has demonstrated good faith and has no significant adverse record under the Act.

CONCLUSIONS OF LAW

It is concluded:

1. That respondent on July 9, 1975 violated 29 CFR 1926.652(b); that such violation was "serious" as that term is defined in Section 17(k) of the Act; and that a civil penalty of $300 is appropriate for such violation.

2. That respondent on the same date violated 29 CFR 1926.652(h) and that [*16] a civil penalty of $50 is appropriate for such violation.

ORDER

In accordance with the foregoing, citations 2 and 3 are hereby ORDERED affirmed; a civil penalty of $300 is assessed in connection with citation 2; and a penalty of $50 is assessed for item 3.

JOHN A. CARLSON, Judge

Date: May 27, 1976