ADRIAN CONSTRUCTION COMPANY

OSHRC Docket No. 15414

Occupational Safety and Health Review Commission

March 12, 1979

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Before: CLEARY, Chairman; BARNAKO AND COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Richard A. DuRose, for the employer

OPINIONBY: COTTINE

OPINION:

DECISION

COTTINE, Commissioner: A decision of Administrative Law Judge David H. Harris is before the Commission for review under 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ("the Act"). The judge found that the Respondent, Adrian Construction Company ("Adrian"), was in violation of the construction safety standard published at 29 CFR 1926.651(c) n1 for failing to adequately shore or slope an excavation. n2 He concluded that the violation was willful and assessed a $1,000 penalty. The direction for review issued by former Commissioner Moran failed to specify issues to be considered by the Commission. However, in its petition for review and its brief, Adrian has filed several exceptions to the judge's decision.

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n1 1926.651 Specific excavation requirements.

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

n2 In the judge's conclusions of law he found that Adrian "violated the standard at 29 CFR 1926.651(e)" [emphasis supplied]. Adrian contends that the judge's finding constitutes a unilateral amendment of the pleadings. We reject that contention. The finding was obviously the result of a clerical error. The only standard at issue at any time in the proceedings and the only standard discussed by the judge was 1926.651(c). We find the judge's reference to 1926.651(e) to be a harmless clerical error and correct his decision to find that Adriam was in violation of 1926.651(c). See Fed. R. Civ. P. 60(a) and 61.

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Adrian was engaged in installing a sewer line and two prefabricated manholes at a water pollution plant constriction site in Newport News, Virginia. As a result of an inspection conducted by authorized representatives of the Secretary on September 17, 1975, the Respondent was issued a citation on September 22, 1975 alleging noncompliance with 29 C.F.R. 1926.651(c). The citation states:

Employees at the Jefferson Avenue pumping station were exposed to the hazard of moving ground while working in an excavation that was 23 feet wide by 10 feet deep, the sides of which were not sloped, shored, or guarded by some other equivalent means.

Abatement was ordered, and a penalty of $5,000 was proposed.

On August 6, 1975, the same worksite had been inspected and on August 12, 1975, the Secretary had issued Adrian a citation alleging noncompliance with 29 C.F.R. 1926.651(c). This earlier citation was not contested and thus it became a final order by operation of law. 29 U.S.C. 659(a). According to the testimony of James Von Stein, the compliance officer who conducted both inspections, Adrian was informed [*3] of the requirements of 1926.651(c) during the first inspection. Adrian chose to abate the earlier violation by using a trench box in the excavation instead of changing the slope or shoring the walls of the excavation. At the time of the later inspection, the trench box was not in use -- it was located 100 feet from the excavation.

Compliance Officer Von Stein testified that at the time of the reinspection he observed an employee standing on a concrete slab at the bottom of the excavation. The employee was cleaning water and dirt from the slab in preparation for installation of one of the manholes, number 103. n3 The excavation was approximately 100 feet long. In the location where the employee was working, the excavation was 11-1/2 feet deep and 23 feet wide at the top. Von Stein stated that the slope of the wall nearest the employee was between 75 and 85 degrees. A second compliance officer who accompanied Von Stein during the inspection testified that according to his calculations the slope of the excavation walls was about 80 degrees. Adrian's field engineer on the project testified that three days after the inspection be took measurements of the excavation at manhole [*4] 103 and made a cross-section field sketch which was introduced into evidence. The sketch shows that in some areas of the excavation the walls formed terraces and parts of the walls almost vertical.

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n3 There was conflicting testimony on how long the employee was working in the excavation. However, the parties agree that the employee had been directed to perform work in the trench. Moreover, evidence supports the judge's finding that a second employee had also been working in the trench shortly before the inspectors arrived.

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Von Stein also testified that there was no shoring of the walls, that a section of timber jutted out from the east wall of the excavation, and that there was a crack in that wall. Photographs taken by Von Stein during the inspection were entered into evidence. They depict both the crack and the timber. Adrian's witnesses -- its project superintendent, project engineer, and foreman -- testified that they did not observe cracks in the walls of the excavation at the time of the inspection. The [*5] project engineer and the foreman testified that the timbers were firmly anchored. Furthermore, two of Adrian's witnesses testified that there was no sloughing in the excavation. The foreman also testified that he did not believe the excavation was hazardous. He indicated that even if there had been a cave-in, the employee could have moved in any direction to escape injury.

According to Von Stein, the employee observed in the excavation was standing in water. Dr. Owen Thompson, a soils engineer who was qualified as an expert in soil mechanics, examined Von Stein's photographs and testified that they indicated the ground water level in the excavation. In his opinion there was a ground water problem in the excavation. In addition, the field engineer's sketch indicates that the bottom of the excavation was below the ground water level.

During the first inspection, Von Stein took soil samples from the wall and the bottom of the excavation. However, he did not further indicate from what part of the excavation he gathered the samples. He sent the samples for analysis about 4 or 5 months after they had been gathered. Dr. Roland Dubbe, who was qualified as an expert in soil analysis, [*6] examined the samples. He stated that the classification properties of a sample are not affected by its being several months old. He testified that from his visual analysis of the soil he determined that the soil was a cohesionless, granular material, and that it was a silty sand. His laboratory sieve analysis further showed that the sample was a fine material, specifically a sand. He also examined Von Stein's photographs and testified that they corroborate his conclusion that the soil was unstable. In addition, he testified that the photographs show movement of the soil because he could see that sloughing was causing the crack.

Dr. Dubbe's testimony was corroborated by Thompson, who was of the opinion that the worksite was very hazardus. Thompson examined the photographs and stated that they support a conclusion that the soil was silty sand, and that it was not clay. He further concluded from his examination of the photographs that the soil was composed of backfill material. According to Thompson, the backfill contributed to the hazardous nature of the excavation. He stated that the necessary angle of sloping for excavation walls composed of sand is 32-33 degrees if the [*7] sand is dense and 28-30 degrees if the sand is loose. It was his opinion that the weight of the soil would cause the slope to flatten and the material of the excavation walls would fall into the excavation.

The judge found the soil was "silty, poorly graded, very fine sand," and concluded that the slope of the excavation walls was insufficient under Table P-1, which describes the approximate angle of repose for sloping of sides of excavations. n4 He also considered the evidence showing that the walls were irregular, steeply sloped in places, and almost vertical in certain places on the east side. The judge stated, "It seems to me that the hazards of moving ground to employees working on or around the concrete slab must come from soil falling from the steepest part of these walls." He also found there was evidence of "earth movement and instability." He concluded,

I am satisfied from the foregoing that the Adrian employee shown cleaning the slab for manhole number 103 in [one of Von Stein's photographs] as well as his partner, had been exposed to danger from moving ground. As is evident from the exhibits and the testimony, the walls and faces of the excavation herein were not laid [*8] back evenly at a constant angle of slope. Instead, some of the faces of the walls were cut back in terrace form and there existed some faces which were allowed to stand at an angle of appproximately 90 degrees, an angle which, in the fill soil herein described and under the conditions existing in the said excavation, presented a continual danger of moving ground. No additional sloping was resorted to on the walls of manhole number 103 at the point shown in the cross-section . . ., nor was any other equivalent means taken by Adrian to protect employees who were required to work in that immediate area.

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n4 See 29 C.F.R. 1926.652.

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The judge noted that Adrian had not given any justification for its failure to use the trench box. He found that Adrian's indifference to the conditions of the excavation cconnotes defiance of or . . . a reckless disregard of consequences." The judge found the violation to be willful and assessed a penalty of $1,000 based on Adrian's "reasonably effective safety program" and the absence [*9] of injuries to employees on the site.

On review, Adrian takes exception to the judge's conclusion that the employees working in manhole 103 were exposed to a danger of moving ground. Adrian argues that "there is no basis in the record, in the standard, or in Table P-1 for such a conclusion." It asserts that the judge erroneously relied upon the analysis of soil taken during the first inspection and upon evidence of soil instability at manhole 102. Adrian maintains that the excavation was properly sloped. Assuming that a violation exists, Adrian contends that the judge erred in finding it willful and in assessing a $1,000 penalty.

The determination of whether an employer is in violation of 1926.651(c) is a question of fact. "The resolution of this question requires assessment of all conditions that exist at the worksite and evaluation of expert testimony about the dangers that may or may not be present." Seaward Const. Co., Inc., 77 OSAHRC 75/C5, 5 BNA OSHC 1422, 1977-78 CCH OSHD P21,803 (No, 8684, 1977). Adrian's exceptions to the judge's factual findings are unmeritorious. The judge's findings are supported by the evidence of record. Furthermore, we have no reason [*10] in this case to reevaluate the evidence underlying the judge's credibility determinations. It is the judge "who has lived with the case, heard the witnesses, and observed their demeanor." C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCI OSHD P22,481 (No. 14249, 1978); CTM, Inc., 77 OSAHRC 136/C12, 5 BNA OSHC 1578, 1977-78 CCH OSHD P21,957 (No. 13008, 1977). In addition, although Adrian's contentions on review are in the form of exceptions to the judge's conclusions, they are essentially the same contentions made before the judge. Inasmuch as the judge correctly decided the issues before him, we adopt the judge's conclusions. n5 See Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).

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n5 We are not convinced by Adrian's argument that the judge erred in considering the experts' testimony regarding the soil samples. The evidence did not establish from what part of the excavation the samples were taken. However, even if they were taken from a part of the excavation other than manhole 103, the judge's reliance on the testimony about the samples was justified. There is no evidence indicating that the composition of the soil varied throughout the excavation. Furthermore, the experts' conclusions regarding the composition of the soil based on their examination of Von Stein's photographs of manhole 103 were consistent with their conclusions drawn from analysis of the soil samples. Therefore, it is proper to find that the soil samples were representative of the soil at manhole 103.

Adrian's contention that the samples were unreliable because they were not analyzed until several months after being collected by Vor Stein is also without merit. The experts' only conclusions were with respect to the composition of the soil, and Dr. Dubbe testified that the composition of the soil was not affected by the elapsed time before the analysis. In addition, his testimony was unrebutted. Adrian also argues that the samples were not gathered in a scientific manner. However, Adrian has not shown that Von Stein's sampling techniques were defective.

Finally, we are not persuaded by Adrian's contention that the judge erred in relying on evidence of soil instability at manhole 102. As stated, the record supports a conclusion that the soil conditions were constant throughout the excavation. Moreover, the judge's conclusion that the soil was unstable is also based on other evidence.

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Adrian also argues on review that the violation was not willful because of its good faith efforts to comply. In C.N. Flagg & Co., Inc. d/b/a Northeastern Contracting Co., 75 OSAHRC 32/C6, 2 BNA OSHC 1539, 1974-75 CCH OSHD P19,251 (No. 1409, 1975), the Commission held that a violation cannot be found to be willful if the employer has a good faith opinion that the violative conditions conformed to the requirements of the cited standard. Accord, National Steel & Shipbuilding Co., 78 OSAHRC 48/A2, 6 BNA OSHC 1680, 1978 CCH OSHD P22,808 (Nos. 11011 & 11769, 1978). We conclude that Adrian could not have had a good faith belief that the conditions of the excavation conformed with the requirements of 1926.651(c). Adrian knew that the slope of the excavation walls was unchanged since the time of the first inspection. Therefore, the excavation could only conform with the requirements of the standard if the trench box was used. However, the employees working within the trench were not protected by any means. The excavation was clearly unsafe and the conditions of the excavation should have alerted [*12] Adrian to the need for protecting its employees. A violation is willful if the evidence shows that the employer ignored an obvious and grave danger or was in careless disregard of the standard's requirements. See D. Federico Co., Inc., 76 OSAHRC 13/A2, 3 BNA OSHC 1970, 1975-76 CCH OSHD P20,422 (No. 4395, 1976); Cedar Const. Co. v. Marshall & OSHRC, No. 77-1538 (D.C. Cir., October 20, 1978); National Steel & Shipbuilding Co., supra. The violation at issue is properly denominated as willful.

Finally, we conclude that the judge's assessment of a $1,000 penalty is reasonable under section 17(i) of the Act, 29 U.S.C. 666(i), and appropriate under the circumstances of this case. We note that the penalty assessed by the judge is substantially less than that allowed by section 17(a) of the Act, 29 U.S.C. 666(a).

Accordingly, it is ORDERED that the judge's decision is affirmed and a $1,000 penalty is assessed.