WES CONSTRUCTION CORPORATION

OSHRC Docket No. 4106

Occupational Safety and Health Review Commission

August 12, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Albert Ross, Regional Solicitor

Frederick R. Walsh, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

Respondent, Wes Construction Corporation, is an employer whose business affects commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter referred to as "the Act"]. On July 20, 1973, a compliance safety and health officer for the Secretary of Labor inspected respondent's workplace located at Mishawum Park, Charlestown, Massachusetts.

Thereafter, a citation was issued for a "serious" violation of section 5(a)(2) of the Act for failure to comply with the standard at 29 CFR 1926.652(c), an alleged trenching violation, and a citation was issued for a nonserious violation containing two items. Item 1 alleged failure to comply with 29 CFR 1926.200(g) by not providing adequate barricades and signs, and item 2 alleged failure to comply with 29 CFR 1926.650(e)(1) by not providing employees with protective head gear. Complainant proposed a penalty to $600 for the citation for the alleged serious violation and penalties of $80 and [*2] $60 for items 1 and 2, respectively, of the citation for the non-serious violations. n1

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n1 The standards involved are the following:

29 CFR 1926.652(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."

29 CFR 1926.200(g)

"Traffic signs. (1) Construction areas shall be posted with legible traffic signs at points of hazard.

(2) All traffic control signs or devices used for protection of construction workmen shall conform to American National Standards Institute D6.1-1971, Manual on Uniform Traffic Control Devices for Streets and Highways."

29 CFR 1926.650(e)

"All employees shall be protected with personal protective equipment for the protection of the head, eyes, respiratory organs, hands, feet, and other parts of the body as set forth in Subpart E of this part."

[*3]

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After a timely notice of contest and a hearing, Judge Henry K. Osterman rendered his decision in this case, affirming the Secretary's citations and proposed penalties. Commissioner Moran directed review of the Judge's decision on the following issue:

Does the evidence of record support the Judge's finding that respondent has violated the Act as alleged?

After reviewing the entire record, we affirm the Judge's decision insofar as it is consistent with our decision here. n2

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n2 Respondent no longer disputes the allegation under 29 CFR 1926.650(e) that it failed to protect its employees with head gear, and has no objection to the imposition of the proposed penalty of $60. Therefore, only the failure to comply with section 1926.200(g) and section 1926.652(c) is at issue before the Commission.

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Both the compliance officer and the area director found respondent's workplace bereft of adequate signs, signals, barriers, or other devices for [*4] protection of respondent's employees as required by 29 CFR 1926.200(g)(1) and .200(g)(2). Respondent contends that barriers and flashers were present at the workplace up to the morning of the inspection, at which time they were necessarily moved for an incoming truck. That truck, along with a paid uniformed Boston Police Officer who directed traffic, acted as sufficient protection, according to respondent.

We see no reason to overturn Judge Osterman's finding that respondent's precautions were inadequate to satisfy the requirements of 29 CFR 1926.200(g). The first section of the standard requires that construction areas be posted with legible traffic signs. The compliance officer and the area director testified that no signs were present, and no contradictory testimony was presented by respondent.

The second section of the standard requires that traffic control devices conform to ANSI specifications. The compliance officer testified as to the types of devices that meet these specifications and respondent's failure to utilize such devices. Respondent does not contend that the truck or the police officer were proper traffic control devices under the ANSI requirements. [*5]

Respondent also claims that he is prejudiced because the citation alleged a lack of "adequate" barriers and the word "adequate" does not appear in the standard. We find no prejudice or lack of fair notice in the use of the word "adequate" in the citation. Its use is surplusage. In sum, we find that respondent did not protect his employees from traffic hazards as required by 29 CFR 1926.200(g).

Respondent contends that 20 CFR 1926.652(c) is not applicable to the instant worksite because the earth cavity in question was an excavation and not a trench. n3 We find, with Judge Osterman, that the earth cavity was a "trench" as defined by 29 CFR 1926.653(n).

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n3 The earth cavity in question here was 12 feet wide, 15 feet long and 9 feet deep. The relevant definitions are as follows:

29 CFR 1926.653

(f) "Excavation" - Any manmade cavity or depression in the earth's surface, including its sides, walls, or faces, formed by earth removal and producing unsupported earth conditions by reasons of the excavation. If installed forms or similar structures reduce the depth-to-width relationship, an excavation may become a trench.

(n) "Trench" - A narrow excavation made below the surface of the ground. In general, the depth is greater than the width, but the width of a trench is not greater than 15 feet [emphasis added].

[*6]

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We have held that a trench need not be deeper than it is wide. Leone Construction Company, BNA 3 OSHC 1979, CCH 1975-76 OSHD para. 20,837 (No. 4090, February 10, 1976), petition for review dismissed per stipulation, No. 76-4070 (2d Cir., May 17, 1976). There, we said, "If the Secretary had intended to exclude from the definition any excavation with a width greater than its depth, he doubtlessly would have said so." BNA 3 OSHC at p. 1981, CCH 1975-76 OSHD at p. 24,323.

Respondent was engaged in what would typically be described as a trenching operation, a short term pipe work project, rather than traditional excavation work, such as pouring concrete. We find no good reason why respondent's employees should not be protected by 29 CFR 1926.652 from the hazards of trenching that were faced in the instant case.

Respondent also contends that the sides of the trench were "otherwise supported" as required by 29 CFR 1926.652(c). Respondent claims that the walls were of great strength, as evidenced by the lack of "slough off" and the difficulty encountered when digging into [*7] the soil, and were safely supported by utility lines running through the trench. We find respondent's argument to be unpersuasive.

The walls of the trench were vertical on three sides and undercut on the fourth side, which was nearest the roadway. Both the compliance officer, an experienced engineer in the construction safety field, and the area director testified that heavy traffic, coming within two feet of the trench, posed a serious hazard to respondent's employees despite the hard ground the trench was in and the paving that surrounded it.

As Exhibit C-1 clearly shows, the utility lines ran down the middle of the trench. Respondent's own supervisor concurred with the compliance officer's and area director's evaluation that any supportive qualities the duct and pipes might have would be strictly limited to the portions immediately above them, and would not furnish support for the sides of the trench.

We conclude that Judge Osterman properly found noncompliance with 29 CFR 1926.652(c).

Considering the factors listed in section 17(j) of the Act we find appropriate a $300 penalty for the citation for the serious violation and no penalty for item 1 of the citation [*8] for the nonserious violation.

Accordingly, it is ORDERED that the citation for a serious violation and item 1 of the citation for a nonserious violation is affirmed. A penalty of $300 is assessed for the serious violation and no penalty is assessed for the nonserious violation. n4

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n4 The Judge's order concerning item 2 of the nonserious violation has not been reviewed, and is affirmed. See note 2.

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DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

I disagree with my colleagues' disposition of this case and, for the reasons set forth below, I would vacate both citations in issue herein.

Respondent was charged with failing to comply with paragraph (c) of 29 C.F.R. 1926.652 which is entitled "Specific Trenching Requirements." By its terms this standard applies only to trenches. A trench is defined in 29 C.F.R. 1926.653(n) as:

"A narrow excavation made below the surface of the ground. In general, the depth is greater than the width, but the width of a trench is not greater than 15 feet." (Emphasis added.)

Whereas [*9] an excavation is separately defined in 29 C.F.R. 1926.653(f) as:

"Any manmade cavity or depression in the earth's surface, including the sides, walls or faces, formed by earth removal and producing unsupported earth conditions by reason of the excavation. If installed forms or similar structures reduce the depth to width relationship, an excavation may become a trench." (Emphasis added.)

Although it may be true that trenches are particular types of excavations, the format of Subpart P, "Excavations, Trenching, and Shoring," and the applicable definitions therein, clearly indicate that all excavations are not trenches. Had the Secretary of Labor intended to use, interchangeably, the generic term "excavation" and the more specific classification "trench," it would have been unnecessary for him to have provided regulations for trenches in one section and for excavations in another. See 29 C.F.R. 1926.651, entitled "Specific Excavation Requirements."

The distinction between the two sections is one of substance and not form. The cited standard imposes specific requirements upon employers engaged in trenching operations. In contrast, 1926.651(c), the corresponding standard [*10] governing excavations, is relatively nonspecific, leaving to the individual employer's judgment the mode and extent of guarding which must be provided only when "employees are exposed to danger from moving ground."

Clearly, the line of demarcation between the applicability of the two sections is the width to depth relationship of the earth cavity. Where, as in the case at hand, the width of the cavity exceeds the depth, an employer can only be held accountable under the excavation standards. My colleagues, however, assert that a trench need not be deeper than it is wide. That position not only contravenes the language of the standards but also leaves employers in the unenviable position of having to guess which standard Messrs. Barnako and Cleary will apply in a particular case.

In affirming a violation of 29 C.F.R. 1926.200(g), the majority conveniently overlooks the fact that the Occupational Safety and Health Act is not a traffic safety code. The purpose of the Act is to protect employees from on the job hazards. 29 U.S.C. 651(b). In recognition of this fact, the inspecting officer, who was complainant's principal witness, testified that the regulation's purpose was [*11] to protect employees working in the area from being struck by vehicular traffic.

The evidence shows that vehicular traffic was prevented from entering the excavation by a plywood barricade n5 on one side thereof, a truck parked next to the work which acted as another barricade, and the use of a signal horse and a uniformed officer hired by respondent to direct traffic. n6 These measures afforded respondent's employees greater protection than would have been provided by the utilization of traffic signs. Thus, respondent established a valid defense to this charge. Secretary v. Industrial Steel Erectors, Inc., 6 OSAHRC 154 (1974).

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n5 Although the respondent was charged with failing to provide adequate barricades and signs, the charge cannot be affirmed on the basis of a failure to provide barricades because 29 C.F.R. 1926.200(g) does not require the use of barricades. See footnote 1 of the lead opinion for the text of that standard.

n6 Of course, it is well recognized that a traffic policeman is more effective than traffic signs in controlling traffic.

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