JOSEPH J. STOLAR CONSTRUCTION COMPANY, INC.

OSHRC Docket No. 78-2528

Occupational Safety and Health Review Commission

June 22, 1981

[*1]

Before: CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

F. V. LaRuffa, Reg. Sol., USDOL

Carl F. Guy, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Foster Furcolo is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). In his decision, Judge Furcolo, among other things, vacated a citation that alleged a serious violation of the Act for the failure of Respondent, Joseph J. Stolar Construction Co., Inc., to comply with the standards, cited in the alternative, at 29 C.F.R. 1926.652(a), (b) or (c). Those standards prescribe specific shoring and sloping requirements for the excavation of trenches.

The Secretary of Labor ("the Secretary") petitioned for review of the judge's decision, but only as to the allegation that Respondent failed to comply with 29 C.F.R. 1926.652(b). n1 Commissioner Cottine directed review on all of the issues raised by the petition, including the following:

Whether the Administrative Law Judge erred in vacating the citation of an alleged violation of section 1926.652(b), on the grounds [*2] that the Secretary did not establish (1) that the sides of the trench were in unstable soil and (2) that the Respondent had knowledge of the hazardous conditions in time to take preventive action to protect employees.

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n1 The standard at 29 C.F.R. 1926.652(b) provides, in pertinent part, as follows:

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. . . .

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For the reasons discussed below, we conclude that the Secretary proved a serious violation of the Act based on noncompliance with section 1926.652(b).

I

This proceeding arises from an investigation of a trench cave-in that caused the death of one of Respondent's employees. On the day of the fatality, Respondent was laying pipe underground pursuant to a contract with the Town of Cicero, New York. The project had commenced more than two months earlier but had been suspended for the three weeks immediately [*3] prior to the day of the cave-in because of muddy conditions. Respondent's crew was headed by Respondent's owner-foreman, Joseph Stolar, and it included a back-hoe operator, a bulldozer operator, and two pipe-layers.

Respondent's operation consisted of a repetitive multi-step cycle, which was described at the hearing as follows. In the initial step, the backhoe digs a trench segment that is approximately 25 feet long. The trench is 12 feet deep, 3-1/2 to 4 feet wide at the bottom, and 14 feet wide at the top. From the bottom of the trench, the walls rise vertically about 4 feet and then slope up to ground level. Once a section of trench is excavated, the back-hoe deposits a one-foot deep bedding of limestone tailings (called "run-off crusher") in the bottom of the trench and then lowers a 10-foot length of 8" pipe into approximate position. At that point in the cycle the two pipe-layers push the pipe into place and fasten it to the previously installed line of pipe using a collar with rubber gaskets. After a second 10-foot section of pipe is similarly lowered, positioned and fastened, the back-hoe deposits an additional 6-inch cover of bedding material, spreading it as evenly [*4] as possible. After the pipe-layers complete covering the two sections of pipe, they remain in the trench while the back-hoe digs the next segment of trench.

At the hearing, Patsy Grosso, a construction inspector with ten and a half years of experience, testified that he had been employed by a private consultant engineering firm which had been engaged by the Town of Cicero to assure that the construction work being performed by Respondent was conducted according to specifications. According to Grosso, the project had been shut down for three weeks due to muddy conditions at the worksite. On the day of the cave-in, however, the weather was fair. It was, in Grosso's view, an ideal working day. That morning, the crew dug 220 feet of trench in what Grosso characterized as hard, cemented gravel.

Grosso testified that, when the digging resumed following the lunch break, he paused to watch the pipe-layers and then walked to the opposite end of the trench in order to observe the bulldozer, which was beginning to back-fill the 220 feet of trench that had been excavated that morning. Grosso was unable to recall how long he watched the back-filling, but by the time he returned to the [*5] pipe-laying crew, the back-hoe and dug out another 25-foot segment and the pipe-layers were preparing to install the second length of pipe. Looking into the trench, Grosso noticed that the condition of the soil at the bottom had changed. Whereas the inital 220 feet had been hard, cemented gravel, the new segment had become "quite a bit wetter." Grosso characterized the soil as "pumpy," meaning that "it would have a tendency to move a little." He agreed that someone could remove the soil by hand and form a "mudcake" with the soil. Extending upward from the bottom of the trench, a band of soil approximately 1-1/2 feet high and running the twenty-five foot length of the segment, appeared pumpy.

According to Grosso, when he saw these soil conditions, he immediately turned to Respondent's owner-foreman, Joseph Stolar, who was standing next to him beside the trench, and said, "The trench is acting a little bit different than anything I have ever seen." At the hearing, Grosso explained this remark as having meant that, despite the pumpy soil at the bottom of the trench, "due to the hardness of the dirt up above, there was no sloughing or collapsing of the trench like they usually do." [*6] Grosso further stated that Stolar looked inside the trench and replied, "I will start laying one pipe instead of two."

Shortly thereafter, Grosso was facing away from the trench when a piece of the north wall, approximately 15-16 feet long, 4-5 feet high and 2-1/2 feet thick, caved in. n2 Grosso recalled that the area at the top of the banks had not moved at all. One of the pipe-layers narrowly escaped injury and survived. The other was buried by the collapsing soil. n3 It is undisputed that the trench contained no shoring or sheeting.

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n2 On cross-examination, Grosso testified as follows regarding the time lapse between his conversation with Mr. Stolar and the cave-in:

It could have been a minute. It could have been two minutes. It could have been three minutes. It was a very short period of time, but it was within a couple of minutes, not three minutes or four minutes. I couldn't say. It was a very short period of time. . . . And when I say a short period, I mean two minutes. I don't mean any lengthy time at all.

Later, on redirect examination, he stated that he could not recall whether he had previously told the Secretary's counsel that the interval between Stolar's comment and the cave-in had been ten minutes.

n3 Joseph Stolar did not testify at the hearing. Thus, Grosso's unrebutted testimony presents the only description in the record of the events surrounding the cave-in. We note that Grosso was neither a soil engineer nor a soil expert. He did not take any soil samples from the trench.

[*7]

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Harry Terwilliger, a senior compliance officer with the Occupational Safety and Health Administration (OSHA) arrived at the site within two hours after the cave-in had occurred. n4 Terwilliger testified that the sides of the trench where the cave-in had taken place appeared to be hard and compact glacial till, but the soil was not cemented. He stated that Stolar, too, had mentioned during the inspection that the soil was hard and compact glacial till. Stolar had added that the soil had been so hard during the morning digging that they could hardly get the back-one through it. Terwilliger further testified that he observed water trickling out of a 4-5 foot long section of the side of the bank where the cave-in had occurred. He saw no shoring in the trench and no shoring materials in the vicinity of the job site.

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n4 At the time of the inspection in this case, Terwilliger had been with OSHA for three and a half years and had conducted approximately 385 inspections, about one-third of which concerned construction sites. Previously, he had worked for eleven years with the New York State Department of Labor's Industry Safety Service. Of his 4,000-5,000 inspections for the state agency, thirty to forty percent involved trenches and excavations.

[*8]

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Respondent rested its case without presenting any evidence.

II

In his decision, Judge Furcolo vacated the allegation that Respondent had failed to comply with section 1926.652(b) on the ground that the Secretary had not established that the sides of the trench were in unstable or soft material. He stated that, quite to the contrary, the witnesses had described the sides as "very hard soil", "cemented gravel" or "hard and compact like glacial till." He concluded that section 1926.652(c) was the applicable standard here and that the trench had been sloped in compliance with that standard. n5

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n5 The standard at 29 C.F.R. 1926.652(c) provides as follows:

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.

"Hard compact soil" is defined as "[a]ll earth materials not classified as running or unstable." 29 C.F.R. 1926.653(h).

[*9]

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Furthermore, the judge found that there was no evidence of any condition or occurrence during the 220-foot morning digging that would have alerted Respondent to a hazard in the trench. As to the 25-foot segment which was excavated in the period approximately twenty-five minutes after the end of the lunch break, the judge found that the earliest notice of a hazard came to Respondent at the time of Grosso's comment to Stolar only minutes before the collapse. Consequently, the judge found that Respondent's officers or supervisory personnel "had no actual or constructive knowledge of any hazardous conditions in time to take any preventive action to protect employees." For the reasons stated, Judge Furcolo ruled that the Secretary had not sustained his burden of proving Pespondent's noncompliance with section 1926.652(b).

III

On review, the Secretary argues that the judge erred in finding that the sides of the trench in the area where the cave-in took place were composed of hard and compact soil. The Secretary asserts that there was no contradiction of Grosso's testimony regarding the wet, pumpy soil [*10] in the segment of the trench that was excavated after the lunch break and that caved in shortly thereafter. Instead, the presence of ground water was corroborated by Terwilliger, who observed water trickling out of the side of the trench wall later that afternoon. The wetness of the soil is, according to the Secretary, a clear indication that the trench walls were dug in soft and unstable soil. The Secretary further relies on the following evidence. It is undisputed -- and the judge found -- that the trench was more than five feet deep. It is also undisputed that the sides of the trench were not shored, sheeted, braced, sloped or otherwise supported as required by section 1926.652(b). Respondent's only protective effort was to slope the trench above the four-foot level. The Secretary cites Connecticut Natural Gas, 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1978 CCH OSHD P22,874 (No. 13964, 1978), and W.N. Couch Construction Co., 76 OSAHRC 44/A2, 4 BNA OSHC 1054, 1975-76 CCH OSHD P20,574 (No. 7370, 1976), for the proposition that where, as here, the trench is more than five feet in depth, and the amount of unstable soil is not negligible, all soil in the trench walls must be [*11] shored or sloped from the bottom of the trench. Yet, the Secretary continues, Respondent provided no shoring and sloped only above the four-foot level. Therefore, the Secretary insists that he has established a violation of section 1926.652(b).

The Secretary also assigns error for the judge's finding that Respondent did not have knowledge of the hazardous conditions in time to take preventive action to protect employees. The Secretary notes that, in order to prove a serious violation of the Act, he must show, among other things, that the employer knew, or with the exercise of reasonable diligence could have known, of the condition alleged to be a violation, citing Brennan v. OSHRC (Alsea Lumber Company), 511 F.2d 1139 (9th Cir. 1975). Here, the Secretary asserts, Grosso warned Stolar that the condition of the trench had changed. Stolar looked at the trench and then remarked that he would start laying one pipe instead of two. In the Secretary's view, this indicates not only knowledge of the violative conditions but also recognition of the hazard existing in the trench.

The Secretary interprets the judge's ruling to mean not that Stolar lacked knowledge of the hazard but [*12] rather than he lacked sufficient time to act on the knowledge. The Secretary disputes such a finding on these facts since, in his view, Stolar at the very least could have promptly ordered the pipe-layers out of the trench instead of merely directing them to reduce the pace of the pipe-laying. The Secretary urges that "permitting employers to evaluate trench conditions while their employees remain in the trench is gambling with the employees' lives -- a gamble which the long history of trenching fatalities to come before the Commission indicates is frequently lost by employees."

Finally, the Secretary argues that, even if Respondent did not have actual knowledge of the hazardous condition of the trench, it could have known about it with the exercise of reasonable diligence. Due to the three weeks of muddy conditions, it was reasonably predictable, in the Secretary's view, that Respondent would encounter wet conditions at the site. The Secretary further contends that it therefore would have been reasonable for Respondent to carefully monitor each new segment of trench before allowing employees to work in it.

Respondent supports the findings of Judge Furcolo. Specifically, Respondent [*13] argues that the judge's finding regarding the hard and compact nature of the soil is supported by evidence that has probative value. It notes that both witnesses described the soil as hard and compact. Respondent cites Capaldi Brothers Corporation, 77 OSAHRC 193/B13, 5 BNA OSHC 2066, 1977-78 CCH OSHD P22,291 (No. 14817, 1977), for the proposition that the Secretary's failure to prove that the soil was unstable or soft requires that the citation alleging violation of section 1926.652(b) be vacated. Respondent charges that the Secretary's reliance upon Connecticut Natural Gas Corp., supra, is misplaced; there, according to Respondent, all the soil was unstable or previously excavated and the foreman had knowledge of the soil condition. Furthermore, Respondent submits that 1-1/2 feet of trench out of 220 feet is "negligible" within the meaning of that case. Respondent also contends that the Secretary must -- but cannot, here -- show that the alleged hazardous soil conditions bear a direct causal relationship to the collapse. In addition, Respondent asserts that "the only showing was that a small portion of the last few feet of the trench became 'different', not that [*14] the said soil changed its character or type." It concludes that the trenching standards are based on the type of soil and that here "the said type remained the same."

IV

In order to prove noncompliance with section 1926.652(b), the Secretary must establish that the sides of a trench were: (1) in unstable or soft material; (2) five feet or more in depth; and (3) not shored, sheeted, braced, sloped or otherwise supported by means of sufficient strength to protect employees working within them. Judge Furcolo concluded that the Secretary failed to prove the first of these elements. We disagree. Although the two witnesses described the soil in the trench as hard and compact, they also testified that they observed wet or pumpy soil in the twenty-five-foot segment that was excavated after lunch. Pumpy soil is not hard and compact. Soil that can yield "mudcakes", as described by Grosso, is unstable, soft material. Moreover, the presence of this soil in the side of the trench brought the trench within the coverage of section 1926.652(b) because "[t]he standard requires an employer to slope or shore all soft or unstable constituents of trench walls so long as the trench is five feet [*15] or more in depth." W.N. Couch Construction Company, supra, 4 BNA OSHC at 1056, 1975-76 CCH OSHD at p. 24,592. n6

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n6 We noted in W. N. Couch that "there may be instances when the soft or unstable portion is so shallow that it is insignificant." 4 BNA OSHC at 1056 n. 5, 1975-76 CCH OSHD at p. 24,592 n. 5. However, we also recently noted that the Commission's decision in W.N. Couch was based on the principle "that a trench wall composed of soils of differing strengths is only as stable as its weakest component." CCI, Inc., 80 OSAHRC    , 9 BNA OSHC 1169, 1173, 1981 CCH OSHD P25,091 at p. 30,994 (No. 76-1228, 1980). We conclude that the principle stated in CCI, Inc. is the one that clearly applies in the case now before us. The 1-1/2 foot high, 25-foot long band of pumpy soil which Grosso observed in the trench prior to the cave-in is significant, not negligible as characterized by Respondent.

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Respondent implicitly argues that the type of soil at issue is the only relevant factor in determining [*16] whether section 1926.652(b) or section 1926.652(c) applies. Here the type of soil was glacial till, n7 which is a hard compact soil. Therefore, in Respondent's view, section 1926.652(c) is applicable. We disagree. Respondent's argument conflicts with the provisions of the trenching standards. Thus, "unstable soil" is defined as "[e]arth 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." 29 C.F.R. 1926.653(q) (emphasis added). We therefore conclude that, even if the soil was by its nature hard and compact, the influence of related conditions, i.e., water, rendered it unstable. n8 See generally, note to Table P-1; 29 C.F.R. 1926.651(d); M.J. Lee Constr. Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1143, 1979 CCH OSHD P23,330 at p. 28,226 (No. 15094, 1979).

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n7 Because the Commission must limit its consideration to the soil in this particular trench, we disregard Respondent's assertion, offered for the first time in these proceedings on review, that the worksite in question is located in a part of the Noth American continent known to be the area of the most stable soil in the world.

n8 In finding that the soil was hard and compact, the judge either disregarded the uncontradicted testimony of the witnesses regarding the pumpy soil in the 25-foot segment of the trench, or he looked only at the type of soil involved without regard to the effect of external factors on that soil. In either event, the judge's finding must be reversed.

[*17]

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With respect to the remaining elements of the Secretary's prima facie case, we note that it is undisputed that the depth of the trench exceeded five feet. It is also undeniable, based on both testimonial and photographic evidence, that the trench was neither shored, sheeted, braced or otherwise supported by other means; nor was it sloped to the bottom of the trench, as the standard requires. Connecticut Natural Gas, supra. Accordingly, we conclude that the Secretary proved that Respondent failed to comply with section 1926.652(b). n9

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n9 Respondent's suggestion that the Secretary must show a direct causal relationship between the hazardous condition of the soil and the subsequent collapse is without merit. The Commission has held that, when a standard prescribes specific means of enhancing employee safety, a hazard is presumed to exist if the terms of the standard are violated. Clifford B. Hannay & Sons, Inc., 78 OSAHRC 12/A2, 6 BNA OSHC 1335, 1978 CCH OSHD P22,525 (No. 15983, 1978). Section 1926.652(b) specifies the precautions to be taken when a trench is excavated in soft or unstable soil and is five feet or more in depth. Thus, the hazard is presumed if, as here, the requirements of the standard are violated. The Secretary need not establish a causal relationship between the soil conditions and the cave-in; the cave-in per se is irrelevant.

[*18]

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V

In order to establish a serious violation of the Act the Secretary must prove that "there is a substantial probability that death or serious physical harm could result from a condition which exists . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation." 29 U.S.C. 666(j). We find that there was a substantial probability that the employees in the trench would suffer death or serious physical harm if the trench collapsed. See Andy Anderson d/b/a Andy Anderson Irrigation and Construction, 78 OSAHRC 34/A2, 6 BNA OSHC 1595 (No. 76-4082, 1978). We further find that there is ample evidence to establish that, with the exercise of reasonable diligence, Respondent could have known of the presence of the violation. An employer has an obligation to inspect the work area, to anticipate hazards to which employees may be exposed, and to take measures to prevent their occurrence. Frank Swidzinski Company, 81 OSAHRC    , 9 BNA OSHC 1230, 1981 CCH OSHD P25,129 (No. 76-4627, 1981). Respondent was experienced in digging trenches [*19] and, thus, acquainted with the hazards associated with excavation. Since muddy conditions at the worksite had been prevalent during the three weeks prior to the accident, it was reasonably predictable that Respondent's pipe-laying crew would encounter ground water in the trench wall. Even before Grosso joined him at the edge of the trench, there is no reason apparent in the record why Stolar with reasonable diligence could not have concluded on his own that the condition of the soil had changed since the morning digging.

Moreover, we are not persuaded by the argument that Respondent did not have time to take preventive action. The owner-foreman, Joseph Stolar, stood beside the trench observing his crew as the digging and pipe-laying progressed. When Grosso expressed concern about the pump soil, Stolar merely replied that he would install one pipe at a time instead of two. This was clearly inadequate to comply with the standard. A simply order to abandon the trench until shoring or sloping could be completed would have removed the employees from exposure to the hazard before the trench collapsed. Yet Respondent permitted the hazardous condition to continue and its employee [*20] suffered the fatal consequence. In any event, as we stated above, we do not measure Respondent's constructive knowledge of the presence of the hazardous condition only from the momert that Grosso warned Stolar. Accordingly, we reject the contention that Respondent lacked knowledge of the violation.

Applying the penalty criteria of section 17(j) of the Act, 29 U.S.C. 666(i), to the facts of this case, we find the $360 penalty which was proposed by the Secretary to be appropriate.

Accordingly, we reverse the judge's order insofar as it vacates the alleged serious violation of the Act based on noncompliance with the standard at 29 C.F.R. 1926.652(b). We find the Respondent in serious violation of the Act, and we assess a penalty of $360.

SO ORDERED.