UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 77–383
MARTIN & MARTIN FOUNDATION DRILLING CONTRACTORS, INC.,
Respondent.

December 17, 1981

DECISION

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge Harold O. Bullis 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’). Judge Bullis vacated that part of a citation issued by the Secretary of Labor (‘the Secretary’) alleging that Respondent, Martin and Martin Foundation Drilling Contractors, Inc. (‘Martin’), violated section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), by failing to comply with the standard at 29 C.F.R. § 1926.800(h)(3)(i).[1] In response to the Secretary’s petition for discretionary review, Commissioner Cottine directed review but limited review to consideration of the judge’s disposition of this alleged violation. At issue is whether the vertical walls of a pier hole[2] must be shored in accordance with the cited standard, which is published in 29 C.F.R. Part 1926, Subpart S—Tunnels and Shafts, Caissons, Cofferdams, and Compressed Air. An ancillary question is whether the Commission should grant the Secretary’s motion—made in his petition for discretionary review—to amend the pleadings under Rule 15(b) of the Federal Rules of Civil Procedure to conform to the evidence presented. For the reasons set forth below, we affirm the judge’s decision to vacate the citation on the ground that the standards in Subpart S are not applicable to the cited condition and we deny the Secretary’s motion to amend.

I

Martin drills foundations for highway bridges, commercial buildings and other large structures. On the date of the alleged violations, Martin was in the process of drilling a pier hold for a highway overpass near Edinburg, Texas, as part of a Texas Highway Department construction project. Martin’s equipment at the worksite included a truck crane and an auger (a corkscrew-like drilling apparatus). Martin’s crew consisted of three laborers, the auger operator and the foreman/crane operator. The crew drilled a hole 50 feet deep and 30 inches in diameter and then installed steel casing in the hole to a depth of between 31 and 32 feet.[3] One of the laborers, Paul Elliott, was sent into the hole so that he could recover a shovel that had been dropped by a co-worker. Elliott was lowered into the hole while standing on chains that had been affixed to the bottom of a reinforcing cage. The cage, in turn, was suspended from a hook at the end of the crane’s cable. The primary purpose of the reinforcing cage was to support the cement pier that would be created when the hole was filled with concrete. When, after an undetermined period of time, Elliott failed to respond to shouts from the surface, several co-workers attempted to rescue him, but they were driven back out of the hole by dizziness and difficulty in breathing. Later, Elliott was raised unconscious from the hole by crane and never regained consciousness. The record indicates that he died as a result of asphyxiation.

An Occupational Safety and Health Administration (‘OSHA’) compliance officer conducted an inspection of the worksite the next day, and the Secretary subsequently issued Martin a citation alleging several violations of the Act, including the charge that Martin had not provided steel casing in the hole in accordance with the standard at 29 C.F.R. § 1926.800(h)(3)(i). Following the hearing, Judge Bullis issued his decision in which he determined that Subpart S, including the cited standard, does not apply to the pier hole in question, but that 29 C.F.R. Part 1926, Subpart p—Excavations, Shoring and Trenching, does apply. Therefore, he proceeded to consider whether Martin had taken the necessary precautions required under Subpart P with respect to casing the hole. Based on his determination that Martin had complied with the applicable requirements, he vacated that part of the citation.

With respect to the applicability of Subpart S, Judge Bullis first focused upon the reference in section 1926.800(h)(3)(i) to ‘small diameter shafts which employees are required to enter.’ In his view, this language suggests shafts designed for employees to use in traveling to an underground place of work, such as a mine. The judge noted, though, that Martin’s pier holes are not designed for employees to enter and that employees enter only 10 to 15 percent of the holes, in order to clean out dirt that may have been dislodged by the drill or, as in the situation that led to fatality, to retrieve dropped equipment. Because ‘shaft’ is not defined in Subpart S, the judge resorted to Webster’s Third New International Dictionary, but he was unable to find a definition that was descriptive of Martin’s operation. The judge found more applicable the definition of ‘excavation,’ at 29 C.F.R. § 1926.653(f), as ‘any manmade cavity or depression in the earth’s surface’ and the reference, at 29 C.F.R. § 1926.651(i), to ‘excavations which employees may be required to enter’ (emphasis added). Moreover, the judge noted that Subpart P, at 29 C.F.R. § 1926.652(f), in setting forth the casing requirements for bell-bottom pier holes, prescribes casing down to the top of the bell.[4] He further observed that if Subpart S governed the cited condition then, according to section 1926.800(h)(3)(ii),[5] casing would be required for the full depth of the hole and for one for above ground level. Accordingly, he concluded, the Secretary’s position would lead to the illogical result that under Subpart S casing requirements for non-belled pier holes would be more stringent than those for bell-bottom pier holes, which by their nature are more prone to caving. In addition, the judge reasoned that because Subpart P covers a specific type of pier hole—bell-bottom—then it must also embrace general requirements for all pier holes.

II

On review, the Secretary makes three challenges to Judge Bullis’ conclusion that Subpart P rather than Subpart S applies here. First, the Secretary insists that a pier hole is ‘a vertical or inclined opening of uniform and limited cross section’ and, therefore, a ‘shaft’ as defined in Webster’s for all relevant purposes. Second, the Secretary argues that the distinction between shafts that employees ‘are’ required to enter and those that they ‘may be’ required to enter is superfluous because Martin’s employees were in fact required to enter these holes on occasion to clean them out or to retrieve equipment. Third, the Secretary charges that the judge’s characterization of a pier hole as a cavity or depression in the earth’s surface is a ‘significant distortion for purposes of utilizing Subpart P.’ Indeed, the Secretary rejects the judge’s conclusion that Subpart P was intended to cover all pier holes, because it specifically refers only to bell-bottom pier holes.

The Secretary further argues that, even if Subpart P were applicable here, he established Martin’s noncompliance with Subpart P because there is no substantial difference concerning casing requirements between the two subparts. Here, it is not disputed that the pier hole was cased only to a depth of 31 or 32 feet. Therefore, 18 to 19 feet of the hole was not cased. In addition, the evidence shows that the soil was jointed, not solid. Thus, the deceased employee was exposed to a hazard and a violation was established under either subpart. Accordingly, the Secretary moves under Rule 15(b) of the Federal Rules of Civil Procedure to amend the citation and complaint in order to allege, in the alternative, noncompliance with 29 C.F.R. § 1926.652(f), note 4 supra.[6]

III

We conclude, based upon our reading of Subpart S as a whole, that the standards there are intended to cover more permanent and larger excavations, such as mine tunnels and shafts, than the pier hole at issue here. For example, the subpart, titled ‘Tunnels and Shafts, Caissons, Cofferdams and Compressed Air,’ includes provisions regarding ladders, stairways, check-in and check-out systems for employees, ventilation doors, posting of signs and storage of gasoline underground.[7] These provisions clearly indicate that Subpart S contemplates subterranean passageways specifically designed for work and transit. Here, the pier holes are specifically designed as receptacles for concrete. Protection against caving hazards in tunnels and shafts must be of a more permanent nature and capable of withstanding extended periods of stress because they remain open for long periods of time and are more frequently used. In contrast, pier holes are open for a short period of time and employees infrequently enter these holes. Consequently, employee exposure is of limited duration and the requisite protective measures are correspondingly temporary. In our view the judge correctly concluded that the protective requirements imposed by Subpart S are not applicable to the pier hole in question. Accordingly, we affirm Judge Bullis’ vacation of the citation insofar as it alleged noncompliance with the standard at 29 C.F.R. § 1926.800(h)(3)(i).

Turning to the issue of the Secretary’s attempt, first made in his petition for review, to amend his citation pursuant to Rule 15(b) of the Federal Rules of Civil Procedure,[8] we conclude that the standard the Secretary seeks to allege in the alternative, section 1926.652(f), is not applicable to pier holes. Indeed, the Secretary himself argues that the section refers specifically only to ‘bell-bottom pier holes,’ but is silent as to ‘pier holes.’ The natural inference to be drawn from the language of the standard is that the standard was not intended to cover all pier holes, only bell-bottom pier holes, and we so hold.[9] See Marshall v. Gibson’s Products, Inc. of Plano, 584 F.2d 668 (5th Cir. 1978).

Accordingly, we deny the Secretary’s motion to amend under Rule 15(b) of the Federal Rules of Civil Procedure and we affirm the judge’s decision to vacate the citation insofar as it alleges Respondent’s failure to comply with the standard at 29 C.F.R. § 1926.800(h)(3)(i).

IT IS SO ORDERED.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: DEC 17, 1981

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 77–383
MARTIN & MARTIN FOUNDATION DRILLING CONTRACTORS, INC.,
Respondent.

April 10, 1978

Appearances:

Robert F. Maris, Esq. Dallas, Texas Attorney for the Complainant

David Fielding, Esq. Fort Worth, Texas Attorney for the Respondent

DECISION AND ORDER

BULLIS, Judge:

As a result of a fatal accident on December 27, 1976, at its work site near Edinburg, Texas, Martin & Martin Foundation Drilling Contractors, Inc., (Martin) was inspected by representatives from the Occupational Safety and Health Administration. Following the inspection Martin was issued a citation charging three serious violations of the Occupational Safety and Health Act of 1970, 29 USC § 651, et seq. (the Act).

The first violation charged that Martin failed to comply with the provisions of 29 CFR 1926.550(b)(2) by lowering one of its employees in a pier hole or shaft while riding the load of a truck crane.[10]

The second violation alleged that Martin failed to comply with safety standards requiring the testing of the air before an employee was placed in the pier hole or shaft.[11]

The third violation charged Martin with failing to case the pier hole or shaft as required by 29 CFR 1926.800(h)(3)(i) before its employee entered the shaft or pier hole.[12]

Martin contested all three of the alleged violations including the proposed penalties. In addition to denying the existence of the alleged violations, Martin contended that the first violation should be dismissed on the basis that the citation and complaint are vague and do not describe the violation with sufficient particularity to enable it to defend against the charge. Martin further contended that the citation should be dismissed on the ground that it was not issued with reasonable promptness, and that the Secretary acted improperly in charging the first and third violations for the reason there is no causal connection between those violations and the fatal accident forming the basis for the Secretary’s inspection.

Jurisdiction is not in issue. Martin has admitted that it is an employer engaged in a business affecting commerce within the meaning of the Act.

The first and third alleged violations are vacated. The second violation is amended, and, as amended, is affirmed. A penalty of $900.00 is assessed.

On the day of the fatal accident Martin, a subcontractor, had a crew of five men engaged in drilling pier holes for an overpass on a highway project near Edinburg, Texas. One of the crew members dropped a shovel into a pier hole 50 feet deep and 30 inches in diameter. The hole had been cased with steel to a depth of between 31 and 32 feet. In order to retrieve the shovel, one of the workmen, Paul Elliott, was lowered into the hole by means of a truck crane shown in Exhibits C–1 and C–2. Elliott stood on a chain affixed to the bottom of a reinforcing cage, 26 inches in diameter, consisting of four vertical steel bars approximately 20 inches apart with horizontal steel rings four feet apart, as shown in Exhibits C–3, C–5, and C–6. The cage used was one of several on the site for the purpose of being placed in the pier holes to provide reinforcement for concrete later poured in the holes. The cage, with Mr. Elliott standing on the chain affixed to the bottom, was lowered into the hole by the truck crane. (The above facts were stipulated into the record at the commencement of the hearing. Tr.12–15)

Sometime after he was lowered into the hole, the other members of the crew could get no response from Elliott. Three other members of the crew, including the foreman, made efforts to climb down the cage to Elliott but all had to turn back because of difficulty in breathing and because they became lightheaded or dizzy (Tr.75, 76, 85). One of the crew members got within 10 or 15 feet of Mr. Elliott. (Tr.95) After about 30 minutes Elliott was brought up, unconscious, by the same means he was lowered into the hole (Tr.96).

The day following the accident Roger Frazier, a compliance officer with the Occupational Safety and Health Administration, conducted an investigation (Tr.102). At the time of his investigation the hole where the accident occurred had been filled with cement. Frazier, however, conducted tests of the air in a newly drilled hole about ten feet away from the filled-in-hole and discovered it to be deficient in oxygen (Tr.111, 113). He also determined that Martin had not tested the air for contaminants or for oxygen deficiency prior to lowering Elliott into the hole. Nor did Martin have any equipment on site for testing either the quality or quantity of air in the pier holes (Tr.150). Exhibit C–8 is a chart showing the results of the tests conducted by Frazier.

Martin had cased the hole in question with steel to a depth of 31 to 32 feet, believing it to be sufficient to eliminate caving. In reaching this conclusion Martin relied on penetrometer tests conducted in test holes drilled at the site to determine the consistency of the soil (Tr.189, 190).

M.F. Martin, president of Martin, and John B. Watson, president of Watson, Incorporated, a manufacturer of drilling equipment, both testified it was industry practice to case pier holes to depths indicated by penetrometer tests to be sufficient to hold out earth and hydrostatic pressures (Tr.22, 23, 28, 29, 189, 190, 197, 198). Watson had been engaged in the drilling construction business from 1947 to 1973, and in 1971 and 1972 had served as president of the Drilling Contractors Association, an international organization formed to establish standards and to advance the industry of drill pier construction. His testimony, in essence, was that casing is put into the pier hole down to non-caving material and the hole is then excavated through the casing to a depth required by the design engineer to support the designed loan (Tr.22). Both he and Mr. Martin were of the view that if the pier hole was cased to the bottom it would lessen side shear and adversely affect the bearing capacity of the pier (Tr.24, 25, 199). This view was supported by John Breeding, an industrial hygienist and safety engineer, who served as a compliance officer with the Occupational Safety and Health Administration for two years in 1974 and 1975 (Tr. 161, 162). Mr. Breeding also stated it was OSHA’s practice to require casing to firm and stable soil (Tr.161).

Martin, Watson, and Breeding were all of the opinion that casing to depths sufficient to keep out earth and hydrostatic pressures was sufficient to allow a man to enter the pier hole with safety (Tr.39, 40, 161, 198). Neither compliance officer Frazier nor Charles G. Flagg, a soil and foundation engineer with the Corps of Engineers, agreed that reliance on penetrometer tests is a safe practice. Frazier pointed out that the material in the hole, based upon information from the test holes, was jointed and not solid and was prone to slipping (Tr.130–132). Flagg also pointed out that, according to information from the test holes, the material was jointed and that Corps of Engineers regulations prohibited the placing of a man in the hole without casing to solid rock. His view was that while penetrometer tests indicate the consistency of the soil mass, a determination whether it will cave cannot necessarily be determined by such readings (Tr. 209–212).

On cross-examination Mr. Frazier agreed that riding the cage lowered by the truck crane had nothing to do with the fatal accident he investigated and stated that he would not have recommended a citation for riding the crane load had a better cage been used (Tr.128, 139). The danger, in his opinion, was not from the use of the crane to lower a person into the hole, but from the possibility of falling out of the cage or getting a part of the body—an arm, leg, or head—caught as it was lowered (Tr.105, 146, 147). All witnesses agreed that there were no commerically manufactured devices for lowering a man into a pier hole and that contractors generally fabricate their own devices (Tr.33, 165, 208). Mr. Flagg testified that if a man is lowered into a pier hole, it should be done by use of a boatswain’s chair with another life support line attached (Tr.206). Mr. Martin testified that in a hole more than 20 feet deep the use of a truck crane was a safer device for lowering a man into the hole than a hand winch (Tr.193). He also stated that it was only necessary to place a man in about 10 to 15 percent of the pier holes for the purpose of cleaning out loose debris that may have fallen in during the drilling operation (Tr.195). Mr. Breeding testified that it was OSHA’s practice to issue citations for riding a crane load only in above ground operations (Tr. 164).

In its answer and in a motion to dismiss, Martin contended that the citation was not issued with reasonable promptness and must, therefore, be dismissed. The inspection occurred between December 28th and 30th, 1976. The citation was issued on January 11, 1977. While section 9(a) of the Act requires that a citation be issued ‘with reasonable promptness’ after an inspection, the Commission has ruled that a reasonable delay, in itself, is not sufficient grounds to vacate a citation. A showing must also be made that the delay in issuing the citation has caused some prejudice in defendant against the charges. Secretary of Labor v. Par Construction Co., Inc., 76 OSAHRC 133/Bll, BNA 4 OSHC 1779, CCH 1976–77 OSHD ¶21,216 (No. 11092, 1976). Martin has made no showing of prejudice. The record contains no evidence showing that the 12 day delay in issuing the citation in any way affected Martin’s ability to investigate the charges or to defend itself.

Martin also contends that the first alleged violation (Item 1) should be dismissed on the ground that the complaint and citation did not set forth the nature of the violation with the particularity required by section 9(a) of the Act that, because of the vagueness of the allegations, he was not sufficiently apprised of the nature of the violations so that he could properly defend against the charges.

The Secretary’s complaint sets forth only the language of the regulation, and through an obvious typographical error, cited a non-existent subsection, (n), rather than subsection (b). The complaint also failed to specify the particular section of the applicable ANSI standard. The citation, however, although not specifying the particular section of the ANSI standard, set forth the violation as follows:

On 12/27/76 at about 12:45 p.m. an employee was lowered slightly more than 40 feet below ground level in pier hole or shaft while riding the load (reinforcing basket) being suspended and lowered by employer’s McElroy-Roland Truck Crane SN 794 1421 operated by an employer’s employee.’

The purpose of pleadings, as well as the particularity requirement of section 9(a), is to put the employer on notice as to the alleged violation. Secretary v. Gannett Corp., 4 OSHRC 1383, BNA 4 OSHC 1383, CCH 1976–77, OSHD ¶20, 915 (No. 6352, 1976).

The citation clearly informed Martin that the vice it was charged with was lowering an employee into a pier hole by use of a truck crane. Nonetheless, that alleged violation will be vacated. Not because the citation did not set forth the charge with particularity, but because the Secretary has failed to prove the violation charged.

The applicable ANSI standard prohibits the operation of a crane while anyone is on the load or hook. The obvious unsafe practice that standard was intended to guard against is that of an employee borrowing or hitching a ride on a crane load or hook to save himself the trouble of reaching his destination by more tedious, albeit safer, means. Here, the employee was not hitching a ride on the load or hook. He was the designed load, the purpose of which was to lower him into the pier hole. No other method was available to place the employee in the hole, nor did the Secretary suggest a different or safer mechanism as the source of power for lowering the employee. The compliance officer testified that the hazard was not from the use of the crane to lower the employee into the hole, but from the device—the reinforcing cage—in which the employee rode. The same hazard would have been present regardless of the mechanism used for lowering the cage.

The ANSI standard, according to the testimony of the compliance officer, does not proscribe the use of a crane to lower a person into a pier hole, as was done here, where a cage specifically constructed for that purpose is used. He, as well as other witnesses, agreed that there are no commercially manufactured devices for this purpose and that contractors must fabricate their own cages. Because the device fabricated by Martin was deemed unsafe, a citation was issued that was totally unrelated to the hazardous condition. Such practice should not be tolerated and flies directly in the face of Commission dictum in National Realty and Construction Company, Inc., 72 OSAHRC 9/A2, BNA 1 OSHC 1049, CCH 1971–73 OSHD ¶15,188 (No. 85, 1972).

If the cage used here were deemed unsafe Martin should have been charged for that violation. If no specific safety standards were applicable, the general duty clause, Section 5(a)(1) of the Act, could have been used. That, of course, would have required the Secretary to prove a recognized hazard, a burden not required when citing a specific standard where the existence of a hazard is presumed. Such burden may have been difficult to carry here, but that difficulty does not justify the filing of a charge unrelated to the violation found.

The third alleged violation must also be vacated. A careful examination of the Construction Standards requires the conclusion that Subpart S dealing with ‘Tunnels and Shafts, Caissons, Cofferdams and Compressed Air’ is not applicable to Martin’s operation.

First, the use of the term ‘shaft’ raises some doubt that Subpart S is applicable. No definition of ‘shaft’ is contained in Subpart S. Nor is there a definition descriptive of Martin’s operation contained in Webster’s Third New International Dictionary under the term ‘shaft’. The only definition in Webster under ‘shaft’ pertaining to excavations is ‘4: Any of various long hollow structures: as a(1): a vertical or inclined opening of uniform and limited cross section made for finding or mining ore, raising water, or ventilating underground workings—compare ADIT (2): a passage resembling a mine shaft in structure or function (as in a cave or a pyramid)’.

Secondly, language contained in the cited standard, 29 CFR 1926.800(h)(3)(i), enhances the doubt that Subpart S applied. It speaks of ‘small diameter shafts, which employees are required to enter, . . .’ (emphasis added). Such language would normally have reference to shafts designed for employees to enter in traveling to a place of work such as a mine or other underground structure, an interpretation consonant with Webster’s definition. Compare this language to language contained in 1926.651(i) under Subpart P of the Construction Standards dealing with ‘Excavations, Trenching, and Shoring’, referring to excavations which ‘employees may be required to enter’ (emphasis added). The terminology ‘may be required to enter’ is much more descriptive of Martin’s excavations than is the language contained in the cited standard. Martin’s pier holes were not designed for employees to enter, and only 10 to 15 percent were in fact entered in order to clean out dirt that may have been left by the drilling operation, or, as here, to retrieve a shovel dropped in the hole.

Further examination of Subpart P makes it clear that this is the Subpart intended to cover Martin’s type of operation, not Subpart S. Subpart P defines the term ‘excavation’ as ‘any man made cavity or depression in the earth’s surface, . . .’, clearly descriptive of Martin’s operation. The witnesses generally referred to Martin’s operation as the drilling of pier holes. Subpart P, in 29 CFR 1926.652(f), sets forth the casing requirements to protect employees entering bell-bottom pier holes, requiring such pier holes to be cased to the top of the bell.

The Subpart S requirements, if applicable, would require Martin’s pier holes to be cased to the full depth of the hole and extend one foot above ground. It does not seem logical that casing requirements for non-belled pier holes were intended to be more stringent than for belled holes, which, by their nature, are more prone to caving. Since Subpart P specifically covers the casing requirements for bell-bottom pier holes, logic would suggest that the requirements for all pier holes are covered by that Subpart and that Subpart S refers only to the type of shaft under the usual definition as contained in Webster. Such an interpretation finds support from the testimony of Mr. Breeding, a former OSHA compliance officer, who indicated that was the interpretation explained to him when employed by OSHA (Tr. 182–3).

Subpart P contains provisions requiring support for the protection of employees who may be required to enter excavations such as here. For example, 29 CFR 1926.651(c) requires the ‘walls and faces of all excavations in which employees are exposed to danger from moving ground’ to be guarded by a shoring system or other equivalent means. Subsection (k) requires support systems in excavations more than 20 feet deep to be designed by a qualified person.

The evidence indicates Martin took the necessary precautions required by Subpart P to afford protection to his employees. The hole was cased to 31 or 32 feet, a depth sufficient, in Martin’s view, based on penetrometer tests to protect the hole from caving and from hydrostatic pressures. That position was supported by the former president of the Drilling Contractors Association and by a former OSHA compliance officer. While the inspecting officer and a soil and foundation engineer with the Corps of Engineers did not agree that casing to 31 or 32 feet was sufficient to assure protection to an employee entering the hole, neither was aware of any injuries caused by caving in a hole such as the present one. The preponderance of evidence shows the hole to be safe from caving and at the same time provide the greatest possible load bearing capacity to the pier.

A violation of the Act for failing to test the air in the pier hole for contaminants or oxygen deficiency prior to placing employee Elliott in the hole is found. While the standards cited are contained in Subpart S, and, as pointed out above, are not applicable to the excavations here, similar air testing requirements are contained in Subpart P and the citation and complaint are amended, sua sponte, to allege a violation of the Act for failing to comply with 29 CFR 1926.651(v).[13]

No prejudice will result to Martin by this amendment. It does not in any way change the theory upon which the case was tried. The citation charged a failure to test the quality of the air in the pier hole and a failure to test the air for oxygen deficiency. The amended citation likewise requires the air in the excavation to be tested where oxygen deficiency or gaseous conditions are possible. Martin did not contend that any tests were conducted for either contaminants or oxygen deficiency.

The possibility of gaseous conditions or oxygen deficiency indicating a need for testing the air before placing a man in pier holes is clearly shown by the evidence. Not only did the three employees who attempted to go down the hole to rescue Elliott experience difficulty in breathing, tests conducted by the compliance officer the next day in a hole nearby showed an oxygen deficiency. Of even more importance is the testimony of Mr. Watson, the former president of the Drilling Contractors Association and a person with considerable experience in drilling pier holes, who stated that while the presence of noxious substances or oxygen deficiency is not a common occurrence, it occurs frequently enough so that those in the industry are aware of it (Tr.51–52). He himself had been in holes where oxygen was deficient and had smelled noxious gases in drilled holes.

Awareness by those in the industry that the presence of gaseous conditions or oxygen deficiency can occur in drilled pier holes requires compliance with the amended standard. Clearly that was not done and a finding that the Act was violated must be found.

A finding must also be made that the violation was serious. To establish a serious violation it is not necessary to show that an accident is likely to occur because of the violation. It need only be shown that should an accident occur as a result of the violation, the probable result would be death or serious bodily injury. Secretary of Labor v. Wisconsin Electric Power Co., 76 OSAHRC 134/A9, BNA 4 OSHC 1783, CCH 1976–77 OSHD ¶21,234 (No. 5209, 1976). The result here is clear evidence that the violation was serious.

The Secretary proposed a penalty of $900.00 for the violation found. At the commencement of the hearing the parties stipulated that the proposed penalties would be reasonable and appropriate if the violations were found (Tr.11). Upon being informed that such a stipulation would not necessarily bind the Commission, the stipulation was withdrawn.

While the determination of an appropriate penalty is a function of the Review Commission under the Act, the Commission has held that where the parties have agreed on the appropriateness of a proposed penalty and no affected employees or their representatives have objected to the agreed penalty, and it is not repugnant to the purposes of the Act, the Commission will refrain from exercising its right to make a de novo penalty assessment. Secretary v. Thorleif Larson and Son, Inc., 74 OSAHRC 74/C8, BNA 2 OSHC 1256, CCH 1971–73 OSHD ¶14,460 (No. 370, 1974).

Even though the stipulation that the proposed penalty was appropriate was withdrawn, the suggested penalty was supported by the testimony of the compliance officer. There is nothing in the record indicating it to be repugnant to the purposes of the Act nor was any evidence offered suggesting the proposed penalty to be inappropriate. Accordingly, the proposed penalty of $900.00 is found to be appropriate for the serious violation proved.

From the entire record the following Findings of Fact and Conclusions of Law are made:

FINDINGS OF FACT

1. Martin is an employer engaged in a business affecting interstate commerce.

2. On December 27, 1976, near Edinburg, Texas, one of Martin’s employees was lowered into a pier hole by means of a truck crane while inside a reinforcing cage. The employee was not riding the load or hook of the crane but was part of the designed load.

3. The pier hole excavated by Martin was cased with steel to a depth of 31 to 32 feet. The casing was sufficient to protect the pier hole from caving and the hole was safe for an employee to enter.

4. On December 27, 1976, near Edinburg, Texas, Martin did not test the air in a pier hole for oxygen deficiency or contaminants before placing an employee in the hole. Martin did not have any equipment at its work site for testing the quality or quantity of air in the pier hole.

5. A penalty of $900.00 is appropriate for the above violation.

CONCLUSIONS OF LAW

1. The Commission has jurisdiction of the parties and subject matter of these proceedings.

2. On December 27, 1976, Martin was not in violation of the Act for failure to comply with 29 CFR 1926.550(b)(2).

3. On December 27, 1976, Martin was not in violation of the Act for failure to comply with 29 CFR 1926.800(h)(3)(i).

4. On December 27, 1976, Martin was in serious violation of the Act for failure to comply with 29 CFR 1926.651(v).

From the foregoing Findings of Fact and Conclusions of Law it is ORDERED:

1. Item 1 of Citation 1 is vacated.

2. Item 2 of Citation 1 is amended to allege a violation of the Act for failure to comply with 29 CFR 1926.651(v). As amended, Item 2 is affirmed and a penalty of $900.00 is assessed.

3. Item 3 of Citation 1 is vacated.

HAROLD O. BULLIS

Administrative Law Judge

Dated: April 10, 1978

---

[1] The standard at 29 C.F.R. § 1926.800(h)(3)(i) provides:

§ 1926.800 Tunnels and shafts.

(h) Ground support—

(3) Shafts. (i) Small diameter shafts, which employees are required to enter, shall be provided with a steel casing, concrete pipe, timber, or other material of required strength to support the surrounding earth.

[2] ‘Pier hole’ is not defined in the Secretary’s standards. The term describes a hole that is drilled in the earth and then filled with concrete in order to form a vertical supporting member—a pier—similar to a pillar, but underground.

[3] ‘Casing’ is not defined in the Secretary’s standards. The term refers to a method of lining the inside of a hole with material of sufficient strength to prevent sloughing or caving of the walls.

[4] The standard at 29 C.F.R. § 1926.652(f) states in pertinent part:

Employees entering bell-bottom pier holes shall be protected by the installation of a removable-type casing of sufficient strength to resist shifting of the surrounding earth. Such temporary protection shall be provided for the full depth of that part of each pier hole which is above the bell.

[5] The standard at 29 C.F.R. § 1926.800(h)(3)(ii) provides:

The casing and bracing shall be provided the full depth of the shaft, or at least 5 feet into solid rock if possible, and shall extend at least 1 foot above ground level.

[6] The Secretary’s motion to amend is made in a footnote in his petition for review. There, the Secretary quotes a portion of § 1926.652(f) that requires that:

A lifeline, suitable for instant rescue and securely fastened to a shoulder harness, shall be worn by each employee entering the shafts. This lifeline shall be individually manned and separate from any line used to remove materials excavated from the bell footing.

The Secretary argues that, if this standard were applicable, then Martin would additionally be in violation for failure to provide an adequate lifeline. Accordingly, it is not clear whether the attempted amendment is based on the failure to case fully, the failure to provide a lifeline, or both. Nevertheless, for the reasons set forth infra, the Commission need not make this determination.

[7] See the standards at 29 C.F.R. §§ 1926.800(a)(3), (a)(6), (c)(2)(ii), (e)(1)(ii), and (e)(1)(v).

[8] Fed. R. Civ. P. 15(b) reads as follows:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

[9] The Commission need not decide whether another section of Subpart P or the ‘general duty clause,’ i.e., section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), may govern pier holes because all issues relevant to these sections were not tried and an amendment on review is therefore not appropriate. See Mississippi Power & Light Co., 79 OSAHRC 109/D12, 7 BNA OSHC 2036, 1980 CCH OSHD ¶24,146 (No. 76–2044, 1979).

[10] 29 CFR 1926.550(b)(2) reads: “All crawler, truck, or locomotive cranes in use shall meet the applicable requirements for design, inspection, construction, testing, maintenance and operation as prescribed in the ANSI B30.5–1968, Safety Code for Crawler, Locomotive and Truck Cranes.”

ANSI § 5–3.2.3.(e) reads: ‘The operator shall not hoist, lower, swing, or travel while anyone is on the load or hook.’

[11] 29 CFR 1926.800(c)(1)(i) reads: ‘Instruments shall be provided to test the atmosphere quantitatively for carbon monoxide, nitrogen dioxide, flammable or toxic gases, dusts, mists, and fumes that occur in the tunnel or shaft. Tests shall be conducted as frequently as necessary to assure that the required quality and quantity of air is maintained. A record of all tests shall be maintained and be kept available.’

29 CFR 1926.800(c)(1)(ii) reads: ‘Field-type oxygen analyzers, or other suitable devices, shall be used to test for oxygen deficiency.’

[12] 29 CFR 1926.800(h)(3)(i) reads: ‘Small diameter shafts, which employees are required to enter, shall be provided with a steel casing, concrete pipe, timber, or other material of required strength to support the surrounding earth.’

[13] 29 CFR 1926.651(v) reads: ‘In locations where oxygen deficiency or gaseous conditions are possible, air in the excavation shall be tested. Controls, as set forth in Subparts D and E of this part, shall be established to assure acceptable atmospheric conditions. When flammable gases are present, adequate ventilation shall be provided or sources of ignition shall be eliminated. Attended emergency rescue equipment, such as breathing apparatus, a safety harness and line, basket stretcher, etc., shall be readily available where adverse atmospheric conditions may exist or develop in an excavation.’