UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 78–2125 |
|
S.
ZARA & SONS CONTRACTING CO., INC., |
|
|
Respondent. |
|
January 29, 1982
DECISION
Before: CLEARY and COTTINE, Commissioners.*
BY
THE COMMISSION:
A
decision of Administrative Law Judge Jerome C. Ditore 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 Ditore
modified the Secretary’s amended citation which alleged that Respondent
(‘Zara’) had committed a willful and repeated violation of the Act for failing
to comply with the standard at 29 C.F.R. § 1926.651(c).[1] The judge concluded that
the violation was repeated but not willful in nature, and he assessed a $3,000
penalty. Commissioner Cleary directed review of the judge’s decision.[2] We conclude that the judge
erred in failing to find the violation willful in nature, and we assess a
$5,000 penalty.
I.
The
citation was issued after an employee of Zara was killed on March 24, 1978 in
the collapse of a manhole excavation in which he had been working. This
excavation was part of an extensive project for the installation of a sewer
line which Zara was constructing for Nassau County, New York. The project had
commenced in December 1977 and was still continuing at the time of the hearing
in this case.[3]
It was under the management of a county engineer. The county engineer also
served as project engineer and in that position supervised at least 20
inspectors whose responsibility was to ensure that work was done according to
specifications. The specifications, which were contractual requirements imposed
on the contractor, included a requirement that any excavation deeper than five
feet be sheeted ‘as required’ to protect employees and that trenches be
adequately shored and securely braced or sheeted where required. The
specifications permitted the use of a trench box to support an excavation less
than 18 feet deep. However, trench boxes were not used in excavations having
exposed utility lines that could be struck by the trench box as it was lowered
into the excavation.[4] Zara instructed its
employees that in instances where a trench box was not used the excavation must
be sloped. The foreman at the worksite where the fatal accident occurred,
Benasutti, testified that he had been instructed to slope all four sides of an
excavation to an angle of 45 degrees.
According
to Ploska, the inspector assigned to monitor Benasutti’s work, Benasutti normally
used a trench box except where its use would not be practical due to the
presence of utility lines. Prior to the accident, Benasutti consistently used a
trench box. However, on the day before the accident, Benasutti encountered gas
and water service lines as well as a curve in the road. Benasutti believed that
use of a trench box in the vicinity of the utility lines would be hazardous and
that the road curvature would impede installation of a box. Therefore, he
decided to slope the excavation as an alternative to using the trench box.
However, despite Benasutti’s understanding of Zara’s safety rule, he failed to
slope the approximately 17-foot deep excavation to a 45-degree angle.[5] Nor did he shore or
otherwise support the excavation against collapse. The excavation caved in
early the next day.
Benasutti’s
supervisor, job superintendent DiPaolo, previously had been contacted by a
county officer concerning inadequately protected excavations. Dreyer, one of
the county engineers supervising inspectors on the Zara project, testified that
from inception of the contract until the day of the fatal accident, he made
‘just about’ daily visits to Zara’s worksites and had approximately five to ten
conversations with either DiPaolo or his foreman regarding their failure to use
an available trench box. On these occasions he advised DiPaolo or the foreman
that without a trench box the excavation was hazardous. On December 22, 1977,
he gave DiPaolo a written notice ordering Zara to use a trench box in any
excavation deeper than six feet. This order was issued following Dreyer’s
observation of a trench, approximately 8 to 12 feet deep, without a box. The
record does not indicate whether any of the excavations which Dreyer considered
hazardous occurred at worksites under Benasutti’s control.[6]
On
March 23, 1978, the day before the fatal accident at Benasutti’s worksite, a
trench at a worksite under the control of another foreman, Palumbo, collapsed.
One of Zara’s employees who was in the trench at a depth of 10 to 12 feet was
slightly injured. The trench, which at that time was crossed by an exposed and
active gas line, was not protected by either shoring or a trench box. During
the morning before the cave-in as well as on prior days, Gallagher, the county
inspector at the site, had repeatedly instructed Palumbo to use a trench box
that was available at the site. According to Gallagher, Palumbo stated that a
trench box was not ‘necessary.’ Gallagher further testified that after the
accident Palumbo began using the trench box where its use was ‘feasible.’
The
Zara project at issue in this case was the first sewer project on which Dreyer
had worked as a supervising engineer for the county. Similarly, Gallagher had
never previously worked as a construction inspector. Ploska had no experience
in construction work prior to his assignment as inspector on the Zara project.
Neither Dreyer, Gallagher, nor Ploska had any familiarity with the Secretary’s
trench and excavation standards, nor had they received any formal safety
training. On the other hand, Zara’s general superintendent, Tomasetti, had been
associated with Zara for eight years and had prior experience in sewer
construction. He had received safety training from the gas utility, Long Island
Lighting Company (‘LILCO’), and the county and state departments of labor. He
also had completed the Secretary’s safety course in trenching and excavation.
Tomasetti
previously had served as Zara’s safety director and in this capacity, in 1974
or 1975, initiated Zara’s safety program. The program included written safety
rules and provided for the discussion of safety matters at annual general
meetings of all company employees and at job meetings at construction sites
with foremen and superintendents monthly or ‘as necessary.’ Superintendents and
assistant superintendents also were required periodically to inspect and make a
written report on the safety and health conditions at worksites. Tomasetti made
weekly or monthly inspections of all worksites accompanied by representatives
of Zara’s insurance carrier. According to Tomasetti, he discussed the
Secretary’s standards regarding sloping and shoring with foremen and
superintendents and instructed them to use a trench box where practical and
otherwise to slope. In Tomasetti’s opinion, a trench box would be impractical
in excavations where utility lines existed because of the possibility of damage
to utility lines.
Zara’s
safety director, Trotter, was hired on May 31, 1977 to establish an internal
insurance department and to continue implementation of the existing safety
program. After his employment with Zara commenced, he took a course given by
the county in trenching and excavation. This course was attended by 40 of
Zara’s foremen and superintendents. He and approximately 35 of Zara’s employees
also took LILCO’s safety course. At the time of the hearing in this case,
Trotter was attending a course in occupational safety and health standards at
Hofstra University.
On
October 28, 1977, Trotter first met with Zara’s employees involved in trench
and excavation work to discuss the Secretary’s standards. According to Trotter,
employees were generally instructed to use a trench box and customarily did so.
If a box could not to be used, foremen were instructed to excavate to the
proper angle of repose. Shoring equipment was available at the request of a
foreman. Trotter and a representative of Zara’s insurance department also
conducted daily inspections of field sites. If an infraction of a safety rule
was observed, it was photographed, brought to the attention of the employees,
and discussed with the superintendent.[7] Trotter arrived at the
site here approximately five to ten minutes after the accident. At that time
Benasutti told him that the excavation had been sloped in compliance with the
standards.
During
the past four years, Buckley, the business agent for the laborers’ union,
visited Zara’s worksites three to five times. He noted that trench boxes or
other shoring devices were always used where there was no danger of damaging a
utility line. Similarly, the shop steward for Zara’s operating engineers,
Huber, who made daily visits to Zara’s worksites, had never seen Zara fail to
use a box where he felt one should have been used. He also had seen excavations
sloped where no box was in use. On the other hand, Papa, a county engineer in
charge of a Zara sewer project in progress at the time of the hearing and
involved with Zara sewer projects since 1970, testified that on a few occasions
Zara had failed to use a trench box in an excavation where Papa felt one should
have been used. In each instance, Zara’s superintendent would install a trench
box when told to do so by Papa.
Finally,
the record shows that during a five year period preceding the issuance of the
citation here, Zara committed seven violations of standards pertaining to the
shoring or sloping of trenches and excavations.[8]
II.
Judge
Ditore determined that Zara was aware of the requirements of the Act and had
maintained a safety program including the issuance of ‘general’ safety
instructions and the provision of equipment for protecting employees in
trenches and excavations. However, the judge found substantial deficiencies in
the safety program, particularly with regard to the adequacy of the safety
instructions. In the judge’s view, employees were not specifically trained to
recognize hazards that might be encountered at a worksite or in the methods of
protecting against those hazards. Although safety responsibility was delegated
to foremen and depended on the exercise of their judgement, Zara failed to give
them detailed training on proper sloping or sloping methods. Employees received
no training regarding soil conditions. Noting that Benasutti understood that
the proper angle of slope was 45 degrees, the judge concluded that this
instruction was insufficient considering the ‘myriad’ conditions that may exist
at an excavation site.
Nevertheless,
the judge found that these deficiencies in Zara’s safety program did not
constitute either an intentional or reckless disregard of, or plain indifference
to, the requirements of the excavation and trench standards. He further found
that Benasutti previously had used a trench box but could not continue to do so
at the worksite in question because of interference from gas and water lines.
Accordingly, he concluded that the violation was not shown to be willful in
nature as alleged.
III.
On
review, the Secretary contends that the judge erred in failing to find the
violation willful. According to the Secretary, Zara had knowledge not only of
the requirements of the Act but also of the need to improve its safety program
as a result of the prior citations for substantially similar violations and the
repeated warnings by the local inspectors that its employees were not
adequately protected. The Secretary points out that the judge found numerous
inadequacies in Zara’s safety program and contends that, contrary to the
judge’s conclusion, a finding of willfulness is not precluded by the existence
of a general safety program and the provision of safety equipment for some
operations. In the Secretary’s view, the facts establish either an intentional
or reckless disregard of, or plain indifference to, the requirements of the
Act. Finally, the Secretary asserts that in the light of all the circumstances,
including prior violations and warnings, the gravity of the violation, and
Zara’s size, the maximum penalty of $10,000 is appropriate.[9]
Zara
argues that the judge’s decision is supported by a preponderance of the
evidence and should be affirmed. In support of its argument, Zara asserts that
Benasutti decided in good faith to slope the excavation rather than endanger
employees by using a trench box in the vicinity of utility service lines. Zara
emphasizes that Benasutti had consistently used the trench box at this worksite
until it was removed on this occasion. In Zara’s view, the judge properly
concluded that Benasutti’s actions did not constitute an intentional or
reckless disregard of, or plain indifference to, the requirements of the
standard.
Zara
also disputes the significance of the prior violations of the trench and
excavation standards and the warnings by county personnel. According to Zara,
the prior violations, which one exception, concern a standard different than
the one at issue in this case and involved situations of substantial compliance
with the shoring requirements rather than a complete absence of protective
measures. As to the warnings by the county officers, Zara contends that their
testimony should not be credited because they had not been adequately trained.
Zara further contends that its safety officers, Tomasetti and Trotter, were
better trained and qualified than the county personnel. Zara also submits that
improvements in its safety program, implemented after the occurrence of the
prior violations, demonstrate Zara’s commitment to employee safety and its
intention to comply fully with the requirements of the Act.
IV
A
violation is willful in character if it was committed ‘with either an
intentional disregard of or plain indifference to the Act’s requirements.’ Mel Jarvis Construction Co., 81 OSAHRC
89/B13, 10 BNA OSHC 1052, 1981 CCH OSHD ¶ 25,713 (No. 77–2100, 1981) (‘Mel Jarvis’). However, as stated in Mel
Jarvis, a violation is not willful if an employer has a good faith opinion that
the violative conditions conformed to the requirement of the standard. The test
of an employer’s good faith, for the purpose of determining willfulness, is an
objective one, i.e., was the employer’s belief concerning a factual matter or
concerning the interpretation of a standard, reasonable under the
circumstances. See Western Waterproofing
Co. v. Marshall, 576 F.2d 139 (8th Cir. 1978), cert. denied, 439 U. S. 965 (1978).
The
standard contained at section 1926.651(c) required Zara to slope, shore or
provide equivalent means of protection in excavations where employees were
exposed to danger from moving ground. Under Commissioner Cleary’s view, the
factors set forth in section 1926.651(e)[10] must be evaluated to
determine the proper angle of repose for sloping a particular excavation.
Commissioner Cleary concludes that an employer, reading section 1926.651(c)
together with section 1926.651(e), could reasonably determine that a safety
rule, predesignating the angle of repose in all excavations, was inadequate.
Zara’s safety rule required a 45 degree angle of repose in all excavations
where a trench box was not used. Zara was aware that trench boxes could not be
used in all excavations and that sloping was alternatively required. Zara did
not instruct its employees to consider and apply the factors contained in
section 1926.651(e) to determine the proper angle of repose. As a result, in
sloping the excavation in question, Benasutti was unable to evaluate factors
which affected the excavation’s stability. The evidence also shows that Zara
failed to instruct its employees in the methods by which a particular degree of
sloping might be achieved. Zara’s safety rule also failed to provide for
shoring excavations in which a trench box was not used and where sloping was
impracticable. Judge Ditore determined that Zara’s sloping instruction was
insufficient considering the ‘myriad’ conditions that may exist at an
excavation site. Based upon the foregoing rationale, Commissioner Cleary agrees
with the judge’s finding that Zara’s safety rule failed to reasonably implement
the cited standard’s requirements in excavations where a trench box was not
used.
Commissioner
Cottine concurs in this result on different grounds. Section 1926.651(g)
requires that ‘[a]ll slopes shall be excavated to at least the angle of
repose.’ ‘Angle of repose’ is defined at section 1926.653 as ‘[t]he greatest
angle above the horizontal plane at which a material will lie without sliding.’
Table P–1, accompanying the trenching and excavation standards, is entitled
‘Approximate Angle of Repose for Sloping of Sides of Excavation.’ It sets forth
the maximum safe slopes for the soil compositions listed.[11] Duane Meyer, d/b/a D.T. Construction Co., 79 OSAHRC 57/D4, 7 BNA
OSHC 1560, 1561, n. 12, 1979 CCH OSHD ¶23,742 at p. 28,793 n. 12 (No. 16029,
1979). In Commissioner Cottine’s view, walls of an excavation that do not
comport with the angles of repose set forth in the table for the type of soil
involved are not adequately guarded to prevent collapse and do not comply with
the requirements of the excavation standards. Pipe-Rite Utilities Ltd., Inc., OSHRC Docket No. 79–234 (Jan. 28,
1982) (Cottine, Commissioner, dissenting). Furthermore, sections 1926.651(e)
and (h)[12] require that additional
factors affecting the stability of the soil be considered when determining the
degree of sloping necessary to guard against collapse.
Zara’s
safety rule requiring a 45 degree slope for all excavations in which a trench
box is not used fails to take into consideration either the nature of the soil
or other factors affecting its stability.[13] Accordingly, Commissioner
Cottine agrees that the judge properly found Zara’s safety rule to be
inadequate.
We
note further that Zara had been involved in the installation of sewer lines in
Nassau County for five years prior to the fatal accident and during that period
installed approximately two million feet of sewer line. Certain of Zara’s
supervisory personnel received specialized training in trenching and excavation
which, in some cases, included instruction from the Secretary. Prior to the
accident, Zara had violated not only the standard at issue here but also
related trenching standards.[14] Despite its extensive
prior involvement in excavation, the training of its supervisors, and the fact
that it had notice of the sloping and shoring requirements of section
1926.651(c) and related trenching standards from several prior citations, Zara
failed to insure compliance with the cited standard in excavations where a
trench box was not used. Zara’s failure to take positive steps to insure
compliance with the sloping and shoring requirements of the cited standard
demonstrates at least a plain indifference to the standard and employee safety.
Mel Jarvis, supra; Georgia Electric Co.
v. Marshall, 595 F.2d 309 (5th Cir. 1979).
We
are not persuaded by Zara’s argument that the precautions, allegedly taken in
good faith by Benasutti, preclude a finding of willfulness here. Because of the
inadequacy of Zara’s instructions, it was impossible for Benasutti to determine
the proper angle of repose in the excavation where the accident occurred. We
find that his belief that the excavation was sloped in compliance which the
standard was not reasonable and, thus, not held in good faith. See Western Waterproofing Co. v. Marshall,
supra.[15]
Accordingly, we reverse the judge and affirm a willful violation.
V
We
now turn to the assessment of an appropriate penalty. Considering the factors
contained in section 17(j) of the Act, 29 U.S.C. § 661(i), we find that, in
view of the resultant fatality, the gravity of the violation is high. We
further note that Zara is a large employer with a history of violations of
trench and excavation standards. With respect to good faith, we find that,
although Zara failed to implement the requirements of the cited standard, good
faith efforts were expended in establishing a safety program and training
certain supervisory personnel. In view of these efforts, we cannot agree with
the Secretary’s assertion that a $10,000 penalty is warranted in this case. On
balance, we find a $5,000 penalty is appropriate.
Accordingly,
the citation alleging a willful and repeated violation of the standard
contained at 29 C.F.R. § 1926.651(c) is affirmed. A $5,000 penalty is assessed.
SO ORDERED.
FOR THE COMMISSION:
Ray H. Darling, Jr.
Executive Secretary
DATED: JAN 29, 1982
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 78–2125 |
|
S.
ZARA & SONS CONTRACTING CO., INC., |
|
|
Respondent. |
|
March 12, 1979
Appearances:
Francis V. LaRuffa, Regional Solicitor
United States Department of Labor
1515 Broadway, Room 3555 New York, New
York 10036
Attorney for Complainant by James A. Magenheimer,
Esq., of Counsel
Erwin Popkin, Esq.
Suite 302, IBM Building 1399 Franklin
Avenue Garden City, New York 11530
Attorney for Respondent by Gerald V.
Dandeneau, Esq., of Counsel
DECISION AND ORDER
Ditore, J.:
PRELIMINARY STATEMENT
Respondent
contested a citation for a willful violation of 29 CFR § 1926.651(c), and the
proposed penalty of $10,000. Specifically, Respondent was charged with the
willful failure on March 24, 1978, to guard the walls of an excavation by
shoring, sloping or other equivalent means to protect its employees working in
the excavation.
Section
1926.651 which relates to specific excavation requirements, states in
subsection (c) that:
‘[t]he 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.’
A
hearing was held on October 30, 31 and November 1, 1978, at New York, New York.
ISSUES
1.
Whether a violation of 29 CFR § 1926.651(c) existed at Respondent’s workplace
on March 24, 1978.
2. If
a violation existed, were any of Respondent’s employees exposed to the hazard
created by the violation.
3. If
Respondent’s employees were exposed, was the hazardous condition serious.
4. If
the condition was serious, did Respondent know of the condition.
5. If
Respondent knew of the condition, was it responsible for the violation.
6. If
Respondent was responsible, was it a willful act on the part of Respondent.
7. If
the violation was willful, is the proposed penalty reasonable and proper.
STATEMENT OF THE EVIDENCE
A.
Background
From
December 1977 through March 24, 1978, Respondent pursuant to a contract with
the County of Nassau, State of New York, was constructing a lateral or center
pipe sewer line (T. 20, 21, 24, 25, 142). The work was being performed by a
number of Respondent’s work crews. Each crew was assigned an inspector from the
Department of Public Works of Nassau County. Each Nassau County inspector daily
monitored the work being performed by Respondent’s employees to ascertain
whether the work was performed according to County specifications and whether
safe trenching or excavation procedures were used (T. 18, 19, 26, 28, 29, 30,
63, 68, 69, 107–108, 141; Exh. C–1).
B.
The Incident of March 24, 1978
On
the afternoon of March 23, 1978, between 3:30 and 4:30 p.m., one of
Respondent’s work crews began excavating an area of street adjacent to 110
Columbia Drive in Jericho, Long Island, for the installation of a manhole. The
crew consisted of foreman George Benasutti, three laborers, Maia, Vespa and (name redacted), a backhoe operator and
an oiler (T. 111–112, 147, 445, 456, 457). In their prior excavation work on
this project, Benasutti and his crew utilized a steel trench box to protect
against excavation cave-ins. Due to the presence of a lateral gas service line,
a water pipe, and a slight curvature in the road bed, foreman Benasutti could
not use the trench box at the Columbia Drive excavation (T. 113, 149, 446,
447).
On
the morning of March 24, 1978, about 8:00 a.m., Benasutti and his crew
continued their excavation for the manhole. After the backhoe finished its
operation, Benasutti, Vespa and (name
redacted) worked in the excavation laying a length of sewer pipe which
would eventually be connected to, and 10 inches above the bottom of, the
manhole. The trench box was not used, nor was the excavation shored or sheeted
(T. 113, 118, 128, 129, 166, 167, 168, 169, 467, 469–470). Between 8:30 and
9:00 a.m., Maia, another laborer of the work crew, was standing at the top of,
and looking down into, the excavation, directly over the area where (name redacted) was working in the
excavation. He observed the right side wall of the excavation cave in, the
water main break, and the excavation fill with water. He observed sliding sand
push (name redacted) to the other
side of the excavation and cover him up to his shoulders, and observed the
water rise above (name redacted)’s
head. Benasutti and Vespa, at the other end of the excavation were able to
escape (T. 166, 167, 173, 178, 180, 181, 182–186).
C.
Dimensions of the Excavation and Soil Condition
Two
eyewitnesses at the excavation at the time of the accident testified to the
dimensions of the excavation and the nature of the soil.
George
Maia, Respondent’s laborer in Benasutti’s work crew who was standing at the top
right side of, and looking down into, the excavation when the accident
occurred, estimated the excavation to be 17 feet wide, 17 feet deep, and 25
feet long. The excavation’s walls were sloped like a ‘V’, and the soil was sand
(T. 169–171, 172, 173, 189, 190).
George
Benasutti, Respondent’s foreman, stated the road where the excavation was dug
was 30 feet wide, and the excavation was 25 feet long. On the morning of March
24th, the excavation had been dug approximately 14 feet, another 3 feet had to
be excavated to accommodate the manhole. The excavation’s top or opening was
two feet from the road curb on the water main or west side, and three feet from
the east side curb. The width of the opening at the excavation’s top was about
25 feet. The width of the bottom of the trench was about five feet. The soil
was composed of sand with a little gravel and stone. Benasutti further stated
that as his crew deepened the excavation they widened it (T. 452, 453, 454,
461, 462, 477, 478, 480–481).
On
March 27, 1978, three days after the excavation accident, Mr. Benasutti made a
written statement, signed and read by him, that the excavation was 30 feet
long, 18 feet wide at road level; and that the north and south sides of the
excavations were sloped down to a trench portion of the excavation. The trench
was 12 feet long, 6 feet deep and 5 to 6 feet wide. The exposed water main was
18 feet long, and 4 feet below road level. The east and west walls of the excavation
were sloped (T. 462, 463; Exh. C–16).
George
Plosko, the Nassau County inspector assigned to monitor Benasutti’s work crew,
stated that on the morning of March 24, 1978, the excavation was 17 feet deep,
6 or 7 feet wide at the bottom, 20 feet long and 20 or 25 feet wide at road
level. His later testimony appears equivocal as to the ‘20 to 25’ foot width.
He estimated the north wall of the excavation was sloped 30 or 40 degrees. The
south wall was not sloped. The east and west walls were sloped like a hill but
less than 30 or 40 degrees. The west wall was one or two feet from the west
road curb. The soil was of a ‘sandy nature, just sandy, small stones like a
bank run’ (T. 120, 124, 129, 155, 158–159, 160).
Joseph
Ornellas, a compliance officer for OSHA investigated the worksite on March 24,
1979, about two hours after the accident occurred (T. 191, 193; Exhs. C–5 through
C–8). Based on his observations and measurements, his conversations with
Respondent’s employees, Benasutti, Vespa and Maia, and on information as to the
location of a water pipe, obtained from the Jericho Water District, Ornellas
reconstructed the pre-accident dimensions of the excavation (T. 198–204, 208,
278–286; Exh. C–3). His reconstruction figures revealed that the road bed was
30 feet wide from curb to curb; that 10 feet of road asphalt remained from the
east curb to the east wall of the excavation; that prior to the accident, the
west wall of the excavation was four feet from the west side road curb; that
the width of the top of the excavation was 16 feet; that the excavation was 17
feet deep and 6 to 7 feet wide at the bottom; and that the excavation was about
25 to 30 feet long (T. 198–200, 201, 203–204, 208, 218–221, 222; Exh. C–3).
George Ploska, the county inspector, stated that exhibit C–3 closely resembled
the observations he made of the excavation on the morning of March 24, 1978 (T.
136).
Ornellas
from his information and calculations, estimated that prior to the accident on
the morning of March 24, 1978, the east wall of the excavation was sloped about
22 degrees from the vertical, the west wall was sloped about 18 degrees from
the vertical. The soil was loose, sandy, and mixed with pebbles (T. 223–224,
229, 230). Based on his examination of the excavation’s soil, he estimated the
angle of repose[16]
required the east and west walls of the excavation to be sloped between 45
degrees for average soil, to 64 degrees for well rounded loose soil, from a
vertical plane, or 45 degrees to 26 degrees from a horizontal plane (T.
224–225, 229–234, 257–260, 262–264).
Douglas
Quick, president of a laboratory which tests soil, among other materials, stated
that an analysis of the soil taken from the excavation adjacent to 110 Columbia
Drive, indicated that the soil was average soil and the angle of repose for
this type of soil was a one-to-one ratio, or an angle of repose of 45 degrees
from a horizontal or vertical plane (T. 482, 485–489; see: 1926.652, Table
P–1). The density analysis of the soil, i.e., the degree of compaction of the
soil, indicated that the soil was loose but he did not think that this type of
soil would collapse because of its density characteristics (T. 490, 491, 492).
D.
Alleged Willful Nature of the Violation
Respondent
received six prior citations (final orders) which involved either a failure on
Respondent’s part to shore, sheet or slope trenches or to adequately shore,
sheet or slope trenches (T. 276–278; Exhs. C–9 through C–14).
There
was testimony from three county inspectors, Jack Dreyer, George Ploska and
James Gallagher, that on several occasions during Respondent’s construction of
the sewer line, Respondent had to be advised or informed to use adequate
protective means in its trenches and excavations (T. 17, 44, 45, 47, 48, 50,
69–74, 79, 126).
George
Ploska also stated that he worked closely with foreman Benasutti and his crew
on this sewer project; that Benasutti always used a trench box except on
certain occasions, i.e., interference from water and gas lines, when the trench
box could not be used; and that Benasutti was concerned with the safety of his
men (T. 142–144).
Respondent
maintains a general safety program and has a safety director. The duties of the
safety director include issuing safety rules to, and conducting safety sessions
with, Respondent’s employees. The safety sessions include discussions on trench
and excavation safety. Employees are instructed to use a steel trench box, or
if that is not possible, to either sheet, shore or slope trenches and
excavations. Respondent leaves it to the judgment of its foremen to determine
whether a trench or excavation slope is sufficient or adequate for safety
purposes (T. 326, 338, 340, 341, 347–348, 353–357, 359, 416, 421–422, 424–428,
430, 437–438, 449, 450; Exhs. R–1, R–8, R–9, R–10(a), R–10(b)). Respondent’s
instructions to its employees as to excavation and trench safety are general
instructions; no specific instructions are given (T. 361–363). Foreman
Benasutti stated that he was instructed at one of Respondent’s safety meetings,
if sloping was used, to slope each of the four walls of a trench to a 45 degree
angle (T. 453–454). Respondent through its safety director, superintendents and
foreman knew of OSHA standards concerning the protective requirements for
trench and excavation safety (T. 340, 347, 349–350, 358, 411, 412, 423,
429–430, 450–451).
OPINION
On
the morning of March 24, 1978, prior to the accident, the excavation in which
three of Respondent’s employees were working, was not shored, sheeted or
protected by any other device against the hazard of an excavation collapse.
Respondent maintains that its foreman, Benasutti, sloped the east and west
sides of the excavation to a one-to-one ratio, or to an angle of repose of 45
degrees above the horizontal plane.
The
credible evidence establishes that the excavation prior to the accident was
about 25 to 30 feet long, about 17 feet wide at road level, about 17 feet deep,
and about 6 feet wide at the bottom. The east and west sides of the excavation
were sloped like a ‘V’ or at an angle of repose greater than 45 degrees above
the horizontal plane. (See 29 CFR § 1926.653(b) and Table P–1.) The soil
consisted of loose sand with a little gravel and stone.
Foreman
Benasutti’s testimony at the hearing conflicted with a written and signed
statement he made three days after the accident (see Exh. 16). At the hearing,
Benasutti testified that the excavation was about 25 feet wide at road level,
about 14 feet deep and five feet wide at the bottom.
Prior
to the accident Benasutti and his crew laid a stretch of pipe in the
excavation. The pipe was to be connected ten inches above the bottom of a
manhole that was to be installed at a depth of 17 feet, 10 inches. Since the
pipe was laid at its proper grade, the excavation had to be dug to a depth of
at least 17 feet. This negates Benasutti’s statement at the hearing that the
depth of the excavation was about 14 feet. The witnesses Maia and Ploska
estimated the pre-accident depth of the excavation to be about 17 feet.
Benasutti
stated at the hearing, that prior to the accident, the excavation’s top at road
level was two feet from the west side road curb and three feet from the east
side road curb. This left five feet of the original 30-foot width of the
roadway undisturbed. Officer Ornella’s actual measurement of the remaining
roadway after the accident, revealed that 10 feet of roadway remained from the
east curb to the east side or wall of the excavation, and from other data,
ascertained that four feet of the roadway prior to the accident, remained from
the west road curb to the west side of the excavation. Since the roadway was 30
feet wide, simple arithmetic indicates that the excavation was about 16 feet
wide—30 feet of original road minus 14 feet of remaining road. These figures
approximate what the witnesses Maia and Benasutti (written statement) stated
the width of the excavation was before the accident. Ploska’s testimony as to
the excavation’s width was equivocal but he adopted Ornellas’ sketch (Exh. C–3)
as closely resembling the excavation’s dimensions as he observed them on the
morning of March 24, 1978.
If
Benasutti’s pre-accident estimates given at the hearing, that the width of the
excavation at road level was about 25 feet; that the depth was 14 feet; and
that the east and west sides or walls sloped to 45 degree angles or a
one-to-one ratio, it follows that the east side and west sides of the
excavation had to be sloped back horizontally 14 feet at road level to
correspond with the excavation’s depth. This would total 28 feet of removed
roadway width out of the original 30 feet[17], and would approximate a
45-degree angle slope for the east and west walls of the excavation. However,
Benasutti’s calculations at the hearing, failed to take into account the 5 or 6
feet of width at the bottom of the excavation which when added to the 28 feet
caused by the 45-degree slopes, would indicate that the excavation was 33 feet
wide at road level or 3 feet wider than the road from curb to curb. There is no
evidence that the excavation extended beyond the curb area to the sidewalks.
Neither Respondent nor its witness Benasutti made any such claim. For the
reasons given above, Benasutti’s hearing testimony as to the pre-accident
dimensions of the excavation is given no credence.
The
evidence establishes that the excavation soil was loose sand with a little
gravel and stone. This type of soil according to Table P–1 (following 29 CFR §
1926.652(g)) required that the east and west walls of the excavation be sloped
to a two-to-one ratio, or at an angle of repose of 26 degrees above the
horizontal plane. Respondent neither claimed or established that the east and
west sides of the excavation were sloped to an angle of 26 degrees above the
horizontal. Assuming arguendo, that the nature of the soil was such as to
require a one-to-one ratio, or a slope of 45 degrees, the credible evidence
establishes that the east and west side of the excavation were not sloped to a
45-degree angle from either the horizontal or vertical, but were sloped at an
angle greater than 45 degrees from the horizontal.
Respondent
inadequately sloped the excavation’s east and west walls, and exposed its
employee working in the excavation to a cave-in hazard. The hazard was serious
in that it could, and did here, result in a fatal injury to an employee. Since
Respondent places the responsibility upon its crew foreman to determine the
adequacy of excavation and trench sloping, the foreman’s knowledge is imputed
to Respondent. Secretary of Labor v. F.
H. Sparks of Maryland, Inc., 78 OSAHRC 13/C12, 6 BNA OSHC 1356, 1977–78 CCH
OSHD para. 22,543 (Nos. 15472 and 15760, 1978). Respondent is responsible for
the serious violation.
Respondent
was charged with a willful violation of 29 CFR § 1926.651(c). ‘Willful’ as
defined by the Commission and a majority of Circuit Courts of Appeal is ‘an act
done voluntarily with either intentional disregard of, or plain indifference
to, the Act’s requirements’, or as an act ‘done knowingly and purposely’ by
someone who, ‘having a free will or choice, either intentionally disobeys the
standard or recklessly disregards its requirements’. Cedar Construction Company v. OSHRC, et al, No. 77–1538, slip op.
pp 3–4 (D. C. Cir., October 20, 1978) and cases cited therein.
The
evidence does not establish that Respondent either intentionally or recklessly
disregarded or exhibited plain indifference to the Act’s excavation and
trenching safety requirements. Respondent is fully aware of the Act’s
requirements and has maintained a general safety program, and has held general
safety instruction sessions with its employees. Respondent has provided steel
trench boxes and other equipment for the purpose of protecting its employees
engaged in excavation and trench work.
Unfortunately
Respondent’s general safety program and general instructions are inadequate to
support its safety responsibilities under the Act. Respondent issues no
specific enforced rules or instructions. Respondent gives no specific training
to its employees concerning the specific or actual hazards that may be
encountered at a jobsite, or the specific methods of guarding against the
hazards. Respondent gives no detailed training to its crew foreman regarding
sloping, or how to achieve proper sloping, and gives no training as to soil
conditions, and other activities that they may in concert with soil conditions,
create hazardous excavation conditions. Foreman Benasutti stated he attended a
safety session held by Respondent where he was told, when sloping, to slope
one-to-one or to an angle of 45 degrees. This instruction is woefully inadequate
when considered with the myriad conditions that may exist at an excavation
site, and when considered with Respondent’s delegation of safety responsibility
for excavations and trenches to the judgment of its inadequately trained crew
foremen.
These
discrepancies and weaknesses in Respondent’s safety program do not rise to the
level of an intentional or reckless disregard, or a plain indifference to the
Act’s excavation and trench requirements. The evidence does not establish a
willful violation of the standard herein but does establish a repeat violation.
Respondent’s
prior six citations which became final orders (Exhs. C–9 to C–14) reveal that
in each of the six citations (four nonserious, two serious) there was one
violation in which Respondent has either failed to shore, sheet or slope a
trench, or failed to adequately sheet, shore or slope a trench. Although none
of the previous six violations involved the specific standard here (29 CFR §
1926.651(c)), they were substantially similar i.e., failing to guard or
adequately guard, trenches against cave-in hazards, to the violation and hazard
here. Secretary of Labor v. Potlatch Corporation, OSHRC Docket No. 16183,
decided January 22, 1979. The violation will be reduced to a repeat violation.
Based
on all the circumstances of this case including the gravity and the repeat
nature of the violation, and a consideration of all the statutory factors of
section 17(j) of the Act, the proposed penalty of $10,000 is unreasonable and
is reduced to $3,000.
FINDINGS OF FACT
The
credible evidence and the record as a whole establishes preponderant proof of
the following specific findings of fact.
1. On
March 24, 1978, pursuant to a contract with the County of Nassau, State of New
York, Respondent was engaged in the construction of a lateral or center pipe
sewer line.
2. On
the morning of March 24, 1978, a work crew of Respondent consisting of foreman
George Benasutti, three laborers, Maia, Vespa and (name redacted), a backhoe operator and an oiler were working at,
and in, an excavation located adjacent to 110 Columbia Drive, Jericho, Long
Island. The excavation was being prepared for the installation of a manhole at
a depth of 17 feet, 10 inches.
3.
George Ploska, a Nassau County inspector, was assigned to Benasutti’s work crew
to monitor the work being done by the crew.
4.
Benasutti, Vespa and (name redacted)
were working in the excavation and had laid a stretch of pipe which was to be
connected 10 inches above the bottom of the manhole which had not as yet, been
installed.
5.
The excavation was about 25 feet long, about 17 feet wide, about 17 feet deep
and about 6 feet wide at the bottom. The east and west sides of the excavation
were sloped at an angle greater than 45 degrees above the horizontal plane. The
road bed from curb to curb (east to west) was 30 feet wide.
6.
The soil of the excavation consisted of loose sand with some gravel, and
required a sloping angle of at least 45 degrees above the horizontal plane.
7.
The excavation was neither shored nor sheeted. A trench box, previously used,
was not in use due to an interference from gas and water lines.
8.
Between 8:30 and 9:00 a.m., on March 24, 1978, while Benasutti, Vespa and (name redacted) were in the excavation,
the west wall collapsed trapping (name
redacted). The wall collapse caused the water main to break and flood the
excavation, drowning (name redacted).
Benasutti and Vespa escaped without any mishap.
9.
The excavation was inadequately sloped and did not comply with 29 CFR §
1926.651(c) and with the sloping requirements of Table P–1 (following 29 CFR §
1926.652(g)).
10.
Respondent knew of the standard’s requirements for excavation safety.
11.
Respondent maintains a general safety program and holds general safety
instruction sessions with its employees.
12.
Respondent provides trench boxes and other materials to be used in protecting
its employees against the hazards of excavation collapse.
13.
Respondent does not maintain, or provide any specific and rigidly enforced
safety instructions, rules, or training for its employees as to specific trench
and excavation hazards they may encounter at a jobsite, and as to specific
methods to be employed to protect against the hazards.
14.
Respondent delegates to its crew foremen the responsibility to determine when a
sloping method is to be used, and to determine, if sloping is used, whether it
is adequate to protect Respondent’s employees from the hazards of an excavation
or trench collapse.
15.
The evidence is insufficient to establish that Respondent either intentionally,
or recklessly, or with plain indifference, disregarded OSHA’s safety
requirements for excavations and trenches.
16.
Respondent on six prior occasions, received citations which became final
orders, for violations substantially similar to the violation herein.
17.
The prior six violations, four nonserious and two serious, involved situations
where Respondent either failed to shore, sheet or slope a trench, or failed to
adequately shore, sheet or slope a trench for the protection of its employees.
18.
Respondent is responsible for the violation herein which was serious and
repeat.
CONCLUSIONS OF LAW
1.
Respondent is, and at all times material herein was, engaged in a business
affecting commerce within the meaning of section 3(5) of the Act (29 U.S.C. §
652(5)).
2.
The Occupational Safety and Health Review Commission has jurisdiction over the
subject matter and parties to this action.
3. On
March 24, 1978, Respondent was not in willful violation of 29 CFR § 1926.651(c)
but was in repeat violation of 29 CFR 1926.651(c) for failing to adequately
slope an excavation in which its employees were working.
4.
Under all the circumstances of this case with due consideration of all the
statutory factors of section 17(j) of the Act, and of the repeat nature of the
violation, the proposed penalty of $10,000 is unreasonable and is reduced to
$3,000.
ORDER
Due
deliberation having been had on the whole record, it is hereby
ORDERED
that the citation for a willful violation of 29 CFR § 1926.651(c) is reduced to
a repeat violation, and as reduced is affirmed, it is further
ORDERED
that the proposed penalty of $10,000 is reduced to $3,000, and as reduced is
affirmed.
JEROME C. DITORE
JUDGE, OSHRC
Dated: March 12, 1979
New York New York
* Chairman Rowland did not participate in
this decision.
[1] This standard
provides:
Subpart
P Excavations, Trenching, and Shoring
§
1926.651 Specific excavation requirements
(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.
[2] Review was
directed on the issue of whether the judge ‘erred by characterizing the
violation . . . as repeated instead of willful.’ However, neither party takes
exception to that part of the judge’s decision finding the violation repeated,
and there is no compelling public interest to warrant review of this finding.
Accordingly, to the extent that the direction for review raises an issue with respect
to the propriety of the finding of a repeated violation, we summarily affirm
this portion of the judge’s decision and accord it the precedential value of an
unreviewed judge’s decision. Stone &
Webster Eng’r Corp., 80 OSAHRC 72/D11, 8 BNA OSHC 1753, 1754 n.1, 1980 CCH
OSHD ¶24,646 at 30,235 n.1 (No. 15314, 1980).
[3] At the time of
the hearing Respondent was operating seven projects with at least one
superintendent on each project. The volume of the sewer construction work
performed by Respondent over the past five years was estimated at $150 million,
or about two million feet of sewer line. During that time, Respondent’s total
employment varied between 350 and 600 employees.
[4] Both Tomasetti, a
former safety director for Zara, and Huber, the shop steward for Zara’s
operating engineers, had personal knowledge of incidents in which gas lines
ruptured by trench boxes had caught on fire, exploded, or resulted in the
asphyxiation of workers. Similarly, Buckley, the business agent for the
laborers’ union, considered excavating near a service gas main to be hazardous
because contact with a trench box could ignite the main. Papa, a county
engineer, conceded that trench boxes cannot be used in close proximity to gas
and water mains. Although the witnesses did not expressly state the hazards
resulting from rupture of a water line, Tomasetti indicated that normally the
water utility would shut off a water main on request if the service needs of
the area would not be unduly affected and if a work crew were available. However,
both Tomasetti and Benasutti, the foreman at the site where the fatality
occurred, testified without rebuttal that the gas utility normally refused to
shut off service. The county inspector assigned to Benasutti’s worksite,
Ploska, agreed that Benasutti could not continue to use the trench box because
of ‘interference’ from gas and water lines.
[5] Ploska, the
county inspector, testified that the excavation was sloped on the east and west
sides but did not specify the degree of slope. The north face, which was used
by employees for entrance and exit, was sloped 30–40 degrees from the vertical.
The south face was almost vertical. According to Ornellas, the Secretary’s
compliance officer, the east side was sloped 22 degrees and the west side 18
degrees from the vertical. He gave the slope on the north face at between 45
and 60 degrees. The judge rejected Benasutti’s testimony regarding the
dimensions of the excavation as not credible and found that the east and west
sides were sloped at less than 45 degrees from the vertical. The judge made no
findings regarding the degree of sloping on the north and south faces. However,
he determined that the soil composition of the excavation was predominantly
loose sand and noted that the Secretary’s standards require a slope of
approximately 26 degrees from the horizontal, or approximately 64 degrees from
the vertical, for such soil. Neither party excepts to these findings.
[6] DiPaolo
supervised as many as 10 foremen and had a total of between 100 and 150
employees under his control.
[7] Benasutti
testified that he frequently saw Trotter at his jobsites; among other things,
Trotter checked that a trench box was in use and examined the condition of the
box.
[8] Six prior
citations, alleging violations of shoring or sloping requirements, were
admitted into evidence by stipulation of the parties. All citations became
final orders of the Commission prior to the inspection in this case. These
prior violations may be summarized as follows:
Nonserious citation issued May 4,
1973: 29 C.F.R. § 1926.652(c) for failure to adequately support trenches more
than five feet in depth and eight feet in length;
Nonserious citation issued June 6,
1973: § 1926.652(c) for failure to adequately support or slope trenches more
than eight feet in length and five feet in depth (two trenches approximately
seven and twelve feet deep);
Nonserious citation issued April
30, 1974: § 1926.652(b) for failure to adequately shore two trenches in that
spacing of uprights and number of crossbraces was inadequate and §
1926.652(g)(1) in that cross braces used in another trench did not meet
‘minimum requirements’;
Serious citation issued July 8,
1975: § 1926.652(d) in that sheeting and bracing was not effective to the
bottom of the excavation resulting in ‘partial collapse’ of one side;
Nonserious citation issued January
26, 1976: § 1926.651(c) in that an excavation 10 feet square and about 6 ½ feet
deep was not shored, sloped, or otherwise supported;
Serious citation issued January 26,
1976: § 1926.652(b) in that a trench approximately 30 feet long, 8 feet wide,
and varying between 18 and 20 feet deep in unstable and sandy soil was not
adequately shored, sheeted, braced, sloped, or otherwise supported; sheeting 40
inches in width was not properly spaced and lacked cross bracing.
[9] 29 U.S.C. §
666(a) provides that an employer who willfully violates that Act or a standard
issued under the Act may be assessed a civil penalty of up to $10,000.
[10] Section
1926.651(e) specifies that:
The
determination of the angle of repose and design of the supporting system shall
be based on careful evaluation of pertinent factors such as: Depth of cut;
possible variation in water content of the material while the excavation is
open; anticipated changes in materials from exposure to air, sun, water, or
freezing; loading imposed by structures, equipment, overlying material, or
stored material; and vibration from equipment, blasting, traffic, or other
sources.
[11] Angles of repose
listed in Table P–1 for different soil classifications are as follows:
Solid
Rock, Shale or Cemented Sand and Gravels 90°
Compacted
Angular Gravels
63° 26’
Average
Soils
45°
Compacted
Sharp Sand
33°41’
Well-Rounded
Loose Sand
26°34’
[12] Section
1926.651(h) provides:
(h) The angle of repose shall be
flattened when an excavation has water conditions, silty materials, loose
boulders, and areas where erosion, deep frost action, and slide planes appear.
[13] A 45 degree slope
is steeper than the angle set forth in Table P–1 as the greatest angle above
the horizontal at which either compacted sharp sand or well-rounded loose sand
will lie without sliding. See Duane
Meyer, d/b/a D. T. Constr. Co., supra. See note 11 supra.
[14] We reject Zara’s
challenges to the relevance of the prior violations. All of the prior
violations involve standards pertaining to the shoring and sloping of
excavations and trenches. Therefore, Zara should have been aware of the
requirement to protect employees by shoring or sloping trenches and excavations
regardless of whether the prior violations involved precisely the specific
standard at issue in this case. See
Georgia Elec. Co. v. Marshall, 595 F.2d 309 (5th Cir. 1979). Also,
assuming, as Zara contends, that the prior violations predominantly involved
situations of partial compliance with shoring requirements, Zara would still be
put on notice that its safety program was not sufficient to prevent violations
of these standards.
[15] Moreover, we find
that Zara’s safety rule, albeit inadequate, was not observed by Benasutti on
the day of the accident. Although Benasutti’s decision to remove the trench box
appears justified, he was nevertheless required under Zara’s safety rule to
slope all sides of the excavation to an angle of 45 degrees. As Judge Ditore
found, two of the sides of the excavation were sloped steeper than 45 degrees.
The evidence further indicates that one of the other sides of the excavation
was either unsloped or very inadequately sloped. Clearly, the sloping done by
Benasutti in this case did not conform to the requirements of Zara’s rule.
Thus, even assuming that Zara’s rule implemented the cited standard’s
requirements, the evidence does not support a finding that Benasutti’s belief
that the trench was properly sloped was reasonable. See Western Waterproofing Co. v. Marshall, supra.
[16] The angle of
repose is ‘the greatest angle above the horizontal plane at which a material
will lie without sliding’ 29 CFR § 1926.653(b).