UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 7454
WEST COAST CONSTRUCTION CO., INC.,
Respondent.
December 30, 1976
DECISION
BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
BARNAKO, Chairman:
An April 3, 1975 decision of Judge Thomas J. Donegan is before this Commission for
review pursuant to 29 U.S.C. § 661(i). Judge Donegan affirmed a citation alleging that
1
Respondent committed a serious violation of 29 C.F.R. § 1926.651(c) , and assessed a penalty of
2
$600. For the reasons which follow, we affirm the Judge’s decision.
Respondent was engaged in the installation of a storm sewer in Juanita, Washington. The
work involved the laying of several thousand feet of pipe. At a number of locations along the
sewer line, catch basins were to be installed.
In order to lay the pipe, a trench was dug. Where the catch basins were to be located, the
trench was widened to facilitate their installation. At the time involved herein, three of
Respondent’s employees were in a widened area of the trench installing a catch basin. At that
point, the ground opening was 7 and ½ feet deep, 17 feet wide at the top, and approximately 9
feet wide at the bottom. The west wall was sloped six feet horizontally over the 7 ½ foot depth.
1 This standard provides:
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 Judge Donegan also affirmed a nonserious citation for violation of 29 C.F.R. § 1926.651(i)(1),
and assessed no penalty for that violation. His disposition of the nonserious citation is not before
us on review.
3
The horizontal component in the slope of the east wall was 27 inches. No shoring or other
means of supporting the walls was employed.
The soil in which the opening was dug consisted primarily of sand. The compliance
officer described the material as loose, and stated that he observed material trickling off the walls
into the opening. He also observed that there was a heavily traveled roadway eight to ten feet
from the west wall. Based on the nature of the soil and the fact that vibrations caused by the
traffic were present, the compliance officer thought that the walls could have collapsed, exposing
the three employees to death or serious injury.
Respondent’s foreman testified that shoring was used to support the walls of the trench
except in the locations in which the catch basins were installed. In those areas, the sides were
sloped. Sloping was accomplished by placing the backhoe bucket on the top of each wall
adjacent to the opening and pressing down on it. Any soil displaced as a result would be
removed. If the foreman thought that more soil should be removed in order to make the opening
safe, he would so inform the backhoe operator. In this instance, the foreman concluded that the
walls were sufficiently sloped.
Respondent contends that the ground opening was a trench, and that it was therefore
4
improperly cited under a standard applicable to excavations. It argues that the opening around
3 There was conflicting testimony regarding the amount of sloping of the east wall. The
compliance officer who inspected the worksite testified that he determined the 27 inch distance
by placing a pole vertically into the trench such that the bottom of the pole rested at the base of
the wall, and measuring the horizontal distance between the pole and the top edge of the wall.
Respondent’s foreman testified that the horizontal component of the slope of the east wall was
four feet. He made no measurement, but reached his conclusion because the edge of the catch
basin was five feet horizontally from the top edge of the wall, and because Respondent’s usual
practice was to dig the opening such that there was a one foot gap between each side of the catch
basin and its adjacent wall.
The Judge accepted the compliance officer’s testimony and found that the horizontal
sloping of the east wall was 27 inches. Respondent takes exception to this finding.
The Judge’s finding is based on the credibility of the witnesses. We therefore adopt it.
Paul L. Heath Contracting Co., 20 OSAHRC 297, BNA 3 OSHC 1550, CCH OSHD para.
20,006(1975).
4 Section 1926.653 contains the following definitions of ‘excavation’ and ‘trench’:
(f) ‘Excavation’—Any manmade cavity or depression in the earth’s surface,
including its sides, walls, or faces, formed by earth removal and producing
unsupported earth conditions by reasons of the excavation. If installed forms or
similar structures reduce the depth-to-width relationship, an excavation may
become a trench.
the catch basin was simply a slightly widened part of the basic trench which was dug to lay pipe.
Judge Donegan concluded that, since the width of the opening was greater than its depth, it was
properly classified as an excavation rather than a trench. He concluded that the employees in the
opening were exposed to danger from moving ground, and that the cited standard was therefore
violated.
We have held that, even though a ground opening is wider than it is deep, it may still be
properly classified as a trench. Leone Const. Co., Docket No. 4090, BNA 3 OSHC 1979, CCH
OSHD para. 20,387 (Feb. 10, 1976); D. Federico Co., Docket No. 4395, BNA 3 OSHC 1970,
CCH OSHD para. 20,422 (Feb. 10, 1976). Indeed, as Respondent points out, an opening dug for
the purpose of laying pipe is generally classified as a trench. Leone Const. Co., supra. We have
also, however, noted that the cited excavation standard is functionally equivalent to the trench
5
standard at 29 C.F.R. § 1926.652(b) under facts similar to those in this case. D. Federico Co.,
supra. The ultimate question under either standard is whether the degree of sloping or shoring is
sufficient to protect the employees working within the opening. See Adams & Mulberry Corp.,
17 OSAHRC 410, BNA 3 OSHC 1077 (1975); Horne Plumbing & Heating Co. v. OSHRC, 528
F.2d 564 (5th Cir. 1976). Since the issue to be resolved is the same under both standards,
whether or not the more appropriate standard was cited is unimportant. If it should be determined
that the wrong standard was cited, the proper course is to amend the pleadings to allege the
proper standard. D. Federico Co., supra. Since the ultimate issue is the same under both
standards, any possibility of prejudice from such an amendment is precluded.
The Judge found that the sides of the opening were insufficiently sloped to protect the
employees working therein. In so doing, he fairly weighed the evidence, and properly used Table
P–1 (see n. 5) as a guideline. His conclusion is supported by the preponderant evidence, and we
therefore accept it. Okland Const. Co., Docket No. 3395, BNA 3 OSHC 2023, CCH OSHD para.
(n) ‘Trench’—A narrow excavation made below the surface of the ground. In
general, the depth is greater than the width, but the width of a trench is not greater
than 15 feet.
5 This standard provides:
Sides of trenches in unstable or soft material, 6 feet or more in depth, shall be
shored, sheeted, braced, sloped, or otherwise supported by means of sufficient
strength to protect the employees working within them. See Tables P–1, P–2
(following paragraph (g) of this section).
Table P–1 is entitled ‘Approximate angle of repose for sloping of sides of excavations.’ It
recommends a slope of one-to-one for average soils, and flatter slopes for sandy soils.
20,441 (Feb. 20, 1976). We also conclude that the penalty assessed by the Judge is appropriate
for the reasons he assigned.
Accordingly, the Judge’s decision is affirmed.
BY THE COMMISSION:
WILLIAM S. McLAUGHLIN
EXECUTIVE SECRETARY
DATE: DEC 30, 1976
MORAN, Commissioner, Dissenting:
The evidence fails to establish that respondent’s employees were ‘exposed to danger from
6
moving ground’ as required by 29 C.F.R. § 1926.651(c). The serious citation should, therefore,
be vacated. Secretary v. D. Federico Company, Inc., OSAHRC Docket No. 4395, February 10,
1976 (dissenting opinion); Secretary v. Copelan Plumbing Company, 9 OSAHRC 425 (1974)
(dissenting opinion).
The only testimony offered to establish that the degree of sloping was inadequate for the
conditions present was the opinion of the complainant’s inspector. The record, however, is
devoid of any evidence which indicates that he was competent to make this determination. His
safety experience was never established. In fact, he may never have seen an excavation prior to
the inspection in this case.
On the other hand, respondent’s witnesses had many years of experience with
excavations and trenches. The familiarity of respondent’s foreman with ground conditions was
based on 20 years of experience in construction work. Respondent’s laborer had been doing
excavation work for 26 years. Both of these witnesses expressed their opinion that the excavation
was safe.
The inspector apparently concluded that the three employees observed in the excavation
were exposed to the danger of moving ground because of a nearby roadway, sloughing of sand,
and what he described as a small fissure on the east wall. Although the roadway was located 8 to
6 For the complete text of § 1926.651(c), see footnote 1, supra.
7
10 feet from the west wall of the excavation, there was no testimony indicating that vibrations
therefrom could be felt at the excavation. The sides of the excavation had been compacted with
the shovel of a backhoe, and the foreman stated he had no problem with sloughing in this area.
Furthermore, the inspector admitted that what appeared to be a small fissure line did not create a
hazard.
Considering the above, I cannot conclude either that there was a hazard of moving
ground or that the sides were inadequately sloped. Reliance on Table P–1 to find an excavating
violation is improper. As the complainant admitted in his brief below, the table, which is
specifically applicable to the § 1926.652 trenching standards, is not incorporated in the §
1926.651 excavation standards. Thus, unless an inapplicable table is strictly applied, there is
8
nothing in the record to indicate what respondent should have done to comply.
If the Secretary of Labor had intended that Table P–1 apply to excavations as well as
trenches, he could easily have incorporated it into the § 1926.651 standards when they were
9
promulgated. Since it was not, the judgment of respondent’s experienced employees as to the
mode and extent of protection required must control in this situation. Secretary v. Wes
Construction Corp., OSAHRC Docket No. 4106, August 12, 1976 (dissenting opinion).
Similarly, I take issue with my colleagues’ assertions that the trenching and excavation
standards are interchangeable. For my views on this issue, see my separate opinions in Secretary
v. Concrete Construction Co., OSAHRC Docket No. 5692 & 7329, November 9, 1976;
Secretary v. Wes Construction Corp., supra; Secretary v. Lloyd C. Lockrem, Inc., OSAHRC
Docket No. 4553, February 24, 1976; and Secretary v. D. Federico Company, Inc., supra. In
addition, a citation to an inapplicable standard requires vacation of the affected charge because
the defect is not curable by amendment. Secretary v. Warnel Corporation, OSAHRC Docket No.
4537, March 31, 1976 (dissenting opinion).
7 This wall was sloped to a 6 foot horizontal distance over the 7 ½ foot depth. The east wall, the
slope of which was the subject of disagreement between the witnesses, was another 17 feet away.
8 My colleagues are merely engaging in a semantic exercise when they indicate that the table is
being used only as a ‘guideline.’
9 The fact that these specific requirements were not made part of the excavation standards set
forth under § 1926.651 is readily explainable by the lessened hazard present in wider cavities.
Whereas a sufficiently expansive width in an excavation may preclude danger to employees from
moving ground, the same is not true in a narrow trench. Secretary v. Staley & Lawrenz, Inc.,
OSAHRC Docket No. 4145, October 7, 1976 (dissenting opinion).
Since this decision does not address all matters covered in Judge Donegan’s decision, his
decision is attached hereto as Appendix A.
APPENDIX A
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 7454
WEST COAST CONSTRUCTION CO., INC.,
Respondent.
April 3, 1975
DECISION AND ORDER
Appearances:
For the Complainant: William W. Katos, Attorney Office of the Regional Solicitor U. S.
Department of Labor 7009 Federal Office Building 909 First Avenue Seattle, Washington
98174
For the Respondent: R. Charles Short Safety Director for Associated General Contractors
1200 Westlake North Seattle, Washington 98109 Mr. Short is not an attorney.
Donegan, Judge, OSAHRC:
This is a proceeding pursuant to section 10(c) of the Occupational Safety and Health Act
of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act.)
The Respondent is engaged in the construction business and was maintaining a place of
employment at a worksite located in the vicinity of 12940 98th N.E., Juanita, Washington for the
purpose of excavating and installing sewer pipe and catch basins.
As a result of an inspection of this worksite by an OSHA compliance officer (Inspector)
on March 13, 1974, there were issued to the Respondent on March 21, 1974, a citation number
one for an alleged non-serious violation of 29 C.F.R. 1926.651(i)(1), a citation number two for
an alleged serious violation of 29 C.F.R. 1926.651(c), and a notification of proposed penalty.
The Respondent timely contested the alleged violations and the proposed penalty of $600
for the serious violation.
The alleged violations, abatement dates, proposed penalty and standards allegedly
violated are as follows:
Citation number 1 (non- Standard allegedly violated Description alleged violation
serious)
29 C.F.R. 1926.651(i)(1) Failure to store or retain at
§ 1926.651 Specific least two feet or more from the
Excavation Requirements edge of the excavation, the 3
(i)(1) In excavations which foot high pile of excavated
employees may be required to sand which was stored
enter, excavated or other immediately adjacent to the
material shall be effectively West edge of the excavation
stored and retained at least 2 for a catch basin at 12940 98th
feet or more from the edge of N.E.
the excavation. Abatement
Date Proposed Penalty
Immediately upon receipt of
this citation None
Citation number 2 (serious) 29 C.F.R. 1926.651(c)
§ 1926.651 Specific
Excavation Requirements
(c) The walls and faces of a
excavations in which
employees are exposed to
danger from moving ground
shall be guard by a shoring
system, sloping of the ground,
or some other equivalent
means. Immediately upon
receipt of this citation $600.00
Failure to protect employees
exposed to the dangers of
moving ground by providing
shoring, or adequate sloping,
or some equivalent means to
guard the walls and faces of
the 7 1/2 foot deep, 31 foot
long, 17 foot wide excavation
for a catch basin located at
12940 98th N.E. in Juanita,
Washington.
The Respondent’s answer to the complaint admits that it was a corporation engaged in
construction work involving the excavation and installation of sewer pipe at the worksite
described in the citations and complaint when an inspection of this worksite was duly conducted
on March 13, 1974. The Respondent’s answer also admits the averments of the complaint
concerning jurisdiction (T. 5).
No affected employees or representatives of affected employees have intervened or have
elected to participate as a party in the proceeding (T. 3–4).
The parties have submitted post-trial briefs.
ISSUES AND FINDINGS
The parties are in agreement that the three issues to be resolved in this case involve the
alleged non-serious violation of 29 C.F.R. 1926.651(i)(1), the alleged serious violation of 29
C.F.R. 1926.651(c), and the proposed penalty of $600 for the alleged serious violation (T. 4–5).
The Inspector testified that the excavation in the area of the alleged violation, where a
catch basin was being installed on the sewer line, was 17 feet wide at ground level, 7 1/2 feet
deep and 14 feet long. He observed three of the Respondent’s employees standing in the
excavation adjacent to the catch basin. He stated that the sides of the excavation did not appear to
be adequately sloped and there was no shoring or other equivalent means to protect the three
employees in the excavation (T. 7–8, 11–12; Exhibits C–1, C–2, C–3, C–4 and C–5).
The question to be resolved is whether the three employees working in the excavation, in
the vicinity of the catch basin, were protected from the danger of moving ground by adequate
sloping of the east and west walls of the excavation.
When cross-examining the Inspector, the Respondent contended that if there was any
violation in this case it was a trenching violation rather than an excavation violation as charged
1
(T. 43–49, 64).
1 An ‘excavation’ and ‘trench’ as defined in ‘Subpart P—Excavations, Trenching, and Shoring
construction standards are defined as follows:
29 CFR 1926.653(f) ‘Excavation’—Any man-made cavity or depression in the
earth’s surface, including its sides, walls, or faces, formed by earth removal and
producing unsupported earth conditions by reasons of the excavation. If installed
forms or similar structures reduce the depth-to-width relationship, an excavation
may become a trench.
The Inspector ascertained the dimensions of the excavation and the slopes of the east and
west walls by making measurements in the presence of Mr. Don Sather, the Respondent’s
foreman, who accompanied him on the inspection. The sketch prepared by the Inspector (Exhibit
C–1), although not drawn to scale, graphically and accurately depicts the measurements of the
excavation as given in the testimony of the Inspector. He did not go into the excavation, but
estimated the bottom width of the excavation as approximately 9 feet from the results of his
measurements with the grade stick (T. 12–14, 19–20, 49–52, 56, 59).
In comparing the photographs (Exhibits C–2, C–3, C–4, C–5) with the measurements in
the sketch prepared by the Inspector (Exhibit C–1), it is necessary to consider that, between the
time he took the photographs and the time he measured the excavation, soil had been filled in
around the catch basin. He said that the excavation in the area of the catch basin was probably 8
1/2 to 9 feet in depth when he first took the photographs. The photographs marked Exhibits C–2
and C–3 show the sewer pipe uncovered, while in the photographs marked Exhibits C–4 and C–5
the sewer pipe appears to be covered to a substantial degree with soil (T. 63, 70–71).
The Respondent’s principal witness was the foreman, Don Sather. On direct examination
he testified that he drew the two sketches which are in evidence as Exhibits R–1 and R–2 (T. 98,
103, 124). The evidentiary value of the measurements that appear on these sketches must be
evaluated in the light of Mr. Sather’s uncertainty concerning the preparation of these exhibits (T.
95–98, 104, 124–127). After some confusion in the questioning of Mr. Sather by the
Respondent’s representative, it was stipulated that the 17 feet marked on Respondent’s Exhibit
R–2 was the horizontal distance across the top of the excavation at ground level (T. 104–109).
Mr. Sather stated there was no physical way to measure the slope on the east wall of the
excavation—it had to be eyeballed by the Inspector as it was open air in the area and there was
no way to measure it (T. 88–89, 115, 120–121; Exhibit C–3). He also testified that he considered
the pictures (Exhibits C–2, C–3, C–4, C–5 and C–6) pretty well distorted as far as the actual
appearance of the site is concerned (T. 94, 130). On cross-examination Mr. Sather admitted that
he watched the Inspector measure from the end of the grade stick where the plumb line was
attached to a mark on the stick. He said that he did not know whether the measurement was 27
29 CFR 1926.653(n) ‘Trench’—A narrow excavation made below the surface of
the ground. In general, the depth is greater than the width, but the width of a
trench is not greater than 15 feet.
inches although he admitted that he heard the Inspector say to him that it was 27 inches (T. 116,
120–121).
It was developed on recross-examination of Mr. Sather that he made the grade stick
which was used by the Inspector to make the measurements. His suggestion that an employee of
the Respondent may have cut a piece off the grade stick is not a persuasive explanation of his
uncertainty as to the length of the vertical piece of the grade stick (T. 138–141).
Mr. Earl Carlson, employed by the Respondent as a laborer, was working in the
excavation at the time of the inspection. He appears in the photographs (Exhibits C–2, C–3) and
is identified as wearing what appears to be a gray hard hat: in exhibit C–2 he is bending over
with his right hand appearing to touch a pail which is resting on top of the sewer pipe. He
testified that he told the Inspector that he didn’t see where there was any danger right around the
manhole (T. 143–144, 146). This witness could not furnish any information concerning the two
wooden handles resting against the east side of the excavation (Exhibits C–2, C–3) other than to
say he believed them to be shovel handles (T. 146–149). He replied in the affirmative to a
question as to whether the top of the ‘trench’ was above his head (T. 146). When questioned by
the Respondent concerning safety meetings and instructions, Mr. Carlson said that in comparison
with other outfits the Respondent was very safety conscious and there had been safety meetings
at times with crew members (T. 145).
The Inspector described the soil in the area of the excavation as being homogeneous. He
said it was a loose sandy type of soil. During the inspection be noticed trickles of sand coming
down the sides of the excavation, particularly the east side (T. 15–18). He observed a continual
traffic flow on a two lane road (98th Avenue Northeast) which was approximately 8 to 10 feet
west of the speil pile located on the top of the west bank of the excavation (T. 18; Exhibit C–6).
He said that although the weather was clear and sunny on the day of the inspection, there was
water standing on top of the soil which was piled on the west bank (T. 15, 39; Exhibit C–6). Mr.
Sather testified that the Respondent had no water problems and that there was no collection of
water at any location (T. 94).
The Inspector testified that he observed loosening of the soil on the east wall of the
excavation in the form of a fissure, which was circled in red on exhibits C–2 and C–3. He said
the presence of the fissure indicated that the soil is cracking, splitting apart, or possibly drying
out (T. 34–35, 37). When questioned later concerning this fissure, the Inspector replied: ‘That
particular fissure would not appear to be a great hazard to me. It might cause a person to be
pinned while more soil came down.’ (T. 65–66) While agreeing that exhibits C–2 and C–3 could
be marked with red circles, the Respondent denied that the black line within the red circle was a
fissure in the soil (T. 36). Mr. Sather testified that he did not see the mark on the east wall of the
excavation, which is circled in red on the photographs (T. 90–91, 136).
The Inspector’s conclusion that the men in the excavation were exposed to moving
ground was based on the sloughing of the loose sandy soil and the traffic vibrations immediately
adjacent to the excavation. He said that the three employees working in the excavation were
exposed to a serious injury or possibly death from the falling in of the soil from the sides of the
excavation, particularly on the east wall (T. 62–67, 82).
Although the record does not contain a soil analysis; there is no conflict in the evidence
concerning the constituent element of the soil of the excavation—it was sand (T. 17–18). Mr.
Sather stated it was a sand area and that the King County regulations did not allow ‘pea gravel’
to be used in sand. He said that sand was put on the pipe in the excavation and it was the material
which had been dug from the excavation (T. 87, 134).
In reply to questions on direct examination, Mr. Sather said that there were no problems
with sloughing during the installation of the catch basin and it was safe to work in the area (T.
91–92). On cross-examination he admitted that they had trouble with sloughing on the entire job,
and stated, ‘everytime you dig a hole you’ve got dirt coming in.’ (T. 135–136)
The east wall of the excavation in the area of the catch basin was sloped back 27 inches
for the excavation depth of 7 1/2 feet, and the west wall was sloped back 6 feet for the same
depth (T. 14; Exhibit C–1). The Inspector said that he could not determine whether the extent of
the sloping was due to the efforts of the Respondent or the natural sloughing of the soil so he had
to ask the Respondent. Before he measured the east wall of the excavation he was told that it was
vertical. In reply to a comment of the Inspector that the east wall did not appear to have much
slope, Mr. Sather said that it was straight up and down (T. 49, 52). Mr. Sather told him he made
no effort to slope as he considered the soil compacted. In answer to the Inspector’s question as to
whether he could have sloped, Mr. Sather replied that he couldn’t have sloped any farther back
because of the property line. It was after this conversation that the plywood, which appears in
exhibits C–4 and C–5, was placed against the cast wall and braced against the backhoe shovel (T.
53–54).
Mr. Sather testified that they sloped the ground on both sides of the catch basin and he
used the backhoe bucket to brush down the sides. He said he determined that the slope on the
east side of the excavation was safe by having the backhoe operator place the bucket of the
backhoe on the ground, and then push down the bucket with sufficient force to break the ground
down to a slope. No measurements were made in determining the extent that it was necessary to
slope (T. 85, 109–110, 117–118, 120–122). Mr. Sather said he didn’t have any problem with the
property line on the east side of the excavation: he said as a guess, it was 6 or 7 feet from the
eastern edge of the excavation (T. 134–135).
2
The Respondent contends that Table P–1, entitled, ‘Approximate Angle of Repose For
Sloping of Sides of Excavations’, which is set forth under ‘1926.652 Specific Trenching
Requirements’, does not apply to the alleged excavation violation under ‘1926.651 Specific
Excavation Requirements’ (T. 73–76). The Respondent’s contention is rejected. A trench is an
excavation that conforms to specified measurements. It is necessary to indulge in sophistry in
order to arrive at a finding that Table P–1 is excluded as a guideline for determining the
approximate angle of repose for sloping of sides of excavations; particularly, when the table
specifically refers to excavations.
The measurements made by the Inspector, when applied to the excavation and trench
definitions in footnote 1 on page 4 of this decision, require a finding that the site of the alleged
violations was an excavation and not a trench.
The wells of the excavation consisted of loose sandy soil which was not compacted. This
soil was subject to traffic vibrations and a limited amount of sloughing of the sandy soil was
observed by the Inspector. The east and west walls of the excavation were not sloped according
to the approximate angle of repose for loose sandy soil as set forth in ‘Table P–1.’ The east wall
of the excavation sloped back horizontally 27 inches for the vertical depth of 7 1/2 feet, while the
west wall was sloped back horizontally 6 feet for the vertical depth of 7 1/2 feet. The extent of
this sloping does not achieve the approximate angle of repose for loose sandy soil set forth as a
guide in ‘Table P–1.’ There was no shoring or other equivalent means of guarding the three
employees working in the excavation from the danger of moving ground. In the event the soil
2
[See 29 C.F.R. 1926. 652 1975 for Table P-1]
fell off of the walls, particularly the east wall, a substantial probability existed that death or
serious physical harm could result to any one or all of the three employees working in the
excavation.
As a result of evaluating the credible and substantial evidence of record, it is determined
that the Respondent was in violation of 29 C.F.R. 1926.651(c) on March 13, 1974, as charged in
citation number two, and that this violation was of a serious nature within the meaning of section
3
17(k) of the Act.
As to the alleged non-serious violation charged in citation number one, the Inspector
testified that he observed a pile of excavated soil on the west bank of the excavation which was
stored immediately adjacent to the edge of the excavation. He measured the height of this spoil
pile in the presence of Mr. Sather and Mr. Sather agreed the average height of the pile was 3 feet.
He also photographed the spoil pile (T. 15, 25, 31–32, 39; Exhibits C–1, C–6). The spoil pile was
between 10 and 14 feet long, and was estimated to be 6 or 7 feet wide. The Inspector did not dig
a hole in the spoil pile to see what it was resting on, but thought it was probably import gravel,
rock and sand (T. 57, 82–83).
Mr. Sather testified that he and the inspector measured the spoil pile and determined it
was 3 x 3 x 3, or about one yard. He said that this would roughly weigh 2,800 pounds. Mr.
Sather described the location of the spoil pile to be partly on the cement street and partly on the
shoulder of the excavation. In reply to a question as to how far the spoil pile was away from the
ditch, Mr. Sather replied that he did not measure it. He denied that they had any water problems
in the area of the spoil pile (T. 92–94). On cross-examination Mr. Sather said the spoil pile was 6
feet wide at the bottom and probably 5 feet long on a north-south axis. He testified that he could
not remember if there was or was not a gap between the spoil pile and the edge of the excavation
(T. 110–113).
An evaluation of the credible and substantial evidence of record requires that a finding be
made that one side of the spoil pile was stored at the edge of the west bank of the excavation and
3 Section 17(k) provides:
‘For purpose of this section, a serious violation shall be deemed to exist in a place
of employment if there is a substantial probability that death or serious physical
harm could result from a condition which exists, or from one or more practices,
means, methods, operations, or proposes which have been adopted or are in use,
in such place of employment unless the employer did not, and could not with the
exercise of reasonable diligence, know of the presence of the violation.’
was not retained at least 2 feet or more from the edge of the excavation. Since this spoil pile was
partly on the road surface, and the west wall of the excavation was sloped back horizontally 6
feet for a vertical depth of 7 1/2 feet; it is also found that there was not a substantial probability
that death or serious physical harm could result to the Respondent’s three employees working in
the excavation from the condition created by this violation.
Therefore it is concluded that on March 13, 1974 the Respondent was in violation of 29 C.F.R.
1926.651(i)(1) as charged in citation number one, and that this violation was not of a serious
nature within the meaning of section 17(k) of the Act.
The parties stipulated that the gross income of the Respondent’s business is between 4
and 5 million dollars for a fiscal year, and that it is a medium size company when compared with
its competitors (T. 152).
In evaluating the credible evidence of record which relates to the other penalty criteria of
4 5
section 17(j) of the Act the following findings are made: the gravity of the serious violation
was high, while that of the non-serious violation was low; the respondent had been previously
cited by OSHA for an unidentified violation (T. 43); the Respondent had been given full credit
for good faith by the Inspector (T. 42).
Accordingly, it is concluded that $600 is an appropriate penalty for the serious violation
of citation number two, and that no penalty should be assessed for the non-serious violation of
citation number one.
CONCLUSIONS OF LAW
1. The Respondent, West Coast Construction Company, Inc., was at all times material to
this proceeding an employer engaged in business affecting interstate commerce within the
meaning of section 3 of the Act.
4 Section 17(j) provides:
‘The Commission shall have authority to assess all civil penalties provided in this
section, giving due consideration to the appropriateness of the penalty with
respect to the size of the business of the employer being charged, the gravity of
the violation, the good faith of the employer, and the history of previous
violations.’
5 Examples of some of the factors that are considered in determining the degree of gravity of the
violation are; number of employees exposed to risk of injury; duration of employee exposure;
precautions taken against injury, if any; and, degree of probability of occurrence of an injury.
2. The Occupational Safety and Health Review Commission has jurisdiction over the
parties and the subject matter of this proceeding as provided in section 10 of the Act.
3. The place of employment maintained by the Respondent at the worksite located in the
vicinity of 12940 98th N.E., Juanita, Washington was inspected by an authorized employee of
the Secretary of Labor on March 13, 1974, in accordance with the requirements of section 8 of
the Act.
4. The Respondent was in violation of section 5(a)(2) of the Act on March 13, 1974, as a
result of not being in compliance, at its excavation worksite at Juanita, Washington on that date,
with 29 C.F.R. 1926.651(i)(1) and 29 C.F.R. 1926.651(c), which are regulations and standards
promulgated by the Secretary of Labor pursuant to the Act.
5. The violation of 29 C.F.R. 1926.651(c) is found to be a serious violation pursuant to
the provisions of section 17(k) of the Act. The violation of 29 C.F.R. 1926.651(i)(1) was not a
serious violation within the meaning of section 17(k) of the Act and is therefore of a non-serious
nature.
6. The assessment of a civil penalty of $600 for the serious violation of 29 C.F.R.
1926.651(c) and the assessment of no penalty for the non-serious violation of 29 C.F.R.
1926.651(i)(1) made in this decision and order, are made pursuant to section 17(j) of the Act.
ORDER
Based on the foregoing findings of fact and conclusions of law, it is ORDERED:
1. That citation number one for a non-serious violation of 29 C.F.R. 1926.651(i)(1),
issued to the Respondent on March 21, 1974, be, and is hereby affirmed.
2. That citation number two for a serious violation of 29 C.F.R. 1926.651(c), issued to the
Respondent on March 21, 1974, be, and is hereby affirmed.
3. That no civil penalty be, and none is hereby assessed for the non-serious violation of
citation number one.
4. That a civil penalty of $600 be, and is hereby assessed for the serious violation of
citation number two.
Dated: April 3, 1975
Seattle, Washington
THOMAS J. DONEGAN
Judge, OSAHRC