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