Secretary of Labor,

	

 

     Complainant,

	

 

          v.

	

           OSHRC Docket No. 02-2134

Garney Construction, Inc.,

	

 

     Respondent.

	

 


Appearances:


              Joseph B. Luckett,
Esquire                                           Robert C. Johnson, Esquire

                            Office of the
Solicitor                                                   Husch &
Eppenberger, L.L.C.

                            U. S. Department of
Labor                                           Kansas City, Missouri

                            Nashville,
Tennessee                                                                   For
Respondent

                                           For Complainant

 

Before:            Administrative Law Judge Stephen J. Simko, Jr.


DECISION AND ORDER


            Garney Construction, Inc., (Garney) is engaged in the
construction and installation of water and sewer pipelines. On October
1, 2002, the Occupational Safety and Health Administration (OSHA)
conducted an inspection of respondent’s jobsite in Huntsville, Alabama.
As a result of this inspection, respondent was issued a Citation and
Notification of Penalty. Respondent filed a timely notice contesting the
citation and proposed penalties. A hearing was held in Birmingham,
Alabama, on March 11, 2003. For the reasons that follow, Citation No. 1,
Item 2, is affirmed and a penalty of $1,625.00 is assessed; Citation No.
1, Item 3a, is affirmed and a penalty of $3,000.00 is assessed; and
Citation No. 1, Items 1 and 3b are vacated.

Background

            Complainant’s compliance officer, Eric Harbin, conducted an
inspection of Garney’s jobsite on October 1, 2002, pursuant to two
complaints and in accordance with OSHA’s trenching emphasis program. Mr.
Harbin met with respondent’s project superintendent upon arrival at the
jobsite. Work at this site began in August 2002. Total length of the
pipeline was approximately 7,500 feet. On the day of the inspection,
Garney was installing 42-inch diameter sewer pipe in an excavation 7
feet 11 inches deep, 14 feet wide at the top, and 68 inches wide at the
bottom. The sides were benched with a height of 3 feet 11 inches from
the bottom to the bench and 4 feet from the bench to the top of the
excavation. The width of the bench was 4 feet. During the inspection,
five 20-foot pipes, or 100 feet of the length of the pipe in the trench,
remained open and the soil at this location was Type B sandy clay,
cohesive soil. The end of the last pipe installed was 6 feet from the
end of the trench. An excavator with a 27-foot boom was located at the
ground level at the edge of the trench nearest the last installed pipe.
The 42-inch diameter pipe (46- to 48-inch OD) was laid in the center of
the 68-inch wide trench, 10 inches to 12 inches from the side walls of
the trench. There is no dispute that respondent’s employees worked in
this excavation on the day of the inspection. One employee was working
in the trench 5 feet and 7 feet from the end wall and 1.5 feet from the
excavator bucket while signaling the excavator operator.

Discussion

            The Secretary has the burden of proving the violation:

In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the applicability
of the cited standard, (b) the employer’s noncompliance with the
standard’s terms, (c) employee access to the violative conditions, and
(d) the employer’s actual or constructive knowledge of the violation
(/i.e.,/ the employer either knew or, with the exercise of reasonable
diligence could have known, of the violative conditions).


/Atlantic Battery Co./, 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).


            The cited standards are clearly applicable. Respondent was
engaged in construction activities and, specifically, in excavation work
on the date of the inspection. Employees had access to the alleged
violative conditions by undisputedly working in the 8-foot deep trench
on that date.

Citation No. 1, Item 1

Alleged Serious Violation of 29 C.F.R. § 1926.651(c)(2)


            The Secretary in Citation No. 1, Item 1, alleges that:

 

A stairway, ladder, ramp or other safe means of egress was not located
in trench excavations that were 4 feet (1.22 m) or more in depth so as
to require no more than 25 feet (7.62 m) of lateral travel for employees:

 

(a) On or about 10/1/2002, at the Huntsville, Alabama site - Employees
working in an excavation had to climb on and/or over a 42 inch section
of pipe to get to the ladder.


            The standard at 29 C.F.R. § 1926.651(c)(2) provides that:

 

(2) /Means of egress from trench excavations./ A stairway, ladder, ramp
or other safe means of egress shall be located in trench excavations
that are 4 feet (1.22 m) or more in depth so as to require no more than
25 feet (7.62 m) of lateral travel for employees.


            The Secretary alleges that respondent’s employee in the
trench had no safe means of egress from the excavation. A ladder was in
place from the bench in the trench sidewall to the top of the
excavation, a vertical distance of 4 feet. A slope of gravel extended
from the bottom of the pipe near the employee to the top of the pipe.
This gravel slope was in place on both sides of the pipe, and gravel was
poured on the pipe. The most narrow point of these gravel slopes was 10
to 12 inches at the arch of the pipe 2 feet above the bottom of the trench.

            Mr. James Morris, respondent’s project superintendent,
testified he observed employees in the excavation using the gravel as a
ramp from the trench floor up to the bench, which was approximately
4 feet high, just above the top of the pipe. He saw these employees walk
upright without slipping, while ascending the gravel slope, and saw
employees use the ladder to exit the trench from the 4-foot wide bench.
Here, Garney provided a sloped gravel ramp and ladder for employees to
exit the trench. The Secretary produced insufficient evidence to prove
that the means of egress provided by respondent was not safe. The
Secretary, therefore, did not prove that Garney failed to comply with
the terms of the cited standard. The alleged violation of 29 C.F.R.
§ 1926.501(c)(2) is vacated.

 

Citation No. 1, Item 2

Alleged Serious Violation of 29 C.F.R. § 1926.651(j)(2)


            The Secretary in Citation No. 1, Item 2, alleges that:

 

Employees were not protected from excavated or other materials or
equipment that could pose a hazard by falling or rolling into excavations:

 

(a) On or about 10/1/2002, at the Huntsville, Alabama site - Excavated
soil and an excavator were at the edge of the excavation, exposing the
employee working in the excavation to being struck by material and
equipment falling or rolling into the excavation.


            The standard at 29 C.F.R. § 1926.651(j)(2) provides:

 

(2) Employees shall be protected from excavated or other materials or
equipment that could pose a hazard by falling or rolling into
excavations. Protection shall be provided by placing and keeping such
materials or equipment at least 2 feet (.61 m) from the edge of
excavations, or by the use of retaining devices that are sufficient to
prevent materials or equipment from falling or rolling into excavations,
or by a combination of both if necessary.


            Mr. James Morris, respondent’s project superintendent,
testified that Garney’s excavator was positioned at the edge of the end
of the trench. He stated that at that location the end wall was vertical
and not benched. Excavated material was also at the edge of the trench
at this location. An employee was at the end of the pipe in the trench,
less than 6 feet from the end of the trench. The 100,000-pound excavator
and excavated material were located at the edge of the trench a few feet
above the head of this employee. During the inspection, clods of
excavated soil were observed at the edge of the sides of the trench. Mr.
Morris admitted this was not a good condition and that his excavator
operator did not wipe off the clods at the trench side edge the way
respondent normally does.

            The cited standard specifically requires that equipment and
excavated material be kept at least 2 feet from the edge of the
excavation to protect employees in the excavation. The standard, as
written, presumes the hazard, specifically, that equipment or material
at the edge of an excavation could roll or fall into the trench and onto
employees. Here the equipment and excavated materials were at the edge
of the trench above an employee who was working within 6 feet of the
trench end, with easy access to the hazardous condition. Access to this
condition constitutes employee exposure.

            The cited standard allows an employer to protect its
employees by the use of a retaining device sufficient to prevent
materials or equipment from falling or rolling into the excavation.
Respondent argues that the land sloped away from the trench, and it
placed dirt under the excavator’s tracks for stability. This unsupported
argument lacks merit. Garney produced no evidence as to the degree of
slope or that it considered this slope prior to commencing work or
placing the employee in the trench. Neither the slope of the land nor
the placement of dirt under the excavator tracks for stability
constitutes a retaining device. Assuming, for the sake of argument, that
these conditions qualify as retaining devices, respondent produced no
evidence to show that these two conditions would be sufficient to
prevent such materials or equipment from falling or rolling into the trench.

            Respondent further argues that the benched sides of the
trench constitute retaining devices. This argument also lacks merit. At
the location where the employee was working, the trench wall was
vertical. On the trench sides that were benched, clods of soil were
found at the edge of the excavation where employees used the gravel as a
ramp while exiting the trench. Materials at the edge of the benched
sections could fall or roll into the excavation and onto employees.

            The Secretary has shown that respondent failed to comply
with the terms of the standard by locating its excavator and excavated
materials at the edge of the trench without providing use of retaining
devices sufficient to prevent the equipment or materials from falling or
rolling into the excavation. She has further shown employee exposure to
this violative condition. Respondent had actual knowledge through its
project superintendent who was at this location during and before the
inspection. His testimony clearly established that he was totally
familiar with the conditions at issue. The violative condition could
result in equipment or excavated material falling or rolling into the
excavation or onto the employee in the trench. There is a substantial
probability that death or serious physical harm could result from this
condition. The violation of 29 C.F.R. § 1926.651(j)(2) is affirmed as a
serious violation.

Citation No. 1, Item 3a

Alleged Serious Violation of 29 C.F.R. § 1926.652(b)(2)


             The Secretary in Citation No. 1, Item 3a, alleges that:

 

Maximum allowable slopes, and allowable configurations for sloping and
benching systems, were not determined in accordance with the conditions
and requirements set forth in appendices A and B:

 

(a) On or about 10/1/2002, at the Huntsville, Alabama site - Employees
were laying pipe in an excavation 8 feet in depth and the benching
system being used for type B soil, one half horizontal to one vertical,
was not in accordance with Appendix B.


            The standard at 29 C.F.R. § 1926.652(a)(1) provides:

 

/Protection of employees in excavations./ (1) Each employee in an
excavation shall be protected from cave-ins by an adequate protective
system designed in accordance with paragraph (b) or (c) of this section
except when:

(i) Excavations are made entirely in stable rock; or (ii) Excavations
are less than 5 feet (1.52 m) in depth and examination of the ground by
a competent person provides no indication of a potential cave-in.


            This excavation is not in solid rock. Both parties agree
that the soil is Type B soil. The depth of the excavation is 7 feet 11
inches. An adequate protective system is, therefore, required. This
system must be designed in accordance with paragraph (b) relating to
sloping or benching systems or paragraph (c) relating to support, shield
and other protective systems. Garney chose to protect its employees by
designing and using a benching system in accordance with paragraph (b).

            The standard at 29 C.F.R. § 1926.652(b)(2) provides:

(b) /Design of sloping and benching systems./ The slopes and
configurations of sloping and benching systems shall be selected and
constructed by the employer or his designee and shall be in accordance
with the requirements of paragraph (b)(1); or, in the alternative,
paragraph (b)(2); or, in the alternative, paragraph (b)(3); or, in the
alternative, paragraph (b)(4), as follows:

(2) /Option (2)--Determination of slopes and configurations using
Appendices A and B./ Maximum allowable slopes, and allowable
configurations for sloping and benching systems, shall be determined in
accordance with the conditions and requirements set forth in appendices
A and B to this subpart.


            Appendix A relates to /Soil Classification./ As noted above,
the parties agree that the soil is Type B.

            Appendix B contains specifications for sloping and benching
of the face of excavations where, as here, the employer chooses to use
this system to protect its employees. Appendix B specifies the maximum
allowable slope for an excavation face in Type B soil is 1:1 (45
degrees) (See Table B-1 of Appendix B.)

            As discussed above, the excavation was 7 feet 11 inches
deep, 14 feet wide at the top, and 68 inches wide at the bottom. The
sides were benched with a height of 3 feet 11 inches from the trench
bottom to the bench and 4 feet from the bench to the top of the
excavation. The width of the horizontal bench was 4 feet. The end face
of the excavation was vertical.

            To comply with the requirements and specifications of the
cited standard, all faces of the excavation must be sloped or benched
1:1 or 45 degrees. The slope is measured from the toe of the slope or
bench to the top of the excavation. Mr. Harbin’s uncontroverted
testimony established that using this method, the bench should have been
7 feet 11 inches wide, since the trench was 7 feet 11 inches deep. This
would yield the 1:1 slope required by the standard for excavations in
Type B soil. At best, Garney’s slope was ½:1, since its bench was only 4
feet wide for the trench side walls in a 7-foot 11-inch deep excavation.
The end face wall had no slope. Respondent’s project superintendent, Mr.
Morris, testified that the end wall was vertical. Respondent’s argument
that it was in substantial compliance with the standard is rejected.

            Respondent’s employee worked in the excavation less than 6
feet from the vertical end wall and next to the two benched side walls.
He was clearly exposed to the improperly sloped or benched faces of the
excavation. The cited standard presumes a hazard of cave-in or collapse
of sides of excavations when improperly sloped. Respondent’s project
superintendent knew that the soil was Type B soil. He knew the depth of
the trench and knew the width of the bench, as well as all other
dimensions of this excavation. He knew that the end wall was vertical
and knew that the excavator superimposed an additional load on that
portion of the excavation. Garney, through Mr. Morris, had actual
knowledge of the violative conditions. The hazard here is cave-in or
collapse of the various walls of the excavation. Should a cave-in or
collapse occur, there is a substantial probability that death or serious
physical harm could result. The violation of 29 C.F.R. § 1926.652(b)(2)
is affirmed as a serious violation.

Citation No. 1, Item 3b

Alleged Serious Violation of 29 C.F.R. § 1926.651(k)(1)


            The Secretary in Citation No. 1, Item 3b, alleges that:

An inspection of the excavations, the adjacent areas, and protective
systems was not conducted by the competent person prior to the start of
work and as needed throughout the shift:

 

(a) On or about 10/1/2002, at the Huntsville, Alabama site - The
competent person had not inspected the excavation prior to allowing
employees to work in the excavation.


            The standard at 29 C.F.R. § 1926.651(k)(1) provides:

 

(k) /Inspections./ (1) Daily inspections of excavations, the adjacent
areas, and protective systems shall be made by a competent person for
evidence of a situation that could result in possible cave-ins,
indications of failure of protective systems, hazardous atmospheres, or
other hazardous conditions. An inspection shall be conducted by the
competent person prior to the start of work and as needed throughout the
shift. Inspections shall also be made after every rainstorm or other
hazard increasing occurrence. These inspections are only required when
employee exposure can be reasonably anticipated.


            It is undisputed that employee exposure could be reasonably
anticipated prior to the start of work on the day of the inspection. An
employee was observed in this excavation during the inspection, and
respondent’s employees worked daily in the excavations. The standard is
applicable and requires respondent’s competent person, James Morris, to
conduct an inspection, at least daily, in accordance with its terms.

            The Secretary asserts that Garney failed to conduct the
required daily inspection based primarily on the fact that its competent
person, Mr. Morris, did not perform a manual test of the soil. Mr.
Morris testified that he used his pocket penetrometer and determined the
soil to be Type B soil when the project started. He performed a manual
test of the soil two or three weeks before the inspection. He stated
that the soil was consistent and never changed throughout the project.
The Secretary’s compliance officer tested the soil on the date of the
inspection and found it to be Type B soil.

            The term “daily inspection” is not defined in the standard.
The required elements and methodology of such inspections are not
specified by the Secretary in the this standard or anywhere in Subpart B
of 29 C.F.R. Part 1926.

            The Secretary’s argument that every daily inspection must
include a visual test and a manual test is rejected. In her argument in
this case, the Secretary has used the terms “inspection” and “test”
interchangeably. She relies on Appendix A to Subpart P of Part 1926 -
Soil Classification, (c) Requirements - (1) Classification of soil and
rock deposits, which provides in part:

(c) /Requirements/--(1) /Classification of soil and rock deposits/. Each
soil and rock deposit shall be classified by a competent person as
Stable Rock, Type A, Type B, or Type C in accordance with the
definitions set forth in paragraph (b) of this appendix.

 

(2) /Basis of classification/. The classification of the deposits shall
be made based on the results of at least one visual and at least one
manual analysis. Such analyses shall be conducted by a competent person
using tests described in paragraph (d) below, or in other recognized
methods of soil classification and testing such as those adopted by the
America Society for Testing Materials, or the U. S. Department of
Agriculture textural classification system.

 

(3) /Visual and manual analyses/. The visual and manual analyses, such
as those noted as being acceptable in paragraph (d) of this appendix,
shall be designed and conducted to provide sufficient quantitative and
qualitative information as may be necessary to identify properly the
properties, factors, and conditions affecting the classification of the
deposits.

                                                                                    *
* * *

(5) /Reclassification./ If, after classifying a deposit, the properties,
factors, or conditions affecting its classification change in any way,
the changes shall be evaluated by a competent person. The deposit shall
be reclassified as necessary to reflect the changed circumstances.


            Paragraph (d) of Appendix A sets forth acceptable visual and
manual tests and describes the purpose of both tests in part as follows:

(1) /Visual tests/. Visual analysis is conducted to determine
qualitative information regarding the excavation site in general, the
soil adjacent to the excavation, the soil forming the sides of the open
excavation, and the soil taken as samples from excavated material.

 

(2) /Manual tests./ Manual analysis of soil samples is conducted to
determine qualitative as well as qualitative properties of soil and to
provide more information in order to classify soil properly.


            A careful reading of Appendix A leads to the conclusion that
acceptable visual and manual tests are required to be performed by a
competent person to initially classify soil and rock deposits. These
visual and manual tests would also be required for any subsequent
reclassification. A competent person must first determine whether any
changes occur in properties, factors or conditions affecting the
classification. If such changes occurred, he must then evaluate the
changes and reclassify the soil as needed. Only at the time of
evaluation must the competent person perform the acceptable visual and
manual tests.

            Daily inspections are required whether changes occur or do
not occur. They are done to determine whether there is evidence of a
situation that could result in a hazardous condition. As they relate to
soil classification, such inspections are done to determine whether
there have been any changes in the properties, factors or conditions
affecting the classification. If upon initial inspection, a
determination is made that such changes have occurred, the competent
person must then perform the acceptable visual and manual tests
specified by Appendix A to reclassify the soil as needed.

            To require every daily inspection to include a manual test
without first determining changes in soil conditions would impose duties
and responsibilities on employers which are inconsistent with the
requirements and specifications of Appendix A.

            The purpose of daily inspections under 29 C.F.R. §
1926.651(k)(1) is to determine whether certain conditions have changed.
The purpose of the acceptable manual tests under Appendix A to Subpart
P, after soil is initially classified, is to fully evaluate the
qualitative and quantitative properties of the soil and provide more
information to reclassify soil after the initial determination that
changes had occurred.

            In promulgating the standards and appendices in Subpart P,
the Secretary chose the words used to regulate and control the
activities of employers engaged in excavation work. She is bound by
those words and cannot now expand their meaning to impose additional
requirements on those employers without sufficient notice.

            While the Review Commission will generally defer to the
Secretary’s reasonable interpretation of a standard, I find the
Secretary’s interpretation as not reasonable insofar as it requires all
daily inspections to include a manual test of soil, where, as here,
there were no changes in the soil conditions found. Such an expansive
interpretation of 29 C.F.R. § 1926.651(k)(1) is inconsistent with the
requirements and specifications of Appendix A. This inconsistency will
not withstand scrutiny.

            The Secretary also argued that Mr. Morris was required to
inspect for other hazards including accessibility of the ladder and the
location of the excavator and spoil near the edge of the excavation.
While evidence was produced at hearing relating to the location of such
equipment and materials, no evidence was produced by the Secretary to
prove that Mr. Morris did not inspect the site to determine whether
these conditions existed or were hazardous. No reasonable inferences can
be drawn from the existence of such conditions as to the adequacy of the
daily inspections.

            The Secretary did not prove that Garney failed to comply
with the terms of the cited standard. The alleged violation of 29 C.F.R.
§ 1926.651(k)(1) is vacated.

Penalty Assessment

            Section 17(j) of the Act requires that when assessing
penalties, the Commission must give “due consideration” to (1) the size
of the employer’s business, (2) the gravity of the violation, (3) the
good faith of the employer, and (4) the history of previous violations.
19 U.S.C. § 666(j). The Commission has wide discretion in penalty
assessment.///Kohler Co./, 16 BNA OSHC 1769, 1776 (No. 88-237, 1994).

            Garney is an employer with approximately 200 employees. It
has no history of violations affirmed within the last three years. Its
superintendent was trained as a competent person.

            Generally, the gravity of the violation is the primary
consideration in assessing penalties. /Trinity Industries, Inc./, 15 BNA
OSHC 1481, 1483 (No. 88-2691, 1992). The gravity of a particular
violation “depends upon such matters as the number of employees exposed,
the duration of the exposure, the precautions taken against injury, and
the likelihood that any injury would result.” /J. A. Jones construction
Co., /15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). One employee was
observed exposed to the hazard of cave in and falling materials and
equipment for about 10 minutes during the inspection. These conditions
could result in serious injury and possibly death. Thus, the gravity of
the violation is moderate.

            Garney was cooperative and demonstrated good faith
throughout the investigation. Based on these factors, the appropriate
penalty for the violation of 19 C.F.R. § 1926.651(j)(2) is $1,625.00 and
the appropriate penalty for the violation of 29 C.F.R. § 1926.652(b)(2)
is $3,000.00.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

            The foregoing decision constitutes the findings of fact and
conclusions of law in accordance with Rule 52(a) of the Federal Rules of
Civil Procedure.

ORDER

            Based upon the foregoing decision, it is hereby ORDERED:

            1.         Citation No. 1, Item 1, alleging a serious
violation of 29 C.F.R. § 1926.651(c)(2) is vacated;

            2.         Citation No. 1, Item 2, alleging a serious
violation of 29 C.F.R. § 1926.651(j)(2) is affirmed and a penalty of
$1,625.00 is assessed;

            3.         Citation No. 1, Item 3a, alleging a serious
violation of 29 C.F.R. § 1926.652(b)(2) is affirmed and a penalty of
$3,000.00 is assessed; and

            4.         Citation No. 1, Item 3b, alleging a serious
violation of 29 C.F.R. § 1926.651(k)(1) is vacated.

 

 

                                                                                    /s/


                                                                                    STEPHEN
J. SIMKO, JR.

                                                                                    Judge


 

Date: June 13, 2003