“SECRETARY OF LABOR,Complainant,v.CAPFORM, INC.,Respondent.OSHRC Docket No. 84-0556_DECISION_Before:BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:The primary issue in this case is whether Capform, Inc., a plywoodformwork subcontractor on a multi-employer construction site, violatedtwo OSHA safety standards alleging (1) that it failed to inspect afterevery rainstorm the excavation in which its employees worked and (2)that it failed to sheet-pile, shore, or brace an excavation wall toresist the extra pressure created by the operation of a 100-ton craneabove and near the excavation wall. We conclude that Capform violatedthose two standards as alleged. We also conclude that the Secretary ofLabor’s allegation that Capform violated a third safety standard isduplicative of the second allegation referred to above and shouldtherefore be vacated.Subcontractor Capform built, erected, and dismantled the plywoodformwork into which concrete was poured at a site where apartially-underground parking garage was being built in Dallas, Texas.The excavation in which the garage was being constructed occupied alarge city block, and was about 25-30 feet deep. Three sides of theexcavation were protected from collapse by shoring. The side closest towhere Capform employees worked was neither sheet-piled, shored, norbraced. At the time of the alleged violations, there had been \”lots ofrain\”–some of it heavy–at the site for the preceding month (includingduring the most recent two-week period, when Capform worked at therite). A 100-ton crane was positioned at the top of the unshored side ofthe excavation, and it was moving back and forth along the excavationtop. The crane’s superstructure sometimes came as close as 30 feet tothe edge of the embankment. The crane was used to lift Capform’sformwork out of the excavation after the concrete poured into thoseforms had hardened and the forms had been stripped. While the job ofremoving the formwork from the excavation was proceeding, three segmentsof, the unshored wall of the excavation collapsed. One Capform employeewas killed. Another was injured.On the day following the accident, one of the Secretary’s complianceofficers, Henry R. Slagle, investigated the accident site. As a resultof that investigation, Capform was issued a serious citation allegingthat it had violated three different safety standards: 29 C.F.R. ?1926.651(d), by not having a competent person inspect the excavationafter every rainstorm; 29 C.F.R. ? 1926.651(q), by not protecting theexcavation from the extra pressure exerted on it by the crane; and 29C.F.R. ? 1926.651(c), by not guarding the unshored wall of theexcavation that exposed Capform employees to a danger of moving ground.An $800 total penalty was proposed by the Secretary.The administrative law judge vacated all three items of the Citation. Hefound that Capform did not create or control the hazardous conditions,and that it did not have–and with the exercise of reasonable diligencecould not have had–notice of the hazardous conditions. The judgetherefore concluded that Capform had established the \”multi-employerworksite\” affirmative defense that it had raised. _See_ _Anning-JohnsonCo.,_ 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1198, 1975-76 CCH OSHD ? 20,690,pp. 24,783-84 (No. 3694, 1976); _Grossman Steel & Aluminum Corp.,_ 76OSAHRC 54\/D9, 4 BNA OSHC 1185, 1189-90, 1975-76 CCH OSHD ? 20,691, pp.24,791-92 (No. 12775, 1976). Review was directed on whether theSecretary had made out a prima facie case that Capform violated thethree standards and, if so, whether the judge correctly concluded thatCapform had proven the multi-employer worksite defense.I. _Inspection of Excavation by Competent Person after Rainstorms _The Secretary alleges that Capform violated section 1926.651(d) byfailing to have a competent person inspect the excavation after everyrainstorm to determine whether the excavation needed increasedprotection against cave-ins. Section 1926.6511(d) Provides:? 1926.651 _Specifics excavation requirements_(d) Excavations shall be inspected by a competent person after everyrainstorm or other hazard-increasing occurrence, and the protectionagainst slides and cave-ins shall be increased if necessary.A \”competent person\” is defined at 29 C.F.R. ? 1926.32(f):? 1926.32 _Definitions._The following definitions shall apply in the application of theregulations in this part:(f) \”Competent person\” means one who is capable of identifying existingand predictable hazards in the surroundings or working conditions whichare unsanitary, hazardous, or dangerous to employees, and who hasauthorization to take prompt corrective measures to eliminate them.To prove a violation of the standard, the Secretary must establish (1)the applicability of the standard, (2) the existence of noncomplyingconditions, (3) employee exposure or access, and (4) that the employerknew or with the exercise of reasonable diligence could have known ofthe violative condition. _Dun- Par Engineered Form Co.,_ 86 OSAHRC40\/A8, 12 BNA OSHC 1962, 1965, 1986-87 CCH OSHD ? 27,651, p. 36,033 (No.82-928, 1986).There is no substantial dispute about any of the elements of theSecretary’s burden. The standard applies whenever rainstorms occur whilework is done in an excavation, and frequent rainstorms occurred duringthe two-week period that Capform employees worked at the excavationsite. The excavation was not inspected by a competent person after everyrainstorm. Capform does not Contend that either its jobsitesuperintendent, Pelletier, who was at the jobsite on a daily basis, orits project manager, Cur., L. Hitt, who was at the jobsite on anevery-other-day basis, were \”competent person[s]\” as defined in section1926.32(f). Capform does not contend that any \”competent person\”inspected the excavation after every rainstorm. Instead, Capform pointsto evidence that the general contractor’s insurance agent and a State ofTexas safety inspector had each visited the site, viewed the excavation,and yet not stated that anything further needed to be done to protectthe unshored wall of the excavation from collapse. This evidence,however, is of no avail to Capform, since it does not establish whenthose persons appeared at the jobsite, much less that they appeared atthe site and inspected the excavation after every rainstorm thatoccurred during the two-week period Capform employees worked there.Capform’s jobsite superintendent, Pelletier, was on the jobsite dailyand undoubtedly observed the soil after every rainstorm. But thestandard clearly contemplates more than casual observation. Moreover,Capform itself appears convinced that Pelletier was not a \”competentperson\”. In a section of its review brief devoted to contesting theSecretary’s section 1926.651(c) allegation, Capform, relies onPelletier’s testimony that he had never had responsibility forinspecting the condition of soil in excavations and argues thatPelletier \”lacks … expertise in soils-related areas\”. The Secretaryhas therefore established the existence of noncomplying conditions, thatis, that the excavation was not inspected by a competent person afterevery rainstorm or hazard- increasing occurrence.[[1\/]]The existence of employee exposure is not in dispute. Capform employeesworked near the unshored excavation wall while erecting and dismantlingformwork. They also worked in the area while attaching dismantledformwork to the crane line for lifting out of the excavation–the jobthat was being performed when the fatal collapse of the unshoredexcavation wall occurred.Knowledge of the violative condition is also not in dispute. Capform’ssupervisors were continually present at the worksite. They admitted thatthey knew about the rainstorms, yet did not assure that the excavationwas inspected by a competent person after the rainstorms. The Secretaryhas therefore established a prima facie case of Capform’s violation ofthe cited standard.We must now decide whether Capform established its multi-employerworksite defense. To establish the defense, Capform must prove, by apreponderance of the evidence, that.1. It did not create the violative condition; and2. It did not control the violative condition such that it couldrealistically have abated the condition in the manner required by thestandard; and3. (a) It made reasonable alternative efforts to protect its employeesfrom the violative condition; or(b) It did not have, and with the exercise of reasonable diligence couldnot have had, notice that the violative condition was hazardous._See_ _Anning-Johnson_,4 BNA OSHC at 1198, 1975-76 CCH OSHD at pp.24,783-84; _Grossman Steel,_4 BNA OSHC at 1189-90, 1975-76 CCH OSHD atpp. 24,791-92.Capform argues that it did not create or control the violative conditionbecause it did not dig the excavation and was not responsible forshoring it. It also argues that it did not have notice that cave-inrisks were increased by rainstorms, because it had no expertise indetermining soil stability. According to Capform, the general contractorwas the employer on the worksite with some expertise and it wasresponsible for assuring that the excavation was safe.The judge concluded that Capform had established the defense. He foundthat Capform had neither created nor controlled the hazardous condition,and that although \”it had rained from time to time in the month or sobefore the accident, the respondent’s supervisory personnel did not havesufficient knowledge in such matters as to be able to conclude that theembankment might collapse.\”The Secretary contends that inspection by a competent person was clearlywithin Capform’s control, and that if Capform’s, did not have competentpersons on its own staff to do the inspecting, it could have obtainedthe services of someone else. The Secretary emphasizes that Capformnever requested an inspection, or even inquired into whether the generalcontractor had conducted the inspections required by the standard.The multi-employer worksite defense does not alter the general rule thateach employer is responsible for the safety of its own employees._Anning-Johnson,_ 4 BNA OSHC at 1198-99,1975-76 CCH OSHD at p. 24,784.Capform’s business involved work in excavations. It had a duty toprotect its employees who worked in the excavations. This duty requiredCapform to familiarize itself with the OSHA standards and to takeaffirmative steps to assure that its employees received the protectionrequired by the standards.The standard at issue here, section 1926.651(d), requires that acompetent person inspect an excavation after every rainstorm todetermine whether protection for employees working within the excavationneeds to be increased. Even if Capform lacked expertise in soilstability, the standard put Capform on notice that rainstorms candecrease the stability of an unsupported excavation wall and thatinspections to determine whether this had occurred were necessary. IfCapform did not itself employ a \”competent person\” within the meaning ofthe cited standard, that did not prevent it from determining whether thegeneral contractor, who Capform contends was responsible for the safetyof the excavation, had conducted the required inspections.If Capform had made such an inquiry and discovered that the inspectionshad in fact been conducted, Capform would thereby have known thatcompliance with the standard had been attained. If Capform had learnedthat the required inspections had not been conducted, it would have beenon notice that its reliance on the general contractor was notwell-founded. It then would have been required by the standard to takethe additional steps necessary to protect its employees–includingitself hiring a competent person to conduct inspections. Capform here,however, did not even take the minimal step of asking the generalcontractor whether a competent person was inspecting the excavationafter every rainstorm.Because Capform had a duty to know the terms of the cited standard andbecause it made no attempt to protect its employees in the mannerrequired by the standard, Capform is unable to establish its affirmativedefense. We therefore conclude that it violated section 1926.651(d) asalleged.II. _Operation of Crane Near Excavation_The Secretary alleges that Capform violated section 1926.651(q) by notsheet-piling, shoring, and bracing as necessary the unprotectedexcavation wall next to the area where its employees worked. Section1926.651(q) provides:? 1926.651 _Specific excavation requirements. _(q) If it is necessary to place or operate power shovels, derricks,trucks, materials, or other heavy objects on a level above and near anexcavation, the side of the excavation shall be sheet-piled, shored, andbraced as necessary to resist the extra pressure due to suchsuperimposed loads.The judge vacated this item, as he had the prior one, on the basis ofhis conclusion that Capform had established its affirmativemulti-employer worksite defense. The Judge also found it pertinent toobserve that, although the \”movements of the crane might have beenfactors in the collapse of the embankment…[the crane] was not operatedby the respondent’s employees.\”The Secretary argues that she proved the crane was near the unshoredexcavation, that Capform was using the crane to move forms, thatCapform, supervisor Pelletier knew where the crane was located, and thatboth Capform supervisors, Pelletier and Hitt, knew the excavation wasunshored in the area near where the crane was operating. The Secretaryalso contends that Capform did not establish its multi-employer defensebecause Capform knew of the violative conditions–conditions that didnot require any particular expertise to comprehend.Capform contends that the cited standard requires the Secretary to provethat the \”hazard of extra pressure on the side of the excavation existedat the jobsite, and that the Secretary failed to do so. Capform alsocontends that it established the multi-employer worksite defense byproving that its lack of expertise in soil-related matters deprived itof notice that the moving crane imposed extra pressure on the unshoredexcavation wall.We reject Capform’s argument that the standard requires the Secretary toprove that the crane’s operation near the unshored side of theexcavation created a hazard. The terms of the standard require theSecretary only to establish that a crane was operating above and near anexcavation wall that was not sheet-piled, shored, or braced; it presumesthat the weight of the crane and the forces created by its operation canlead to the collapse of unsupported soil. The standard does not requireadditional proof that the presence of the crane created extra pressure._See_ _H.H. Hall Construction Co.,_ 81 OSAHRC 91\/D12, 10 BNA OSHC 1042,1047, 1981 CCH OSHD ? 25,711, p. 32,056 (No. 76-4765).We find that the Secretary has made out her prima facie case. The100-ton crane was operating above and as close as 30 feet from theexcavation wall that was neither sheet-piled, shored, nor braced. Also,Capform employees were exposed to the hazard created by the crane whilethey worked, and particularly while they were attaching their forms tothe crane line. Further, the Secretary established that Capform hadactual knowledge of the violative condition by proving that Capformproject manager Pelletier and project superintendent Hitt knew the cranewas operating above and near the excavation wall.Capform did not establish its multi-employer worksite defense. The mostfundamental element of the defense is that the employer did not createor control the condition that violated the standard. Here, Capformcreated or controlled the violation because the crane that was operatingabove and near the unshored excavation wall was being operated inCapform’s behalf, lifting Capform’s formwork out of the excavation. Thefact that the crane was not operated by a Capform employee does notdetract from our conclusion that Capform created or controlled theviolation. It is the use of the crane above an unsupported wall, not theidentity of its operator, that creates the hazard.Even were we to find that Capform had neither created nor controlled thehazard, we would still find that Capform had not proven its defense. Thedefense also requires that Capform prove either (1) that it madereasonable alternative efforts to protect its employees or (2) that itdid not have, and could not have had, notice that the violativecondition was hazardous. Capform proved neither. Although it was theresponsibility of either the general contractor or the subcontractorthat dug the excavation, and not Capform’s responsibility, tosheet-pile, shore, or brace the pertinent excavation wall, Capformshould at least have asked the general contractor to comply with thestandard by providing the required support for the wall thatsubsequently collapsed. Capform wade no such request.Further, Capform failed to prove that it did not have notice that theviolative condition (the unsupported excavation wall) was hazardous.Capform is charged with notice (constructive knowledge) of the terms ofthe cited standard. The standard requires that an excavation wall besheet-piled, shored, or braced when a crane is operating above and nearthat wall. Although Capform’s onsite supervisors may have lackedexpertise in soil stability, they knew that a crane was operating aboveand near an unsupported excavation wall. Under the specific terms ofthis standard, therefore, the existence of these prohibited conditionsplaced Capform on notice that its employees were exposed to a hazard.Accordingly, Capform’s affirmative defense fails. We find that Capformviolated section 1926.651(q).III. _Sloping or Shoring of Excavation Wall_The Secretary’s citation also alleges that Capform violated a thirdsafety standard, section 1926.651(c), by failing to slope or shore theexcavation wall to protect employees from the danger of moving ground.The judge vacated the allegation on the basis of his finding thatCapform had established its multi- employer worksite defense. Section1926.651(c) provides:? 1926.651 _Specific excavation requirements._(c) The walls and faces of all excavations in which employees areexposed to danger from moving ground shall be guarded by a shoringsystem, sloping of the ground, or some other equivalent means.The standard thus requires employers to guard certain excavation wallsby shoring, sloping or equivalent means. We have just concluded thatCapform violated section 1926.651(q), a standard that required Capformto sheet-pile, shore or brace the excavation wall that partiallycollapsed. If Capform had complied with section 1926.651(q) bysheet-piling, shoring, or bracing the wall, Capform would alsonecessarily have been in compliance with the less stringent requirementsof section 1926.651(c). We therefore vacate the section 1926.651(c)allegation because it is duplicative of the section 1926.651(q)allegation. _See Cleveland Consolidated Inc.,_ 13 BNA OSHC 1114, 1118,1986-87 CCH OSHD ? 27,829, p. 36,430 (No. 84-696, 1987).We find that the affirmed violations are serious, as alleged by theSecretary. Noncompliance with the cited standards increased the risk ofcave-ins at the excavation site, and cave-ins can, as they did here,result in death or serious physical harm to employees.The Secretary proposed a total penalty of $800 for violation of thethree standards contained in the citation. We find that a penalty of$800 is appropriate even though we have affirmed only two of the items.Capform is a large employer, with about 225 employees at the time of thecitation. Its good faith is suspect because it apparently made noefforts to comply with either of the violated standards. The gravity ofthe violations is high because several employees were exposed to thehazard presented by the unprotected, 25- to 30-feet high excavation wallover a two-week period. We therefore assess a total penalty of $800.Accordingly, we affirm the Secretary’s citation insofar as it allegesviolations of sections 1926.651(d) and (q), and vacate the citationinsofar as it alleges a violation of section 1926.651(c). We find thatthe affirmed violations were serious and assess a total penalty of $800.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: April 26, 1989————————————————————————SECRETARY OF LABOR,Complainant,v.CAPFORM, INC.,Respondent.OSHRC Docket No. 84-0556Appearances:For the Complainant:_Allen Reid Tilson,_ EsquireDepartment of Labor, Dallas, Texas.For the Respondent:_Steven R. McCown,_ EsquireDallas, Texas._Louis G. LaVecchia,_ Judge:_DECISION AND ORDER_This is a Proceeding under the Occupational Safety and Health Act of1970 (29 U.S.C. 651 _et_ _seq._). A citation, characterized as \”serious\”in view of the violations alleged, was issued to the respondent as aresult of a fatality investigation and inspection of its worksite onFebruary 22 and 23, 1984 by compliance officers of the OccupationalSafety and Health Administration (\”OSHA\”). A civil penalty of $800 wasproposed.The respondent contested the citation and the matter went to hearing onJanuary 29 and 30, 1985 at Dallas.The respondent stipulated that it is engaged in a business affectingcommerce and that it is an employer within the meaning of Section 3(a)of the Act.Post-hearing briefs and\/or replies have been filed by the parties. Therewere no intervenors in the action._The Alleged Violations_1a 29 CFR 1926.651(c): The walls oor(sic) faces of excavations(s) inwhich employee(s) were exposed to danger from moving ground were notguarded by a shoring system, sloping of the ground, or some otherequivalent means:(a) Embankment wall, northwest corner of the west wing of the buildingunder construction.1b 29 CFR 1926.651(d): Excavations were not inspected by a competentperson after every rainstorm or other hazard-increasing occurrence forthe purpose of increasing the protection against slides and cave-inswhere necessary:(a) Unshored embankment wall of excavation for building under construction.1c 29 CFR 1926.651(q): The side(s) of the excavation(s) were notsheet-piled, shored or braced as necessary to resist the extra pressuredue to super-imposed loads:(a) A 100-ton capacity crawler crane was position and operated at pointsalong and near to the excavation at grade level on the west side of thewest wing of the building under construction._The Standards_The safety standard at 29 CFR 1926.651 provides:_Specific excavation requirements._(c) The walls and faces of all excavations in which employees areexposed to danger from moving ground shall be guarded by a shoringsystem, sloping of the ground, or some other equivalent means.(d) Excavations shall be inspected by a competent person after everyrainstorm or other hazard-increasing occurrence, and the protectionagainst slides and cave-ins shall be increased if necessary.(q) If it is necessary to place or operate power shovels, derricks,trucks, materials, or other heavy objects on a level above and near anexcavation, the side of the excavation shall be sheet-piled, shored, andbraced as necessary to resist the extra pressure due to suchsuperimposed loads._The Relevant Evidence_Henry Slagle, compliance officer with OSHA, stated that he has been soemployed for 10 years. Before that, he performed similar work for theState Health Department. He has a degree in mechanical engineering and agraduate degree in nuclear engineering. He has taught mathematics,including algebra and trigonometry, at the college level. He has alsohad many courses in hazard recognition and abatement proceduresassociated with the construction industry in general, and with soilcave-ins in particular. On-the-job training, as an observer at times, isa part of his job activities has conducted more than 700 inspections forOSHA. (Tr. 18-21).He conducted an investigation of the respondent’s worksite on February22, 1984, where a subterranean parking garage was under construction.The respondent wag performing form installations for the pouring ofconcrete structures. (Tr. 22).The respondent had 225 employees at the time of the investigation. Itwas engaged in removing wooden forms from a concrete wall that had beenpoured and cured. A report of a fatal accident at the jobsite hadtriggered the investigation. (Tr. 23).The jobsite embraced a city block area or more, bordered on five sidesby Dallas city streets. (Tr. 24). (Ex. C-26).The witness made a number of photographs of the jobsite on the secondday of his investigation. (Exs. C-1 through C-24).The embankment directly above the place where the deceased employee wasworking was photographed several times.After the accident \”benching\” operations were performed with a view tostairstepping the involved excavation to prevent further caving-off ofearth. (Ex. C-5).Exhibit C-7 shows the area where the accident occurred in the lower leftcorner. The fresh red soil next to the concrete wall was that which hadcaved off from above. After the caving-off the earthen wall above theaccident site appears almost vertical.Exhibit C-10 shows, in the opinion of the witness, that the earthenwalls remaining after cave-off were obviously not sloped to 45 degrees.Exhibit C-12 shows the wooden forms with which the deceased workman wasworking at the time of the accident.Preparations were being made by the employees for hoisting the woodenforms from the excavation by hooking them onto the crane cable. (Tr. 43).The yellow-colored crane shown in exhibit C-14 was the crane that was tobe used to hoist the wooden forms from the point of the accident. (Tr. 45).Exhibit 21 shows a water pump that had been used to remove water fromthe area. (Tr. 48).An underground garage was being built at the time of the excavation. Thewhole area had been dug down to the level required. At the site of theaccident the bottom of the excavation was about 25 feet from the streetlevel above. (Tr. 52). The excavation was large, extending severalhundred feet in width, and perhaps two city blocks in length. It hadbeen dug to various depths, and appeared to be incomplete at the time ofthe investigation. (Tr. 52-52).Auguste Pelletier [respondent’s job supervisor] told the CO that he wason the upper level when the accident occurred. He stated that he did notsee the first batch of earth cave off, but did see the second batch asit broke away from the top level. The crane was stationed on the asphaltsurface [Yeargen Street] overlooking the excavation where the accidentoccurred. (Ex. C-26).(Tr. 54). The asphalt street or driveway wasscheduled to be destroyed during the course of the construction. (Tr. 55).Pelletier further stated that he saw a man at the bottom of the pit whenthe second cave-off happened and he shouted a warning to thatindividual. That workman was the victim’s uncle. (Tr. 55-56).Pelletier indicated that it was felt that the asphalt surface of thestreet would help hold up the excavation wall at that point. Heexpressed the opinion that the cave-offs had happened because of thepresence of the crane on the street above. (Tr. 56).The CO’s investigation revealed that there had been recent rains in theconstruction area. (Tr. 56-58). He expressed the opinion that soilstability changes with moisture content. And he stated that he couldfind no one who had inspected the excavation following the rains todetermine if soil stability had degraded. (Tr. 58).The general contractor’s insurance representative had inspected thejob-site at some prior time. (Tr. 59).The post-accident benching operations were voluntary on the part of theparties so engaged on the day after the fatality. The CO had not yetmade any abatement recommendations. (Tr. 61).The respondent’s job supervisor (Pelletier) stated that the generalcontractor nor anyone else had been requested to do anything about theslope because it was not considered a dangerous situation. (Tr. 62).The witness felt that it was obvious from observation and the occurrenceof the accident that the side of the excavation rising above the workpit had not been sloped to a 45-degree angle. (Tr. 63).It appeared to the compliance officer that the walls under which theemployees were working were originally 70 to 80 degrees in slope, ratherthan 45 degrees. The CO alluded to his background in mathematics and hisother experience as qualifying him for estimating the degree of slope inmatters of this kind. (Tr. 63-64).The CO stated that it was obvious that none of the walls in theexcavation left free-standing were at a slope of 45 degrees or less. Anormal person, assuming he can get a foothold, can climb a 45-degreeslope. He could not see a single wall in the work area or in any of thephotographs that he made at the time, that he felt he could climb. (Tr. 65).The only precautions against moving earth hazards seen by the CO werethe shoring projects on three sides of the pit. No shoring was seen onthe fourth side, where the accident took place. (Tr. 65).The combination of the rains, the crane movements at the top of the pitin which the employees were working, and the vibrations caused by themovements of the crane, added to the hazard imposed by the unshored sideof the excavation. (Tr. 65). The CO expressed the opinion that the wallin question should have been sloped at a 45-degree angle. He estimatedthat the angle was actually 70 to 80 degrees, in some instances 90degrees, and in some places there was actually an overhang. (Tr. 71-72).In addition to the deceased employee (Martin Ramirez) and the injuredemployee (Epifonio Fernandez) the respondent had other employees workingin the excavation. They numbered about 22, and were engaged ininstalling and removing forms for the construction of concretestructures. They had been working in the area for two or three days.(Tr. 90-91).The CO took soil samples at the jobsite. (Ex. C-30). This sample wastaken at the surface of the original grade, just under the asphaltpavement, following the scraping off of the surface by the backhoe. (Tr.95). The soil appeared to be a sandy clay, in the opinion of thecompliance officer. (Tr. 97).Several methods of abatement of the hazard were mentioned by the CO. Theembankment could have been sloped to an angle of repose, where it wouldnot be inclined to fall by its own weight, or with the imposition ofother loads on top of it. Shoring could have been done, either at thelower level or at some point above, and sloping in combination. Or itcould have been benched (stairstepped) to prevent the soil first of allfrom cracking off, or secondly, not to fall the full depth to the bottomof the pit. None of these methods had been pursued at the accident site.(Tr. 97-98).A backhoe would be suitable for accomplishing the sloping of the earthenwall. There was a backhoe at the jobsite. No shoring or benching hadbeen done. The backhoe could have done both operations. (Tr. 99).Another technique would be the use of a \”work box\” or \”mule\” that can belowered into the work area. In the event of a cave-off the worker isprotected by the sides of the box from possible injury or death. (Tr. 99).On cross-examination the CO stated that neither he nor Gerald Forrester,the other CO, took any measurements for distance or angle at theexcavation. However, he had been told by the general contractor,Longcrier, and by the respondent’s representatives that the depth of theexcavation was 25 feet. (Tr. 102).The CO concluded that the respondent did not do any of the excavationwork, and did not create the hazard alleged. He was not aware of anycontractual responsibility on the part of any contractor. He concludedthat no request was made by the respondent to Longcrier for correctionof the hazard. (Tr. 104-105).The CO did not establish for whom the operator of the backhoe wasworking when the benching operation was performed following theaccident. Upon inquiring of the respondent he was told that the operatorwas not a Capform employee. (Tr. 106).The general contractor, Longcrier, told the CO that the excavation workhad been performed by a sub-contractor, Weir Brothers. (Tr. 108).In his conversations with Pelletier the CO was told that the formerdidn’t think there was any problem with the embankment before theaccident. (Tr. 111).The CO also talked with Mr. Hitt, another representative of therespondent. Hitt did not say that the embankment looked hazardous priorto the accident.The CO stated that he had been told by Longcrier’s representative thatthe City [Dallas] inspected the excavation site and had required theexistent shoring. Nothing had been said about the condition of the wall[embankment].He had also been told that the insurance company representative hadinspected the construction site. (Tr. 114).The CO made a note in his investigation file stating that Hitt, theproject manager, and Pelletier, the job foreman, had said that therespondent did not create the hazard; that it did not have the authorityor the ability to correct it; and that Capform, the respondent had notrequested the controlling employer to correct it. (Tr. 115).He confirmed that the red soil shown in Exhibit 10 was the portion ofthe embankment that caved off and buried the deceased employee. (Tr. 129).In view of the configuration of the bank at the site of the accident,the CO expressed the opinion that the caved-off portion of the bank hadbeen an overhang before the collapse. (Tr. 133-134).The greatest angle of slope observed by the CO in the unshored area ofthe excavation was 60 to 65 degrees. This was not the result of shoring,but appeared to the CO to have occurred when the embankment collapsed.This flattest slope [easiest to climb] of 60 to 65 degrees was rightabove the accident scene. (Tr. 138-139).The concrete wall that the men were working on was estimated by the COto be three to five feet from the bottom part of the embankment. Theconcrete wall was about nine feet tall. (Tr. 140).The CO stated that he had concluded that the respondent had no abilityto correct the hazard. (Tr. 144).The concrete wall did not extend ever the entire length of the unshoredembankment, but the CO estimated that it was 100 to 200 feet long. (Tr.146). He indicated that exhibits 5 and 6 showed the overhang previouslymentioned. (Tr. 147).The CO had used the concrete wall as a vertical line of reference inestimating the 60 to 65 degree-angle of slope in the embankment. (Tr.144-149).Epifonio Fernandez, through an interpreter, testified that he had aninth-grade education, and that he and his nephew, Martin Ramirez (thedeceased) were employed by the respondent, but could not recall how longthey had been so employed. It had been a little cool before theaccident, and it had rained a few days before. (Tr. 149-152).At the time of the accident he and his nephew were attaching a \”waler\”to one of the wooden forms that had been used in the construction of theconcrete wall. They were waiting for the crane to lower a line so thatthe hook could be attached to the waler. The crane had moved about inthe performance of various lifting jobs on the day of the accident andon the day before. (Tr. 152-153).The witness stated that his boss, \”Pedro\” had received instructions fromPelletier designating the witness and his nephew (the deceased) for theperformance of the work involved in hooking the crane cable to thewooden forms for removal from the pit. (Tr. 153-154).Pelletier shouted a warning to the witness when the witness rushed tothe assistance of his nephew. The witness was then struck by fallingdirt. Pelletier had just come to the work area when the accidentoccurred. (Tr. 155).The witness identified the yellow crane in Exhibit 14 as the crane thatwas at the scene of the accident. (Tr. 155-156).There was only two or three feet between the concrete wall and theembankment in the working area, just enough space to walk in. (Tr. 157).Many other laborers employed by the respondent and supervised by Pedroand Pelletier had been working in the area, removing the wooden formsfrom the concrete wall. (Tr. 157-158).The witness stated that he could not walk up the slope in the embankmentas shown in Exhibit 5. Access to the working area was gained by walkingdown the embankment shown in Exhibit 22. (Tr. 160).The witness was himself injured by falling earth and hospitalized afterbeing pinned against the forms. (Tr. 161).Gerald Forrester, also a compliance officer for OSHA, has been soemployed since 1973. He has attended all safety courses presented at theOSHA Institute in Chicago. Included in the courses have been mattersinvolving soil mechanics and the stabilization of soil materials. (Tr.165-166).The witness accompanied Mr. Slagle in the investigation of the instantjobsite. Soil samples were taken at the site of the accident. Somesloping was observed, but this had been created by the failed materials.Where there had been no failure, there didn’t appear to be any slopingat all. (Tr. 166).In fact, it was virtually vertical, except for the portion that hadcaved off. (Tr. 167). The concrete wall running parallel to YeargenStreet appeared to be about 60 feet long to the witness.The upper part of the bank in question was a sandy clay, while belowthat was what the witness would describe as silty sand. The silty sandwould he considered the weakest strata and a sloping of 60 to 65degrees, going from the floor of the excavation to the top, would be thesafest angle of sloping in the circumstances. (Tr. 168-170).Other factors present, in addition to the nature of the soil, were theimposed load in the form of the crane, and the heavy amount of trafficin the jobsite area. The pit was 25 to 30 feet in depth at the pointwhere the crane was located, above the accident site. (Tr. 171-172).The witness was not familiar with the circumstances under which thecrane had been ordered into place at the top of the embankment or underwhose control it was at the time. (Tr. 175-176).The heavy traffic referred to by the witness in his testimony was on thestreets other than Yeargen. (Tr. 176). He stated that Yeargen appearedto be an access to the work area, and he did see some large trucks goinginto that area, possibly delivering materials to the jobsite.Considering the nature of the soil and the angle of the bank as itprobably was before the collapse, the witness felt there should havebeen some measures taken to prevent a cave-in because this was not thetype of material that could be depended on to remain in placeindefinitely at that angle. (Tr. 177).Mr. Ralph Barnes, a geotechnical engineer, dealing with foundationengineering, studies of soil and rock and the way they react underloads, and different types of strains, testified with respect to thesubsurface report prepared by Hooper & Associates (Ex. C-25); thephotographs of the jobsite received in evidence, and the soil sample(Ex. C-10). (Tr. 183-203).He stated that the materials at the jobsite appeared to be sandy clays,clayey sands, and sands. (Tr. 193). In his opinion this type of soil issubject to moving or caving in. (Tr. 194).The soils shown in the photographs received in evidence; those mentionedin the soils report; and the soil sample, appeared to have been the typeof soil that caved in. (Tr. 193-194).The witness testified that basically these soils are variable all theway from clays through sands at the jobsite. With the exception of puresands, they all have a degree of strength that would enable them tostand on vertical cuts for a period of time before caving off orsloughing off. But there is no way to evaluate the time factor, whetherit be one day or one year. (Tr. 196). On the other hand, they willdefinitely cave off at some time. (Tr. 196).Weathering of the soil, which causes cracking, can lead to ultimatecaving off or sloughing off. Changes in the weather, such rain versussunshine, things that tend to wet and dry the soil, speed up theprocess. Loads near the top of the bank can open tension cracks,weakening the soil, and speeding up the process of caving in. (Tr. 197).The crane in the photographic evidence, when moving about, could hastenthe weakening process. (Tr. 197).Heavy rains for a two-week period before the cave-in, and light rain inthe days immediately preceding the cave-in could have speeded up thefall. (Tr. 198).Mr. Auguste Pelletier, a native of Quebec, Canada, testified that he hadbeen in the United States for about a year and a half. He is asupervisor for the respondent in the construction of concrete forms. Hehas been in the construction industry for 37 years, progressing fromlaborer to carpenter to foreman, and eventually to supervisor. (Tr.204-205).During his 37 years of experience in concrete form work he has worked inand around embankments and excavations, but he has never had theresponsibility \”to look at\” them. He has not performed any excavationwork, and stated that he did not have to inspect or observe theexcavations to determine their condition. (Tr. 206).The witness stated that he was aware of safety requirements forembankments and excavations. He indicated that a 45 degree angle wassupposed to be used, and that shoring was necessary. (Tr. 206).He was the job supervisor for the respondent at the jobsite where theaccident occurred. The respondent’s job was to build forms for thepouring of concrete structures. No work was done with reinforcementsteel, nor did the respondent’s employees pour any concrete. (Tr. 207).The excavation was about 27 to 30 feet deep at the point where therespondent’s employees were working. Twenty employees were engaged inthe work. Pedro Molina was assisting the witness as a supervisor. (Tr. 208)The witness had been the supervisor at this jobsite for about a monthwhen the accident occurred. No excavation work had been done by therespondent nor did it work on any of the embankments in the area. Theembankments were shored on three sides. There was no shoring in the areawhere the accident happened. With regard to the embankments in theaccident area, the witness stated \”I find the slope was all right tome.\” He made this determination \”just by looking at it.\” He did notrecall seeing any cracks In the embankment near the accident site. (Tr.209).The witness stated that he saw no sloughing of material, nor did he seethe embankment slide or move in any way. (Tr. 210).The employees had been working in the area for about a month, and therehad been no problem reported to him about the embankment that hadfailed. He knew of no problems with any of the embankments in the areathat had not been shored. (Tr. 210).During the month prior to the accident there had been \”lots of rain,lots of rain.\” He saw no changes in the embankments after the rains.(Tr. 210).When the accident occurred the witness was just coming onto thejob-site. He \”saw the dirt coming down, and that’s it.\” He normallyarrived on the job at 3:00 a.m., or 5:00 a.m. (Tr. 211).On the day following the accident the witness, arriving about 5:00 a.m.,saw Longcrier employees sloping the bank where the collapse hadoccurred. The witness had not had any discussions with anyrepresentatives of Longcrier concerning the condition of the embankmentthat was not shored. He stated that Longcrier had its own \”safety guide\”and that he was not concerned at all prior to the accident that theembankment was hazardous. (Tr. 211-212).The witness identified the yellow crane in exhibit C-15 as the one thathad been on the surface above the accident site before the accidentoccurred. He indicated that it had moved about on that surface, but thatit had not moved when in close proximity to the accident site. (Tr.215-216).The witness completed the 12th grade in Canada, but has had no otherformal education. He had no courses in mathematics. (Tr. 216).He knew that the respondent’s employees were working below the unshoredembankment. (Tr. 217).Mr. Curt Hitt, Project Manager for the respondent, has been so employedfor 5 years. (Tr. 219). The respondent was engaged in wall form work atthe construction site. The general contractor at the site was Longcrier.Capform does no excavation work; no shoring activities; no steeloperations; and does not own or have any type of earth-moving equipment.It was employed only to do concrete form work at the construction site.(Tr. 219-221).The witness stated that the exposed embankment was sloped to some degreealong its full length. He assumed that the unshored embankment wasadequate, in view of the fact that the other three sides of the site hadbeen shored. (Tr. 222). He saw no indications of possible sloughing offof bank material on the unshored embankment. (Tr. 223). Neither of thetwo pieces of machinery shown in Exhibit C-15 belonged to or were leasedby Capform. (Tr. 224). He assumed that the equipment was owned by thegeneral contractor. The equipment was not operated by the respondent’semployees. (Tr. 224).It had rained during the month or so that the respondent had beenengaged in form work at the excavation, but the witness saw no signs ofdeterioration in the unshored embankment. (Tr. 225). He had observed theslope of the embankment before the accident, and that it was adequate.(Tr. 226). However, he had not checked the sloping in assuming that itwas adequate. (Tr. 226).The witness stated that he knew that the respondent’s employees weregoing to be working at the bottom of the slope. (Tr. 226).Mr. Clyde Enright, an employee of the Longcrier Company, stated that hewas employed at the excavation site. (Tr. 227). He was not approached bythe respondent’s representatives with any complaints about the unshoredembankments. Nor was there any complaint registered with respect to anylack of sloping. (Tr. 228-229).Epifonio Fernandez was recalled by the complainant and asked whether thecrane shown in Exhibit C-15 had been working over the site where theaccident occurred. He replied that \”it was there.\” (Tr. 231).Henry Slagle was recalled by the complainant and asked about theconversation he had with Gus Pelletier about the crane. He stated thatPelletier expressed the opinion that the crane had helped to cause thecave-off. He further indicated to the CO that the asphalt paving couldhave or should have helped hold the embankment from collapsing. (Tr. 234)._Discussion_Multi-employer construction sites have been the subject of manydecisions by the Review Commission, which has applied the rules setforth in _Anning-Johnson Co.,_ 76 OSAHRC 54\/A2, 4 BNA 1193, 1975-76 CCHOSHD ? 20,690 (Nos. 3694 & 4409), and _Grossman Steel & Aluminum Corp._,76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD ? 20,691 (No. 12775,1976), in determining whether a subcontractor can be held to haveviolated the Act in the circumstances present in that particular case.The significant language in_Anning-Johnson_ reads:We… recognize… the availability to an employer of certainaffirmative defenses… [A]n employer … has an opportunity todemonstrate that it did not create the alleged hazard nor did it controlthe hazard such that it realistically had the means to rectify thecondition…Once a cited construction subcontractor has established that it neithercreated nor controlled the hazardous condition, it may affirmativelydefend against the Secretary’s charge by showing either (a) that itsemployees who were or may have been exposed to the hazard were protectedby means of realistic measures taken as an alternative to literalcompliance with the cited standard, or (b) that it did not have nor withthe exercise of reasonable diligence could have had notice that thecondition was hazardous.Hence, if the respondent neither created nor controlled the hazardouscondition the remaining question is whether it had or with the exerciseof reasonable diligence could have had notice that the condition washazardous.It is undisputed that the respondent did not create the hazardouscondition of the embankment. It is likewise quite clear that therespondent did not control the hazard because it lacked the authority orequipment to abate or correct the hazardous condition.The respondent’s project manager did not have an educational backgroundin soil mechanics, nor sufficient experience in the recognition of soildegeneration in the embankment to be apprised of the hazardous conditionof the embankment at the site of the accident. He appears to have beenjustified in assuming that the shoring of three sides of the excavationindicated that the unshored portion of the pit was found to be safe bythe general contractor’s safety representative, as well as the insurancecompany representative and the Dallas city inspector’s tacit approval.Neither can it be said that the respondent’s job foreman, with noexperience in the excavation trades, and an education totally lacking inmathematics of any kind, knew or should have known that the embankmentwas in a hazardous condition. He saw nothing alarming in the angle ofsloping of the embankment before the accident occurred. The preciseangle of sloping prior to the accident will never be Known since aconsiderable portion of the embankment ended up at the bottom of the pitafter the collapse of the soil. Thus, it would be pure speculation toassume that common sense should have warned the foreman that the bankwas in a hazardous condition thereby constituting a danger to theemployees he assigned to perform the form work in the pit._Findings_All of the evidence, including the testimony, demeanor, and credibilityof the witnesses, and the photographic, graphic, and documentaryevidence, has been evaluated in the light of the briefs of law andargument submitted by the parties. The following findings of fact are made:1. The respondent, Capform, was engaged on February 22, 1984, as asubcontractor for the performance of concrete form work at a largebuilding construction site in Dallas, Texas.2. The construction site embraced an area of one or more city blockswhich had been excavated to a depth of 25 to 30 feet by anothersubcontractor (Weir) under the direction of the general contractor,Longcrier Construction Co.3. The respondent did not participate in the excavation activity, butwas engaged at a later time by the general contractor for theperformance of concrete form work at the bottom of the excavation.4. The respondent does not operate any excavation equipment ormachinery; nor does it operate cranes or other lifting equipment.5. Since three sides of the excavation had been shored against thepossibility of collapse, the respondent assumed that embankment leftunshored was considered safe from possible collapsing of the soil.6. The excavation site had been inspected by a Dallas city inspector andby the general contractor’s insurance company with no known disapproval.7. On February 22. 1984 the unshored embankment collapsed at a pointdirectly above two of the respondent’s employees, preparing to extractconcrete forms from a wall that had been constructed on the floor of theexcavation resulting in the death of one man and injuries to the other.8. A heavy-duty crane (100-ton capacity) was stationed an the pavementof the street above the accident site, apparently for use in removingthe concrete forms from the pit below. The movements of the crane mighthave been factors in the collapse of the embankment, but it was notoperated by the respondent’s employees. The street (Yeargen) was notheavily traveled by general traffic.9. The angle of sloping of the collapsed embankment, viewed after theaccident, appeared to be 60 to 83 degrees.10. The respondent’s job foreman, with a limited education and commandof the English language, lacked any expertise in soil mechanics orengineering, and failed to notice anything about the condition of theembankment before the fall which might have indicated that a collapse ofearth might occur while the men were working below.11. The respondent’s project manager, also lacking in expertise withrespect to soil mechanics, did not notice anything in the condition ofthe embankment to indicate that a hazardous condition was present.12. Although it had rained from time to time in the or so before theaccident, the respondent’s supervisory personnel did not have sufficientknowledge in such matters as to be able to conclude that the embankmentmight collapse.13. The respondent did not create the hazardous condition, nor did itcontrol the hazard.14. The respondent did not have nor with the exercise of reasonablediligence could have had notice that the condition of the embankment washazardous.In view of the findings above I conclude that the respondent did notviolate either of the three safety standards set forth in the citation.The citation will be vacated._Conclusions of Law_1. The Review Commission has jurisdiction of this proceeding and theparties.2. The respondent did not violate the safety standards set forth at 29CFR 1926.651 (c), (d), and (q)._Order_The citation is vacated.So ORDERED.Louis G. LaVecchiaAdministrative Law JudgeAugust 14, 1985Dallas,————————————————————————SECRETARY OF LABOR,Complainant,v.CAPFORM, INC.,Respondent.OSHRC DOCKET NO. 84-0556Pursuant to the provisions of Section 556 of the AdministrativeProcedures Act (5 U.S.C. 556), the undersigned hereby certifies to theOccupational Safety and Health Review Commission the record in thisproceeding, consisting of the following:1. Those documents forwarded to the undersigned by notice dated July 27,1984, from the Commission;2. All documents issued by or filed with the undersigned in this matternumbered J-1 through J-22;3. The original and three copies of the transcript of hearing, theoriginal totaling 236 pages;4. All exhibits received into evidence; and5. The undersigned’s decision and order in this matter dated August 14,1985.LOUIS G. LAVECCHIAAdministrative Law JudgeDated: August 14, 1985————————————————————————FOOTNOTES:[[1\/]] Capform also argues that the cited standard requires theSecretary to prove that the hazard of cave-ins \”was _increased _in theunshored embankment at the jobsite after a rainstorm\” (emphasissupplied), and that the Secretary failed to do so. We reject thiscontention. The standard very clearly intends that rainstorms beconsidered hazard-increasing occurrences unless and until an inspectionby a competent person establishes otherwise, and it only requires proofthat rainstorms had occurred. Capform does not dispute that rainstormshad occurred at the jobsite while its employees worked there.”