“Docket No. 84-0556 SECRETARY OF LABOR,Complainant,v.CAPFORM, INC.,Respondent.OSHRC Docket No. 84-0556DECISIONBefore:BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:The primary issue in this case is whether Capform, Inc., aplywood formwork subcontractor on a multi-employer construction site, violated two OSHAsafety standards alleging (1) that it failed to inspect after every rainstorm theexcavation in which its employees worked and (2) that it failed to sheet-pile, shore, orbrace an excavation wall to resist the extra pressure created by the operation of a100-ton crane above and near the excavation wall. We conclude that Capform violated thosetwo standards as alleged. We also conclude that the Secretary of Labor’s allegation thatCapform violated a third safety standard is duplicative of the second allegation referredto above and should therefore be vacated.Subcontractor Capform built, erected, and dismantled theplywood formwork into which concrete was poured at a site where a partially-undergroundparking garage was being built in Dallas, Texas. The excavation in which the garage wasbeing constructed occupied a large city block, and was about 25-30 feet deep. Three sidesof the excavation were protected from collapse by shoring. The side closest to whereCapform employees worked was neither sheet-piled, shored, nor braced. At the time of thealleged violations, there had been \”lots of rain\”–some of it heavy–at the sitefor the preceding month (including during the most recent two-week period, when Capformworked at the rite). A 100-ton crane was positioned at the top of the unshored side of theexcavation, and it was moving back and forth along the excavation top. The crane’ssuperstructure sometimes came as close as 30 feet to the edge of the embankment. The cranewas used to lift Capform’s formwork out of the excavation after the concrete poured intothose forms had hardened and the forms had been stripped. While the job of removing theformwork from the excavation was proceeding, three segments of, the unshored wall of theexcavation collapsed. One Capform employee was killed. Another was injured.On the day following the accident, one of the Secretary’scompliance officers, Henry R. Slagle, investigated the accident site. As a result of thatinvestigation, Capform was issued a serious citation alleging that it had violated threedifferent safety standards: 29 C.F.R. ? 1926.651(d), by not having a competent personinspect the excavation after every rainstorm; 29 C.F.R. ? 1926.651(q), by not protectingthe excavation from the extra pressure exerted on it by the crane; and 29 C.F.R. ?1926.651(c), by not guarding the unshored wall of the excavation that exposed Capformemployees to a danger of moving ground. An $800 total penalty was proposed by theSecretary.The administrative law judge vacated all three items of theCitation. He found that Capform did not create or control the hazardous conditions, andthat it did not have–and with the exercise of reasonable diligence could not havehad–notice of the hazardous conditions. The judge therefore concluded that Capform hadestablished the \”multi-employer worksite\” affirmative defense that it hadraised. See Anning-Johnson Co., 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., 76 OSAHRC 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 the Secretary had made outa prima facie case that Capform violated the three standards and, if so, whether the judgecorrectly concluded that Capform had proven the multi-employer worksite defense.I. Inspection of Excavation by Competent Person afterRainstorms The Secretary alleges that Capform violated section 1926.651(d)by failing to have a competent person inspect the excavation after every rainstorm todetermine whether the excavation needed increased protection against cave-ins. Section1926.6511(d) Provides:? 1926.651 Specifics excavation requirements(d) Excavations shall be inspected by a competent person afterevery rainstorm or other hazard-increasing occurrence, and the protection against slidesand 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 ofidentifying existing and predictable hazards in the surroundings or working conditionswhich are unsanitary, hazardous, or dangerous to employees, and who has authorization totake prompt corrective measures to eliminate them.To prove a violation of the standard, the Secretary mustestablish (1) the applicability of the standard, (2) the existence of noncomplyingconditions, (3) employee exposure or access, and (4) that the employer knew or with theexercise of reasonable diligence could have known of the violative condition. Dun- ParEngineered Form Co., 86 OSAHRC 40\/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 ofthe Secretary’s burden. The standard applies whenever rainstorms occur while work is donein an excavation, and frequent rainstorms occurred during the two-week period that Capformemployees worked at the excavation site. The excavation was not inspected by a competentperson after every rainstorm. Capform does not Contend that either its jobsitesuperintendent, Pelletier, who was at the jobsite on a daily basis, or its projectmanager, Cur., L. Hitt, who was at the jobsite on an every-other-day basis, were\”competent person[s]\” as defined in section 1926.32(f). Capform does not contendthat any \”competent person\” inspected the excavation after every rainstorm.Instead, Capform points to evidence that the general contractor’s insurance agent and aState of Texas safety inspector had each visited the site, viewed the excavation, and yetnot stated that anything further needed to be done to protect the unshored wall of theexcavation from collapse. This evidence, however, is of no avail to Capform, since it doesnot establish when those persons appeared at the jobsite, much less that they appeared atthe site and inspected the excavation after every rainstorm that occurred during thetwo-week period Capform employees worked there.Capform’s jobsite superintendent, Pelletier, was on the jobsitedaily and undoubtedly observed the soil after every rainstorm. But the standard clearlycontemplates more than casual observation. Moreover, Capform itself appears convinced thatPelletier was not a \”competent person\”. In a section of its review brief devotedto contesting the Secretary’s section 1926.651(c) allegation, Capform, relies onPelletier’s testimony that he had never had responsibility for inspecting the condition ofsoil in excavations and argues that Pelletier \”lacks … expertise in soils-relatedareas\”. The Secretary has therefore established the existence of noncomplyingconditions, that is, 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. Capformemployees worked near the unshored excavation wall while erecting and dismantlingformwork. They also worked in the area while attaching dismantled formwork to the craneline for lifting out of the excavation–the job that was being performed when the fatalcollapse of the unshored excavation wall occurred.Knowledge of the violative condition is also not in dispute.Capform’s supervisors were continually present at the worksite. They admitted that theyknew about the rainstorms, yet did not assure that the excavation was inspected by acompetent person after the rainstorms. The Secretary has therefore established a primafacie case of Capform’s violation of the cited standard.We must now decide whether Capform established itsmulti-employer worksite 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 could realistically have abatedthe condition in the manner required by the standard; and3. (a) It made reasonable alternative efforts to protect itsemployees from the violative condition; or(b) It did not have, and with the exercise of reasonablediligence could not have had, notice that the violative condition was hazardous.See Anning-Johnson,4 BNA OSHC at 1198, 1975-76CCH OSHD at pp. 24,783-84; Grossman Steel,4 BNA OSHC at 1189-90, 1975-76 CCH OSHDat pp. 24,791-92.Capform argues that it did not create or control the violativecondition because it did not dig the excavation and was not responsible for shoring it. Italso argues that it did not have notice that cave-in risks were increased by rainstorms,because it had no expertise in determining soil stability. According to Capform, thegeneral contractor was 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 found that Capform had neither created nor controlled the hazardous condition, and thatalthough \”it had rained from time to time in the month or so before the accident, therespondent’s supervisory personnel did not have sufficient knowledge in such matters as tobe able to conclude that the embankment might collapse.\”The Secretary contends that inspection by a competent personwas clearly within Capform’s control, and that if Capform’s, did not have competentpersons on its own staff to do the inspecting, it could have obtained the services ofsomeone else. The Secretary emphasizes that Capform never requested an inspection, or eveninquired into whether the general contractor had conducted the inspections required by thestandard.The multi-employer worksite defense does not alter the generalrule that each 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 inexcavations. It had a duty to protect its employees who worked in the excavations. Thisduty required Capform to familiarize itself with the OSHA standards and to takeaffirmative steps to assure that its employees received the protection required by thestandards.The standard at issue here, section 1926.651(d), requires thata competent person inspect an excavation after every rainstorm to determine whetherprotection for employees working within the excavation needs to be increased. Even ifCapform lacked expertise in soil stability, the standard put Capform on notice thatrainstorms can decrease the stability of an unsupported excavation wall and thatinspections to determine whether this had occurred were necessary. If Capform did notitself employ a \”competent person\” within the meaning of the cited standard,that did not prevent it from determining whether the general contractor, who Capformcontends was responsible for the safety of the excavation, had conducted the requiredinspections.If Capform had made such an inquiry and discovered that the inspections had in fact beenconducted, Capform would thereby have known that compliance with the standard had beenattained. If Capform had learned that the required inspections had not been conducted, itwould have been on notice that its reliance on the general contractor was notwell-founded. It then would have been required by the standard to take the additionalsteps necessary to protect its employees–including itself hiring a competent person toconduct inspections. Capform here, however, did not even take the minimal step of askingthe general contractor whether a competent person was inspecting the excavation afterevery rainstorm.Because Capform had a duty to know the terms of the citedstandard and because it made no attempt to protect its employees in the manner required bythe standard, Capform is unable to establish its affirmative defense. We thereforeconclude that it violated section 1926.651(d) as alleged.II. Operation of Crane Near ExcavationThe Secretary alleges that Capform violated section 1926.651(q)by not sheet-piling, shoring, and bracing as necessary the unprotected excavation wallnext to the area where its employees worked. Section 1926.651(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, and braced asnecessary to resist the extra pressure due to such superimposed loads.The judge vacated this item, as he had the prior one, on thebasis of his conclusion that Capform had established its affirmative multi-employerworksite defense. The Judge also found it pertinent to observe that, although the\”movements of the crane might have been factors in the collapse of theembankment…[the crane] was not operated by the respondent’s employees.\”The Secretary argues that she proved the crane was near theunshored excavation, that Capform was using the crane to move forms, that Capform,supervisor Pelletier knew where the crane was located, and that both Capform supervisors,Pelletier and Hitt, knew the excavation was unshored in the area near where the crane wasoperating. The Secretary also contends that Capform did not establish its multi-employerdefense because Capform knew of the violative conditions–conditions that did not requireany particular expertise to comprehend.Capform contends that the cited standard requires the Secretaryto prove that the \”hazard of extra pressure on the side of the excavation existed atthe jobsite, and that the Secretary failed to do so. Capform also contends that itestablished the multi-employer worksite defense by proving that its lack of expertise insoil-related matters deprived it of notice that the moving crane imposed extra pressure onthe unshored excavation wall.We reject Capform’s argument that the standard requires the Secretary to prove that thecrane’s operation near the unshored side of the excavation created a hazard. The terms ofthe standard require the Secretary only to establish that a crane was operating above andnear an excavation wall that was not sheet-piled, shored, or braced; it presumes that theweight of the crane and the forces created by its operation can lead to the collapse ofunsupported soil. The standard does not require additional proof that the presence of thecrane created extra pressure. See H.H. Hall Construction Co., 81 OSAHRC91\/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.The 100-ton crane was operating above and as close as 30 feet from the excavation wallthat was neither sheet-piled, shored, nor braced. Also, Capform employees were exposed tothe hazard created by the crane while they worked, and particularly while they wereattaching their forms to the crane line. Further, the Secretary established that Capformhad actual knowledge of the violative condition by proving that Capform project managerPelletier and project superintendent Hitt knew the crane was operating above and near theexcavation wall.Capform did not establish its multi-employer worksite defense.The most fundamental element of the defense is that the employer did not create or controlthe condition that violated the standard. Here, Capform created or controlled theviolation because the crane that was operating above and near the unshored excavation wallwas being operated in Capform’s behalf, lifting Capform’s formwork out of the excavation.The fact that the crane was not operated by a Capform employee does not detract from ourconclusion that Capform created or controlled the violation. It is the use of the craneabove an unsupported wall, not the identity of its operator, that creates the hazard.Even were we to find that Capform had neither created norcontrolled the hazard, we would still find that Capform had not proven its defense. Thedefense also requires that Capform prove either (1) that it made reasonable alternativeefforts to protect its employees or (2) that it did not have, and could not have had,notice that the violative condition was hazardous. Capform proved neither. Although it wasthe responsibility of either the general contractor or the subcontractor that dug theexcavation, and not Capform’s responsibility, to sheet-pile, shore, or brace the pertinentexcavation wall, Capform should at least have asked the general contractor to comply withthe standard by providing the required support for the wall that subsequently collapsed.Capform wade no such request.Further, Capform failed to prove that it did not have noticethat the violative condition (the unsupported excavation wall) was hazardous. Capform ischarged with notice (constructive knowledge) of the terms of the cited standard. Thestandard requires that an excavation wall be sheet-piled, shored, or braced when a craneis operating above and near that wall. Although Capform’s onsite supervisors may havelacked expertise in soil stability, they knew that a crane was operating above and near anunsupported excavation wall. Under the specific terms of this standard, therefore, theexistence of these prohibited conditions placed Capform on notice that its employees wereexposed to a hazard. Accordingly, Capform’s affirmative defense fails. We find thatCapform violated section 1926.651(q).III. Sloping or Shoring of Excavation WallThe Secretary’s citation also alleges that Capform violated athird safety standard, section 1926.651(c), by failing to slope or shore the excavationwall to protect employees from the danger of moving ground. The judge vacated theallegation on the basis of his finding that Capform had established its multi- employerworksite defense. Section 1926.651(c) provides:? 1926.651 Specific excavation requirements.(c) The walls and faces of all excavations in which employeesare exposed to danger from moving ground shall be guarded by a shoring system, sloping ofthe ground, or some other equivalent means.The standard thus requires employers to guard certainexcavation walls by shoring, sloping or equivalent means. We have just concluded thatCapform violated section 1926.651(q), a standard that required Capform to sheet-pile,shore or brace the excavation wall that partially collapsed. If Capform had complied withsection 1926.651(q) by sheet-piling, shoring, or bracing the wall, Capform would alsonecessarily have been in compliance with the less stringent requirements of section1926.651(c). We therefore vacate the section 1926.651(c) allegation because it isduplicative 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 bythe Secretary. Noncompliance with the cited standards increased the risk of cave-ins atthe excavation site, and cave-ins can, as they did here, result in death or seriousphysical harm to employees.The Secretary proposed a total penalty of $800 for violation ofthe three standards contained in the citation. We find that a penalty of $800 isappropriate even though we have affirmed only two of the items. Capform is a largeemployer, with about 225 employees at the time of the citation. Its good faith is suspectbecause it apparently made no efforts to comply with either of the violated standards. Thegravity of the violations is high because several employees were exposed to the hazardpresented by the unprotected, 25- to 30-feet high excavation wall over a two-week period.We therefore assess a total penalty of $800.Accordingly, we affirm the Secretary’s citation insofar as italleges violations of sections 1926.651(d) and (q), and vacate the citation insofar as italleges a violation of section 1926.651(c). We find that the affirmed violations wereserious and assess a total penalty of $800.FOR THE COMMISSION RAY 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, Esquire Department of Labor, Dallas, Texas. For the Respondent:Steven R. McCown, Esquire Dallas, Texas.Louis G. LaVecchia, Judge:DECISION AND ORDERThis is a Proceeding under the Occupational Safety and HealthAct of 1970 (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 on February 22 and 23,1984 by compliance officers of the Occupational Safety and Health Administration(\”OSHA\”). A civil penalty of $800 was proposed.The respondent contested the citation and the matter went tohearing on January 29 and 30, 1985 at Dallas.The respondent stipulated that it is engaged in a businessaffecting commerce and that it is an employer within the meaning of Section 3(a) of theAct.Post-hearing briefs and\/or replies have been filed by the parties. There were nointervenors in the action.The Alleged Violations1a 29 CFR 1926.651(c): The walls oor(sic) faces of excavations(s) in which employee(s)were exposed to danger from moving ground were not guarded by a shoring system, sloping ofthe ground, or some other equivalent means:(a) Embankment wall, northwest corner of the west wing of thebuilding under construction.1b 29 CFR 1926.651(d): Excavations were not inspected by acompetent person after every rainstorm or other hazard-increasing occurrence for thepurpose of increasing the protection against slides and cave-ins where necessary:(a) Unshored embankment wall of excavation for building underconstruction.1c 29 CFR 1926.651(q): The side(s) of the excavation(s) werenot sheet-piled, shored or braced as necessary to resist the extra pressure due tosuper-imposed loads:(a) A 100-ton capacity crawler crane was position and operatedat points along and near to the excavation at grade level on the west side of the westwing of the building under construction.The StandardsThe safety standard at 29 CFR 1926.651 provides: Specific excavation requirements.(c) The walls and faces of all excavations in which employeesare exposed to danger from moving ground shall be guarded by a shoring system, sloping ofthe ground, or some other equivalent means.(d) Excavations shall be inspected by a competent person afterevery rainstorm or other hazard-increasing occurrence, and the protection against slidesand 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, and braced asnecessary to resist the extra pressure due to such superimposed loads.The Relevant EvidenceHenry Slagle, compliance officer with OSHA, stated that he hasbeen so employed for 10 years. Before that, he performed similar work for the State HealthDepartment. He has a degree in mechanical engineering and a graduate degree in nuclearengineering. He has taught mathematics, including algebra and trigonometry, at the collegelevel. He has also had many courses in hazard recognition and abatement proceduresassociated with the construction industry in general, and with soil cave-ins inparticular. On-the-job training, as an observer at times, is a part of his job activitieshas conducted more than 700 inspections for OSHA. (Tr. 18-21).He conducted an investigation of the respondent’s worksite onFebruary 22, 1984, where a subterranean parking garage was under construction. Therespondent wag performing form installations for the pouring of concrete structures. (Tr.22).The respondent had 225 employees at the time of theinvestigation. It was engaged in removing wooden forms from a concrete wall that had beenpoured and cured. A report of a fatal accident at the jobsite had triggered theinvestigation. (Tr. 23).The jobsite embraced a city block area or more, bordered onfive sides by Dallas city streets. (Tr. 24). (Ex. C-26).The witness made a number of photographs of the jobsite on the second day of hisinvestigation. (Exs. C-1 through C-24).The embankment directly above the place where the deceasedemployee was working was photographed several times.After the accident \”benching\” operations wereperformed with a view to stairstepping the involved excavation to prevent furthercaving-off of earth. (Ex. C-5).Exhibit C-7 shows the area where the accident occurred in thelower left corner. The fresh red soil next to the concrete wall was that which had cavedoff from above. After the caving-off the earthen wall above the accident site appearsalmost vertical.Exhibit C-10 shows, in the opinion of the witness, that theearthen walls remaining after cave-off were obviously not sloped to 45 degrees. Exhibit C-12 shows the wooden forms with which the deceasedworkman was working at the time of the accident.Preparations were being made by the employees for hoisting thewooden forms from the excavation by hooking them onto the crane cable. (Tr. 43).The yellow-colored crane shown in exhibit C-14 was the cranethat was to be 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 removewater from the area. (Tr. 48).An underground garage was being built at the time of the excavation. The whole area hadbeen dug down to the level required. At the site of the accident the bottom of theexcavation was about 25 feet from the street level above. (Tr. 52). The excavation waslarge, extending several hundred feet in width, and perhaps two city blocks in length. Ithad been dug to various depths, and appeared to be incomplete at the time of theinvestigation. (Tr. 52-52).Auguste Pelletier [respondent’s job supervisor] told the COthat he was on the upper level when the accident occurred. He stated that he did not seethe first batch of earth cave off, but did see the second batch as it broke away from thetop level. The crane was stationed on the asphalt surface [Yeargen Street] overlooking theexcavation where the accident occurred. (Ex. C-26).(Tr. 54). The asphalt street ordriveway was scheduled to be destroyed during the course of the construction. (Tr. 55).Pelletier further stated that he saw a man at the bottom of thepit when the second cave-off happened and he shouted a warning to that individual. Thatworkman was the victim’s uncle. (Tr. 55-56).Pelletier indicated that it was felt that the asphalt surfaceof the street would help hold up the excavation wall at that point. He expressed theopinion that the cave-offs had happened because of the presence of the crane on the streetabove. (Tr. 56).The CO’s investigation revealed that there had been recent rains in the construction area.(Tr. 56-58). He expressed the opinion that soil stability changes with moisture content.And he stated that he could find no one who had inspected the excavation following therains to determine if soil stability had degraded. (Tr. 58).The general contractor’s insurance representative had inspectedthe job-site at some prior time. (Tr. 59).The post-accident benching operations were voluntary on thepart of the parties so engaged on the day after the fatality. The CO had not yet made anyabatement recommendations. (Tr. 61).The respondent’s job supervisor (Pelletier) stated that thegeneral contractor nor anyone else had been requested to do anything about the slopebecause it was not considered a dangerous situation. (Tr. 62).The witness felt that it was obvious from observation and theoccurrence of the accident that the side of the excavation rising above the work pit hadnot been sloped to a 45-degree angle. (Tr. 63).It appeared to the compliance officer that the walls underwhich the employees were working were originally 70 to 80 degrees in slope, rather than 45degrees. The CO alluded to his background in mathematics and his other experience asqualifying him for estimating the degree of slope in matters of this kind. (Tr. 63-64).The CO stated that it was obvious that none of the walls in the excavation leftfree-standing were at a slope of 45 degrees or less. A normal person, assuming he can geta foothold, can climb a 45-degree slope. He could not see a single wall in the work areaor in any of the photographs that he made at the time, that he felt he could climb. (Tr.65).The only precautions against moving earth hazards seen by theCO were the shoring projects on three sides of the pit. No shoring was seen on the fourthside, where the accident took place. (Tr. 65).The combination of the rains, the crane movements at the top ofthe pit in which the employees were working, and the vibrations caused by the movements ofthe crane, added to the hazard imposed by the unshored side of the excavation. (Tr. 65).The CO expressed the opinion that the wall in question should have been sloped at a45-degree angle. He estimated that the angle was actually 70 to 80 degrees, in someinstances 90 degrees, and in some places there was actually an overhang. (Tr. 71-72).In addition to the deceased employee (Martin Ramirez) and theinjured employee (Epifonio Fernandez) the respondent had other employees working in theexcavation. They numbered about 22, and were engaged in installing and removing forms forthe construction of concrete structures. They had been working in the area for two orthree days. (Tr. 90-91).The CO took soil samples at the jobsite. (Ex. C-30). This sample was taken at the surfaceof the original grade, just under the asphalt pavement, following the scraping off of thesurface by the backhoe. (Tr. 95). The soil appeared to be a sandy clay, in the opinion ofthe compliance officer. (Tr. 97).Several methods of abatement of the hazard were mentioned bythe CO. The embankment could have been sloped to an angle of repose, where it would not beinclined to fall by its own weight, or with the imposition of other loads on top of it.Shoring could have been done, either at the lower level or at some point above, andsloping in combination. Or it could have been benched (stairstepped) to prevent the soilfirst of all from cracking off, or secondly, not to fall the full depth to the bottom ofthe pit. None of these methods had been pursued at the accident site. (Tr. 97-98). A backhoe would be suitable for accomplishing the sloping ofthe earthen wall. There was a backhoe at the jobsite. No shoring or benching had beendone. The backhoe could have done both operations. (Tr. 99).Another technique would be the use of a \”work box\” or\”mule\” that can be lowered into the work area. In the event of a cave-off theworker is protected 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 the excavation. However, he had been toldby the general contractor, Longcrier, and by the respondent’s representatives that thedepth of the excavation was 25 feet. (Tr. 102).The CO concluded that the respondent did not do any of theexcavation work, and did not create the hazard alleged. He was not aware of anycontractual responsibility on the part of any contractor. He concluded that no request wasmade by the respondent to Longcrier for correction of the hazard. (Tr. 104-105).The CO did not establish for whom the operator of the backhoewas working when the benching operation was performed following the accident. Uponinquiring of the respondent he was told that the operator was not a Capform employee. (Tr.106).The general contractor, Longcrier, told the CO that theexcavation work had been performed by a sub-contractor, Weir Brothers. (Tr. 108).In his conversations with Pelletier the CO was told that theformer didn’t think there was any problem with the embankment before the accident. (Tr.111).The CO also talked with Mr. Hitt, another representative of therespondent. Hitt did not say that the embankment looked hazardous prior to the accident.The CO stated that he had been told by Longcrier’s representative that the City [Dallas]inspected the excavation site and had required the existent shoring. Nothing had been saidabout the condition of the wall [embankment]. He had also been told that the insurance company representativehad inspected the construction site. (Tr. 114).The CO made a note in his investigation file stating that Hitt,the project manager, and Pelletier, the job foreman, had said that the respondent did notcreate the hazard; that it did not have the authority or the ability to correct it; andthat Capform, the respondent had not requested the controlling employer to correct it.(Tr. 115).He confirmed that the red soil shown in Exhibit 10 was theportion of the embankment that caved off and buried the deceased employee. (Tr. 129). In view of the configuration of the bank at the site of theaccident, the CO expressed the opinion that the caved-off portion of the bank had been anoverhang before the collapse. (Tr. 133-134).The greatest angle of slope observed by the CO in the unshoredarea of the excavation was 60 to 65 degrees. This was not the result of shoring, butappeared to the CO to have occurred when the embankment collapsed. This flattest slope[easiest to climb] of 60 to 65 degrees was right above the accident scene. (Tr. 138-139). The concrete wall that the men were working on was estimated by the CO to be three to fivefeet from the bottom part of the embankment. The concrete wall was about nine feet tall.(Tr. 140).The CO stated that he had concluded that the respondent had noability to correct the hazard. (Tr. 144).The concrete wall did not extend ever the entire length of theunshored embankment, but the CO estimated that it was 100 to 200 feet long. (Tr. 146). Heindicated that exhibits 5 and 6 showed the overhang previously mentioned. (Tr. 147).The CO had used the concrete wall as a vertical line ofreference in estimating the 60 to 65 degree-angle of slope in the embankment. (Tr.144-149).Epifonio Fernandez, through an interpreter, testified that hehad a ninth-grade education, and that he and his nephew, Martin Ramirez (the deceased)were employed by the respondent, but could not recall how long they had been so employed.It had been a little cool before the accident, 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 that the hook could beattached to the waler. The crane had moved about in the performance of various liftingjobs on the day of the accident and on the day before. (Tr. 152-153).The witness stated that his boss, \”Pedro\” hadreceived instructions from Pelletier designating the witness and his nephew (the deceased)for the performance of the work involved in hooking the crane cable to the wooden formsfor removal from the pit. (Tr. 153-154).Pelletier shouted a warning to the witness when the witnessrushed to the assistance of his nephew. The witness was then struck by falling dirt.Pelletier had just come to the work area when the accident occurred. (Tr. 155).The witness identified the yellow crane in Exhibit 14 as thecrane that was at the scene of the accident. (Tr. 155-156).There was only two or three feet between the concrete wall andthe embankment in the working area, just enough space to walk in. (Tr. 157).Many other laborers employed by the respondent and supervisedby Pedro and Pelletier had been working in the area, removing the wooden forms from theconcrete wall. (Tr. 157-158).The witness stated that he could not walk up the slope in theembankment as shown in Exhibit 5. Access to the working area was gained by walking downthe embankment shown in Exhibit 22. (Tr. 160).The witness was himself injured by falling earth andhospitalized after being pinned against the forms. (Tr. 161).Gerald Forrester, also a compliance officer for OSHA, has been so employed since 1973. Hehas attended all safety courses presented at the OSHA Institute in Chicago. Included inthe courses have been matters involving soil mechanics and the stabilization of soilmaterials. (Tr. 165-166).The witness accompanied Mr. Slagle in the investigation of theinstant jobsite. Soil samples were taken at the site of the accident. Some sloping wasobserved, but this had been created by the failed materials. Where there had been nofailure, there didn’t appear to be any sloping at all. (Tr. 166). In fact, it was virtually vertical, except for the portion thathad caved off. (Tr. 167). The concrete wall running parallel to Yeargen Street appeared tobe about 60 feet long to the witness.The upper part of the bank in question was a sandy clay, whilebelow that was what the witness would describe as silty sand. The silty sand would heconsidered the weakest strata and a sloping of 60 to 65 degrees, going from the floor ofthe excavation to the top, would be the safest angle of sloping in the circumstances. (Tr.168-170).Other factors present, in addition to the nature of the soil,were the imposed load in the form of the crane, and the heavy amount of traffic in thejobsite area. The pit was 25 to 30 feet in depth at the point where the crane was located,above the accident site. (Tr. 171-172). The witness was not familiar with the circumstances under which the crane had been orderedinto place at the top of the embankment or under whose control it was at the time. (Tr.175-176).The heavy traffic referred to by the witness in his testimonywas on the streets other than Yeargen. (Tr. 176). He stated that Yeargen appeared to be anaccess to the work area, and he did see some large trucks going into that area, possiblydelivering materials to the jobsite. Considering the nature of the soil and the angle of the bank asit probably was before the collapse, the witness felt there should have been some measurestaken to prevent a cave-in because this was not the type of material that could bedepended on to remain in place indefinitely at that angle. (Tr. 177).Mr. Ralph Barnes, a geotechnical engineer, dealing withfoundation engineering, studies of soil and rock and the way they react under loads, anddifferent types of strains, testified with respect to the subsurface report prepared byHooper & Associates (Ex. C-25); the photographs 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 besandy 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; thosementioned in the soils report; and the soil sample, appeared to have been the type of soilthat caved in. (Tr. 193-194).The witness testified that basically these soils are variable all the way from claysthrough sands at the jobsite. With the exception of pure sands, they all have a degree ofstrength that would enable them to stand on vertical cuts for a period of time beforecaving off or sloughing off. But there is no way to evaluate the time factor, whether itbe one day or one year. (Tr. 196). On the other hand, they will definitely cave off atsome time. (Tr. 196).Weathering of the soil, which causes cracking, can lead toultimate caving off or sloughing off. Changes in the weather, such rain versus sunshine,things that tend to wet and dry the soil, speed up the process. Loads near the top of thebank can open tension cracks, weakening the soil, and speeding up the process of cavingin. (Tr. 197).The crane in the photographic evidence, when moving about,could hasten the weakening process. (Tr. 197).Heavy rains for a two-week period before the cave-in, and lightrain in the days immediately preceding the cave-in could have speeded up the fall. (Tr.198).Mr. Auguste Pelletier, a native of Quebec, Canada, testifiedthat he had been in the United States for about a year and a half. He is a supervisor forthe respondent in the construction of concrete forms. He has been in the constructionindustry for 37 years, progressing from laborer to carpenter to foreman, and eventually tosupervisor. (Tr. 204-205).During his 37 years of experience in concrete form work he has worked in and aroundembankments and excavations, but he has never had the responsibility \”to lookat\” them. He has not performed any excavation work, and stated that he did not haveto inspect or observe the excavations 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 was supposed to be used,and that shoring was necessary. (Tr. 206).He was the job supervisor for the respondent at the jobsitewhere the accident occurred. The respondent’s job was to build forms for the pouring ofconcrete structures. No work was done with reinforcement steel, nor did the respondent’semployees pour any concrete. (Tr. 207).The excavation was about 27 to 30 feet deep at the point wherethe respondent’s employees were working. Twenty employees were engaged in the work. PedroMolina was assisting the witness as a supervisor. (Tr. 208)The witness had been the supervisor at this jobsite for about amonth when the accident occurred. No excavation work had been done by the respondent nordid it work on any of the embankments in the area. The embankments were shored on threesides. There was no shoring in the area where the accident happened. With regard to theembankments in the accident area, the witness stated \”I find the slope was all rightto me.\” 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 see the embankmentslide or move in any way. (Tr. 210).The employees had been working in the area for about a month,and there had been no problem reported to him about the embankment that had failed. Heknew of no problems with any of the embankments in the area that 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 therains. (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 normally arrived onthe job at 3:00 a.m., or 5:00 a.m. (Tr. 211).On the day following the accident the witness, arriving about5:00 a.m., saw Longcrier employees sloping the bank where the collapse had occurred. Thewitness had not had any discussions with any representatives of Longcrier concerning thecondition of the embankment that was not shored. He stated that Longcrier had its own\”safety guide\” and that he was not concerned at all prior to the accident thatthe embankment was hazardous. (Tr. 211-212).The witness identified the yellow crane in exhibit C-15 as theone that had been on the surface above the accident site before the accident occurred. Heindicated that it had moved about on that surface, but that it had not moved when in closeproximity to the accident site. (Tr. 215-216).The witness completed the 12th grade in Canada, but has had no other formal education. Hehad no courses in mathematics. (Tr. 216).He knew that the respondent’s employees were working below theunshored embankment. (Tr. 217).Mr. Curt Hitt, Project Manager for the respondent, has been soemployed for 5 years. (Tr. 219). The respondent was engaged in wall form work at theconstruction site. The general contractor at the site was Longcrier. Capform does noexcavation work; no shoring activities; no steel operations; and does not own or have anytype of earth-moving equipment. It was employed only to do concrete form work at theconstruction site. (Tr. 219-221).The witness stated that the exposed embankment was sloped tosome degree along its full length. He assumed that the unshored embankment was adequate,in view of the fact that the other three sides of the site had been shored. (Tr. 222). Hesaw no indications of possible sloughing off of bank material on the unshored embankment.(Tr. 223). Neither of the two pieces of machinery shown in Exhibit C-15 belonged to orwere leased by Capform. (Tr. 224). He assumed that the equipment was owned by the generalcontractor. The equipment was not operated by the respondent’s employees. (Tr. 224).It had rained during the month or so that the respondent hadbeen engaged in form work at the excavation, but the witness saw no signs of deteriorationin the unshored embankment. (Tr. 225). He had observed the slope of the embankment beforethe accident, and that it was adequate. (Tr. 226). However, he had not checked the slopingin assuming that it was adequate. (Tr. 226).The witness stated that he knew that the respondent’s employees were going to be workingat the bottom of the slope. (Tr. 226).Mr. Clyde Enright, an employee of the Longcrier Company, statedthat he was employed at the excavation site. (Tr. 227). He was not approached by therespondent’s representatives with any complaints about the unshored embankments. Nor wasthere any complaint registered with respect to any lack of sloping. (Tr. 228-229).Epifonio Fernandez was recalled by the complainant and askedwhether the crane shown in Exhibit C-15 had been working over the site where the accidentoccurred. He replied that \”it was there.\” (Tr. 231).Henry Slagle was recalled by the complainant and asked aboutthe conversation he had with Gus Pelletier about the crane. He stated that Pelletierexpressed the opinion that the crane had helped to cause the cave-off. He furtherindicated to the CO that the asphalt paving could have or should have helped hold theembankment from collapsing. (Tr. 234).DiscussionMulti-employer construction sites have been the subject of manydecisions by the Review Commission, which has applied the rules set forth in Anning-JohnsonCo., 76 OSAHRC 54\/A2, 4 BNA 1193, 1975-76 CCH OSHD ? 20,690 (Nos. 3694 & 4409),and Grossman Steel & Aluminum Corp., 76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1975-76CCH OSHD ? 20,691 (No. 12775, 1976), in determining whether a subcontractor can be heldto have violated 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 to demonstrate that it didnot create the alleged hazard nor did it control the hazard such that it realistically hadthe means to rectify the condition…Once a cited construction subcontractor has established that itneither created nor controlled the hazardous condition, it may affirmatively defendagainst the Secretary’s charge by showing either (a) that its employees who were or mayhave been exposed to the hazard were protected by means of realistic measures taken as analternative to literal compliance with the cited standard, or (b) that it did not have norwith the exercise of reasonable diligence could have had notice that the condition washazardous.Hence, if the respondent neither created nor controlled thehazardous condition the remaining question is whether it had or with the exercise ofreasonable diligence could have had notice that the condition was hazardous.It is undisputed that the respondent did not create the hazardous condition of theembankment. It is likewise quite clear that the respondent did not control the hazardbecause it lacked the authority or equipment to abate or correct the hazardous condition.The respondent’s project manager did not have an educationalbackground in soil mechanics, nor sufficient experience in the recognition of soildegeneration in the embankment to be apprised of the hazardous condition of the embankmentat the site of the accident. He appears to have been justified in assuming that theshoring of three sides of the excavation indicated that the unshored portion of the pitwas found to be safe by the general contractor’s safety representative, as well as theinsurance company representative and the Dallas city inspector’s tacit approval.Neither can it be said that the respondent’s job foreman, withno experience in the excavation trades, and an education totally lacking in mathematics ofany kind, knew or should have known that the embankment was in a hazardous condition. Hesaw nothing alarming in the angle of sloping of the embankment before the accidentoccurred. The precise angle of sloping prior to the accident will never be Known since aconsiderable portion of the embankment ended up at the bottom of the pit after thecollapse of the soil. Thus, it would be pure speculation to assume that common senseshould have warned the foreman that the bank was in a hazardous condition therebyconstituting a danger to the employees he assigned to perform the form work in the pit.FindingsAll of the evidence, including the testimony, demeanor, and credibility of the witnesses,and the photographic, graphic, and documentary evidence, has been evaluated in the lightof the briefs of law and argument submitted by the parties. The following findings of factare made:1. The respondent, Capform, was engaged on February 22, 1984,as a subcontractor for the performance of concrete form work at a large buildingconstruction site in Dallas, Texas.2. The construction site embraced an area of one or more cityblocks which had been excavated to a depth of 25 to 30 feet by another subcontractor(Weir) under the direction of the general contractor, Longcrier Construction Co.3. The respondent did not participate in the excavationactivity, but was engaged at a later time by the general contractor for the performance ofconcrete 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 againstthe possibility of collapse, the respondent assumed that embankment left unshored wasconsidered safe from possible collapsing of the soil.6. The excavation site had been inspected by a Dallas cityinspector and by the general contractor’s insurance company with no known disapproval.7. On February 22. 1984 the unshored embankment collapsed at a point directly above two ofthe respondent’s employees, preparing to extract concrete forms from a wall that had beenconstructed on the floor of the excavation resulting in the death of one man and injuriesto the other.8. A heavy-duty crane (100-ton capacity) was stationed an thepavement of the street above the accident site, apparently for use in removing theconcrete forms from the pit below. The movements of the crane might have been factors inthe collapse of the embankment, but it was not operated by the respondent’s employees. Thestreet (Yeargen) was not heavily traveled by general traffic.9. The angle of sloping of the collapsed embankment, viewedafter the accident, appeared to be 60 to 83 degrees.10. The respondent’s job foreman, with a limited education andcommand of the English language, lacked any expertise in soil mechanics or engineering,and failed to notice anything about the condition of the embankment before the fall whichmight have indicated that a collapse of earth might occur while the men were workingbelow.11. The respondent’s project manager, also lacking in expertisewith respect to soil mechanics, did not notice anything in the condition of the embankmentto indicate that a hazardous condition was present.12. Although it had rained from time to time in the or sobefore the accident, the respondent’s supervisory personnel did not have sufficientknowledge in such matters as to be able to conclude that the embankment might collapse.13. The respondent did not create the hazardous condition, nor did it control the hazard.14. The respondent did not have nor with the exercise ofreasonable diligence could have had notice that the condition of the embankment washazardous.In view of the findings above I conclude that the respondent did not violate either of thethree safety standards set forth in the citation. The citation will be vacated.Conclusions of Law1. The Review Commission has jurisdiction of this proceedingand the parties.2. The respondent did not violate the safety standards setforth at 29 CFR 1926.651 (c), (d), and (q).OrderThe 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 the Occupational Safetyand Health Review Commission the record in this proceeding, consisting of the following:1. Those documents forwarded to the undersigned by notice datedJuly 27, 1984, from the Commission;2. All documents issued by or filed with the undersigned inthis matter numbered J-1 through J-22;3. The original and three copies of the transcript of hearing,the original totaling 236 pages;4. All exhibits received into evidence; and5. The undersigned’s decision and order in this matter datedAugust 14, 1985.LOUIS G. LAVECCHIAAdministrative Law Judge Dated: August 14, 1985FOOTNOTES: [[1\/]] Capform also argues that the cited standard requires theSecretary to prove that the hazard of cave-ins \”was increased in the unshoredembankment at the jobsite after a rainstorm\” (emphasis supplied), and that theSecretary failed to do so. We reject this contention. The standard very clearly intendsthat rainstorms be considered hazard-increasing occurrences unless and until an inspectionby a competent person establishes otherwise, and it only requires proof that rainstormshad occurred. Capform does not dispute that rainstorms had occurred at the jobsite whileits employees worked there.”