Pooler Enterprises (Pooler) is a construction company that performs utilities and site work in preparation for building construction.  Tr. 19.  The Occupational Safety and Health Administration (OSHA) conducted an inspection of Pooler’s worksite in Penfield, New York on April 22, 2024.  Tr. 13.  OSHA issued Pooler a Citation and Notification of Penalty (Citation) on August 13, 2024, alleging a serious violation of 29 C.F.R. § 1926.651(j)(l) for failure to provide adequate protection to protect employees from loose rock or soil that could pose a hazard by falling or rolling from an excavation face.  Ex. R-2 at 4.  The Secretary proposed a penalty of $4,662.  Ex. R-2 at 4.

        The Secretary contends, by its plain terms, section 1926.652(a)(1) is applicable to the excavation created by Pooler as “it was a man-made cut, cavity, trench, or depression in an earth surface, formed by earth removal.”  Sec’y Br. at 5-6; 29 C.F.R. § 1926.650(b).  Pooler does not dispute that the conditions fall within the definition of “excavation” set forth in section 1926.650(b).  Therefore, Subpart P applies to the excavation, including the provisions of 29 C.F.R. 1926.652(a)(1).

Compliance

The cited standard requires each employee in an excavation to “be protected from cave-ins by an adequate protective system.”  29 C.F.R. § 1926.652(a)(1).  Section 1926.652(a)(1) requires adequate protective systems in accordance with subsections (b) or (c).  Paragraph (b) provides options for using sloping and benching systems, and paragraph (c) provides options for using “support systems, shield systems, and other protective systems.”  29 C.F.R. § 1926.652(b)-(c).

The Secretary argues Pooler failed to comply with the standard’s requirements because no trench boxes or other forms of cave-in protection were used.  Sec’y Br. at 6.  Pooler does not assert that it had an adequate protective system in place at the time of the inspection but instead contends that no employees were exposed to the cave-in hazard.  Tr. 76.    

At the time of the inspection, there was no cave-in protection in the excavation.  Tr. 34-35; Ex. C-2.  CO Soto testified that there was no shoring for the sides of the excavation, the dirt had not been benched back away from the excavation, and no trench box was installed to protect against a cave-in.  Tr. 34-35.  Photographs show no cave-in protection in the excavation.  Exs. C-1, C-2, C-4.  Accordingly, the Secretary has demonstrated that the excavation was not in compliance with the requirements of 29 C.F.R. § 1926.652(a)(1).

Exposure

“The Secretary always bears the burden of proving employee exposure to the violative conditions.”  Fabricated Metal Prods., Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997).  To establish exposure, the Secretary “must show that it is reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.”  Fabricated Metal Prods., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997).  The zone of danger is the “area surrounding the violative condition that presents the danger to employees.”  RGM Constr. Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995).  The zone of danger is determined by the hazard presented by the violative condition and is normally the area surrounding the condition which presents the danger to employees that the standard was intended to prevent.  Id.; Gilles & Cotting, Inc., 3 BNA OSHC 2002, 2003 (No. 504, 1976).

The Secretary contends Mr. Kinsman was exposed to the hazardous condition when he entered the excavation without cave-in protection on the morning of April 22, 2024.  Sec’y Br. at 7.  Pooler asserts the Secretary has failed to prove exposure because none of its employees were in the excavation or “had reason to be in the trench, and if they were in the trench at any time prior to [the inspection], they used appropriate cave-in protection.”  Tr. 76.  

The Secretary did not offer any direct evidence to prove that employees were in the excavation and thereby exposed to the violative conditions.  The sole evidence offered by the Secretary to establish employee exposure was CO Soto’s testimony about statements allegedly made by Mr. Jackson and Mr. Kinsman to CO Soto at the worksite.  These hearsay statements, allegedly made by Pooler employees to CO Soto, were admitted and considered pursuant to the Commission’s Simplified Proceedings rules, under which the Federal Rules of Evidence do not apply.  Commission Rule 209(c), 29 C.F.R. § 2200.209(c).  Because the record lacks direct evidence—such as eyewitness observations, photographs, recordings, or written admissions from an exposed employee—this case turns entirely on the credibility of CO Soto’s testimony and the reliability of these alleged out-of-court statements used to establish exposure.

CO Soto testified that Mr. Jackson and Mr. Kinsman told him Mr. Kinsman had been in the excavation on the morning of the inspection and that the admissions were “in the field notes.”  Tr. 20-22, 39-40, 65.  However, on further cross-examination, CO Soto backtracked: “Yeah, I stand corrected.  It’s [the admissions are] not in the field notes.”  Tr. 66.  

Mr. Kinsman corroborated Mr. Jackson’s testimony and denied ever entering the excavation depicted in the photo, disputed ever having told CO Soto that he had been in the excavation, and denied seeing any employees enter the excavation on the day of the investigation.  Tr. 79-80, 88.  He further testified there was no need for any employee to be in the excavation because a hired subcontractor used listening devices outside of the excavation to determine if there were any leaks.  Tr. 84-86.  Moreover, Mr. Kinsman testified that the pressure test for the Monroe County Water Authority would not have been conducted until after the leaks were found and repaired.  Tr. 85-87.  Mr. Kinsman’s testimony was credible and consistent with Mr. Jackson’s account.  

        The Commission has stated “[a] declaration that is introduced through another's testimony inherently has less probative value than the declarant's own testimony.”  Morrison-Knudsen Inc., 13 BNA OSHC 1121, 1123 (No. 80-345, 1987); Continental Electric Co., 13 BNA OSHC 2153, 2155 n. 6 (No. 83-921, 1989) (“As an out of court declaration, the employee’s statement inherently has less probative value than would the employee’s own testimony and is not necessarily entitled to dispositive weight.”).  This is because “neither the other party nor the judge has an opportunity to cross-examine the person who made the statement” or assess the credibility of the declarant.  Morrison-Knudsen Inc., 13 BNA OSHC 1121, 1124 (No. 80-345, 1987).  Given this, I credit the consistent testimony of Mr. Jackson and Mr. Kinsman over CO Soto’s inconsistent testimony.  

        Accordingly, Citation 1, Item 1, is VACATED.

ORDER

Based on the foregoing findings of fact and conclusions of law in accordance with Commission Rule 90(a)(1), 29 C.F.R. § 2200.90(a)(1), it is ORDERED that:

1. 1.Citation 1, Item 1, alleging a serious violation of C.F.R. § 1926.652(a)(1), is VACATED.   

SO ORDERED.

Dated:  February 12, 2026                                        /s/ Christine Le

1 Throughout the record—including the Citation, hearing transcript, and the Secretary’s brief—the witnesses and parties used the terms “excavation” and “trench” interchangeably.  For the purposes of this decision, I use the term “excavation” to maintain clarity and consistency.

2 The cited standard provides exceptions when “[e]xcavations are made entirely in stable rock” or for excavations less than five feet deep when a competent person has examined the ground and found no indication of a potential cave-in.  29 C.F.R. § 1926.652(a)(1)(i)-(ii).  Neither party argues that any exception applies here.  

3 CO Soto also testified that he “noticed footprints near the valve.”  Tr. 30, 49-50.  When asked if any footprints could be identified in the photograph, he insisted that he “could see footprints to the right side of that red valve.”  Tr. 50; Ex. C-2.  However, there are no footprints visible in the photographs.  Exs. C-1, C-2, C-4.  CO Soto’s testimony in this regard, claiming that footprints were visible in the photographs when they are not, further reduced the credibility of his overall testimony.

4 Mr. Jackson testified that a pressure test would not be performed in the excavation, but with an above-ground “hot box assembly” located about 120 to 150 feet east of the excavation.  Tr. 91-93, 96-97.

5 CO Soto admitted there was no apparatus or device in the excavation to measure pressure.  Tr. 60-62.

6 Because there is no exposure, I do not reach the issue of knowledge.