Garney Construction, Inc.

Plain-English summary

Garney Construction was installing large sewer pipe in an excavation nearly eight feet deep in Type B soil. The judge vacated the egress item because a gravel ramp and ladder provided a safe route out of the trench. He affirmed the item involving a 100,000-pound excavator and excavated soil at the trench edge above an employee, and affirmed the benching item because the four-foot bench and vertical end wall did not provide the required one-to-one configuration. The daily-inspection item was vacated because the standard did not require a new manual soil test every day when conditions had not changed, and the Secretary did not prove that no inspection occurred. The two affirmed serious violations carried $4,625 in total penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.651(c)(2), 1926.651(j)(2), 1926.651(k)(1), and 1926.652(b)(2)
• Outcome: The falling-material and improper-benching items were affirmed, while the egress and daily-inspection items were vacated; $4,625 was assessed.
• Key point: Daily excavation inspections do not automatically require repeated manual soil testing when the competent person finds no changed soil conditions.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 02-2134
Garney Construction, Inc.,
Respondent.

Appearances:

      Joseph B. Luckett, Esquire                   Robert C. Johnson, Esquire
              Office of the Solicitor                      Husch & Eppenberger, L.L.C.
              U. S. Department of Labor                    Kansas City, Missouri
              Nashville, Tennessee                                  For Respond ent
                       For Com plainant

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

                                    DECISION AND ORDER

      Garney Construction, Inc., (Garney) is engaged in the construction and installation of water

and sewer pipelines. On October 1, 2002, the Occupational Safety and Health Administration
(OSHA) conducted an inspection of respondent’s jobsite in Huntsville, Alabama. As a result of this
inspection, respondent was issued a Citation and Notification of Penalty. Respondent filed a timely
notice contesting the citation and proposed penalties. A hearing was held in Birmingham, Alabama,
on March 11, 2003. For the reasons that follow, Citation No. 1, Item 2, is affirmed and a penalty of
$1,625.00 is assessed; Citation No. 1, Item 3a, is affirmed and a penalty of $3,000.00 is assessed;
and Citation No. 1, Items 1 and 3b are vacated.
Background
Complainant’s compliance officer, Eric Harbin, conducted an inspection of Garney’s jobsite
on October 1, 2002, pursuant to two complaints and in accordance with OSHA’s trenching emphasis
program. Mr. Harbin met with respondent’s project superintendent upon arrival at the jobsite. Work
at this site began in August 2002. Total length of the pipeline was approximately 7,500 feet. On the
day of the inspection, Garney was installing 42-inch diameter sewer pipe in an excavation 7 feet
11 inches deep, 14 feet wide at the top, and 68 inches wide at the bottom. The sides were benched
with a height of 3 feet 11 inches from the bottom to the bench and 4 feet from the bench to the top
of the excavation. The width of the bench was 4 feet. During the inspection, five 20-foot pipes, or
100 feet of the length of the pipe in the trench, remained open and the soil at this location was
Type B sandy clay, cohesive soil. The end of the last pipe installed was 6 feet from the end of the
trench. An excavator with a 27-foot boom was located at the ground level at the edge of the trench
nearest the last installed pipe. The 42-inch diameter pipe (46- to 48-inch OD) was laid in the center
of the 68-inch wide trench, 10 inches to 12 inches from the side walls of the trench. There is no
dispute that respondent’s employees worked in this excavation on the day of the inspection. One
employee was working in the trench 5 feet and 7 feet from the end wall and 1.5 feet from the
excavator bucket while signaling the excavator operator.
Discussion
The Secretary has the burden of proving the violation:
In order to establish a violation of an occupational safety or health standard, the
Secretary has the burden of proving: (a) the applicability of the cited standard,
(b) the employer’s noncompliance with the standard’s terms, (c) employee access to
the violative conditions, and (d) the employer’s actual or constructive knowledge of
the violation (i.e., the employer either knew or, with the exercise of reasonable
diligence could have known, of the violative conditions).

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

   The cited standards are clearly applicable. Respondent was engaged in construction activities

and, specifically, in excavation work on the date of the inspection. Employees had access to the
alleged violative conditions by undisputedly working in the 8-foot deep trench on that date.

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Citation No. 1, Item 1
Alleged Serious Violation of 29 C.F.R. § 1926.651(c)(2)

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

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

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

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

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

   The Secretary alleges that respondent’s employee in the trench had no safe means of egress

from the excavation. A ladder was in place from the bench in the trench sidewall to the top of the
excavation, a vertical distance of 4 feet. A slope of gravel extended from the bottom of the pipe near
the employee to the top of the pipe. This gravel slope was in place on both sides of the pipe, and
gravel was poured on the pipe. The most narrow point of these gravel slopes was 10 to 12 inches
at the arch of the pipe 2 feet above the bottom of the trench.
Mr. James Morris, respondent’s project superintendent, testified he observed employees in
the excavation using the gravel as a ramp from the trench floor up to the bench, which was
approximately 4 feet high, just above the top of the pipe. He saw these employees walk upright
without slipping, while ascending the gravel slope, and saw employees use the ladder to exit the
trench from the 4-foot wide bench. Here, Garney provided a sloped gravel ramp and ladder for
employees to exit the trench. The Secretary produced insufficient evidence to prove that the means
of egress provided by respondent was not safe. The Secretary, therefore, did not prove that Garney
failed to comply with the terms of the cited standard. The alleged violation of 29 C.F.R.
§ 1926.501(c)(2) is vacated.

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Citation No. 1, Item 2
Alleged Serious Violation of 29 C.F.R. § 1926.651(j)(2)

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

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

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

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

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

    Mr. James Morris, respondent’s project superintendent, testified that Garney’s excavator was

positioned at the edge of the end of the trench. He stated that at that location the end wall was
vertical and not benched. Excavated material was also at the edge of the trench at this location. An
employee was at the end of the pipe in the trench, less than 6 feet from the end of the trench. The
100,000-pound excavator and excavated material were located at the edge of the trench a few feet
above the head of this employee. During the inspection, clods of excavated soil were observed at
the edge of the sides of the trench. Mr. Morris admitted this was not a good condition and that his
excavator operator did not wipe off the clods at the trench side edge the way respondent normally
does.
The cited standard specifically requires that equipment and excavated material be kept at
least 2 feet from the edge of the excavation to protect employees in the excavation. The standard,
as written, presumes the hazard, specifically, that equipment or material at the edge of an excavation
could roll or fall into the trench and onto employees. Here the equipment and excavated materials

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were at the edge of the trench above an employee who was working within 6 feet of the trench end,
with easy access to the hazardous condition. Access to this condition constitutes employee exposure.
The cited standard allows an employer to protect its employees by the use of a retaining
device sufficient to prevent materials or equipment from falling or rolling into the excavation.
Respondent argues that the land sloped away from the trench, and it placed dirt under the excavator’s
tracks for stability. This unsupported argument lacks merit. Garney produced no evidence as to the
degree of slope or that it considered this slope prior to commencing work or placing the employee
in the trench. Neither the slope of the land nor the placement of dirt under the excavator tracks for
stability constitutes a retaining device. Assuming, for the sake of argument, that these conditions
qualify as retaining devices, respondent produced no evidence to show that these two conditions
would be sufficient to prevent such materials or equipment from falling or rolling into the trench.
Respondent further argues that the benched sides of the trench constitute retaining devices.
This argument also lacks merit. At the location where the employee was working, the trench wall
was vertical. On the trench sides that were benched, clods of soil were found at the edge of the
excavation where employees used the gravel as a ramp while exiting the trench. Materials at the
edge of the benched sections could fall or roll into the excavation and onto employees.
The Secretary has shown that respondent failed to comply with the terms of the standard by
locating its excavator and excavated materials at the edge of the trench without providing use of
retaining devices sufficient to prevent the equipment or materials from falling or rolling into the
excavation. She has further shown employee exposure to this violative condition. Respondent had
actual knowledge through its project superintendent who was at this location during and before the
inspection. His testimony clearly established that he was totally familiar with the conditions at issue.
The violative condition could result in equipment or excavated material falling or rolling into the
excavation or onto the employee in the trench. There is a substantial probability that death or serious
physical harm could result from this condition. The violation of 29 C.F.R. § 1926.651(j)(2) is
affirmed as a serious violation.

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Citation No. 1, Item 3a
Alleged Serious Violation of 29 C.F.R. § 1926.652(b)(2)

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

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

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

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

   Protection of employees in excavations. (1) Each employee in an excavation shall
   be protected from cave-ins by an adequate protective system designed in accordance
   with paragraph (b) or (c) of this section except when:
           (i) Excavations are made entirely in stable rock; or (ii) Excavations are less
           than 5 feet (1.52 m) in depth and examination of the ground by a competent
           person provides no indication of a potential cave-in.

   This excavation is not in solid rock. Both parties agree that the soil is Type B soil. The

depth of the excavation is 7 feet 11 inches. An adequate protective system is, therefore, required.
This system must be designed in accordance with paragraph (b) relating to sloping or benching
systems or paragraph (c) relating to support, shield and other protective systems. Garney chose to
protect its employees by designing and using a benching system in accordance with paragraph (b).
The standard at 29 C.F.R. § 1926.652(b)(2) provides:
(b) Design of sloping and benching systems. The slopes and configurations of
sloping and benching systems shall be selected and constructed by the employer or
his designee and shall be in accordance with the requirements of paragraph (b)(1);
or, in the alternative, paragraph (b)(2); or, in the alternative, paragraph (b)(3); or, in
the alternative, paragraph (b)(4), as follows:
(2) Option (2)--Determination of slopes and configurations using
Appendices A and B. Maximum allowable slopes, and allowable
configurations for sloping and benching systems, shall be determined in
accordance with the conditions and requirements set forth in appendices A
and B to this subpart.

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Appendix A relates to Soil Classification. As noted above, the parties agree that the soil is
Type B.
Appendix B contains specifications for sloping and benching of the face of excavations
where, as here, the employer chooses to use this system to protect its employees. Appendix B
specifies the maximum allowable slope for an excavation face in Type B soil is 1:1 (45 degrees)
(See Table B-1 of Appendix B.)
As discussed above, the excavation was 7 feet 11 inches deep, 14 feet wide at the top, and
68 inches wide at the bottom. The sides were benched with a height of 3 feet 11 inches from the
trench bottom to the bench and 4 feet from the bench to the top of the excavation. The width of the
horizontal bench was 4 feet. The end face of the excavation was vertical.
To comply with the requirements and specifications of the cited standard, all faces of the
excavation must be sloped or benched 1:1 or 45 degrees. The slope is measured from the toe of the
slope or bench to the top of the excavation. Mr. Harbin’s uncontroverted testimony established that
using this method, the bench should have been 7 feet 11 inches wide, since the trench was 7 feet
11 inches deep. This would yield the 1:1 slope required by the standard for excavations in Type B
soil. At best, Garney’s slope was ½:1, since its bench was only 4 feet wide for the trench side walls
in a 7-foot 11-inch deep excavation. The end face wall had no slope. Respondent’s project
superintendent, Mr. Morris, testified that the end wall was vertical. Respondent’s argument that it
was in substantial compliance with the standard is rejected.
Respondent’s employee worked in the excavation less than 6 feet from the vertical end wall
and next to the two benched side walls. He was clearly exposed to the improperly sloped or benched
faces of the excavation. The cited standard presumes a hazard of cave-in or collapse of sides of
excavations when improperly sloped. Respondent’s project superintendent knew that the soil was
Type B soil. He knew the depth of the trench and knew the width of the bench, as well as all other
dimensions of this excavation. He knew that the end wall was vertical and knew that the excavator
superimposed an additional load on that portion of the excavation. Garney, through Mr. Morris, had
actual knowledge of the violative conditions. The hazard here is cave-in or collapse of the various
walls of the excavation. Should a cave-in or collapse occur, there is a substantial probability that

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death or serious physical harm could result. The violation of 29 C.F.R. § 1926.652(b)(2) is affirmed
as a serious violation.
Citation No. 1, Item 3b
Alleged Serious Violation of 29 C.F.R. § 1926.651(k)(1)

   The Secretary in Citation No. 1, Item 3b, alleges that:
   An inspection of the excavations, the adjacent areas, and protective systems was not
   conducted by the competent person prior to the start of work and as needed
   throughout the shift:

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

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

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

   It is undisputed that employee exposure could be reasonably anticipated prior to the start of

work on the day of the inspection. An employee was observed in this excavation during the
inspection, and respondent’s employees worked daily in the excavations. The standard is applicable
and requires respondent’s competent person, James Morris, to conduct an inspection, at least daily,
in accordance with its terms.
The Secretary asserts that Garney failed to conduct the required daily inspection based
primarily on the fact that its competent person, Mr. Morris, did not perform a manual test of the soil.
Mr. Morris testified that he used his pocket penetrometer and determined the soil to be Type B soil
when the project started. He performed a manual test of the soil two or three weeks before the
inspection. He stated that the soil was consistent and never changed throughout the project. The

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Secretary’s compliance officer tested the soil on the date of the inspection and found it to be Type B
soil.
The term “daily inspection” is not defined in the standard. The required elements and
methodology of such inspections are not specified by the Secretary in the this standard or anywhere
in Subpart B of 29 C.F.R. Part 1926.
The Secretary’s argument that every daily inspection must include a visual test and a manual
test is rejected. In her argument in this case, the Secretary has used the terms “inspection” and “test”
interchangeably. She relies on Appendix A to Subpart P of Part 1926 - Soil Classification,
(c) Requirements - (1) Classification of soil and rock deposits, which provides in part:
(c) Requirements--(1) Classification of soil and rock deposits. Each soil and rock
deposit shall be classified by a competent person as Stable Rock, Type A, Type B,
or Type C in accordance with the definitions set forth in paragraph (b) of this
appendix.

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

    (3) Visual and manual analyses. The visual and manual analyses, such as those
    noted as being acceptable in paragraph (d) of this appendix, shall be designed and
    conducted to provide sufficient quantitative and qualitative information as may be
    necessary to identify properly the properties, factors, and conditions affecting the
    classification of the deposits.
                                                 ****
    (5) Reclassification. If, after classifying a deposit, the properties, factors, or
    conditions affecting its classification change in any way, the changes shall be
    evaluated by a competent person. The deposit shall be reclassified as necessary to
    reflect the changed circumstances.

    Paragraph (d) of Appendix A sets forth acceptable visual and manual tests and describes the

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

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

    A careful reading of Appendix A leads to the conclusion that acceptable visual and manual

tests are required to be performed by a competent person to initially classify soil and rock deposits.
These visual and manual tests would also be required for any subsequent reclassification. A
competent person must first determine whether any changes occur in properties, factors or conditions
affecting the classification. If such changes occurred, he must then evaluate the changes and
reclassify the soil as needed. Only at the time of evaluation must the competent person perform the
acceptable visual and manual tests.
Daily inspections are required whether changes occur or do not occur. They are done to
determine whether there is evidence of a situation that could result in a hazardous condition. As they
relate to soil classification, such inspections are done to determine whether there have been any
changes in the properties, factors or conditions affecting the classification. If upon initial inspection,
a determination is made that such changes have occurred, the competent person must then perform
the acceptable visual and manual tests specified by Appendix A to reclassify the soil as needed.
To require every daily inspection to include a manual test without first determining changes
in soil conditions would impose duties and responsibilities on employers which are inconsistent with
the requirements and specifications of Appendix A.
The purpose of daily inspections under 29 C.F.R. § 1926.651(k)(1) is to determine whether
certain conditions have changed. The purpose of the acceptable manual tests under Appendix A to
Subpart P, after soil is initially classified, is to fully evaluate the qualitative and quantitative
properties of the soil and provide more information to reclassify soil after the initial determination
that changes had occurred.
In promulgating the standards and appendices in Subpart P, the Secretary chose the words
used to regulate and control the activities of employers engaged in excavation work. She is bound
by those words and cannot now expand their meaning to impose additional requirements on those
employers without sufficient notice.

                                              -10-

While the Review Commission will generally defer to the Secretary’s reasonable
interpretation of a standard, I find the Secretary’s interpretation as not reasonable insofar as it
requires all daily inspections to include a manual test of soil, where, as here, there were no changes
in the soil conditions found. Such an expansive interpretation of 29 C.F.R. § 1926.651(k)(1) is
inconsistent with the requirements and specifications of Appendix A. This inconsistency will not
withstand scrutiny.
The Secretary also argued that Mr. Morris was required to inspect for other hazards including
accessibility of the ladder and the location of the excavator and spoil near the edge of the excavation.
While evidence was produced at hearing relating to the location of such equipment and materials,
no evidence was produced by the Secretary to prove that Mr. Morris did not inspect the site to
determine whether these conditions existed or were hazardous. No reasonable inferences can be
drawn from the existence of such conditions as to the adequacy of the daily inspections.
The Secretary did not prove that Garney failed to comply with the terms of the cited standard.
The alleged violation of 29 C.F.R. § 1926.651(k)(1) is vacated.
Penalty Assessment
Section 17(j) of the Act requires that when assessing penalties, the Commission must give
“due consideration” to (1) the size of the employer’s business, (2) the gravity of the violation, (3) the
good faith of the employer, and (4) the history of previous violations. 19 U.S.C. § 666(j). The
Commission has wide discretion in penalty assessment. Kohler Co., 16 BNA OSHC 1769, 1776
(No. 88-237, 1994).
Garney is an employer with approximately 200 employees. It has no history of violations
affirmed within the last three years. Its superintendent was trained as a competent person.
Generally, the gravity of the violation is the primary consideration in assessing penalties.
Trinity Industries, Inc., 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992). The gravity of a particular
violation “depends upon such matters as the number of employees exposed, the duration of the
exposure, the precautions taken against injury, and the likelihood that any injury would result.”
J. A. Jones construction Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). One employee was
observed exposed to the hazard of cave in and falling materials and equipment for about 10 minutes

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during the inspection. These conditions could result in serious injury and possibly death. Thus, the
gravity of the violation is moderate.
Garney was cooperative and demonstrated good faith throughout the investigation. Based
on these factors, the appropriate penalty for the violation of 19 C.F.R. § 1926.651(j)(2) is $1,625.00
and the appropriate penalty for the violation of 29 C.F.R. § 1926.652(b)(2) is $3,000.00.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is hereby ORDERED:
1. Citation No. 1, Item 1, alleging a serious violation of 29 C.F.R. § 1926.651(c)(2) is
vacated;
2. Citation No. 1, Item 2, alleging a serious violation of 29 C.F.R. § 1926.651(j)(2) is
affirmed and a penalty of $1,625.00 is assessed;
3. Citation No. 1, Item 3a, alleging a serious violation of 29 C.F.R. § 1926.652(b)(2)
is affirmed and a penalty of $3,000.00 is assessed; and
4. Citation No. 1, Item 3b, alleging a serious violation of 29 C.F.R. § 1926.651(k)(1)
is vacated.

                                                   /s/
                                                   STEPHEN J. SIMKO, JR.
                                                   Judge

Date: June 13, 2003

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