Schaer Development of Central Florida

Plain-English summary

Schaer Development installed a manhole in a Florida excavation that reached about 14 feet deep near a highway. OSHA cited spoil piles and a track hoe located within two feet of the edge, but the judge vacated that item because the Secretary did not prove the material or equipment could fall or roll into the excavation. The judge found the excavation was in previously disturbed Type B soil, not stable rock as the company claimed. Several walls were steeper than the 45-degree maximum allowed for that soil, exposing an employee working near the deepest area to a cave-in. The sloping violation was affirmed as serious, with a $4,200 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.651(j)(2); 29 C.F.R. § 1926.652(b)
• Outcome: The spoil-pile and equipment item was vacated; the serious sloping item was affirmed with a $4,200 penalty.
• Key point: A setback violation requires proof that nearby material or equipment could fall into the excavation, while previously disturbed soil must be sloped according to its actual classification.

Full text (OSHRC public release)

                                          United States of America
               OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                           1924 Building - Room 2R90, 100 Alabama Street, SW
                                       Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 11-0371
Schaer Development of Central Florida, Inc.,
Respondent.

Appearances:

      Charna Hollingsworth-Malone, Esq., U. S. Department of Labor, Office of the Solicitor, Atlanta, Georgia
      For Complainant

      George E. Spofford, IV, Esq., Glenn, Rasmussen, Fogarty & Hooker, Tampa, Florida
      For Respondent

Before: Administrative Law Judge Sharon D. Calhoun

                                     DECISION AND ORDER
      Schaer Development of Central Florida, Inc. (Schaer Development), installs underground

utilities. On November 15, 2010, Occupational Safety and Health compliance officers Donald
Freeman and Joseph Wilber conducted an inspection of Schaer Development=s worksite on U. S.
Highway 301 in Dade City, Florida. As a result of OSHA=s inspection, the Secretary issued a
citation to Schaer Development on January 12, 2011, alleging Schaer Development committed
violations of two construction standards of the Occupational Safety and Health Act of 1970
(Act).
Item 1 alleges Schaer Development committed a serious violation of 29 C. F. R.
' 1926.651(j)(2), by failing to place excavated materials and equipment at least 2 feet from the
edges of an excavation. Item 2 alleges a serious violation of 29 C. F. R. ' 1926.652(b), for
failing to slope the walls of an excavation in accordance with the requirements of the Act. The
Secretary proposed penalties of $4,200.00 for each item.
 Schaer Development timely contested the citation. This case was designated for
Simplified Proceedings under Subpart M, ' 2200.203(a), of the Commission Rules. The
undersigned held a hearing in this matter on April 18, 2011, in Tampa, Florida. The parties
stipulated to jurisdiction and coverage (Tr. 6). The parties have filed post-hearing briefs.
For the reasons discussed below, Item 1 is vacated. Item 2 is affirmed and a penalty of
$4,200.00 is assessed.
Background
Schaer Development=s office is located in Land of Lakes, Florida. It installs
underground utilities. On November 15, 2010, Schaer Development was working in Dade City,
Florida, installing a sewer line under U. S. Highway 301, as well as an adjacent manhole
structure. Schaer Development installed the sewer line using the Ajack and bore@ method, by
which the company digs a tunnel underneath the road, rather than opening an excavation.
Schaer Development opened an excavation for the installation of the manhole structure on the
western end of the sewer line (Tr. 221-222).
At approximately 8:00 a. m. on November 15, compliance officers Freeman and Wilber
observed Schaer Development=s site as they were driving past on U. S. Highway 301. In
accordance with OSHA=s national emphasis program for excavations, they stopped to inspect the
site. When Freeman and Wilber arrived at the site, Schaer Development foreman Jeff Schaer
was standing in the excavation observing Schaer Development employee Joshua Muck as he
worked in the excavation near the manhole structure. A third employee was working nearby.
Schaer identified himself to Freeman as the foreman and competent person on the site. Schaer
stated he and Muck had been working at the site for three days, and they had started work at 7:00
that morning (Tr. 20-23). Foreman Schaer called Schaer Development=s general superintendent,
Mike Schaer, who arrived at the site during the inspection. Freeman took statements from both
Jeff and Mike Schaer (Exhs. C-12 and C-13).
Freeman and Wilber took measurements of the excavation and surrounding area. The
excavation was located approximately 14 feet to the west of U. S. Highway 301, which is a
four-lane highway. The excavation was 41 feet long. At its east end it was approximately 6

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feet deep, and at its west end it was approximately 14 feet deep. The compliance officers took
four slope measurements: 56 degrees on the west wall, 56 degrees on the southwest wall, 63
degrees on the southeast wall, and 38 degrees on the east wall. There were two spoil piles next
to the excavation. The spoil pile on the northeast side of the excavation was 0 to 6 inches from
the edge of the excavation. The spoil pile on the southeast side was 12 inches from the edge of
the excavation. The spoil piles were not retained in any manner. A track hoe was parked
alongside the north wall of the excavation, 12 to 14 inches from the edge (Exh. C-1; Tr. 29-33).
Freeman took one soil sample from the southeast spoil pile and two from the northeast
spoil pile (Tr. 37-38). Following OSHA standard procedure, Freeman sent the samples to
OSHA=s laboratory at the Salt Lake City Technical Center (SLCTC) for testing. Freeman
received the test results from the SLCTC on December 6, 2010. The lab classified two of the
samples as Type B soil, and classified the third sample as Type C (Exh. C-2; Tr. 37-39).
The Citation
The Secretary has the burden of establishing the employer violated the cited standard.
To prove a violation of an OSHA standard, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies; (2) the employer
failed to comply with the terms of the cited standard; (3) employees had access to
the violative condition; and (4) the cited employer either knew or could have
known with the exercise of reasonable diligence of the violative condition.

JPC Group Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).
The cited standards are found in Subpart P of the construction standards, which covers
excavations. The parties stipulated the cited standards apply to the cited conditions. Jeff
Schaer supervised the excavation, which was in plain view. As foreman, Schaer=s knowledge of
the conditions of the excavation are imputed to Schaer Development. Thus, applicability and
knowledge are established. The only elements of the violations at issue are whether Schaer
Development failed to comply with the terms of the cited standards and whether its employees
had access to the violative conditions.

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Item 1: Alleged Serious Violation of 29 C. F. R. ' 1926.651(j)(2)
The citation alleges:
At 12445 US Highway 301, Dade City, Fla, employees in the process of mudding
a manhole with concrete were exposed to a cave-in/engulfment hazard in that the
spoil pile and track hoe were not set back from the edge of the excavation at least
2 feet. The track hoe and spoil pile were staged directly alongside the north wall,
observed on or about November 15, 2010.

     Section 1926.651(j)(2) provides:

     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 from falling or rolling into excavations, or by a
     combination of both if necessary.

     Schaer Development concedes the two spoil piles and the track hoe were within 2 feet of

the edges of the excavation (Tr. 172). Schaer Development defends itself on two fronts: first,
that Item 1 is duplicative of Item 2, and thus should be vacated; and second, that the Secretary
failed to establish either the material from the spoil piles or the track hoe posed a hazard by
falling or rolling into the excavation. Schaer Development=s first defense is without merit and is
rejected. Schaer Development=s second defense is more substantive.
Duplicative Items
Section 1926.651(j)(2) explicitly addresses Amaterials or equipment that could pose a
hazard by falling or rolling into excavations.@ In her alleged violation description, the Secretary
states that the spoil piles and track hoe at the edges of the excavation exposed Schaer
Development=s employees Ato a cave-in/engulfment hazard.@ Schaer Development contends that
the same hazard is alleged in Item 2, and that Item 1 should be vacated as duplicative.
Schaer Development misinterprets the Commission=s position on duplicative items.
Violations may be found duplicative where the standards cited require the same abatement measures, or where abatement of
one citation item will necessarily result in abatement of the other item as well. Flint Eng. & Const. Co., 15 BNA OSHC
2052, 2056-2057 (No. 90-2873, 1997). Here, moving the spoil piles and track hoe so they are located at least 2 feet away

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from the edges of the excavation would not abate the alleged violation of ' 1926.652(b). If the walls of the excavation are
improperly sloped, they will remain so even if the spoil piles and track hoe are removed. The items are not duplicative.
Schaer Development is correct in pointing out the Secretary has added a hazard in her alleged violation description
for Item 1 that ' 1926.651(j)(2) is not designed to address.1 This does not, however, invalidate the Secretary=s citation of the

spoil piles and track hoe under this standard. The cited standard addresses materials and equipment placed

at the edge of excavations. These are the conditions cited by the Secretary. Her misstatement
of the hazard created in the alleged violation description does not void the citation, but neither
does it alter her burden of proof.
Establishing a Hazard Existed
The hazard addressed by ' 1926.651(j)(2) is material or equipment falling or rolling into
an excavation and striking employees working there. Generally, a standard presumes a hazard,
and the Secretary need only show the employer violated the terms of the standard; she Abears no
burden of proving that failure to comply with such a specific standard creates a hazard.@ Kaspar
Electroplating Corp., 16 BNA OSHC 1517, 1523 (No. 90-2866, 1993).
In the present case, it is undisputed that Schaer Development violated the terms of
' 1926.651(j)(2) by placing the spoil piles and track hoe within 2 feet of the excavation. If the
cited standard omitted its first sentence, the Secretary would have met her burden. A hazard is
not presumed, however, when the standard incorporates the hazard as a violative element.
Bunge Corp. v. Secretary of Labor, 638 F. 2d 831 (5th Cir. 1981).
It is the undersigned=s determination that ' 1926.651(j)(2) incorporates the hazard as a
violative element the Secretary must prove. The first sentence of the standard states (emphasis

1
In her brief, the Secretary reiterates her belief that the hazard created by the spoil piles and track hoe at the edge
of the excavation was that of a cave-in or engulfment. In support of her position, she quotes from the Preamble to
the Final Rule for ' 1926.651(j)(2), in which a cave-in hazard is mentioned in addition to the hazard of materials and
equipment falling into the excavation. Section 1926.651(j)(2) explicitly states the hazard it seeks to prevent is
materials and equipment falling into the excavation, not a cave-in. Its language is unambiguous and clear.
Recourse to the Preamble is not necessary to interpret the standard. AIn determining whether the language of a
standard is ambiguous, we look first to its text and structure. When the statute speaks with clarity, in all but the
most extraordinary circumstances, judicial inquiry is ended.@ General Motors Corporation, Delco Chassis Division,
17 BNA OSHC 1217, 1219 (Nos. 91-2973, 91-3116 & 91-3117, 1995).

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added): AEmployees shall be protected from excavated or other materials or equipment that
could pose a hazard by falling or rolling into excavations.@ The inclusion of this sentence in the
standard requires the Secretary to (1) establish that material or equipment could pose a hazard of
falling or rolling into the excavation, and (2) establish the materials or equipment were closer
than 2 feet to the excavation. A[W]e must interpret statutes as a whole, giving effect to each
word and making every effort not to interpret a provision in a manner that renders other
provisions of the same statute inconsistent, meaningless, or superfluous.@ Lake Cumberland
Trust, Inc., v. E. P. A., 954 F.2d 1218, 1222 (6th Cir. 1992) (quoting Boise Cascade Corp. v. U.
S., E. P. A., 942 F.2d 1427, 1431-1432 (9th Cir. 1991)). The first sentence imposes an additional
element of proof on the Secretary; otherwise, the inclusion of the sentence would serve no
purpose.
Although the Review Commission has not addressed whether the Secretary must prove
the hazard in establishing a violation of ' 1926.651(j)(2), the issue has arisen before other
administrative law judges. Both the late Judge Schoenfeld (in Honey Creek Contracting, Inc.,
18 BNA OSHC 1652 (No. 97-0353, 1998) and Columbia Gas of Ohio, 17 BNA OSHC 1510
(No. 93-3232, 1995)) and Judge Welsch have found the Secretary must establish a hazard in
order to prove the employer violated the standard. Although not bound by these decisions, the
undersigned agrees with the reasoning of Judge Welsch in Performance Site Management, 21
BNA OSHC 2115, 2117 (No. 06-1457, 2007):
A careful reading of ' 1926.651(j)(2) indicates to this court that unless the
excavated or other materials Acould pose a hazard by falling or rolling@ into the
excavation, there is no violation of the standard even if the spoil pile and stored
material were within 2 feet of the excavation=s edge. Although Judge
Schoenfeld=s decisions are unreviewed decisions of an administrative law judge
and are not binding precedent, this court agrees that the Secretary must make
some showing the spoil pile or millings Acould pose a hazard by falling or rolling
into the excavation.@

   The record does not support a finding that the track hoe or material from the spoil piles

posed a hazard of falling or rolling into the excavation. Freeman was the only witness for the
Secretary who was present at the worksite. He did not testify that he observed material from the

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spoil piles falling into the excavation. He stated he observed Asome loose soil within the
trench,@ but Schaer Development established it had backfilled portions of the excavation, which
would account for the loose soil (Tr. 24). The Secretary=s lack of evidence for Item 1 may be
attributed to her position that it was the superimposed forces on the excavation edge that created
the hazard here. Had she focused on the hazard of equipment and material falling into the
excavation, she may have elicited more testimony from Freeman on this point.
Phillip Arnold and Stephen West both work for BTL Engineering Services, whom Schaer
Development hired to conduct soil testing at the site. Both men visited the site while the
excavation was open. Arnold testified he saw no evidence of material from the spoil pile rolling
or sliding into the excavation. West also stated he did not observe material from the spoil pile
falling into the excavation (Tr. 215). The track hoe was parked parallel to the excavation, with
its motor off and its bucket touching the ground (Exh. C-6; Tr. 201). There was no evidence
that it posed a hazard of falling or rolling into the excavation.
Wayne Jensen is the director of safety for Stahl and Associates Insurance (Tr. 274). He
responded to a request from Schaer Development to come out to its worksite the day of the
OSHA inspection. He observed no evidence of material from the spoil piles or of the track hoe
falling or rolling into the excavation (Tr. 278). The undersigned has reviewed the photographic
exhibits showing the spoil piles and track hoe. The photographs alone do not conclusively
demonstrate a hazard exists (Exhs. C-3, C-6, C-7, C-8, and C-9).
The Secretary has failed to establish the spoil pile materials or the track hoe posed a
hazard of falling or rolling into the excavation. Item 1 is vacated.
Item 2: Alleged Serious Violation of 29 C. F. R. ' 1926.652(b)
The citation alleges:
At 12445 US Highway 301, Dade City, Fla, an employee mudding in a manhole
with concrete in the west end of the trench excavation was exposed to an
engulfment hazard in that the 14 foot deep excavation was sloped at 56 degrees in
type AB@ soil, thereby exceeding the maximum allowable slope of 45 degrees, on
or about November 15, 2010.

   Section 1926.652(b) provides:


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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)[.]

    Section 1926.652(b)(2) provides:

    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.
                                   Classification of Soil
    The Secretary asserts the excavation was dug in Type B soil. Appendix A of 1926

Subpart P provides in pertinent part:
Type B means:
...
(ii) Granular cohesionless soils including: angular gravel (similar to crushed rock),
silt, silt loam, sandy loam and, in some cases, silty clay loam and sandy clay loam.
(iii) Previously disturbed soils except those which would otherwise be classed as Type C
soil.
(iv) Soil that meets the unconfined compressive strength or cementation requirements for
Type A, but is fissured or subject to vibration.

    Appendix B of 1926 Subpart P provides that the maximum allowable slope for Type B

soil in excavations less than 20 feet deep is 45 degrees, or a 1:1 slope.
Freeman initially determined the excavation was dug in Type B soil based on fissuring he
observed in the walls of the excavation, the Aclumpiness of the soil@ when he collected the
samples, and the presence of pre-existing utilities in the excavation (Tr. 36). The utility lines are
visible in Exhibits C-3, C-6, C-7, and C-8. There are three smaller lines traversing the
excavation near the manhole structure, as well as a larger blue-green gas line closer to the floor
of the excavation (Tr. 41).
Donald Halterman works for OSHA at its SLCTC=s lab (Tr. 126). He has a Masters
Degree in geology from the University of Idaho, with a concentration in mineralogy and soil
science and forensics (Tr. 126). Halterman was qualified as an expert in soil analysis and soil
processes at the hearing (Tr. 134). Halterman analyzed the three soil samples Freeman took
from the two spoil piles next to the excavation. He concluded two of the samples were Type B

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soil, and the third sample was Type C soil. All three samples contained fissured soil (Exhs. R-1,
R-2, R-3).
Schaer Development disputes the Secretary=s finding that the excavation was dug in
Type B soil. Schaer Development contends the excavation was dug in Astable rock,@ which
means Anatural solid mineral material that can be excavated with vertical sides and will remain
intact while exposed.@ Section 1926.650(b). Section 1926.652(a) (i) provides an exemption for
employers excavating in stable rock. 2 The employer has the burden of proving it meets the
requirements of the exemption.
It is Schaer Development=s contention that Athe excavation consisted of two distinct
layers: stable rock from the bottom of the excavation to a point 24 [inches] 3 below the top of the
excavation; and a 24 [inch] layer of less stable material at the top of the excavation. The
evidence also established that the top 24 [inches] were sloped back at a ratio of 12:1, which is
sufficient for even a Type C soil4@ (Schaer Development=s brief, p. 17). Schaer Development
contends the white material that appears approximately 2 feet from the top of the excavation is
stable rock that requires no sloping.
Foreman Jeff Schaer testified that the material he excavated was so hard that Athe whole
job basically had to be redesigned at that point because our first attempt at trying to make it
through this hard ground was a failure. It didn=t work so we had to shift everything@ (Tr. 223).

2
Section 1926.652(a)(i) provides:

      Each employee in an excavation shall be protected from cave-ins by an adequate protective system
      . . .except when:
                        (i) Excavations are made entirely in stable rock[.]

3
The undersigned has inserted the word Ainch@ or Ainches@ in the quoted section of Schaer Development=s brief,
where the company originally wrote Afoot@ or Afeet.@ The context of the quoted section and the evidence adduced at
the hearing make it clear that Ainches@ was the unit of measurement Schaer Development intended to cite.
4
The record does not establish the top 2 feet of the excavation walls were sloped back. Jeff Schaer claimed at the
hearing that the top 2 feet were sloped. Schaer=s assertion (which he did not make during the OSHA inspection) is
based on a gap visible between an extension ladder in the excavation and the top 2 feet of the excavation wall
(Tr. 256). An examination of Exhibits C-3 and C-4 clearly shows that this gap is not caused by sloping, but by the
fact that top of the ladder is the extension unit, which is not placed directly against the wall in the manner that the
base unit is.

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Schaer disputed Freeman=s claims that there were fissures in the walls of the excavation,
describing each area marked as a fissure on photographs by Freeman as shadows (Tr. 239,
253-254).
Lance Hungerford works for BTL Engineering Services as a structural engineer. He has
a B. S. in structural design and engineering construction technology from Penn State (Tr. 174).
He was qualified as an expert in soil samples and the use of trigonometry in performing soil
sample analysis (Tr. 177-178). Hungerford testified the white material is stable rock because the
material is a natural solid mineral that had been excavated with vertical sides and had remained
intact for several days (Tr. 183). He stated that the analyses of the soil samples taken from the
spoil piles would not give an accurate typing of the soil because Ait=s a disturbed sample, and so I
think it would be different from what=s on the face of the excavation@ (Tr. 182). Although other
BTL employees took soil samples from a spoil pile, Schaer Development did not adduce the
results of any soil testing at the hearing (Tr. 191-192).
Wayne Jensen, director of safety for Stahl and Associates Insurance, arrived at the
worksite after the compliance officers had left on November 15, 2010. Jensen performed a
visual inspection of the excavation, and struck an area of an excavation wall repeatedly with a
shovel (Tr. 274-276). A video of Jensen striking the excavation wall was presented at the
hearing (Exh. R-4). Jensen concluded the excavation was dug in Aa cementitious like material,
some of the hardest material I=ve observed in Florida@ (Tr. 276). Jensen did not take a soil
sample (Tr. 282).
While the Secretary has the burden of establishing the excavation was in Type B soil, it is
Schaer Development=s burden, in seeking an exemption, to establish the excavation was dug
entirely in stable rock. Schaer Development adduced no test results of samples taken from the
excavation, even though it summoned BTL and Jensen to come to the worksite following
OSHA=s inspection. Jeff Schaer told Freeman during the inspection and at a later meeting, that
he believed the excavation was dug in Type A soil. Hungerford, who disputed Halterman=s soil
sample results, was never at the worksite. He did not fault Halterman=s methods or analysis, but

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only concluded the soil samples were not representative of the excavation because they were no
longer in the excavation.
Based upon the record, the undersigned concludes that the excavation was dug in Type B
soil, and was not dug in stable rock. Halterman, the Secretary=s expert, was the only witness
who actually conducted soil sample analyses that were adduced at the hearing. He found that
the samples were Type B soil, and contained fissured soil. The presence of fissured soil negates
the possibility the sample could be taken from stable rock (Tr. 156). Halterman found too much
sand to be consistent with stable rock (Tr. 163-164).
Furthermore, the presence of the pre-existing utility lines establishes the excavation was
dug in previously disturbed soil. By definition, AType B means . . .[p]reviously disturbed soils.@
Appendix A to 1926 Subpart P. Even if the soil samples analyzed by Halterman had been
classified as stable rock, the presence of the pre-existing utility lines would change the
classification to Type B or C soil. In its brief, Schaer Development states, AThe blue gas line
identified in photos C-8, C-6, C-7 did not create a disturbed soil condition on the north wall.
There is no evidence that the blue pipe disturbed the north or south wall@ (Schaer Development=s
brief, p.21). The undersigned disagrees. The phrase Apreviously disturbed soil@ is largely
self-explanatory. The Secretary need only prove that some sort of underground construction or
installation took place prior to the date of the excavation at issue to establish the soil was
previously disturbed.
Finally, ' 1926.652(a)(1) provides an exemption for excavations Amade entirely in stable
rock.@ The American Heritage Dictionary (2d Coll. Ed.) defines Aentirely@ as A[w]holly;
completely.@ If the top 24 inches of an excavation are in Aless stable material@ as Schaer
Development claims, then the excavation cannot be made entirely in stable rock. By Schaer
Development=s own admission, the excavation does not meet the requirements for the exemption
set out in ' 1926.652(a)(1).

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Compliance with the Terms of the Standard
In order to comply with ' 1926.652(b), an excavation dug in Type B soil must be sloped
at least 45 degrees. Freeman, with the assistance of Wilber, took measurements of the
excavation during the inspection. Freeman measured the slopes of the excavation walls using an
engineering rod and a protractor. Freeman explained: AI would put the engineering rod in the
trench at the base of the slope where it started and lay it parallel to the slope, and I would
position the protractor on the engineering rod to get a reading in regards to the angle@ (Tr. 30).
Using this method, Freeman determined the slopes of the west and southwest walls were each 56
degrees, and the slope of the southeast side was 63 degrees. The only wall sloped properly was
the east wall, which was 38 degrees. Foreman Schaer was present while Freeman took these
measurements. He did not dispute any of Freeman=s measurements (Tr. 30-33).
Schaer Development contends Freeman=s measurement of the slope of the west wall is
flawed (it does not dispute Freeman=s other measurements). Schaer Development did not take
its own measurements of the excavation during or after the OSHA inspection, despite calling in
Wayne Jensen and BTL Engineering Services to assist with its case. Schaer Development bases
its argument on a discussion of angles elicited from Hungerford. Hungerford did not visit the
site and did not make his own measurements. The alternative measurement Hungerford came
up with based on figures given to him by Schaer Development=s attorney was 78 degrees, which
is a steeper slope than Freeman found (Tr. 185). Schaer Development=s argument is rejected as
speculative and not based on any actual measurements taken by Hungerford. Freeman=s
measurements, taken in the presence of another compliance officer and Foreman Schaer, are
credited as accurate. Freeman=s demeanor on the stand and his straightforward, consistent
testimony establish him as a credible witness.
The Secretary has established Schaer Development failed to slope the walls of its
excavation to at least 45 degrees. Schaer Development failed to comply with the terms of the
standard. Schaer Development employee Muck was standing next to the manhole structure, at
the deepest part of the excavation. Muck had access to and was exposed to the violative
condition. The compliance officers observed him in the excavation. Foreman Schaer was also

                                             12

in the excavation, observing Muck work. The Secretary has established a violation of '
1926.652(b). Item 2 is affirmed.
The Secretary classified this item as serious. Under ' 17(k) of the Act, a violation is
serious Aif there is a substantial probability that death or serious physical harm could result from@
the violative condition. If a cave-in occurred due to the inadequate sloping of the excavation
walls, the likely result would be death for Muck. Item 1 is properly cited as serious.
Penalty Determination
The Commission is the final arbiter of penalties in all contested cases. AIn assessing penalties,
section 17(j) of the OSH Act, 29 U. S. C. ' 666(j), requires the Commission to give due consideration to the gravity of the
violation and the employer=s size, history of violation, and good faith.@ Burkes Mechanical Inc., 21 BNA OSHC 2136, 2142
(No. 04-0475, 2007). AGravity is a principal factor in a penalty determination and is based on the number of employees
exposed, duration of exposure, likelihood of injury, and precautions taken against injury.@ Siemens Energy and Automation,
Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005).
Schaer Development employed twelve workers at the time of the inspection (Tr. 115).
Freeman applied a penalty reduction of forty percent due to the small number of employees (Tr.
79). Schaer Development had no history of OSHA citations (Tr. 80). The company
demonstrated good faith in this proceeding.
The gravity of the violation of ' 1926.652(b) is high. Joshua Muck was in a 14-foot
deep excavation containing previously disturbed soil. The hazard was exacerbated by the
superimposed loads of the track hoe and the two spoil piles at the edge of the excavation. The
excavation was 14 feet away from a four-lane highway, and thus subject to vibrations caused by
passing traffic. Had a cave-in occurred, Muck would have been buried underneath the soil. It
is determined that a penalty of $4,200.00 is appropriate.

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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 ORDERED that:
(1) Item 1 of the Citation, alleging a serious violation of ' 1926.651(j)(2), is vacated,
and no penalty is assessed; and
(2) Item 2 of the Citation, alleging a serious violation of ' 1926.652(b), is affirmed, and
a penalty of $4,200.00 is assessed.

                                                       /s/ Sharon D. Calhoun
                                                 SHARON D. CALHOUN
                                                 Judge

Date: June 2, 2011
Atlanta, Georgia

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