Finley, LLC, and its successors

Read the official release (oshrc.gov)

Plain-English summary

OSHA found five Finley workers leaving an excavation with water along most of its length. The judge found that Finley took no precautions in response to the accumulated water and did not perform an adequate competent-person inspection or reassess the soil after conditions changed. Those two serious trench items were affirmed. A separate sloping item was vacated as duplicative because the water-accumulation standard already required Finley to select appropriate precautions for the same condition. Two hazard-communication items were vacated because OSHA did not prove employee exposure to the identified chemicals, and a PPE-payment item was vacated because the evidence showed a misunderstanding about employees choosing to use their own equipment. Penalties of $1,200 and $2,000 were assessed, for a total of $3,200.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.651(h)(1), 1926.652(b)(2), 1926.651(k)(1), 1910.1200(e)(1), 1910.1200(h)(1), and 1926.95(d)(1).
• Outcome: Two serious items affirmed and four items vacated; total penalties of $3,200 assessed.
• Key point: Changing trench conditions require a competent reassessment and appropriate precautions, but OSHA may not impose duplicative citations or rely on unproven chemical exposure.

Full text (OSHRC public release)


Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR ,

Complainan t,

v.

FINLEY, LLC, and its successors,

Respondent.

OSHRC Docket No .
20-1217

Appearances:

Greg ory W. Tronson , Esq., Department of Labor, Office of the Solicitor, Denver, Colorado

For Complainant

Jason Finley ,
Owner, Finley, LLC, Bailey, CO

F or Respondent   

Be fore: Judge
Peggy S. Ball
– U. S. Administrative Law Judge

DECISION AND ORDER

In response to an anonymous complaint about the trenches
located at
1570
Grove Street, Complainant sent Compliance Safety and Health Officer
Kirk Lake
to perform an inspection of the worksite.
During his inspection, CSHO
Lake
saw
five
workers exiting a trench that had water along 90 percent of its length.
Upon closer observation,
the CSHO determined
sections of the trench were
benched or improperly sloped
for trenches that are
“submerged”
according to Appendix A of Subpart
P .
See
29 C.F.R. § 1926 Subpart P, Appx. A .
The parties do not
dispute
many of the salient facts
required to establish a violation , including
those related to
the applicability of the standard, employees’ exposure to the condition , and Respondent’s knowledge
of the condition.
Instead, the parties
dispute the
source
of the water and the extent of the hazard, if any, imposed by it ; thus, calling into question
whether the
terms of the
standard s
w ere
violated.

Based on
its
review of the record evidence
and the parties’ respective arguments, the Court finds
Respondent
failed to
respond to
the water in the trench
in violation of 29 C.F.R. § 1926.651(h)(1 ) but also finds Complainant failed to prove
Respondent was required to automatically slope the trench to Type C soil specifications . Section 1926.651(h)(1) is a performance standard,
at least in part, which means Complainant cannot specify
how Respondent should abate the hazard by citing him according to a n additional
section of the Act
requiring specific performance .
See, e.g., American Phoenix, Inc. ,
24 BNA OSHC 2228, 2014 WL 2058099 at 6 (No.
11-2969, 2014) (ALJ Augustine) (discussing performance standards) .
Doing so, as Complainant has done here,
is akin to citing Respondent twice for failing to do the same thing , which the Commission characterizes as duplicative.
See
North
Eastern Precast LLC , 26 BNA OSHC 2275, 2018 WL 1309480 at 5 (No. 13-1169
et. al. , 2018) .
As for the other
trench
citation item , the Court finds Respondent failed to perform adequate inspections of the trench, as
evidence d
by his co nversations with CSHO
Lake
during the inspection . However, the Court also finds Complainant failed to provide sufficient evidence of exposure
as to the chemicals identified in Citation 1, Item s
3 a & 3b , and failed to show the purported PPE violation in Citation
2, Item 1
was anything more than a misunderstanding.
The Court’s
f indings of
f act and
c onclusions of
l aw
in support of those conclusions are found below.

I. P ROCEDURAL HISTORY

In late
March 20 20 , Complainant received an anonymous complaint
that employees were working in unsafe trenches at the worksite located at
1570 Grove Street . (Tr.
20-21; Ex.
C-1 ). In response, Complainant sent CSHO Lake to conduct an inspection. At the conclusion of his
inspection, CSHO Lake recommended, and Complainant issued, a Citation and Notification of Penalty alleging five serious and
one
other-than-serious violations of the Occupational Safety and Health Act. Complainant has proposed a total penalty of $7,519.
Respondent timely filed a Notice of Contest.

The Chief Judge designated this matter for Simplified Proceedings on
September 28, 2020 . Accordingly, th is
matter
i s governed by Subpart M of the Commission Rules of Procedure. Trial in this matter was held over Zoom Video Conferencing on May 18-19, 2021. Only two witnesses testified: CSHO Kirk Allen Lake and Jason Finley, owner of Respondent.
A transcript from the deposition of
John Severance , who is employed by Res pondent as a Supervisor,
was admitted as Exhibit
C-4.
Both parties submitted post-trial briefs for the Court’s consideration. Based on the evidence presented at trial and the briefs submitted in support, the Court issues the following Decision and Order.

II. JURISDICTION

T he Court finds the Commission has jurisdiction over this matter under section 10(c) of the Act .
See
29 U.S.C. § 659(c) . According to section 10(c), the Commission obtained jurisdiction
upon Respondent’s timely filing of a notice of contest.
Id.
The Court also finds Respondent was an employer engaged in a business and industry affecting interstate commerce within the meaning of sections 3(3) and 3(5) of the Act .
See
29 U.S.C. §§ 652(3), (5) ;
see also Clarence M. Jones d/b/a C. Jones Co. , 11 BNA OSHC 1529 (No. 77-3676, 1983) (finding statutory jurisdiction exists “ so long as the business is in a class of activity that as a whole affects commerce ” ( quoting   Usery v. Franklin R. Lacy , 628 F.2d 1226 (9th Cir. 1980) )) .
Respondent, like the employer in
Clarence M. Jones , is construction contractor whose activities have an impact on interstate commerce when viewed in the aggregate with similarly situated employers .
Respondent does not dispute any of the
facts supporting these conclusions.
Thus, the Court finds Respondent is subject to the jurisdiction of the Act.

III. FACT UAL BACKGROUND

A. Respondent ’s Business

Respondent is an earthmoving and excavating contractor based in Bailey, Colorado. It is a small outfit, with roughly 5 full-time employees, including Mr. Finley ,
John Severance, and
some laborers . (Ex.
C-4 at 13) . Both Mr. Finley and Mr. Severance have worked in earthmoving, excavations, and heavy equipment operating for a combined total of
50
years. (Tr.
230; Ex. C-4 at 10-12 ). Respondent was hired by Katerra Construction, the general cont r actor
for the construction of an apartment complex located
at 1570 Grove Street in Denver, Colorado
(“worksite”). At the time of the inspection, Respondent had been at the worksite for approximately
nine
weeks. (Tr.
157-58 ).

B. The Grove Street Worksite
Inspection

According to
Severance , Respondent had dug multiple trenches at the worksite
in performance of its
time
and
materials
contract with Katerra.
(Ex. C-4 , R-28 ). The trench at issue in this case was referred to as the plumbing excavation because it was going to be used to house the lines that supply plumbing to the apartment building. (Tr.
32 ). John Severance testified at his deposition that he dug the
plumbing excavation
during the two days before CSHO Lake’s inspection on March 25, 2020. (Ex.
C-4 ).

When CSHO Lake arrived on March 25, 2020, he observed five employees working in the trench, including Mr. Finley. (Tr. 34 ; Ex C-1 at 38 ). At CSHO Lake’s request, Mr. Finley and three of his employees exited the trench and approached CSHO Lake, while one employee (later discovered to be employed by Katerra), exited at the opposite end and left the area. (Tr. 34-36).
CSHO Lake asked
the group that came out of the end of the trench closest to him whether there was a manager or foreman present. (Tr. 35). Mr. Finley, who had not yet identified himself, told CSHO Lake there were no managers or foremen present and directed him to Katerra’s trailer. (Tr. 36).
After meeting with Katerra’s superintendent, McClaine Whalen, and discussing his concerns about the trench, CSHO Lake was introduced to Mr. Finley as the owner/manager for Respondent, as well as the competent person for the plumbing excavation. (Tr. 36).

During his conversation with Mr. Finley, CSHO Lake became convinced Mr. Finley did not possess the requisite knowledge to be a competent person. (Tr. 39). Specifically, CSHO Lake asked questions about how Finley performed inspections of the soil and how he had characterized the soil type. CSHO Lake testified Finley did not appear to know how to perform a manual (as opposed to a visual) test of the soil to determine its type, nor did it appear he had performed any testing other than looking at the excavation. (Tr. 38-39).
Though Finley testified he had received
a little
formal training in excavation safety, much of his training and knowledge came from
20-plus
years of on-the-job experience. (Tr.
230 ).

At
t rial, conversely
to CSHO Lake’s testimony, Mr. Finley testified he knew quite well what the soil types were and how to perform a manual test of the soil. (Tr.
251-53 ).
H e claims at the time of the inspection he simply misunderstood what CSHO Lake was asking when he inquired about the “manual” test and soil typing and that, upon further
clarification from Lake , he explained he had been performing the tests described. (Tr. 251).
Although
at the time of trial, Mr. Finley appeared to have a firm grasp on the terminology and
methodology of the excavation standard , th e foregoing
is one of many instances where it appears Mr. Finley
relies on a purported misunderstanding
about something he, as a self-professed ,
long-tenured member of the
profession and competent person, should be intimately familiar with.
T he
nature and number of these
purported “misunderstandings”, 1
many of which
are
conveniently targeted
at key elements of Complainant’s case,
c all into question the
consistency and credibility of Mr. Finley’s testimony when compared to CSHO Lake’s, which
wa s consistent with his contemporaneously taken notes
and
held up
in response to cross-examination. A ccordingly ,
in this
instance (and many others), the Court credits CSHO Lake’s testimony over Mr. Finley’s.

C. The Trench Dimensions and Measurements

According to CSHO Lake, the trench was
approximately
160 feet long, 18 feet across, and ranged in depth from
a little over six feet to roughly ten feet.
(Tr.
84-88 ).
CSHO Lake observed water in the bottom of the trench that extended across 90% of its length , starting on the south end and extending north . (Tr. 34, 76, 86).
In the southern end of the trench, where he observed Mr. Finley and his employees working,
the walls
were set in a bench configuration on the east and west sides. (Tr.
86 ; Ex.
C-1 at 38 ).
While many portions of the wall were sloped at a
33- to 34 -degree angle , at least one portion on the northern end of the trench was sloped at a 45-degree angle. (Tr.
79-80, 90-91 ; Ex.
C-2 ).
Subsequent testing revealed the soil CSHO Lake retrieved from the spoil pile was Type B, which
was consistent with the geotechnical report generated prior to work beginning at the worksite and with
Respondent’s
visual assessment . (Tr.
115, 252 ;
Ex.
C-3 at 40 ).

D. The Source of the Water

The principal disagreement between the parties revolves around the source of the water CSHO Lake observed in the trench when he arrived to conduct the inspection.
CSHO Lake interviewed Mr. Severance ;
Mr. Finley ;
a couple of Respondent’s employees;
Phil
Pollock,
a Katerra Superintendent ;
Andrew
Mesches ,
a
Katerra
superintendent; McClain Whalen, a Katerra superintendent; Rob Turner, Katerra’s project manager; and
Steve Silvestre, Katerra’s safety and
health manager .
(Tr.
48-53,
111 ).
According to CSHO Lake, as well as his contemporaneously recorded notes, Respondent’s employees, Severance, Pollock, and
Mesches
all told
CSHO Lake the
water was coming from the trench itself, including seepage from the walls of the excavation . 2
(Tr.
108, 111-112 ).
Pollock specifically told him
roughly 80% of the excavations at the site had groundwater issues, which was consistent with the
geotechnical report indicating the possibility of fluctuating groundwater levels. (Tr.
172 ; Ex.
C-3 at 40 ).
CSHO Lake testified
Severance told
him
he encounter ed
water almost immediately and that it seemed to increase as he moved south along the
plumbing
excavation. (T r . 108).
Supporting this conclusion is CSHO Lake’s observation that the water level did not change during the entirety of his inspection. (Tr. 81).

Finley, on the other hand, testified the water came from
a pipe, which he had
cut open
right before CSHO Lake arrived at the worksite.
(Tr.
255 ).
According to Finley, t he water had not dissipated because it was resting on top of squeegee , which is
an
aggregate
similar to
pea gravel
used to
level the pipe . (Tr.
236 ).
Finley also testified his version of what happened was supported by
the deposition testimony of Severance, as well as the interview statements given by
Whalen, Turner, and Silvestre .
All of them stated the source of the water was the pipe , which Respondent had cut to remove and replace.
(Tr. 306).

The re are a couple of
problem s
with Finley’s
explanation of
the source of the water. First, the statements
Finley
relies on are, at times, inconsistent
or are otherwise dependent on knowledge he provided. In the case of Mr. Severance, CSHO
Lake testified and documented
Mr. Severance stating the water had come from the
excavation, which he was responsible for digging during the two days prior to the inspection. (Tr.
125 ; Ex.
C-1 ).
Mr. Severance later testified at deposition the water came from the
pipe after the plumbers cut it . (Ex. C-4 at 44).
Mr. Finley, on the other hand,
testified he had cut the pipe
after Severance
told him the plumbers
installed
it
incorrectly . Finley argues this
is when
the water
was
released from the pipe , though
Finley
could not say where it had come from in the plumbing system. (Tr. 238).

Second, according to CSHO Lake’s discussions with Pollock ,
it was impossible for water to
have been released
from
a p ipe hooked to a sand and water interceptor
as alleged by Finley
because
Pollock was the only person onsite who knew how to hook
the pipe
to a source of water
through the sand and water interceptor, which
was located in
the trench under discussion. (Ex. C- 1 at 0018).
This
is consistent with both CSHO Lake’s narrative of the events , as well as Finley’s discussion of what was occurring at the point in time that he cut the pipe.
Finley proclaimed he is not a plumber
and thus could not opine on the source of the water, but he did testify the pipe had recently been set by Katerra Plumbing employees
and
specu lated
they could have been testing the seal
by filling it with water. (Tr.
238 ).
Even though the pipe had been set
recently , n o one testified seeing the pipe being filled with water.

In response to some of the foregoing inconsistencies,
Respondent argues it does not matter
if
Severance incorrectly identified
who cut the pipe ; rather, it only matters
whether
he agrees
the pipe was the source of the water.
The Court disagrees .
S everance’s deposition testimony is inconsistent with his statement to CSHO Lake.
( Compare
Tr.
125
with
Ex. C-4 ).
According to Finley, Severance’s deposition testimony
regarding the source of the water
should be credite d
over his statement to CSHO Lake because it was
given under
oath . But, he argues,
Severance’s deposition
should not be credited over Finley’s testimony as to
who was responsible for cutting the pipe, even though
both
were physically present
for the act itself.
This
explanation, like
others discussed throughout this opinion ,
relies on inconsistent versions of the same event
in
an
attempt
to
weave a consistent narrative.
CSHO Lake,
however,
recounted statements both favorable and
unfavorable to
the government’s case
and
was nonetheless capable of showing why Respondent’s version of events was unlikely
given what he had learned from the general contractor during his inspection of the entire worksite
and
subsequent review of relevant documents, including the geotechnical report .

The Court understands it is crediting , in part,
the hearsay
statements of Pollock,
Mesches , and Respondent’s employees
over
the trial testimony
of Mr. Finle y.
T he Court’s decision to do so
is premised on a couple of
grounds . 3
First , Simplified Proceedings are not governed by the rules of evidence as
standard cases before the Commission —the amount of discovery is limited,
and the breadth of permissible evidence is expanded.
See
29 C.F.R. § 2200. 200
et seq .

Second , none of the statements attributable to the out-of-court declarants , other than Mr. Severance, were re futed ; indeed,
most of
Mr. Finley’s statements to
CSHO Lake were consistent with those he gave at trial.
Third ,
of the statements submitted in support of Mr. Finley’s version of the events,
which were recorded by CSHO Lake himself,
three of them were
premised on Finley’s
own
first-hand account . Fourth,
the remaining statement supporting Mr. Finley’s explanation of the water ’s source ,
Mr. Severance’s
sworn testimony , was inconsistent with the statement Severance gave CSHO Lake
during the inspection
and inconsistent with Mr. Finley’s as to
the person
responsible for cutting the pipe.
Finally,
the testimony of CSHO Lake, which recounted statements from Respondent’s employees and members of Katerra’s management team, squared with
the facts surrounding the specific excavation at issue in this case,
including the work
being performed by Katerra’s plumbers prior to the pipe being cut
and
the geotechnical report indicating groundwater
potential at the worksite.

While the Court ultimately credits Complainant’s version of the events surrounding the source of the water , subsequent analysis show s
it does not always matter where the water came from so much as
what type of hazard it presents and whether an employer appropriately responds.

E. Respondent’s Safety and Health Programs

During
CSHO Lake’s inspection, he requested various documents from Respondent, including
Respondent’s safety and health programs related to trenching and excavations, hazard communications,
soil testing records,
training and certifications, safety audits, and records of discipline. (Tr. 59 -60 ).

At the time of the request, Respondent only provided Complainant with a copy of an undated
safety and health manual, which did not have provisions for trenching and excavations or for hazard communications.
(Ex. C-3).
The former was of concern considering Respondent’s principal business is trenching and excavations, whereas the latter was concerning because CSHO Lake had determined Respondent’s employees were assisting the plumbers in the sealing and gluing of
pipe at the bottom of the trench and were thus exposed to materials warranting training in hazard communications.
Respondent ultimately provided
Complainant with a copy of its hazard communications program as an exhibit at trial. (Ex. R- 27 ).

With respect to the hazard communications program, Respondent points out its employees received basic training from Katerra as to the chemicals t hey might encounter
at the worksite, but
that it did not provide specific training to its employees because they were not
expected
to be exposed to any hazardous chemicals.
This is consistent with Mr. Finley’s testimony, as well as CSHO Lake’s, that
his employees may have been in the trench at times when the plumbers were working on the pipe, but the y were not authorized nor trained how to install plumbing . The only testimony indicating Respondent’s employees worked on the pipe itself is Mr. Finley
testifying he cut the improperly installed pipe.
Otherwise, Finley testified his employees only install drainage pipe, which is a perforated pipe laid around the exterior of a building
and does not require adhesives to connect. (Tr.
254).

IV. LEGAL
ANALYSIS

To establish a
prima facie
violation of a specific standard promulgated under section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651,
et seq . (“Act”), the Secretary must prove by a preponderance of the evidence that: (1) the standard applies to the cited condition; (2) the terms of the standard were violated; (3) one or more of the employer’s employees had access to the cited conditions; and (4) the employer knew, or with the exercise of reasonable diligence could have known, of the violative conditions.
Ormet
Corporation , 14 BNA OSHC 2134 (No. 85-0531, 1991).

The Secretary
must establish
his
prima facie
case by preponderance of the evidence.
See Hartford Roofing Co ., 17 BNA OSHC 1361 (No. 92-3855, 1995).

“Preponderance of the evidence” has been defined as:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary, “Preponderance of the Evidence” (10th ed. 2014).

A.
Citation 1, Item
1 a

Complainant alleged a serious violation of the Act in Citation 1, Item
1 a
as follows:

29 CFR
19 26 . 651(h)(1) :
Employees were working in excavations in which there was accumulated water , or excavations in which water was accumulating, and adequate precautions had not been taken to protect employees against the hazards posed by water accumulation .

a) Finley, LLC at 1570 Grove Street, Denver, CO:
On and around March 25, 2020, the exposing, creating, and correcting employer did not ensure that each employee working inside an excavation that was approximately 18 feet wide and varied from 6.4 to 9.8 feet in depth was protected from cave-in due to water accumulation, in that ground water was accumulating in the bottom of the excavation. This condition exposed employees and contractor employees to crushing hazards by excavation wall cave-in.

See
Citation and Notification of Penalty
at
6 .

1. The Standard Applied
   and its Terms Were Violated

According to 29 C.F.R. § 1926.650(a) , “[T]his subpart applies to all open excavations made in the earth’s surface    . Excavations are defined to include trenches. ” There is no dispute the
plumbing excavation
qualifies as an
“excavation”, which is defined as “ any man-made cut, cavity, trench, or depression in an earth surface, formed by earth removal. ”
Id.
§ 1926.650 (b).
Accordingly, the standard applies.

The real dispute in this case is whether the standard was violated , which the parties have boiled down to a question about the source of the water CSHO Lake identified in the trench
w hen he began his inspection on March 25, 2020 , in response to an anonymous complaint about
trenches with water
and inadequate protection.
Complainant contends the water in the excavation came from groundwater
at the bottom and sides of the excavation , which is based on CSHO Lake’s interviews with Respondent’s employees, members of Katerra’s management team, and
the geotechnical report provided by Respondent.
This, in turn, Complainant argu es presented a cave-in hazard because standing water at the base of an excavation weakens the integrity of its walls.
Conversely,
Respondent contends
a limited amount of
water came from a
pipe which was cut shortly before the inspection
did not pose a cave-in hazard
because it was temporary and merely resting on top of squeegee, which is not designed to absorb water.
The Court finds Complainant established a violation of the standard.

First,
the Court
previously credited
CSHO Lake’s testimony
that the source of the water was the ground itself. As noted above, Finley’s testimony and version of the events of that day and the two days prior was inconsistent with every person CSHO Lake interviewed, except for the people whom Finley
told the water was from the pipe. (Tr.
306 ). During the inspection, Severance told CSHO Lake he encountered water in the plumbing excavation when he started digging and throughout the two days it took to
sufficiently prepare it for the Katerra plumbers. It was not until his deposition, taken
over a year
later, th at he
recalled the water coming from the pipe the Katerra plumbers cut ,
even though Finley is adamant he
alone
cut the pipe .
(Ex. C-4).
H owever, it is important to note
even
Severance testified the
source
of the water was irrelevant. ( Ex. C-4 at 61 ). Instead, he stated
the presence of water in an excavation automatically converts the soil to type C , because he recognized the potential for groundwater to
“soak up the bank, the bottom of the ditch and make – it can make it collapse.” ( Ex. C-4 at 46, 61).
Regardless of the source, and by Respondent’s own admission at trial,
neither Finley nor Severance performed an inspection of the soil once the water had entered the excavation, even though both explicitly recognized the
increased hazard associated with
the presence of
water in the excavation. (Tr.
295 ; Ex. C-4 at 46, 61).

Second, in addition to the Court crediting the testimony of CSHO Lake
and the statements he gathered over that of Mr. Finley, the Court also finds other facts support
a violation of the standard.
Finley himself admitted he is not a plumber and could not speculate as to the source of
the water, but then went on to say plumbers often fill pipes with water to leak test them, which would explain why there was water in the pipe . According to statements taken by CSHO Lake, Finley’s explanation does not hold water because Phil Pollock, one of Katerra’s superintendents, told CSHO Lake he was the only person qualified to tie the new pipes into the
sand/water interceptor . ( C-1
at 0018 ). Further, there was no testimony
or statement
indicating
water
had been
pumped into the excavation for such testing. Instead, we have two Katerra managers
and three of Respondent’s employees telling the CSHO
the water was coming from the ground
and that it had done so in nearly 80% of the excavations at the worksite , which itself is consistent with
a geotechnical
report
finding groundwater at various locations around the worksite . (Ex.
C-1 at 18, C-3 at 38 ).

It is true, as Respondent argues, the geotechnical report
indicates the core samples did not run into water until 18 feet
below grade .
(Ex.
C-3 at 38 ).
The report also mentions, however, that groundwater levels
may
fluctuate
depending on conditions. ( Ex. C-3 ). One
thing
the report notes
that
neither party mentioned, however, is the
caveat provided at the very beginning of the report’s discussion of the subsurface exploration. (Ex. C- 3 at 0042). The report states, “ Because of the significant elevation differentials
across the site, in GROUND’s opinion, the test hole locations and elevations should be determined more precisely by
surveying.
More precise ly determined elevations may require modification of some parameters in this report.” ( Id. ) (emphasis in original).

A closer look at the
starting elevations of the core samples illustrates this very issue: the core samples taken have different starting elevations that vary
by as little as one foot and as much as 14 feet . (Ex. C-3 at 0067).
Although Respondent’s trench, by CSHO Lake’s very rough measurements, 4
only measured
roughly 10-feet deep at its deepest, the site’s elevation variations,
as well as the potential for fluctuations in the groundwater , certainly provide a reasonable explanation for the existence of groundwater and support the statements provided to CSHO Lake
by Respondent’s employees and by those managers of Katerra who had independent, first-hand knowledge of the condition of the trench.

The standard itself prohibits working in an excavation with accumulated water unless proper precautions are being taken to protect against the hazards of accumulation.
29 C.F.R. § 1926.651(h)(1) ;
see also
Excavations ,
54 Fed. Reg.
45894 ( October 31, 1989 ) ( noting
importance of change was to permit working in excavations with water so long as precautions are taken) .
Subsequently, it notes the precautions will vary with each situation.
Id.
In this situation,
there is no indication Respondent
took any precautions
whatsoever
in response to
the water in the trench, nor is it clear adequate inspections were conducted in light of the geotechnical report ,
which both identified groundwater
on a land plot with large variations in elevation
and recommended sloping at
1 .5 :
1 (horizontal : vertical) , which is a
t ype C
slope .
Both Finley and Severance gave sworn testimony
that water in an excavation warrants re-inspection, reclassification, and appropriate precautions. There is no evidence any of these occurred. Instead, Finley contends the water was merely resting at the bottom of the trench due to h is crew installing squeegee, which is not designed to absorb water. ( Tr.
247 ; Ex. C-3 at 0057).
As CSHO Lake explained, however, the level of the water, which had purportedly only just been introduced in the hour prior to
his arrival, never abated during his time at the worksite, which he estimated to be around two hours.
Given
how recently the spill purportedly occurred, CSHO Lake
wondered why
the water was not more quickly absorbed into the surrounding soil.

While the source of the water has implications for the type of hazard presented by the excavation
and the appropriate response, all parties agree any water in an excavation requires a response of some sort in light of the hazards associated
with the condition , including
slips and falls ,
or,
as alleged in this case, a cave-in hazard .
See
54 Fed. Reg. at
45922 .
Although there was no testimony as to the depth of the water, all
agreed
the water extended from the south end towards the north along
roughly 90% of the bottom, which CSHO Lake estimated to be roughly 160 feet long.

Commission ALJs have upheld violations of the cited standard for water as
shallow as
four- to five- inches
when adequate precautions have not been taken .
See , e.g.,
B&B Underground Contractors , 23 BNA OSHC 1909, 2011 WL 3851820 at *9 (No. 11-0466, 2011) (ALJ Calhoun).
While some areas of the trench were sloped
at approximately 34 degrees by CSHO Lake’s measurements, other portions of the trench were sloped at 45 degrees or were benched , which, according to both the
Appendix
and Mr. Severance himself, is improper for
submerged soil or excavations walls that are seeping .
See
29 C.F.R.
§ 1926, Su bpart P, Appx. A & B .
As previously noted,
Respondent failed to perform a follow-up inspection after water was found in the trench, let alone implement any
discernible
response to its presence.
This represents a violation of the standard according to its very terms: Respondent had employees in the trench
with accumulated water and failed to take any precautions to address the hazards associated with the presence of water.
Accordingly, the Court finds Respondent violated the hazard.

2. Respondent’s Employees Were Exposed to the Hazard

To
prove a
prima facie
violation of the Act, Complainant must show
“employees . . . will be, have been, or are in a zone of danger . ”
See
Fabricated Metal Prods., Inc. ,
18 BNA OSHC 1072 (No. 93-1853, 1997) . In this case, the question of exposure is not complicated . CSHO Lake observed Finley and three of his own employees working inside the trench in a location where
the
excavation was improperly benched and had water at the bottom. ( Ex. C -1
at 38 ).
As testified to by CSHO Lake, Severance, and Finley, the presence of water has the potential to cause cave-ins by
soaking up the bank and causing it to collapse. (Ex. C-4 at 46).
While Respondent may contest the source of the water
and attempt to explain away why it stayed in the trench, the water remained in the trench for the entirety of CSHO Lake’s inspection without abating
and Respondent did nothing to remove it or abate the hazard imposed by its presence.

Respondent attempts to question CSHO Lake’s credibility and his exposure findings by
noting his inspection narrative for Citation 1, Item 1a identifies multiple Katerra employees as being exposed to the hazard
and as providing information .
Finley contends
this
clouds
CSHO Lake’s
assessment ,
because
it is unclear
whether those employees were referring to the correct excavation
or whether
they were actually
Katerra’s employees.
The Court finds this is a problem in search of a solution. CSHO Lake adequately explained to the Court why he listed the people he did as employees
in his narrative and how he ensured the people he was speaking to were employees of Respondent and were speaking specifically about the trench at issue in this case.
There is nothing in the record or in Finley’s testimony to suggest otherwise other than a bare insinuation that CSHO Lake
might have
gotten it wrong. The Court declines Respondent’s invitation to so speculate.

Based on the foregoing, the Court finds Complainant established Respondent’s employees, including Finley himself, were exposed to the hazard posed by the standing water in the excavation.

3. Respondent Knew or Could Have Known of the Hazardous Condition

To prove this element, Complainant must show Respondent knew or, with the exercise of reasonable diligence, could have known of the violation.
Dun-Par Engineered Form Co. , 12 BNA
OSHC 1962, 1965 (No. 82-928, 1986). The key is whether Respondent was aware of the conditions constituting a violation, not whether it understood the conditions violated the Act.
Phoenix Roofing, Inc. , 17 BNA OSHC 1076, 1079–80 (No. 90-2148, 1995). Complainant can prove knowledge of an employer through the knowledge, actual or constructive, of its supervisory employees.
Dover Elevator Co. , 16 BNA OSHC 1281, 1286 (No. 91-862, 1993).

The question of whether Respondent knew or could have known of the hazardous condition is not complicated.
When CSHO Lake arrived, he observed a person later identified as Jason Finley
in the
excavation
working alongside his employees.
Finley is
not merely a
supervisor, but
is
the owner and operator of Respondent (Finley, LLC) . N ot only
did Finley
observ e
the conditions as they exist ed on the date of the inspection, but
he
was
in the area of
the hazard identified by CSHO Lake.
Regardless of
whether Finley or Severance perceived those conditions as hazardous is immaterial; the Act only requires
Respondent be aware of the condition constituting the hazard.
See Phoenix Roofing, Inc. ,
supra .
Accordingly, the Court finds Respondent was aware of the hazard.

4. The Violation Was Serious

A violation is classified as serious under the Act if “there is substantial probability that death or serious physical harm could result.” 29 U.S.C. § 666(k). Complainant need not show there was a substantial probability an accident would occur, only that if an accident did occur, serious physical harm could result. Mosser Constr., Inc. , 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010). CSHO Lake testified, without dispute, the presence of water in an
improperly protected trench presents a cave-in hazard.
Trench cave-ins are dangerous, and sometimes fatal, events.
(Tr.
120 ).
T he Court finds Citation 1, Item 1a is properly characterized as serious.
   Accordingly, the Court finds Complainant
proved
Respondent committed a
serious
violation of 29 C.F.R. § 1926.651(h)(1) .

B.
Citation
1 , Item
1 b

Complainant alleged a serious violation of the Act in Citation
1 , Item
1 b
as follows:

29 CFR
1926. 652(b)(2) :
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 to this subpart:

(a) Finley, LLC at 1570 Grove St., Denver, CO: On and around March 25, 2020, the exposing creating, and correcting employer did not ensure that each employee working inside an excavation, where ground water had accumulated, that was approximately
18 feet wide and varied from 6.4 to 9.8 feet in depth was protected from gave-in, in that the excavation was sloped at an angle greater than the 34 degree maximum allowable slope for type C soil and that the excavation was benched, which is prohibited for type C soil .
This condition exposed employees and contractor employees to crushing hazards by excavation wall cave-in.

See
Citation and Notification of Penalty
at 7 .

1. The Standard Applied

For the same reasons listed above with respect to Citation 1, Item 1a, the Court finds 29 C.F.R. § 1926.652(b)(2)
applies to the condition cited by Complainant.

2. The Citation Item is Duplicative

Complainant seeks to hold Respondent liable
for two violations of essentially the same condition. First, Complainant alleged Respondent violated 1926.651(h)(1)
because there was water in the trench in which Respondent’s employees were working, and
not
all
the
walls were sloped
appropriately for type C soil .
Next, Complainant alleged Respondent violated 1926.652(b)(2)
because it did not slope
all of
the excavation wall s
appropriately for
submerged soil, which, according to Appendix A and B, should be characterized as type C.
See
29 C.F.R. § 1926, Subpart P, Appx. A . Not only was proper sloping the
only abatement
method
discussed
with
respect to eithe r violation , but it would appear Complainant, by citing Respondent in this manner, is attempting to mandate the method of abatement for a performance standard .

Citations are duplicative if
“ the abatement of one violation necessarily results in the abatement of the other .”
N orth Eastern Precas t LLC , 26 BNA OSHC
2275,
2018 WL
13094 80
at *5
(N o. 13-1169
et. al. ,
2018).
In fact, the Commission has
found violations duplicative
under
three basic sets of facts :
where they require the same
abatement conduct;
where they involve substantially the same violative conduct;
or where they involve the same abatement.
See id.
(internal citations omitted).
According to the Commission, however,
violations are not duplicative
“ where they involve standards directed at fundamentally different conduct
. . .
or where the conditions giving rise to the violation are separate and distinct. ”
Id.
(citations omitted).

Here,
the Court finds Citation Item 1, 1b is duplicative of Item 1, 1a.
In both cases,
the identified hazard is the presence of water in the excavation . In both cases,
Complainant alleges Respondent failed to treat the soil
as type C, as is required when soil is submerged
under water.
Now, Complainant did not
explicitly
require abatement of Citation Item 1, 1a
by way of sloping to type C specifications; however,
the slope of the excavation walls was the only
abatement discussed and the only condition noted as violative. In other
words,
not only would the same
conduct abate the identified hazard in both citation items, but it appears Complainant is using
Citation Item 1, 1b as a specific method of abatement for the violation identified in Citation 1, 1a.
Thus, not only has Complainant cited
Respondent under
two separate standards for the same conduct , but Complainant seeks the same abatement method for both violations .
Accordingly, the Court finds Citation 1, Item 1b is duplicative and shall be VACATED. 5

C.
Citation 1, Item 2

Complainant alleged a serious violation of the Act in Citation
1 ,
Item
2
as follows:

29 CFR
1926.65 1(k)(1 ) :
Daily inspections of excavations, the adjacent areas, and protective systems were not made by a competent person for evidence of a situation that could have resulted in possible cave-ins, indications
failure of protective systems :

(a) Finley, LLC at 1570 Grove St., Denver, CO: On and around March 25, 2020, the exposing creating, and correcting employer did not ensure that
daily inspections of an excavation
that was approximately 18 feet wide and varied from 6.4 to 9.8 feet in depth
were made by a competent person for evidence of a situation that could have resulted in a hazardous condition, in hat the competent person did not identify that submerged soil
must be classified as type C soil and in that the competent person was not conducting manual soil analysis during excavation
inspections or when conditions affecting the soils classification changed such as soil submerged with water. This condition exposed employees and contractor employees to crushing hazards by excavation wall cave-in.

See
Citation and Notification of Penalty
at
8 .

1. The Standard Applied and its Terms Were Violated

Like the previous two citation items discussed above, the Court finds the standard applies.
Also, like the previous two items, the key issue before the Court is whether Respondent violated the terms of the standard.
During his inspection, CSHO Lake asked Severance and Finley a series of questions about
how the y
assessed the soil
in order to
make the appropriate soil type designat ion and implement the appropriate protection. According to CSHO Lake, both Severance and Finley appeared confused by the questions he asked about
soil typing and manual testing of the soil.
(Tr.
38, 39, 45, 131; Ex. C-1 at 1).
At the time of the inspection, both Finley and Severance told CSHO Lake
they had not performed anything other than a visual examination of the trench and that they had relied on the geotechnical report
to ascertain the appropriate soil type. (Tr.
45, 133 -134 ).
There is virtually no documentation of
Respondent performing inspections of this or any other trench (though none is legally required) it worked on in the seven weeks it was at the worksite.
As regards
the trench at issue,
Finley testified he did not perform a new
examination of the soil or reclassify it in response to the presence of water. (Tr. 295).
Because of these facts, CSHO Lake determined
neither Finley nor Severance was a competent person and that Respondent failed to perform competent person inspections according to the terms of the standard.

In response, Finley contends both he and Severance simply misunderstood CSHO Lake’s questions
regarding manual testing of the soil and
that CSHO Lake is simply mistaken as to whether
additional testing was performed on the
excavation once water was discovered in the bottom.
Further, Finley argues
he and Severance are clearly competent people based on their extensive experience in the field of earthmoving and excavation .
In other words, the Court is
yet again faced with conflicting reports
over a key fact in this case.
As with the previous disputes, the Court again finds CSHO Lake’s testimony to be more credible.

Notwithstanding
Finley and Severance’s extensive experience, they were apparently incapable of understanding CSHO Lake’s question
about whether they had performed a manual test
of the soil . Finley claims he misunderstood what CSHO Lake meant by a “manual” test, as if he were referring to some
unidentified manual, when he was
actually
referring
to the test recommended by the excavation and trenching standard.
This represents yet another
excuse
by Respondent
that does not square with the facts. The Court would expect someone with Respondent’s extensive experience
would understand what someone was asking if they inquired whether he had performed additional, manual tests to go along with the visual tests he told CSHO Lake about.
Instead, at the time of the inspection, Finley
exhibited
ignorance of the requirements and
then , when it came time for trial, illustrated an encyclopedic knowledge
of those same requirements .
CSHO Lake’s testimony, however, was consistent with his contemporaneously taken notes
and withstood cross-examination by Respondent.

A competent person is , according to the Act,
“one who is capable of identifying existing or predictable hazards in the
surroundings , or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them. ” 29 C.F.R. § 1926.650(b) . Generally, this requires training and knowledge in the areas of soil analysis, protective systems, and the standard’s requirements.
See
Excavations, 54 Fed. Reg. 45894, 45909.
See also
Superior Masonry Builders , 20 BNA OSHC 1182 (No. 96-1043, 2003) ( holding a person illustrates competence by
performing a competent and reasonable inspection and that experience alone does not qualify a designee
as a “competent person”).

In the face of the foregoing, the Court is presented with
two likely scenarios: (1) Finley, with his copious amounts of experience,
is a competent person under the terms of the standard, albeit one who failed to perform adequate inspections of his worksite and
appropriately assess the soil of the excavations he and his employees were working in; or (2) Finley , with his copious amounts of experience, failed to gain the necessary knowledge
during his tenure in order
to perform compliant inspections and respond appropriately to
changes in trench conditions.
In either case, the Court finds Respondent violated the standard , because it means either Respondent did not understand enough to be a competent person or simply did not perform the inspections as required by the terms of the standard.
By Respondent’s own admission to CSHO Lake, he did not perform an updated inspection or assessment of the trench after water had been introduced.
By his own admission he primarily performed visual inspections of the trench, but there is no evidence of this or any other examination of the trench or soil
occurring.
To the extent Respondent’s visual examinations were, in fact, occurring, the Court finds they were inadequate in the face of the
condition of this excavation specifically, and the worksite generally.

Given the condition of the trench
and Respondent’s statements to CSHO Lake at the time of the inspection, the Court finds Respondent violated the terms of 29 C.F.R. §
1926.651(k)(1).

2. Respondent’s Employees Were Exposed to a Hazard

For the same reasons expressed above with respect to Citation 1, Item 1a, the Court finds Respondent’s employees were exposed to the hazard posed by Respondent’s failure to conduct competent person inspections.

3. Respondent Knew or Could Have Known of the Hazardous Condition

Complainant can show constructive knowledge through a lack of any policy or procedure designed to uncover hazards. “[A]n employer has a general obligation to inspect its workplace for hazards.”
Hamilton Fixture , 16 BNA OSHC 1073, 1993 WL 127949 at *16 (No. 88-1720, 1993) (citing
Automatic Sprinkler Corp. of America , 8 BNA OSHC 1384, 1387 (No. 76-5089, 1980)). The scope of that obligation “requires a
careful and critical examination
and is not satisfied by a mere opportunity to view equipment.”
Austin Comm. v. OSHRC , 610 F.2d 200, 202 (5th Cir. 1979) (emphasis added). Some factors to assess whether an employer has exercised reasonable diligence include an employer’s “obligation to inspect the work area, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence.”
Frank Swidzinski Co. , 9 BNA OSHC 1230, 1233 (No. 76-4627, 1981).

It is notable Respondent
does not have a section of its safety and health program dedicated to trenching or excavations. In fact,
after reviewing Respondent’s safety and health program in its entirety, the Court cannot find a single mention of
trenches or excavations at all , which is unusual
for a company whose primary business is trenches. 6
In light of this utter lack
of any safety and
health policies related to trenching and excavations, it is hardly surprising Respondent
failed to
perform regular or adequate inspections of its excavations.
As the owner
of Respondent, i t was Finley’s
responsibility to ensure
his program accounted for the hazards his employees could reasonably be expected to be exposed to
and implement an inspection regime designed to identify and mitigate those hazards.
Not only
did Respondent lack
a program or policy discussing the hazards of trenches and excavations , but there is nothing within the policy itself discussing worksite inspections
of any sort .
In light of
the
generic nature of Respondent’s safety and health policy,
Finley’s
initial
inability to understand CSHO Lake’s inquiries
during the
inspection
and
the unstructured and informal nature of
his inspection regime
makes much more sense
given his fairly extensive experience in the arena of excavations.

In light of
the foregoing , the Court finds Respondent, through its owner, knew it was not complying with
the requirement to perform daily inspections sufficient to uncover
hazardous conditions. While Finley and Severance are clearly experienced, the lack of any safety and health
policy
regarding
trenches and excavations
inhibited their ability to perform timely and adequate inspections.

4. The Violation Was Serious

The Court finds Citation 1, Item
2
is properly characterized as serious
for the same reasons it did with respect to Citation 1, Item 1a .
An improperly monitored excavation , particularly one that has exhibited groundwater problems, can lead to seriou s injuries up to and including death.
Accordingly, the Court finds Complainant proved Respondent committed a serious violation of 29 C.F.R. § 1926.651( k)( 1).

D.
Citation 1, Item 3a

Complainant alleged a serious violation of the Act in Citation
1 , Item
3a
as follows:

29 CFR
19 10.1200(e)(1) :
Employer had not developed or implemented a hazard communication program included [sic] the requirements outlined in 29 CFR 1910.1200(e)(1)( i )
and (e)(1)(ii):

(a) Finley, LLC at 1570 Grove St., Denver, CO: On and around March 25, 2020, the
employer did not develop, implement, and maintain at the workplace a
site-specific
written hazard communication program. Employees
were potentially exposed to hazardous chemical, including but not limited to the
following;

1) Christy’s Red Hot Blue Glue Low VOC PVC Plastic Pipe Cement

2) MAINLINE Purple Low VOC Primer for PVC and CPVC

See
Citation and Notification of Penalty
at
9 .

E.
Citation 1, Item 3b

Complainant alleged a serious violation of the Act in Citation
1 , Item
3b
as follows:

29 CFR
19 10.1200(h)(1) :
Employees were not provided effective information and training on hazardous chemicals in their work area at the time of their initial assignment and whenever a new hazard that the employees had not previously trained about was introduced into their work area :

(a) Finley, LLC at 1570 Grove St., Denver, CO: On and around March 25, 2020, the
employer did not provide employees with effective information and training on the location and availability of the written hazard communication program, the format of safety data sheets, and the format and availability of Globally Harmonized System labels for chemical containers. This condition potentially exposed employees to chemical hazards .

See
Citation and Notification of Penalty
at
10 .

1. C omplainant Failed to
   Establish Exposure
   in Citation 1, Items 3a & 3b

Respondent did not have a copy of its hazard communication program a t
the worksite as required by
1910.1200(e)(1) ,
nor did it provide chemical- or site-specific training
as required by 1910.1200(h)(1).
Notwithstanding these failures, the Court finds
Complainant’s evidence regarding exposure to the identified chemicals is insufficient to establish
his
prima facie
case.
According to CSHO Lake , Finley
told him
he did not know what a hazard communication program was , and it was not until trial that Finley provided a copy of a
generic
hazard communications
program . 7
(Tr.
55, 59, 63-67 ; Ex.
R-26 ).

Further,
Respondent readily admitted
he did not provide
hazard communications
training to his employees, relying instead on the basic primer provided by Katerra prior to
starting work at the
Grove Street
site. (Tr.
282 ).

Notwithstanding these failures, the Court finds Complainant did not prove Respondent’s employees were exposed to the chemicals identified , nor does it find
a violation of the standard can be substantiated by Respondent’s failure to have an SDS sheet for the gasoline it puts in its vehicles or the battery acid
present in those vehicles’ batteries.

Complainant asserts it is undisputed Respondent’s employees were exposed to
the two chemicals specified in the citation narrative
and cites to three separate portions of the transcript, none of which identify testimony from Respondent indicating agreement .
(Tr. 48, 147, 154). In fact, Respondent
explicitly denied his employees
helped the plumbers connect the pipe at the bottom of the trench . (Tr.
254 ). While Finley admitted his employees may have worked in the trench while the plumbers were
connecting and sealing pipe with the chemicals in question , he took great pains to point out
his employees do not do plumbing work . (Tr.
254 ).
This jibes with other testimony given by Finley, where h e testified his company
only installs drainage pipe, which does not require adhesive , or where he admitted not knowing
how water
entered
the pipe the plumbers had installed in the
excavation. Further, in this
case , as opposed to the other instances where the Court credited CSHO Lake’s testimony over Finley’s,
the Court finds
CSHO Lake’s testimony on this topic
vague
when it came to identifying who, exactly,
was connecting pipes and applying the identified adhesives. Based on Finley’s testimony, the Court finds it
just as likely
there was a misunderstanding about who was
merely in the trench and who was
installing the pipe and, thus, exposed to the
chemicals identified above.

T he Court is not convinced
Complainant has established the level of training and
information Respondent provided to its employees was insufficient. As noted previously,
when Respondent installs “plumbing”, it is drainage pipe that does not require
adhesives . As such, there was no reason to provide independent training on hazards that were not reasonably anticipated. Further,
given
that expectation, the Court finds the training and information provided to
Respondent’s employees
through Katerra
appears appropriate
for the hazard presented by working adjacent to other employees who are required to use such chemicals.
Finally,
the Court finds Complainant’s attempt to
include gasoline and battery acid as potential exposures
is a
bridge too far. First,
the alleged exposures in the Citation and Notification of penalty
explicitly list the
adhesives applied to the pipe .
Attempting to squeeze in gasoline
for equipment
and battery acid
as additional
hazards
fails the basic test for an amendment
because
neither chemical is
related to the exposure originally allege d
and thus represents
a new allegation requiring Complainant to plead additional facts.
See Full Life Hospice, LLC v. Sebelius , 709 F.3d 1012, 1018 (10th Cir. 2013) (“[A] new pleading cannot relate back if the effect of the new pleading ‘is to fault [the defendants] for conduct different from that identified in the original complaint,’ even if the new pleading ‘shares some elements and some facts in common with the original claim.”’) (internal citations omitted) . Second, the
Court finds making such an allegation
trivializes legitimate threats to safety and health
and highlights the weakness of Complainant’s original allegation. The Court refuses to accept an invitation to uphold a violation based on Respondent’s employees’ exposure to gasoline, which
represents no greater hazard to a trench digger than a stay-at-home dad
filling up for soccer practice, or to battery acid,
for which there was absolutely no evidence of exposure.

The Court finds Complainant failed to establish its
prima facie
case. Accordingly, Citation 1, Items 3a and 3b shall be VACATED.

F.
Citation 2, Item 1

Complainant alleged a serious violation of the Act in Citation
2,
Item 1 as follows:

29 CFR
1926. 95(d)(1 ) : The
protective equipment, including personal protective equipment (PPE), used to comply with this part, was not provided by the employer at no cost to the employees :

(a) Finley, LLC at 1570 Grove St., Denver, CO: On and around March 25, 2020,
PPE was not provided by the employer at no cost to the employees in that the employer required employees to purchase their own chemically resistant and cut resistant gloves. This condition potentially exposed employees to chemical and physical hazards, while laying pipe in an excavation .

See
Citation and Notification of Penalty
at
11 .

1. Complainant Failed to Prove a Violation of the Standard

Complainant’s failure to include any argument about
who provides PPE is a testament to t he strength of Complainant’s case
as to this viola tion.
Complainant did include a single, proposed finding of fact , which indicated Finley admitted his employees are required to pay for their own PPE.
Specifically, CSHO Lake targeted the gloves Respondent’s employees were wearing
in light of
his determination those employees were exposed to chemical hazards while installing pipe.
(Tr. 162). As with the previous violation, the Court finds the proposed violation is the result of a misunderstanding
and lack of follow-up.

CSHO Lake testified Finley told him
his employees were required to provide their own PPE but that he had
extra equipment available if they need it. (Tr. 161).
CSHO Lake acknowledged, however, he did not follow up with Respondent’s employees
to determine whether their PPE was provided free
of charge , because “it’s
an other
than serious, and usually this get thrown out anyway during informal conferences , so I don’t put a lot of trouble into documenting
these things . ”
(Tr. 162).
Finley, on the other hand, testified
he was attempting to tell CSHO Lake that some of his employees choose to wear their own equipment , which they provide at their own
expense ; however, he also testified he provides the equipment necessary to address the hazards to which
his employees
are regularly exposed. (Tr.
254-55, 272-73 ).

Given Complainant’s failure to seriously pursue this citation item,
CSHO Lake’s nonchalance
as to its importance, and Respondent’s reasonable explanation as to
the misunderstanding, the Court finds Complainant failed to prove a violation of the standard. Accordingly, Citation 2, Item 1 is VACATED.

V. Penalty

Under the Act, the Secretary has the authority to propose a penalty according to Section 17 of the Act.
See
29 U.S.C. §§ 659(a), 666. The amount proposed, however, merely becomes
advisory when an employer timely contests the matter. Brennan v. OSHRC , 487 F.2d 438, 441 – 42 (8th Cir. 1973);
Revoli
Constr. Co. , 19 BNA OSHC 1682, 1686 n. 5 (No. 00-0315, 2001).
Ultimately, it is the province of the Commission to “assess all civil penalties provided in [Section 17]”, which it determines
de novo . 29 U.S.C. § 666(j);
see also
Valdak
Corp. , 17 BNA OSHC 1135 (No. 93-0239, 1995).

“Regarding penalty, the Act requires that “due consideration” be given to the employer ’ s size, the gravity of the violation, the good faith of the employer, and any prior history of violations.”
Briones Util. Co. , 26 BNA OSHC 1218, 1222 (No. 10-1372, 2016) ( citing
29 U.S.C. § 666(j) .
These factors are not necessarily accorded equal weight.
J.A. Jones Constr. , 15 BNA OSHC 2201, 2216 (No. 87-2059, 1993) ( citation omitted ).
Rather, the Commission assigns the weight that is reasonable under the circumstances. Eric K. Ho,
20 BNA OSHC 1361, 1379 (No. 98-1645, 2003) (Consol.),
aff'd sub nom. ,
Chao v. OSHRC , 401 F.3d 355 (5th Cir. 2005).
It is the
Secretary ’ s burden to introduce evidence bearing on the factors and explain how he arrived at the penalty he proposed. Valdak
Corp ., 17 BNA OSHC at 1138 . “The gravity of the violation is the ‘principal factor in a penalty determination .
Assessing gravity involves considering: (1) the number of employees exposed to the hazard; (2) the duration of exposure; (3) whether any precautions have been taken against injury; (4) the degree of probability that an accident would occur; and (5) the likelihood of injury. See ,
e.g. ,
Capform , Inc. , 19 BNA OSHC 1374, 1378 (No. 99-0322, 2001),
aff’d , 34 F. Appx. 152 (5th Cir. 2002) (unpublished).

With respect to Citation 1, Item 1a, Complainant proposed a
penalty of $2892 , which it based on a determination
the severity of the violation was
“high”,
but its probability was “lesser”. (Tr.
126-27). CSHO Lake explained the severity was high due to the potential for serious injury and death, but low in terms of probability because
of the duration of the exposure. This penalty was also premised on Citation 1, Item 1a being grouped with Item 1b . Complainant awarded a 70% reduction for Respondent’s
size, but
did no t award any additional reductions due to Respondent’s lack of a formal safety and health program.
The Court finds
the proposed penalty is
too high for the following reasons: (1)
the Court vacated Item 1b; and (2) while CSHO Lake identified water in the excavation, he did not show additional indications of the trench weakening , nor was there a precise measurement indicating the depth of the water at the bottom of the trench.
In light of
those facts, the Court finds a penalty of $1200 is appropriate.

With respect to Citation 1, Item 2,
Complainant
proposed a penalty of
$2892, which is identical to the grouped penalty proposed with respect to Citation 1, Item 1a . The assessment is identical
because the y targeted the same condition, at the same time, affecting the same people.
Again, the Court finds the penalty
is high, albeit for slightly different reasons.
The Court believes
Respondent was conducting some level of review of the trench’s conditions; however, it was not
nearly as robust or thorough as
what is
required by the standard.
This, in turn, had an impact on Respondent’s ability to identify and rectify hazardous conditions
that
can occur while excavating.
While a downward departure from Complainant’s proposal is appropriate, the Court will not reduce the penalty
similar to
Item 1a . The lack of an adequate
inspection regime is a direct result of Respondent relying on a cookie cutter safety and health plan that bears little
connection to the work Respondent performs.
This, in turn, reflects a
need for Respondent
to take
more seriously
its duty as a
steward of its employees’ safety and health.
Accordingly, the Court
finds a penalty of $2000 is appropriate.

O RDER

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. Based upon the foregoing Findings of Fact and Conclus ions of Law, it is ORDERED that:

1. Citation 1, Item
   1 a
   is
   AFFIRMED as serious, and penalty of
   $1200
   is ASSESSED.

2. Citation
   1 , Item
   1 b
   is
   VACATED .

3. Citation 1, Item 2 is AFFIRMED as serious, and a penalty of
   $2000
   is ASSESSED.

4. Citation 1, Items 3a & 3b are VACATED.

5. Citation 2, Item 1 is VACATED.

SO
ORDERED

/s/ Peggy S. Ball
         Peggy S. Ball          Judge, OSHRC

Date:

Denver, Colorado      

"

1 . Including, as previously mentioned, Mr. Finley’s
attempt to obscure his own identity from the CSHO when asked about the on-site manager or foreman, which would have been him at the time.

2 . Subsequently CSHO Lake testified he could not be sure whether
Mesches told him he observed the walls seeping, but he reiterated that Phil Pollock
“definitely” told him that. (Tr. 203).

3 .
In
R.P Carbone , the Sixth Circuit also evaluated a CSHO’s hearsay testimony on the topic of duration using a multi-factor analysis outlined by the Supreme Court.
See R.P. Carbone Constr. Co. , 166 F.3d at 818-19 (citing
Richardson v. Perales,
402 U.S. 389, 402–06, 91
S.Ct. 1420, 28 L.Ed.2d 842 (1971)).  The Sixth Circuit stated that, in certain circumstances, hearsay testimony can constitute substantial evidence depending on consideration of the following factors:

(1) the independence or possible bias of the declarant, (2) the type of hearsay material submitted, (3) whether the statements are signed and sworn to as opposed to anonymous, oral, or unsworn, (4) whether the statements are contradicted by direct testimony, (5) whether the declarant is available to testify and, if so, (6) whether the party objecting to the hearsay statements subpoenas the declarant, or whether the declarant is unavailable and no other evidence is available, (7) the credibility of the declarant if a witness, or of the witness testifying to the hearsay, and finally, (8) whether the hearsay is corroborated.

See id.
(citations omitted).
In
Carbone , the Sixth Circuit found the hearsay presented to the ALJ was properly relied upon as substantial evidence because: (1) the statements of the employees corroborated each other and were corroborated by their manager who said the employees did not know they needed fall protection while performing certain activities; and (2) those statements were also corroborated by an anonymous complaint filed with OSHA that the employees had been in violation of fall protection requirements for a significant period of time.
Id.

4 . Though the Court is without any accurate way to measure, the photographs of CSHO Lake’s attempts to measure the depth of the trench illustrate how much the trench rod flexes downward when he is attempting to
hang a plumb bob to the floor of the trench. (Ex.
C-1). While this alone may not account for a full extension to 15 feet below grade, the variances between the various locations at which water was found suggests
its location below grade around the site was hardly uniform.

5 .

That Complainant did not propose a penalty for this citation item does not make it any less duplicative.
There
are consequences, both professionally and legally, for having a prior, serious violation of a standard on your record, regardless of whether the violation resulted in a fine.

6 . It is also notable Respondent’s safety and health program has a footer on every page entitled, “Small Company Health and Safety Program Manual”, suggesting it is a generic program not specific to Respondent’s operations. (Ex. C-3 at 0005 to 0038).

7 . The generic nature of
Respondent’s hazard communication program
bore striking similarities to Respondent’s
“Small Company
   Health and Safety Program Manual”, neither of which mentioned anything specific about Respondent’s primary business of excavation and earthmoving. ( Compare
C-3 at 0003
with
R-26).