Stephen Adamowich d/b/a Terryville Sanitation Service

Plain-English summary

OSHA cited Terryville Sanitation for an unsupported nine-foot trench and failure to provide a ladder, with proposed penalties totaling $805. The first judge vacated the citations because the Commission received the employer's notice of contest after the seven-day transmission period. The Commission found that OSHA had mailed the notice on the day it received it and attributed the delayed delivery to mail handling. It reversed the vacatur and remanded for further proceedings. The official HTML also includes the later merits decision, which affirmed both trench violations after a cave-in buried and injured the employer, an employee, and a sewer inspector, and reduced the penalties to $400 total.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(b); 29 C.F.R. § 1926.652(h)
• Outcome: The procedural vacatur was reversed and the case was remanded; the appended later judge decision affirmed both citations with $400 in penalties.
• Key point: Timely mailing satisfied the transmission rule even though the Commission did not receive the notice of contest until weeks later.

Full text (OSHRC public release)

STEPHEN ADAMOWICH dba TERRYVILLE SANITATION SERVICE, Docket No.2035

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 2035

STEPHEN ADAMOWICH dba
TERRYVILLE SANITATION SERVICE,

Respondent.

ORDER OF REMAND

February 22, 1973

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

VAN NAMEE, COMMISSIONER:

On January 23, 1973, Judge David H. Harris issued an order vacating Complainant’s
citation in the above-captioned matter. He based his order on the ground that the Complainant
had failed to forward Respondent’s notice of contest to the Commission within seven days of
receipt as required by Commission Rule 32 (29 CFR 2200.32).

Pursuant to the authority vested in the members of the Commission by Section 12(j) of
the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et. seq., 84 Stat. 1590,
hereinafter referred to as ‘the Act’), I am herewith directing that the Judge’s Order be reviewed
by the Commission. For the reasons given hereinafter we reverse and remand.

We have reviewed the record and note that the Respondent was issued a citation and
notification of proposed penalty dated December 7, 1972. Thereafter Respondent filed a notice
of contest which was received by the Complainant’s Area Director on December 15, 1972. The
notice of contest was not received by the Commission until January 12, 1973 and thus was
received outside the period prescribed by Rule 32.

Complainant has now filed a motion for reinstatement of the above-captioned matter, as
well as a petition for discretionary review of the Judge’s ruling. It represents that the subject
notice of contest was properly transmitted to the Commission by placement in the United States
mail on December 15, 1972, the same day it was received by the Area Director. Attached to its
motion is a supporting affidavit executed by the employee of the Complainant who mailed the
subject notice of contest. She attests to the fact that the notice of contest was timely mailed to the
Commission on December 15, 1972.

It is further represented that the reason said notice of contest failed to reach the
Commission until January 12, 1973 is unknown to the Complainant. Complainant offers the
suggestion that the only reasonable and plausible explanation for such a mailing delay would
appear to be a Christmas seasonal misdirection.

The Commission is of the opinion that the Complainant has established, by sworn
statement, that the subject notice of contest was transmitted to the Commission within seven
days of receipt thereof and was thus timely filed. The delay in receipt of said notice of contest by
the Commission may be attributed to the vagaries of mail handling.

Accordingly we find that the extreme sanction of vacation of the citation is inappropriate
in the circumstances of this case.

It is therefore ORDERED that the Judge’s Order be and the same is hereby set aside and
the case is remanded for further proceedings consistent with this Order.

[The Judge’s decision referred to herein follows]

HARRIS, JUDGE, OSAHRC:

The citations herein are dated December 7, 1972, one serious seeking $700.00 and the
other non-serious seeking $105.00. The notice of contest, dated December 14, 1972, was served
on OSHA on December 15, 1972. OSHA filed its complaint on January 4, 1973, but did not
forward the notice of contest until January 12, 1973. No excuse is offered. The citations are
ordered vacated since the notice of contest was not filed as required by the Act and the
Commission’s Rules. The complaint is likewise ordered dismissed.

Footnotes

1

Respondent also operated a small real estate firm in which he netted $2,000.00 for 1972. The net
for his combined operations was a loss of $7,000.00 in 1972.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 2035

STEPHEN ADAMOWICH dba
TERRYVILLE SANITATION SERVICE,

Respondent.

August 30, 1973

OSTERMAN, JUDGE, OSAHRC:

This is a proceeding initiated pursuant to Section 10(c) of the Occupational Safety and
Health Act of 1970, 29 USC 651 et seq. (hereafter the Act) to contest Citations and a Notice of
Proposed Penalty issued by the Secretary to Respondent on December 7, 1972. A hearing in the
matter was held in Hartford, Connecticut, on April 5, 1973.

The record discloses that Respondent was charged as follows:

Abatement date

Proposed penalty

Serious violation:

29 CFR 1926.652(b)
Immediate $700.00

[Failure to shore, brace, slope
or otherwise support sides of
trench 9 feet in depth]

Immediate

$700.00

Non-Serious violation:

29 CFR 1926.652(h)
Immediate $105.00

[Failure to provide ladder for
means of exit from ditch]

Immediate

$105.00

A Notice of Contest timely filed on December 15, 1972, challenged both the alleged violations
and the proposed penalties.

At the hearing the parties stipulated that Respondent is engaged in the business of
installing sewer pipe; that Respondent regularly handles and works with goods which have
moved in interstate commerce such as sewer pipe which comes from Ohio and is thus engaged in
a business affecting commerce within the meaning of Section 3 of the Act (Tr. 5–6).

Testimony by witnesses at the hearing, including that and a local sewer inspector for the
Town of Plymouth, Connecticut, and a police officer of the Plymouth Police Department,
disclosed that on November 21, 1972, one John Langer an employee of the Respondent was
assisting Respondent in laying a sewer pipe on South Eagle Street, Terryville, Connecticut.
Respondent Stephen Adamowich was operating a back-hoe while Langer’s job was to get into
the ditch being dug and lay the pipe in the correct position (Tr. 10–11, 24). The ditch in which
Langer worked was approximately 20 feet long and 9 feet in depth (Tr. 11, 25, 43, 55, Exh. C–4,
C–5); 3 feet wide at the bottom and 4–6 feet wide at the top (Tr. 11–20, 43, 55). Water seeped
into the excavation from the sides (Tr. 11, 44); the soil was loam and clay with some gravel (Tr.
11, 25); and unstable in character (Tr. 56). The sides of the trench lacked any kind of support and
were not sloped to prevent a cave-in (Tr. 13–14, 25, 43). There was no ladder provided for
escape from the excavation (Tr. 12, 25, 44).

During the pipe-laying operation the sides of the trench collapsed burying Langer, the
Respondent Adamowich, and Robert Draper, the sewer inspector up to their chins in soil (Tr.
13–14, 27). They remained buried in this position for approximately 35 minutes and were
rescued by members of the Terryville Police who worked more than an hour to free them (Tr.
13–14, 43). All three were taken to the local hospital for examination (Tr. 14, 27). Respondent
was severely injured.

The uncontradicted testimony given by Respondent indicates that his sewer construction
work is primarily a one-man operation in which the Respondent personally performs most of the
necessary labor (Tr. 76); that Respondent’s gross income from his sewage construction work
amounted to $40,000.00 in 1972; and that his expenditures in this activity were $49,000.00 for a
net loss of $9,000.00.

The evidence is conclusive that on November 21, 1972, the Respondent violated the
safety standards in question and that the Citation is fully supported by the evidence. With respect
to the proposed penalty, however, I find that it is excessive when measured against the
Respondent’s size and ability to pay.

FINDINGS OF FACT

1. Respondent, STEPHEN ADAMOWICH d/b/a TERRYVILLE SANITATION
   SERVICE is engaged in business which involves the installation of sewer pipe. Respondent’s
   principal office is located at 40 Allen Street, Terryville, Connecticut.

2. Respondent regularly purchases, handles and works with goods which have moved in
   interstate commerce.

3. On November 21, 1972, Respondent had in his employ one John Benjamin Langer
   who assisted Respondent in a sewer pipe installation job at a worksite located at 45 South Eagle
   Street, Terryville, Connecticut.

4. At various times in the summers Respondent has employed his son to assist him in his
   sewer construction activities.

5. On November 21, 1972, Respondent was engaged in digging a trench and laying a
   sewer pipe in that trench. He was assisted by John Langer.

6. Langer’s duties included getting into the trench and locating the sewer pipe properly at
   the bottom thereof.

7. The dimensions of the trench dug by Respondent were approximately 20 feet long, 9
   feet deep, 3 feet wide at the bottom, and 4 to 6 feet wide at the top.

8. The soil in which the said trench was dug consisted of gravel, clay and loam and was
   made further unstable by water seepage from a nearby well.

9. On November 21, 1972, Respondent failed to shore, sheet, brace, slope or otherwise
   support the sides of the said trench as required by 29 CFR 1926.652(b).

10. On November 21, 1972, Respondent failed to provide a ladder extending from the
    floor of the trench excavation to at least three (3) feet above the top of the trench.

11. On November 21, 1972, while Respondent, an employee, and a sewer inspector were
    standing inside of the trench, a cave-in occurred which required rescue operations by the local
    police department and which injured all three persons.

12. Respondent’s gross income from his sewer construction business amounted to
    $40,000.00 in 1972. In the same year his business expenses were $49,000.00.

13. As a result of an inspection of a worksite located at 45 South Eagle Street, Terryville,
    Connecticut, by an authorized representative of the Complainant, Respondent on December 7,
    1972, was issued a Citation charging a serious violation [29 CFR 1926.652(b)] and a second
    Citation charging a non-serious violation [29 CFR 1926.652(h)]. A Notice of Proposed Penalties
    was also issued on the same day proposing a $700 penalty for the serious violation and a $105
    penalty for the non-serious violation.

14. The penalties proposed by the Complainant, while giving due consideration to the
    criteria set out in Section 17(j) of the Act are excessive in view of Respondent’s size and
    financial status.

CONCLUSIONS OF LAW

1. Respondent, Stephen Adamowich, d/b/a Terryville Sanitation Service is engaged in
   business as a sewer contractor.

2. Respondent at all material times was an ‘employer’ engaged in a business ‘affecting
   commerce’ as those terms are defined by Section 3 of the Act.

3. On November 21, 1972, Respondent was in violation of 29 CFR 1926.652(b) [a
   Serious Violation] and 29 CFR 1926.652(h) [a NonSerious Violation].

ORDER

Pursuant to Section 10(c) of the Act and Rule 66 of this Commission’s Rules of
Procedure it is ORDERED.

1. That the Citations issued by the Complainant against Respondent on December 7,
   1972, be and they hereby are, AFFIRMED.

2. That the penalty of $700.00 proposed for violation of 29 CFR 1926.652(b) and the
   penalty of $105.00 proposed for violation of 29 CFR 1926.652(h) be, and they hereby are,
   VACATED.

3. That a penalty of $350.00 be assessed for violation of 29 CFR 1926.652(b) and a
   penalty of $50.00 be assessed for violation of 29 CFR 1926.652(h).