A-1 Sewer and Water Contractors, Inc.

Plain-English summary

A-1 Sewer and Water Contractors was installing a water line in a trench at a residential worksite in Illinois. OSHA alleged that an employee worked in a trench approximately 5.6 feet deep without a cave-in protective system and proposed a $1,985 penalty. The judge found that OSHA did not reliably prove the employee's working area was at least five feet deep because the supporting measurement was taken outside that area and the angled ladder and measuring rod made the photographs unreliable for determining vertical depth. The judge also found that the employer's competent person had examined the less-than-five-foot working area and determined there was no cave-in potential. The single serious citation was vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1)
• Outcome: The serious trench-protection citation and its proposed $1,985 penalty were vacated.
• Key point: When a trench measurement is close to the five-foot threshold, OSHA must present reliable vertical-depth evidence from the area where the employee actually worked.

Full text (OSHRC public release)


Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISS I O N

SECRETARY OF LABOR,   

Complainant,   

v.   

A-1 SEWER AND WATER CONTRACTORS, INC.,

Respondent.   

OSHRC Docket No.:
21-0562

For Complainant:
A rsalan Nayani, Esq. , Office of the Solicitor, 230 South Dearborn Street, Ch icago, IL

Fo r Respondent: Anthony M.
C iccon e ,
Pro Se 1 , A-1 Sewer a nd Water Contractors, Esq. 903 North Ridge Av e.,
Arlington Heights, IL

Befor e: First Judge Patrick B.
Augustin e , United States Administrative Law Judge

DECISION AND
ORDER

I.
PROCEDURAL BACKGROUND .

Respondent was engaged in trenching and excavation work at the time of the inspection
commenced
on
April 30,
2021,
at Respondent’s worksite located at
1105 W. Busse Ave.,
Mount Prospect, Illinois 2 .
As a result of
the
inspection, the Occupational Safety Health Administration
(OSHA)
issued
Respondent a
Citation
and Notification of Penalty
containing
one item
classified as a serious citation 3
and proposed a penalty of $1985.00
(Citation).
Ex. C-1.
Respondent
timely contested the Citation
by filing a
Notice of Contest.
This case
was designated as
a
simplified
proceedings
case.

The Commission has adopted
Rules for
Simplified Proceedings, which apply in
this
case.
See
Subpart M of 29 C.F.R. Part 2200 (29 C.F.R. §§ 2200.200 - 2200.211).

The trial was held under the Simplified Proceedings
rules, where the “Judge
will receive oral, physical, or documentary evidence that is not irrelevant, unduly repetitious or unreliable. Testimony will be given under oath or affirmation.”
29 C.F.R. § 2200.209(c). Since the Federal Rules of Evidence
did
not apply in
this simplified
proceeding 4 ,
see id ., hearsay is admissible, “[p]rovided it is relevant and material,” and under certain circumstances, “can constitute substantial evidence.”
Bobo v. United States Dept. of Agriculture , 52 F.3d 1406, 1414 (6th Cir.1995) (citation omitted).

A trial was held
on July 25,
2022,
in Chicago. IL.

The Parties could not agree on any
stipulated facts.
Tr. 18.
Complainant filed a
post-trial
brief. Respondent elected not to
file a
post-trial
brief.

Pursuant
to
Commission
Rule
90,
after
hearing
a nd
care f ully
considering
all
the evidence
and arguments of counsel, the Court issues this Decision and Order as its Finding of Facts and Conclusio ns
of
Law.
In t his very straight forward
case ,
the Citation is
VACATE D
for
failure of
Complainant to carry his
burden .

I I. JURI SDICTION

The record supports
Respondent is engaged in a business affecting interstate commerce and is an “employer” within the meaning of

§
3 of the
Occupational Safety and Health
Act, 29 U.S.C
§ 651
et seq .
The use of the term
“affecting commerce” indicates a congressional intent to “exercise fully its
constitutional authority under the commerce clause.”
Godwin v. OSHRC , 540 F.2d 1013 (9th Cir. 1976);
U.S. v. Dye
Construction Co ., 510 F.2d 78 (10th Cir. 1975);
Brennan v. OSHRC ,
492 F.2d
1027 (2nd Cir. 1974);
see also
Piping of Ohio, Inc ., 16 BNA OSHC 1236 (No.
91-3481, 1993). Commerce, according to § 3(3) of the Act, “means trade, traffic, commerce, transportation, or communication among the several States, or
between a State and
any place outside thereof....” Following the Ninth Circuit in
Usery v. Fran klin R.
Lacy,
628 F.2d 1226
the Commission has found interstate
commerce where
it “is in a class of activity that as a whole affects commerce.”
Clarence M. Jone s d/b/a Jones Co ., 11
BNA OSHC 1529, 1530 (No. 77-3676,
1983). In that case, the Commission went
on to find “[t]here is an interstate market
in construction materials and services and therefore construction work affects interstate commerce.”
Id ., citing
NL RB v. Int’l Union of
Operatin g E ngineers, Local 571,
317 F.2d 638, 643 n. 5 (8th Cir. 1963) (judicial notice taken that construction industry affects interstate commerce).

Excavation work
qualifies as “construction work” which is defined as “work for construction, alteration,
and/or
repair, including painting and decorating.” 29 C.F.R. § 1926.32(g).
The construction industry
of which excavation work is part of
affects commerce, and even small employers within that industry are engaged in commerce.
Slingluf f v. OS HRC , 425 F.3d
861, 866-67
(10th Cir. 2005);,
d/b/a C. Jones Clarence M.
Jones Co ., 11 BNA
OSHC 1529, 1531 (No. 77-3676, 1983).
Because Respondent is engaged in construction work, the undersigned finds it is engaged in a business affecting interstate
commerce.
Tr.
48, 218.   

As to whether Respondent was an
“employer”
under the Act,
Respondent
testified
Ramirez was
its
employee.
Tr.
47, 74-75, 221.
The
Court finds
Respondent was an
“employer”
under the Act.

Finally, the Commission has jurisdiction over this
proceeding pursuant to

§
10(c) of the Act
by Respondent filing its Notice
of Contest.
Joel Yandell , 18 BNA OSHC 1623,
1628 n.8 (No. 94-3080, 1999).
See also
29 U.S.C.
§ 659(c).

III. T HE
INSPECTION

On the date of the inspection, Respondent was in the process of installing a water line system for a
basement
which
was being
constructed
at
an existing
residential building
built in the 1990s.
Tr.
44,
219-220.
There were two workers present at the worksite, Company
owner
Anthony Ciccone
(Ciccone)
and an employee by the
name
of Pablo
Ramirez (Ramirez).
Tr. 47, 74, 75, 221.
Ciccone
testified
he
was the
competent person
on the
worksite,
and he was the owner of
Respondent.
Tr.
48-49, 70-71, 212, 218, 222.

During
the inspection,
Compliance and Safety
Officer Emil
Szotko
(CSHO) observed two trenches
at the worksite.
One trench (Trench 1) ran from the
sidewalk
to the front wall of the house
and
a
second trench (Trench
2) went from the street to the sidewalk.
Tr. 46, 48, 219.
The CSHO
inspected
both trenches.
The Citation issued is based on the CSHOs inspection of Trench 1.
Tr.
44.
Therefore, any discussion during the trial as to Trench
2 is not
relevant
to the
issue in this case.

The
Citation
involves Trench 1
because the CSHO witnessed Ramirez working inside of it.
Tr. 45-47.
Respondent was engaged in the installation of a water line
in Trench 1.
Tr. 220, 232-233.
Ramirez was operating a
vertical mounted drill against the building’s foundation inside Trench 1.
Tr. 60.
The travel area in the excavation where Ramirez was working was
between
the
access
ladder and the vertical mounted
drill
located
near the building’s foundation 5 .
Tr. 59, 61, 92-93, Ex. C
6-9.
Ciccone
was standing at
ground level of
the edge of Trench 1 and had verbal and visual
contact with Ramirez.
Ciccone
testified
he was
the
supervisor of Ramirez.
Tr. 44-46, 74-75.

Using
an engineering rod 6
and
measuring tape, the CSHO
measured Trench
1
as being
4-feet wide, 20-feet long with a depth of
approximately
five
feet and
six
inches.
The
CSHO testified the
soil
in
the working area
was previously disturbed during
the construction of the
residence.
Tr. 48-50, 55, 65, 204.
Due to this disturbance, the CSHO classified
the soil
as Type B.
Tr. 61-62, 168. The CSHO
testified: (i) the walls of
Trench 1 were vertical with no
sloping or bench
systems; and (ii) there was no shoring or shielding protective
systems installed inside Trench
1.
Tr. 58-59, 71,
206 and Ex. C-2.

IV.
APPLICAB LE
CASE LAW

For most standards, including the one
at issue here,
Complainant
is n ot required to prove
the exi stence of a
hazard each time a standard is
enforced. 7
Bunge Corp. v. Sec’y of Labor , 638 F.2d 831, 834 (5th Cir. 1981);
Greyh ound Lines-We st v. M arshall , 57 5 F.2d 759, 762 (9th Cir. 1978) ( Complainant
not required to prove
viol ation related to wal king and
working su rfaces constituted a hazard). I nstead, the hazard is presumed, and the
Compla inant ’ s
burden is limited to showing:
(1) the cited st and ard applies; (2 ) the employer failed to comply with the terms of the cited st andar d; (3) employees had
access
to the viol ative condition; and (4) the cit ed employer knew or could have known with the exercise of reasonable diligence of t he violative cond iti on. JPC Grp.,
Inc ., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009);
Atl. Battery Co.,
16
BNA OSHC 2131 (N o. 90-17 47, 1994). 8

Complainant must establish his 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.

Preponderance of the Evidence ,
B LACK’ S
L AW
D ICTIONARY
(10th ed. 2014).

V. C ITATION
1, I TEM
1

The cited regulation,
as
written
and issued by Complainant,
states:

29 CFR
1926.652(a)(1): Each employee in an excavation was not protected from cave-ins by an adequate protective system designed in accordance with 29 CFR 1926.652(b) or 1926.652(c).

a) On April 30, 2021, an employee was not protected from the hazard of cave-in while working in a trench measuring
approximately
5.6 feet in depth.
(Emphasis added.)

However, the complete regulation, which was not set forth in the Citation,
states as follows:   

Each
employee in an excavation shall be protected from cave-ins by an adequate
protective system designed in accordance with
paragraph
(b)
or (c) of this section
except when : (i) Excavations are made in entirely stable rock ;
or
(ii)
E xc avations are less t han 5 f eet
(1.52 m) in de pth
and examination of the
g r ound
by a comp eten t person
provides no i ndication of a potential cave-in.
(Emphasis added).

29 C.F.R.
§
1926.652(a)(1).

VI. APPLICATION O F THE REGULATION

Under Commission precedent, “the focus of the Secretary's burden of proving that the cited standard applies pertains to
the cited conditions, not the particular cited employer.”
Ryder
Transp. Servs. , 24 BNA OSHC 2061, 2064 (No. 10-0551, 2014)
(concluding “that the Secretary has failed to establish that
the cited general industry
standard applies
to
the working conditions here”);
KS Energy
Servs., Inc.,
22 BNA OSHC 1261, 1267 (No. 06-1416, 2008)
(finding “the cited ... provision was applicable to the conditions in KS
Energy's traffic control zone”),
aff'd , 701 F.3d 367 (7th Cir. 2012);
Active Oil S er v., Inc.,
21 BNA OSHC 1092, 1094 (No. 00-0482, 2005)
(finding “that the confined space standard applies to the cited conditions” because “the vault was a confined space”);
Arcon, Inc.,
20 BNA OSHC 1760, 1763 (No. 99-1707, 2004)
(“In order to establish
a
violation, the Secretary must show that the
standards applied to the cited conditions.”).

Respondent’s
position
is
the
standard
does
not apply
because
Complainant
failed to
establish
the depth,
in the
working area
of Trench 1,
was
five feet or
greater
because of how the measuring rod
and ladder were
placed within Trench 1
when the CSHO took his third measurement
which
was outside
the working area.

Ther efore,
Complaina nt must establish
the depth in the
“ wo r king area
of Tre nch
1

must be
five feet or
greater
for the
regulation
to
appl y.
If
the depth in the working area of
Trench 1 was
less than five
feet, for Respondent to prevail
through the exception
defined in the regulation, it must establish
a competent person
made a determination
there
was no
cave-in
potential.

Manti d /b/a Man ti Himes , 16 BNA OSHC 1458, 1461 (No. 92-2222, 1993). See also
Commission 30(g), 29 C.F.R. §
2200.30(g).

A. Com plainant Failed to Prove
the
Working Area of
Trench 1 was
Five Feet or Gre a t er
in Depth

Complainant seeks to establish the
depth within
the working area of Trench 1
was greater than
five feet through
the testimony of the CSHO and
two
pictures introduced at trial.
See
Ex.
C-4,
pp. 1-2.

The CSHO testified the depth of
the working area
of
Trench 1 was
“approximately”
5
ft.
6
inches.” Tr.
52-55,
205. His testimony indicated he measured the depth of
the working area of
Trench 1 on the
side of the
access
ladder
facing the
sidewalk
which
Mr. Ramirez used to exit
Trench 1.
Tr. 51-562, 54.
See also
C-4, pp. 1-2 which indicates the
measuring
rod
was
on the side of the
access
ladder
facing the sidewalk which is not in the defined working area.

The CSHO also testified the floor of Trench 1 was level.

Tr. 54, 205.

While the
photographs
at Ex. C-4, show the
access
ladder and the side
of the access ladder from which
the CSHO took the measurements
from,
Ex. C-4 does not show the
floor of
Trench 1 to ascertain if the floor was level.

Complainant
relies on
Ex.
C-4, pp. 1 and 2
to establish the
depth of the working area of Trench 1
was
five feet
or
greater. The CSHO testified,
by looking at the
access
ladder in
Trench 1 as depicted in Ex.
C 4, p.1
and counting the
rungs
or
steps of the
access
ladder from the bottom of
Trench 1
to the top of
it,
a
determination
of the depth
can be made
that
the working area
of
Trench 1
was greater
than five feet.
Tr. 53, Ex. C-4, p. 1.
The CSHO stated the distance between each
rung or
step was one foot. Tr. 50. A
measuring rod in
Trench 1 is also captured
in
Ex.
C-4,
p. 1.
There was no testimony as to what
the measuring rod showed in this
specific
picture; therefore,
the
Court
cannot
conclude
by
merely looking at the picture
what
depth the measuring rod depicts.

The
Complainant
also
presented evidence
the
measuring
rod in
Ex. C-4, p. 2
shows the depth of
Trench 1
is greater than
five feet.
At first glance
merely
looking at Ex. C-4, p.
2,
an individual could
conclude that without other factors weighing
into the
determination, the depth of Trench 1 was greater than five feet.

Respondent
disputed the conclusion of the CSHO that the depth of the working area
in Trench
1
was greater than five feet
based
on: (i) the
measurement taken by the CSHO was not within the
working
area of Trench 1; and (ii)
the
access
ladder, in both pictures, were leaning at an
angle and
was not
vertical against the
excavation
wall.
Tr. 228.

Mr. Ciccone
testified
the correct way to
measure the depth of the
working area
of Trench 1
would
be
to place
the measuring rod and the ladder
in a
position where
it was
vertical against the
excavation
wall.
Tr. 228-229.
Mr. Ciccone’s testimony that the ladder
which was used as the basis for measurement of the depth of Trench 1,
contradicts
the
CSHO’s testimony that the ladder, when the measurements were taken, was
vertical
or straight against
the trench wall. Tr. 53-54, 91, 208. The Court assigns
greater
weight
on this issue to the position of Respondent.
First, looking at
both
pictures in C-4,
the ladder is at an angle. It is not straight and vertical as testified to
by the CSHO. Second, the CSHO
contradicted his own testimony on this issue when he responded to
questions
regarding
Ex. C-6,
Complainant asked the CSHO whether the ladder shown
in Ex. C-6 was the same ladder that appears in Ex.
C-4, pp, 1,
2. The CSHO
responded that it was and stated
“the access ladder was leaning against the right side of the trench wall.”
Tr. 60-61, Ex. C-6. Third,
the CSHO testified
the ladder was in a manner
in which Ramirez was able to freely
use the ladder to
access
as
well as exit
Trench 1. Tr.
47-48, 60, 74,
204-205.

If the ladder was straight and vertical against the trench wall
it would have
been difficult, according to
common sense and the laws of physics, for
Ramirez
to easily access or exit
Trench. There was no testimony the
ladder was secured
or
anchored
at
the
top
of the ladder to prevent the ladder from falling backwards if an individual was exiting the trench by climbing up a straight and vertical
ladder.
So logic would conclude for
Ramirez
to
easily access or exit
Trench 1, the access ladder would have had
to been
tilted
against the right side of the excavation wall as
the
CSHO
testified
when questioned regarding Ex. C-6.

The CSHO also testified he
did not move or touch the access ladder before, during or after taking his measurements. Tr. 52.

Respondent
also testified the
CSHO measured two additional places
in the
“working area”
and those measurements
indicated
the
depth of
Trench 1
were
not over
five feet.
Tr. 226-227.

In addition,
the
third
measurement
which supports the issuance of the Citation,
was taken in an area which
Respondent argues was not within the defined working area. The
area the
measurement
was taken from is depicted in Ex. C-4,
p.1
and confirmed by the CSHO. It shows that measuring rod on the side of the access ladder which faces
the sidewalk
–
not
the residence. Respondent argues:
(i)
this
area
is not within the working
area Ramirez traveled while in Trench 1; and
(ii)
Ramirez would not have
had to go as far as where the measuring rod is
to
exit
Trench 1. The CSHO testified he
chose
this area of
Trench 1 because he observed that
was exactly
where Ramirez
stepped
onto the ladder to exit
and because the depth of the trench at that location was
“a bit deeper.”
Tr.
52.
The Court
is left with the question how the CSHO knew that area
was
the exact spot stepped at

by
Ramirez
and the
bottom of
trench was a
“bit deeper”
when
he previously testified
the
bottom
of the trench was
even and
it did not have
any change in elevation. Tr. 54.
In addition, the observations of the CSHO would have
had to
been observed while he was standing at surface level since he testified he
never entered Trench 1. Tr. 48-51.

Respondent’s argument
regarding
the
effect the
angle
or tilt
of the ladder and the measuring
rod
in Trench 1
would have on
the measurement
that
was taken, is simple to
understand
in layman’s term.

What Mr. Ciccone was
stating,
in
layman’s terms,
is nothing other than a
well-recognized
geometry
principle documented by
reliable
publications.
And that principle is
“the longest side of a
right triangle is the hypotenuse”
using
the Pythagorean
theories. 9

The Court takes judicial notice 10
of this
well-known
and established
geometry
principle which Mr. Ciccone was trying to relay in
his testimony.
The Court finds
the measurement and
counting of
ladder steps on which
Complainant
relies
to establish
Trench 1
was five feet
or greater are
inaccurate based
on
the
tilt or
angle
placement
of the ladder. The
tilt or
angle of the ladder
is the lynchpin since
the issue
is whether the ladder being at
an angle
or tilt
added approximately seven inches to the depth of Trench 1
so the Citation was supportable in that context.

It was not impossible or impractical
for the CSHO to have had
the ladder and measuring rod be placed directly vertical to the excavation wall to obtain the
depth
measurement. It would have taken the CSHO little time and effort to
ensure
the vertical placement of the ladder and measuring rod
when taking his measurements.
In
this case, where the issue
boils
down to
“approximately”
seven
inches
from having the regulation apply or not apply (from 4 ft. 11 inches to approximately 5 ft. 6 inches
as set forth in the Citation),
being thorough
and
complete
in the correct placement of the
measuring rod
and
ladder
would have not placed the measurements of
Complainant into question.

In addition, the CSHO testified he was trained and had used in the past a method
which would been better to use
in
this
case to obtain accurate measurements
when
entry into a trench is not feasible. He
referred
to that method as a
“fish tape”
method. This
method
is where fish tape is put on the top of a measuring rod and then dropped into the trench
to obtain measurements.
Tr. 50-51.
This certainly would have
avoided
the geometry principle invoked
by Respondent
to invalidate the
method and
measurement
taken by the CSHO
in this case.

Finally,
the wording
used by Complainant in
the
alleged
violation description contained in the Citation,
by
describing the depth as
“approximately
five
feet
six
inches”
did
send
a message to the Court the Complainant
himself was unsure about
the actual depth of
Trench 1
and the methods utilized in this case.

For all of the reasons stated above, the Court finds Complainant did not
carry his burden
of proof
to
present
reliable
evidence
that Trench 1 was
five
feet or greater for the regulation to apply.

B.
Trench 1 was Not in Stable R o ck

While there is a
dispute
between
Complainant and
Respondent as to the
composition
of soil
in
Trench
1
the Court finds that dispute is not material
to a
finding of whether
Respondent can rely on
an exemption
set forth in the cited regulation.
Respondent contends the soil was
“mixed”
soil with
clay,
gravel
with a black
dirt
top.
Tr. 229-230.
Complainant
defined the
soil
as clay and sand.
Tr. 61-62, 168.
While there may be a dispute as to what the
composition
of the
soil
for soil classification purposes, there is
no dispute
the soil was
not
stable
rock for the purpose of determining the
applicability
of
one of the
exceptions.
Whether
the soil was a combination of clay,
dirt or sand, it
does not constitute stable rock.
The exception contained in the regulation
on the basis of stable rock is not available to Respondent.

C. Competent Person

Respondent argued
Trench 1 was less than five feet and a com petent
pe rson made a
determination
there was no
potential cave-in.
Complainant having failed in it s ’
p roof
Trench 1 was
five feet or greater, the analysis
now
goes
to w hether a competent person was at the worksite the day of the inspection.

I t is
u n disput ed Cic cone
was
the
competent
person at the wor ksite .
Tr. 48-49, 70-71, 212, 218, 222.

D. Determination of Competent Person
Trench 1 Had
no
Cave -in Potential

The
final
determination
is whether Mr. Ciccon e, as the co mpetent
person ,
ma d e a
d e termi n a tion
of t h e grou nd in
T rench
1
to determine there
is
no cave-in potenti al .
Cic cone testified he did make that
determination . Ciccone testified
he
first
made a
determination
th e excavatio n
did not
need to go five feet or over.

He stated he talked to the plum b ing
in specto r to o btain his approval to not go five feet in depth as required by the city code and instead would
dig only to the top of a foot ing . The city inspector gave hi s approval . B eing permitted to dig to th e top of the
footing of the current space would
not re quire Respondent to dig down five
feet .

Tr. 220, 232-233.
Performing the job in this fashion is the likely reason when the CSHO condu cted
h is first measurement,
the depth of Trench 1 was not over five feet.

Second, Mr. Ciccone indicated he
next mea sured
the ex cav a tion
on where to place the access l adder. He then measured the depth of
Trench 1 between the access ladder and the f oundation, i.e. working area to de termine if the depth was under five feet,
Mr. Ciccone testified those measurements indica ted
t he depth of

Trench
1 was under
f ive
feet This also could account for the reason the CSHO ’ s second set of mea surements also indicated the depth was under five f eet. Finally, t h e placement
of the access ladder
was to define a working area where the d epth
was not greater than five feet.
Tr.
224, 230-236.

As
to
Mr. Ciccone examination of the ground conditions, he
stated
three feet from the foundation has been previ ously disturbed when the residence was built. Thus, he classified that as Type B. For th e
gro und three feet from the foundation
forward
to the sidewalk , he determined the soil w a s
pr eviously undisturbed and was made of
clay with a black dirt top.
He classified t h a t
soi l as Type A.

Mr. Ciccone stated he did not find a hazard of a cav e -in
due
to th is soil configuration .
Tr. 229-235.

Complainant
evidentially takes the
position
such det e rm i n a tion
should have been documented
since
during trial
h e
elicited testimony
that
Mr. Ciccone ’ s actions were
not documented. Tr.
223-224.
The cited regu l a tio n
doe s not requi re th e
deter m i n a tion
has to be documented.
Complainant did not cite t o any case precedent to support this
position .
Ciccone ’ s
testimony
was not contrad icted
by Complainant. The Court finds Respondent, through its competent person, did make
a
de termination
that
th e ground soil in the working a rea of
Trench 1 did no t
have
a cave-in potential.

VII. CONCLUSION

The Court finds: (i) Complainant failed to establi sh
the
working ar e a
of T rench 1 was five feet or greater ; (ii)
Respondent
did esta bl ish
Mr. Ci ccone
was
the competent per s o n
at the worksite on the day of the ins pection; and (iii) Respondent
did establish
Mr. Ciccone made a determination
that based on ground con ditions
there was n o cave-in potential in
Trench 1.

Based upon the above fi ndings of
fact and conclus ions of law Citation 1, Item is VACATED.

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 Conclusions of Law, it is ORDERED that:

1.
Citation 1, Item 1
is
VACATED

SO ORDERED.

/s/ Patrick B. Augustine   

Denver, CO

Dated:
September 28, 2022

Patrick B. Augustine

First Judge - OSHRC

"

1
Although the Commission recognizes
the
difficulties a
self-represented
litigant may face
when participating
in the Commission’s proceedings, the Commission
still requires the
self-represented
litigant
to follow the rules and
exercise reasonable diligence in the legal proceedings in which it
is
taking part.
S ealtite C o rp ., 15 BNA
OSHC 1130 (No. 88-1431,
1991).
An unrepresented employer must “exercise reasonable diligence in the legal proceedings” and “must follow the rules and
file responses to a judge's orders, or suffer the consequences, which
can include dismissal of
the notice
of contest.”
Wentzel d/b/a N .E.E.T. Buil ders , 16 BNA OSHC 1475, 1476 (No. 92-2696, 1993) (citations omitted).

2
When Citation
1, Item
1
was issued it
stated
the inspection
occurred
at 1105 W. Busse Avenue, Arlington
Heights,
Illinois.
On February 3, 2022, the
Court granted an unopposed Motion to Amend the
Citation to
reflect the
location was in Mount Prospect, Illinois.

3
The Citation alleges
Respondent violated 29
C.F.R. § 1926.652(a)(1) by failing to protect an employee in an excavation from
cave-in
hazards
by a protective
system.

4
The Parties did not stipulate to the Federal
Rules of
Evidence applying
in this case.
See
Commission Rule 209, 29 C.F.R. § 2200.209.
Tr. 11.

5
The Parties used the term
“travel area”
and
“working area”
to define the area in which work was being performed. There is no
dispute between the Parties
the area
where work was bring performed was from the access ladder to the foundation of the
residential
structure.
For the purpose of uniformity
that area will
be
referenced by the Court as the
“working area.” The working area is the only area in dispute in this case
because
Ramirez, the employee working
in
Trench 1, was
only
working
in the
work area. Tr.
59, 61, 92-93.
The
CSHO
a greed the area i n which the
Ramire z
was work ing was be tween
the
area from the
la dder
to
the fou ndation
o f the
residence.
Id .

6
The Parties used the term engineering rod, trench rod and measuring rod
during
the
trial.
The purpose of the rod
was to
take
measurements. The Court will use the
term
“measuring rod”
for
uniformity.

7
The
Commission has held that, when
a standard prescribes specific means of enhancing employee safety, [a] hazard is presumed to exist if the terms
of the standard are violated.”).
Joseph J. Stola r Constr. Co ., 9 BNA OSHC 2020, 2024
n.9
(No. 78-2528, 1981).
Se e also
Kaspar Electrop lating Co r p ., 16 BNA OSHC 1517 (No. 90-2866, 1993).
See also
Sanderson Farm s, Inc. v. Perez ,
811
F.3d.
730
(5th Cir.
2016).
In this case the regulation cited does not require the Secretary
to prove
the existence of a hazard
since it is a specification standard.
It
is not necessary to show Respondent understands or acknowledges the physical conditions were actually hazardous.
Phoenix Roofing, Inc ., 17 BNA OSHC 1076, 1079-1080 (No. 90-2148, 1995)
aff’d
without
published opinion , 79 F.3d
1146 (5th Cir. 1996).

8
The Commission
has
held that “[w]here it is highly probable that a
case will be appealed to a particular circuit, the Commission generally has applied the precedent of
that circuit in deciding the
case— even though it may
differ from the Commission's precedent.”
K erns Br o s.
Tree Serv. , 18 BNA OSHC
2064, 2067 (No. 96-1719,
2000). The Court applies the precedent of the
Seventh
Circuit
where it differs from the Commission
in deciding this
case.

9
See
Hypotenuse
at
Encyclopedia
of
Mathematics,
http://encyclopediaofmath.org /index.php?title=Hy pote nuse &oldid+32067

10
The decision on
whether to take judicial notice is one for the court alone to make pursuant to Fed.R.Evid. 104(a).
U.S. v. Bello , 194 F.3d 18 (1st
Cir. 1999). Judicial notice is appropriate when certain facts are beyond any serious dispute because they are such common knowledge or accurate
determinations
that
evidence their existence is not necessary.
York v. American Tel. & Tel. Co ., 95 F.3d 948 (10 th
Cir. 1996).