Supermason Enterprises
Willful unprotected-trench violation affirmed
Apply this to your situation
This order from 1993 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Supermason Enterprises installed a sanitary sewer in Pen Argyl, Pennsylvania, with two workers in an excavation eight to ten feet deep. The ALJ rejected the company's claim that the workers belonged to a subcontractor because the supposed agreement was unsigned, the alleged subcontractor had never seen it, and Supermason paid the workers hourly wages. The trench had no ladder, no competent-person inspection, no adequate employee training, and no cave-in protection. The judge affirmed those three serious items together with a $1,000 penalty. He classified the protective-system violation as willful because the contract and preconstruction meeting made Supermason responsible for federal safety compliance, yet its foreman disclaimed responsibility and no shoring equipment was present. That item carried a $7,000 penalty. Three other-than-serious hazard-communication items involving possible methane and hydrogen-sulfide exposure were affirmed without penalty, for a total penalty of $8,000.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.59(e)(1), 1926.59(g)(1), 1926.59(h)(1), 1926.651(c)(2), 1926.651(k)(1), 1926.21(b)(2), and 1926.652(a)(1)
- Outcome: All cited items were affirmed, including a willful cave-in-protection item; total penalties were $8,000.
- Key point: A contractor cannot avoid OSHA responsibility through an unsupported subcontractor claim or by relying solely on workers' prior experience instead of providing competent supervision and site-specific training.
Full text (OSHRC public release)
OCCUPATIONAL SAF%%%Ei~~ii?kW Commission
One Lafayette Cents
1120 20th Street, N.W. - 9th Floor
I
--. Washington, DC 200364419
?.
f-4..
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-2235
SUPERMASON ENTERPRISES
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on June 11, 1993. The decision of the Judge
will become a final order of the Commissron on July 12, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGES DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
July 1 1983 m
’ order to permit sufficient time for its review. See
Com&sion Rule 91, 29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
,
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
E COMMISSION
Date: June 11, 1993 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 92-2235
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mi4 ES&
Counsel for Re bud Trial Liti ation
Office of the SoT ‘&or, U.S. DOt&
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Marshall H. Harris, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
14480 Gatewa Building
3535 Market Htreet
Philadelphia, PA 19104
Toni E. Lynch, CEO
Su ermason Enterprises, Inc.
P.8. Box 533
Portland, PA 18351
John H. Frye, III
Administrative Law Jud e
Occupational Safety an (KHealth
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
00102934494:03
OCCUPATIONAL SAF~~?4iiEb~ii:%“IEW COhdMiSSION
One Lafayette Centfe
1120 20th Street, N.Wm- Qth Floor
Washington, DC 200363419
..
..
SECRETARY OF LABOR,
..
Complainant, ..
..
..
v. Docket No. 92-2235
.
l
SUPERMASON ENTERPRISES, INC. ..
.
0
Respondent. *
Appearances:
Theresa Ce Timlin Toni E Lynch pm se
Joseph Crawford CEO
Office of the Solicitor Supermason Enterprises
U.S. Department of Labor Portland, Pennsylvania
Philadelphia, Pennsylvania
For Complainant For Respondent
BEFORE: Administrative Law Judge John H Frye, III
After receiving information that workers were employed in an unprotected trench,
OSHA inspected Sup&mason Enterprises’ work site in Pen Argyl, Pennsylvania, on May 6,
1992. As a result of this inspection, OSHA issued two serious and one willful citations to
Respondent Super-mason Enterprises which the latter contested. At the hearing, one of the
serious citations was reclassified as other than serious and the monetary penalty reduced to
$00 .
me hearing was held in Allentown, Pennsylvania, on January 19, 1993. In lieu of
closing argumentrs, th+ parties were directed to submit briefs. The Secretary of Labor
submitted a Pa Hearing Brief consisting of Proposed Findings of Fact, Conclusions of Law,
and Argument. The Respondent did not submit a brief. Consequently, this Decision and
Order is based largely on the Secretary’s brief.
Ia OPINION
A Complainant is an Employer Engaged in a Business Affecting Commerce and
is Therefore Subject to Jurisdiction Under the Act.
Respondent’s principal defense to the citations is that it is not subject to the
requirements of the Occupational Safety and Health Act (Act) because it had subcontracted
out the job and had no employees working on the site at the time of the inspection. The
Act provides in pertinent part that the term “employer” means “one or more individuals,
partnerships, associations, corporations, business trusts, legal representatives, or any
organized group of persons engaged in a business affecting interstate commerce who has
employees.” 29 U.S.C. 5 652(4) and (5). An “employee” is “an employee of an employer
who is employed in a business of his employer which affects commerce.” 29 U.S.C. 0 652(6).
In. this case, the weight of the evidence reflected in Findings Dl through D5 clearly
indicates that Respondent is an employer subject to the jurisdiction of the Act. The only
evidence which supports Respondent’s defense that it had subcontracted out the project is
l
an unsigned contract between Respondent and C & S Contracting, a company owned by
Kevin Corrigan. Mr. Corrigan testified not only that he had not signed this document, but
that he had never before even seen it. The evidence clearly establishes that at the time of
the inspection Respondent was paying Mr. Corrigan and Richard Schwind an hourly wage
as laborers.
There is also no real dispute that Respondent was engaged in a business affecting
commerce within Section 3(5) of the Act. Inspector Stelmack testified that he observed a
&se backhoe, manufactured in Racine, Wisconsin, which had been utilized to carry out the
excavation project. See Finding Fl. It is clear that Respondent is an employer engaged in
a business affecting commerce within Section 3(5) of the Act, and that I have jurisdiction
over the proceedings.
Ba Complainant Sustained Her Burden of Proving That Respondent Violated 29
C.F.R. 50 192659(e)(l), 192659(g)( 1) and 1926.59(h)
To establish a violation of a standard, Complainant must show that “(1) the standard
applies to the cited condition; (2) the employer violated the terms of the standard; (3). its
employees were exposed or had access to the violative conditions; and (4) the employer had
actual or constructive knowledge of the violation.” Secretary of Labor v. Sal Masonry
ContractorsInc., 15 BNA OSHC 1609, 1610 (Rev. Comm. 1992).
1.29 C.F.R. SS 1926.59(e)f 1). 192659(g)(l) and 1926.59(h) applv to the cited
condition
Section 1926.59(e)(l) provides, in pertinent part, that
employers shall develop, implement, and maintain at the workplace, a written
hazard communication program for their workplaces which at least describes
how the criteria specified in paragraphs (f), (g) and (h) of this section for
labels and other forms of warning, material safety data sheets, and employee
information and training will be met . . . .
Section 1926.59(g)( 1) provides that
employers shall have a material safety data sheet for each hazardous chemical
which they use.
Section 192659(h)( 1) states that
3
employers shall provide employees with information and training on hazardous
chemicals in their work area at the time of their initial assignment, and
&never a new h-d is introduced into their work area.
According to Inspector Stelmack, a written hazard communication program is
“basically an overview of all requirements of the standard and how the employer will
implement the standard on site.” (Tr. 39). An emnlover a 4
is required to have a written
hazard communication program whenever there is possible exposure to hazardous materials
at the work site. (Tr. 41). Likewise, whenever there is possible exposure to hazardous
materials at a work site, the employer must have material safety data sheets available and
must provide employees with information and training about the hazardous substances.
Findings Fl through F3 indicate that Respondent’s employees were in the process of
installing a drop connection to an existing sanitary sewer manhole. Live lines which could
generate sewer gasses, in particular methane and hydrogen sulfide, ran out of the manhole.
Because the employees were potentially exposed to hazardous sewer gasses at the work site,
50 1926.59(e)(l), 1926.59(g)( 1) and 1926.59(h) apply.
2. ResDondent violated the terms of the cited standards.
Respondent did not rebut Inspector Stelmack’s testimony that a written hazard
communication program and Material Safety Data Sheets were not available at the work
site. Respondent’s position, expressed to Inspector Stelmack, that it only hired people
experienced in trenching operations, does not comply with the terms of the standard, which
requires training upon initial employment and whenever a new hazard is introduced to the
work area.
30 esr>ondent’s emDlovees were exDosed to the violative conditions
Respondent’s employees working in a trench with live sewer lines could have been
exposed to sewer gasses such as methane and hydrogen sulfide, and consequently to the
danger of an explosion or oxygen displacement in the trench. Without a written hazard
communication program or material data sheets at the workplace, and without receiving
training regarding hazardous chemicals, the employees were uninformed about the dangers
of methane and hydrogen sulfide, and how to protect themselves from those dangers.
4. ResDondent had actual or constructive knowledge of the violations
Finding F3c reflects the fact that Respondent was aware of the lack of a hazard
communication
I program, Material Safety ‘Data Sheets, and a training program, and that
Respondent previously had been cited for violation of the same standards. Respondent’s
position that the previous citations involved entirely different hazards does not alter the fact
that Respondent knew of the requirements of these standards and should have applied them
to the hazards presented by the work in which it was engaged. Complainant has established
violations of the cited standards that were properly characterized as other-than-serious
violations.
Ca Complainant Sustained Her Burden of Proving That
Respondent Violated 29 C.F.R. !$ 1926.65 l(c)(2)
l&al
f ‘on 1926.651(c)(2) applies to the cited condition. Respondent violated
jts terms, Respondent’s emplovees were exposed or had access to the
violation, and Respondent had actual or constructive knowledge of the
violation.
Section 1926.651(c)(2), provides that
a stairway, ladder, ramp or other safe means of egress shall be located in
trench excavations that are 4 feet (1.22 m) or more in depth SO as to require
no more than 25 feet (7.62 m) of lateral travel for employees.
The trench in which Respondent’s employees were working was 14 feet long, eight feet wide,
10 feet deep nearest the manhole, and eight feet deep at its shallowest point. Finding F4.
Thus, the standard applies to Respondent’s trench.
When Inspector Stelmack arrived at the work site, two of Respondent’s employees
were working in the trench. There was no ladder or other safe means of egress fkom the
trench. Findings Fl and F9. Without a ladder or other safe means of egress from the
trench, the employees would not have been able to exit the trench rapidly in the event of
an emergency, such as a sidewall failure.
It is clear that Respondent had knowledge of the lack of safe egress from the trench
because one of the employees in the trench was Respondent’s foreman. Findings D4 and
Fl. Complainant has established a violation of 651(c)(2).
2. Complainant established that the violation of 651(c)(2) was properlv
characterized as a serious violation
“Under Commission precedent, a serious violation is established if an accident is
possible and there is a substantial probability that death or serious physical harm could result
from the accident.” Secretary of Labor v. ConsolidatedFreightwaysCop., 15 BNA OSHC
6
1317, 1324 (Rev. Chm. 1991) citing D~ZW cop., 7 BNA OSHC 2095, 2101, 1980 CCH
OSHD 124,154 p 29,370 (No. 16317, 1980),pet. for review denied, 639 F.2d 772 [9 OSHC
21441 (3d Cir. 1980). See aho 29 U.S.C. 0 666(k). In the event of an emergency, such as
a sidewall failure, employees would be unable to rapidly exit the trench. Inspector
Stelmack’s testimony that the most likely injury in the event of a trench collapse would be
death was unrebutted. Findings F9 and F12. This evidence establishes a serious violation.
3. ResDondent has failed to Drove anv defense to the violation
At trial, Respondent attempted to establish an infeasibility defense through his cross-
examination of Inspector Stelmack and through his own testimony that it was necessq to
remove the ladder from the trench as the trench dimensions were tight and the men would
have been unable to work with the ladder in place. (Tr. 107-111, 132). In order to prevail
on this defense, Respondent must prove that “(1) literal compliance with the terms of the
cited standard was infeasible under the existing circumstances and (2) an alternative
protective measure was used or there was no feasible alternative measure.” Secretary of
Labor v. Mosser Construction Company, 15 BNA OSHC 1408, 1416 (Rev. Comm. 1991),
citing Seibel M&em Mfg. & Welding Cop., 15 BNA OSHC 1218, 1226, 1228, 1981 CCH
OSHD ll 29,442, p. 39,678, 39,682,39,685 (Commission 1991). “Employers must alter their
customary work practices to the extent that alterations are reasonably necessary to
accommodate the abatement measures specified by OSHA standards.” Seibel, 15 BNA
OSHC at 1227.
Respondent did not prove that literal compliance with the terms of 651(c)(2) was
infeasible at the time of the inspection, either through cross-examination of Inspector
7
Stehack, or through Mr. Lynch’s own direct testimony. (Tr. 107~111, 132). Respondent
seemed to be arguing that it could not comply with 651(c)(2) by keeping the ladder in the
trench and still accomplish its job. This argument is not persuasive. The standard requires
that a safe means of egress be provided from a trench excavation that is more than four feet
deep. Respondent did not show that literal compliance with 651(c)(2) was infeasl’ble. The
mere suggestion that compliance would have made the laborer’s job harder does not
establish infeas~bility.
The second element of the infeasibility defense requires Respondent to prove that
it either used an alternative means of protecting the laborer, or that no alternative means
existed. On cross-examination, Inspector Stelmack stated that the ladder should have been
moved to a location in the trench where it would have been out of the way of the work area,
but still located so that employees would not have to travel more than 25 feet to reach it.
(Tr. 109). Respondent did not present any evidence showing that this means of complying
with the standard was infeasible.
For the foregoing reasons, Respondent did not establish the infeasibility defense.
D. Complainant Sustained Her Burden of Proving That Respondent Violated 29
C.F.R. 5 1926.65 l(k)( 1)
1. Section 1926.651(k)(l) applies to the cited condition
Section 192665l(k)( 1) p rovides in pertinent part, that
[d]aily inspections of excavations, the adjacent areas, and
protective systems shall be made by a competent person for
evidence of a situation that could result in possible cave-ins,
indications of failure of protective systems, hazardous
atmospheres, or other hazardous conditions. An inspection
shall be conducted by the competent person prior to the start
of work and as needed throughout the shift. . .l
2g C.F.R 5 1926.651(k)(1). The standard apphes as employees. were working in a trench.
.
29 C.F.R 8 1=6%I(a).
2. Respondent violated the terms of 65 l(k)(l). Respondent’s emplovees were
emsed or had access to the violation. and Respondent had actual or
constructive knowledge of the violation of 65l(k)(l\
On obsenring Respondent’s employees working in an unprotected trench, Inspector
Stelmack interviewed Respondent’s foreman, Mr. Cotigan, at the work site. Despite his
substantial experience as an excavation contractor and his position as foreman, Mr. Corrigan
stated that not only was he unfamiliar with the OSHA trenching regulations, he was not
responsible for employee safety and health and that he was not sure that anyone was.
Finding FlO. Mr. Corrigan has denied that he was the person responsible for employee
safety, and . Respondent has not suggested that any other individual was responsr%le.
Complainant has established a serious violation of 9 1926.651(k)(1).
E. Complainant Sustained Her Burden of Proving That Respondent Violated 29
C.F.R. 0 1926.21(b)(2)
1. Section 1926.21(b)(2) applies to the cited condition.
Section 1926,21(b)(2) provides that
[t]he employer shall instruct each employee in the recognition and avoidance
of unsafe conditions and the regulations applicable to his work environment
to control or eliminate any hazards or other exposure to illness or injury.
This general training standard applies to all construction sites covered under the Act.
Because Respondent is a covered employee under the OSHA Act, 21(b)(2) applies.
QEDosed or had access to the violation, and Resnondent had actual or
mm&e knowledge of the violation.
Iqectcx Stelmack determined that Respondent violated the terms of 21(b)(2) when
Mr. Corrigan stated that he was not familiar with the OSHA trenching regulations. Finding
FlO. At the hearing, Respondent seemed to believe that by hiring employees who had
trenching experience, he fulfilled his responsibilities with respect to training. However, the
law is clear that training by former employers does not fulfill the requirements of 21(b)(2).
Ford Development Co., 15 BNA OSHC 2003,2009 (Rev. Comm. 1992) (Serious citation for
violation of 29 C.F.R. 3 1926.21(b)(2) upheld where company failed to provide its foreman
with adequate training in excavation hazards, relying on the foreman’s on-the-job training
with a previous employer). “Each worksite presents a different work environment posing
its own specific set of safety considerations.” Siegel Interior SpecialistsCo., 15 BNA OSHC
1665, 1666 (ALJ 1992) (serious violation of 29 C.F.R. 5 1926.21(b)(2) affirmed).
Complainant has established a serious violation of 21(b)(2).
3. Comnlainant established that the DroPer nenaltv was assessed for items 2a,
2b, and 2c of serious citation no. 1
The Secretary grouped the penalty for these items because of the similarity in the
nature of the violations. (Tr. 67). Inspector Stelmack testified that the first step in assessing
a penalty is assigning a value for the severity of the injury to be expected and a value for the
probability of injury. (Tr. 68). These violations were classified as high severity because the
resulting injury could be death. Findings F9 and F12. Inspector Stelmack, however, assessed
the probability of injury as lesser, because when he observed the trench and trench sidewalls
he did not notice any materials spalling from the sidewalls, any visible tension cracks or
10
fissures &ng the excavation face, or any water either in the trench or seeping from the
sidewalls. Fiiii F8 The gravity-based penalty for a high severity/lesser probability injury
is $2,500. (Tr. 69).
The $2,500 penalty was then reduced by 60% because of the small size of
Respondent’s company. (Tr. 69-70). No other adjustments were made. The final
recommended penalty was $l,OOO.OO. Inspector Stelmack’s testimony regarding the
assessment of the penalty for these items was not rebutted by Respondent. Accordingly, the
appropriateness of the penalty was established.
F0 Complainant Sustained Her Burden of Proving That Respondent Violated 29.
C.F.R. 5 1926.652(a)(1)
1. Section 1926.652(a)(l) applies to the cited condition. Respondent m
its terms. Respondent’s emplovees had access to the hazard. and
Respondent had actual or constructive notice of the hazard,
Section 1926.652(a)( 1) provides that
each employee in an excavation shall be protected from cave-ins by an
adequate protective system designed in accordance with paragraph (b) or (c)
of this section except when: (i) excavations are made entirely in stable rock;
or (ii) excavations are less than 5 feet (1.52 m) in depth and examination 01
the ground by a competent person provides no indication of a potential cave-
in.
This standard clearly applies. Inspector Stelmack observed two of Respondent’s employees
working in an excavation that was made in Type B soil rather than stable rock, that was
greater than 5 feet deep, and that was not protected against cave-ins. One of the employees
was Respondent’s foreman. Findings D4, Fl, F4 through F6.
At the hearing, Respondent suggested that given the confined space in the trench, no
protective system was available that would allow the employees to still do the work necessary
11
to insa the drop connedon. Iqxxtor Stelmack testified that he believed manufactured
systems are availaMe that could have been used to shore the trench. (Tr. 114). Moreover,
Respondent’s OWIIforeman testified that speed shoring or widening the trench might have
worked as protective systems that did not interfere with the employees ability to install the
drop connection. (Tr. 157). Respondent’s suggestion appears to raise the infeasibility
defense. That defense fails here for the same reasons that it failed in connection with the
violation of 9 1926.652(c)(2). Complainant has proved a violation of 0 1926.651(a)(1).
2. ComDlainant established that the violation of 652(a)(l) was Droperlv
characterized as a willful violation and that the arxxoDriate Denaltv was
assessed
Although the term “willful“ is not defined in the statute, one accepted definition
states that a willful violation is one “involving voluntary action, done either with an
intentional disregard of, or plain indifference to, the requirements of the statute.“ I%#@-
Bicqord Co. v. OSHRC, 717 F.2d 1419, 1423 (D.C. 1983), cert. denied, 466 U.S. 937, 104
S.Ct. 1909 (1984); Georgia Elec. Co. v. Marshall, 595 F.2d 309, 319 (5th Cir. 1979); AC
Delovade, Inc., 1987 OSHD (CCH) ll 27,786 at p. 36,341 (Commission 1987); OSHA
Instruction CPL 2.45B, ch. IV, B(3)(b) (J une 15, 1989), reprinted in O.S.H. Rep. (BNA)
“Reference File“ volume 3, at 772510 and 3 Empl. Safety and Health Guide (CCH) 1
7966.290. This standard describes misconduct that is more than negligent but less than
malicious or committed with specific intent to violate the Act or a standard. E.g., Enrign-
Bicybrd Co., 717 F.2d at 1422-23, Georgia Elec. Co., 595 F.2d at 318-19.
The Court of Appeals for the Third Circuit has held that
willfulness connotes defiance or such a reckless disregard of consequences as to be
equivalent to a knowing, conscious, and deliberate flaunting of the Act. Willful
12
meafw L~#)TCthan merely voluntary action or omission-it involves an element of
obstimte refbsal to comply.
Frank Irey, Jr., k v. OSHRC, 519 F.2d 1200, 1207 (3d Cir. 1974), affd, 519 F.2d 1215
(1975) (en bane), affd on othergrounds sub nom. Atlas Roofing Co. v. OSHRC, 430 U.S. 442,
97 S.Ct. 1261 (1977).
While some courts have suggested that this is a narrower definition of willful,
requiring a showing of “bad purpose“, the Court of Appeals for the Third Circuit has taken
the position that there is little, if any, difference between their approach in Fmnk I&y, Jr.,
Inc. and the approach of other circuits.
To our way of thinking, an “intentional disregard of OSHA requirements” differs
little from an “obstinate refusal to comply;” nor is there in context much to
distinguish “defiance” from “intentional disregard.”
Babcock & WUcoxv. OSHRC, 622 F.2d 1160, 1167 (3d Cir. 1980). See aho UniversalAuto
RadiatorMfg. Co. v. Marshall, 63 1 F.2d 20, 23 (3d Cir. 1980).
Respondent knew of the necessity to shore or otherwise protect the employees in the
trench and refused to do so. From the time that Respondent first became invoked in
bidding for the sanitary sewerage system construction project, it was on notice that it had
sole responsibility for ensuring employee safety and that it was required to comply with all
federal safety regulations. (Tr. 20-21, 82, GX 1). Specifically, the contract directed that
“[t]he Contractor is required to do such trench bracing, sheathing, or shoring necessary to
perform and protect the excavation and as required for safety and to conform to governing
laws.” (GX 1, p. 74).
Additionally, during the pre-construction conference on March 17, 1992, during the
discussion of the general project responsibilities, it was again made clear that the Contractor
13
wm “r,poa~l’b~i&for compliance with all applicable federal, -state, and local laws and
Or~~CeS SlEit dldl l l . OSHA, and other safety codes.” (GX 4, p. 3). Not only were
Respc&ent’s foreman and another representative present at the pre-construction
conference, but Mr. Lynch was sent a copy of the minutes of the meeting. (Tr. 24).’
Nonetheless, Inspector Stelmack did not see anything on the work site which could
have been used as shoring in the trench. (Tr. 84). And when Inspector Stelmack questioned
him, Respondent’s foreman disavowed any responsibility for employee safety and indicated
that he was not aware that anyone was responsible. Finding FlO. This certainly illustrates
an “intentional disregard of OSHA requirements” which may also be characterized as an
“obstinate refusal to comply.” A contractor who permits excavation to go forward without
having both. a competent person in charge of the work and the equipment necessary to
ensure safety present repudiates its obligation for employee safety imposed by the Act?
Complainant has established a willful violation of 0 1926.652(a)(l).
Having established the violation as willful, Inspector Stelmack also testified in detail
as to how he determined the penalty. (Tr. 91-92). The violation was classified as high
severity because the possible injury that could be expected would be death. The inspector
rated the violation as lesser probability as the trench sidewalls showed no visible signs of
imminent failure such as material spalling from the sides, tension cracks that could be
AInspector Stelmack also testified that when he spoke with the observer from G. Edwin Pidcock Co., he
learned that Respondent had been apprised of the need for shoring in the trenches. Tr. 84.
LThere is some indication in the record that Respondent may have fallen victim to a reluctance on the part
of Mr. Corrigan, an individual with substantial excavation experience, to become involved with OSHA. Tr.
159-60. However, if Mr. Corrigan was unwilling to assume that responsibility, Respondent had an obligation
to provide a competent person who would.
14
obseryed, cr&~ or fissures in the sidewalls, or water either seeping fkom the sidewalls or
smding m the trench. The gravity based penalty for a high severity/lesser probability
violation is S2JoO. (Tr. 91).
That amount was multiplied by 7 for a total of $17,500.00 to reflect the element of
willfulness. Inspector Stelmack then gave a 60% reduction for the company’s small size,
giving a final recommended penalty of $7,000.00. (Tr. 91). No adjustments for good faith
or history are given when a violation is classified as willful. (Tr. 92). The Inspector’s
testimony regarding the factors used to determine an appropriate penalty was not rebutted
by Respondent. Accordingly, the appropriateness of the penalty was also established.
II l FINDINGS OF FACT
A Respondent, Supermason Enterprises, is a corporation with a principal place
of business at Box 533, Portland, Pennsylvania. (Complaint, ll 1).
B. In May of 1992 Respondent was engaged in excavation work at Bayberry and
Crestmont Streets, Pen Argyl, Pennsylvania. (Tr. 33-34). The construction project involved
the installation of a sanitary sewer. (Tr. 33).
C. G. Edwin Pidcock & Company was engaged by Plainfield Township to oversee
the design and construction of the Bayberry Area Sanitary Sewerage Construction Project.
(Tr. 10).
D l Respondent had approximately 6 employees at the work site who identified
themselves as employees of Supermason Enterprises. (Tr. 34, 70).
15
L The contract for the sewerage system project required that at least 60
percent of the major portions of the project be accomplished by the bidders own personnel,
a requirement of which Respondent was aware. (Tr. 13, GX 1).
2. Respondent engaged in correspondence with the attorney for the Township
and G. Edwin Pidcock regarding the amount of subcontracting Respondent intended to use.
On December 9,1991, by letter to Attorney Layman, Township Solicitor, Supermason stated
that they would supply all equipment, labor and material. (Tr. 1446, GX 2.)
3. Supermason Enterprises filed weekly Payroll Certification records with
Plainfield Township, which identified Kevin Corrigan and Richard Schwind as laborers
employed by Supermason Enterprises during the workweek which includes May 6, 1992 on
the Payroll Certification records. (Tr. 18, 36, GX 3).
4. Kevin Corrigan, the owner of C&S Contracting, was hired by Respondent
as a site foreman, with the responsibility for getting the other men working in the morning,
ordering pipe and ensuring that the job was completed. He was paid by Supermason by
employee check, rather than as a subcontractor for this particular project. (Tr. l’45,146,
149, 152, GX 11).
5. Mr. Lynch testified that Richard Schwind was employed by Supermason
Enterprises on May 6, 1992. (Tr. 165).
E l On May 6,1992 Mark Stelmack, a Compliance Safety and Health Officer with
the Occupational Safety and Health Administration inspected Respondent’s work site. (Tr.
33) l F. Upon first arriving at the work site on May 6, 1992,Mr. Stelmack observed the
16
Mea where the crcavation was taking place, introduced himselE, and asked to speak to the
foreman. I&V&BCorrigan was introduced as the foreman on the site. (Tr. 33, 61).
1. Inspector Stelmack observed two employees, Kevin Corrigan and Richard
Schwind, working in a trench adjacent to an existing sanitary sewer manhole, which had live
lines running out of the manhole. Mr. Stelmack also observed that a Case backhoe,
manufactured in Racine, Wisconsin, was in use. (Tr. 34, 36, 39, 43, 60, GX 6, 7, 49).
20 The employees in the trench were installing a drop connection, a
connection placed outside the manhole to direct sewage so that it enters the manhole closer
to the bottom, adjacent to the existing manhole. (Tr. 39, 43, 60, 76, 14).
3. The existence of the live lines into the manhole created the possibility that
employees would be exposed to methane and hydrogen sulfide gasses when working on the
drop connection to the existing manhole. (Tr. 42).
a. Methane and hydrogen sulfide are commonly found in the
decomposition of organic materials such as raw sewage. Their infiltration into the trench
would create a hazard of oxygen displacement or explosion. (Tr. 46).
b. This potential hazard was limited by the fact that a mechanical plug
had been placed in the sewer lines, which, if working properly, would prevent the escape of
gasses from the live lines. Nevertheless, employees working in trenches where sewer gasses
may be present need-to be aware of how to identify the gasses and the precautions to be
taken in the event of their presence. (Tr. 45).
c. Supermason Enterprises did not have a written hazard communication
program covering these gasses. (Tr. 41-42). Material safety data sheets for these gasses were
17
not available to employees at the work site. (Tr. 45, 47). Superniason Enterprises did not
prhde informatimr and trainingon hazardous materials at the work site to employees. (Tr.
53). S~permas~n Enterprises was aware of these deficiencies and had been previously cited
for violations of 00 1926.59(e)(l), 192659(g)(l) and 1926.59(h). (Tr. 41, 45, 53; GX 5).
Inspector Stelmack did not observe any monitoring equipment, such as an oxygen meter or
combustl’ble gas meter, on the work site. (Tr. 53, 55).
4e Using a steel tape, Inspector Stelmack measured the trench dimensions.
(Tr. 59, 73). The trench was 14 feet long, 8 feet wide at both the bottom and the top, and
approximately 8 to 10 feet deep. (Tre 59,73,85, 111). The trench walls were vertical. (Tr.
59, 72, GX 7, 8, 9).
5 l No protective system was utilized in the trench. (Tr. 71, 73, 76).
Protective systems which might have been used include sloping or benching of the sidewalls
of the trench, a shoring system such as timber, balloon, or hydraulic shoring, or a trench box
or trench shield. (Tr. 77).
6 l Using the OSHA trenching standards definitions, Inspector Stelmack
classified the soil in the trench as type “B“ soil, The material surrounding the manhole was
angular gravel backfilled around the manhole. The soil in the trench had also previously
been disturbed when a water line was installed. The remainder of the material in the trench
was compacted clay interspersed with various sized gravel. (Tr. 74, 101).
7e Inspector Stelmack determined that the manhole he observed in the trench
was not a new manhole, but an existing manhole because the road surface above the
manhole was intact. (Tr. 98, GX 6, 7, 8, 9). Kevin Corrigan confirmed this. (Tr. 147).
18
8 There was no evidence of materials spalling fk~linthe sides of the trench
wa no ten&m cracks vi&Ie along the excavation face, no fissures in the face and no water
&Rmed either in the trench or seeping from the sidewalls of the trench. (Tr. 69).
9. Inspector Stelmack observed that there was no ladder or other means of
egress from the trench. However, a ladder was lying on the ground, outside of the trench.
(Tr. 58, 107, GX 6). In the event of a sidewall failure or trench collapse, employees would
not be able to exit the trench rapidly and would probably die. (Tr. 60, 62).
10. Daily inspections of the excavations and surroundings areas for situations
that could result in cave-ins or failure of the protective systems were not being made by a
competent person. The site foreman, Kevin Corrigan, told Inspector Stelmack that he was
not familiar . with the OSHA trenching regulations, although apparently he had substantial
experience as an excavation contractor. Mr. Corrigan also told Inspector Stelmack that he ,
was not responsible on site for employee safety and that he was not sure who was
responsible. (Tr. 62-63, 65, 152-53).
11. The employees had not been trained in the recognition and avoidance
Y
of unsafe conditions. (Tr. 66).
12. The employees working in the unsloped, unshored trench 840 feet deep
were exposed to a hazard of trench wall collapse. (Tr. 64). The most likely injury to result
from failure of a trench sidewall would be death. (Tr. 65, 68).
G. The project manual supplied to Super-mason Enterprises advised that under the
terms of the contract, the contractor was responsible for complying with applicable safety
and health laws governing construction and trenching. (Tr. 20, 21, 81, 82, GX 1). The last
19
paragraph on page 74 of the project manual addresses the responsibility to protect trenches
during the mtion. (Tr. 21, GX 1).
1. SupermasonEnterprises was aware of the provisions in the project manual,
as the specifications in the project manual are used by the contractor in order to draw up
the bid. (Tr. 21, 83).
2. Supermason Enterprises was also aware of the responsibility to comply
with applicable federal, state and local laws and ordinances by virtue of the pre-construction
conference. (Tr. 22, 83, GX 4).
3. Mk Steven Goffredo and Mr. Kevin Corrigan were in attendance at the
pre-construction conference as representatives from Supermason. (Tr. 23, GX 4)
4l Mr. Lynch was informed about the topics that were discussed at the
pre-construction conference as the minutes of the meeting were transmitted to Supermason’s
office. (Tr. 24, GX 4).
III 0 CONCLUSIONS OF LAW
A. Respondent utilizes tools, equipment, machinery, materials, goods and supplies
which have originated in whole or in part from locations outside the Commonwealth of
Pennsylvania and is therefore engaged in business affecting commerce and is subject to the
requirements of the Act. 29 U.S.C. 0 652(5).
B l Respondent is an employer within the meaning of the Act and is therefore
subject to its requirements.
C. Respondent failed to comply with the terms of 29 C.F.R. 3 1926.59(e)(l) as
charged in Citation 1, Item l(a). A civil penalty of $00 is appropriate.
20
D0 Respondent failed to comply with the tern of 29 C.F.R. 0 192659(g)(l) as
charged in Citatbn 1, Item l(b). A civil penalty of $00 is appropriate.
E. Respondent failed to comply with the terms of 29 C.F.R. 0 192659(h)(l) as
charged in Citation 1, Item l(c). A civil penalty of $00 is appropriate.
F0 Respondent failed to comply with the terms of 29 C.F.R. 0 1926.651(c)(2) as
charged in Citation 1, Item 2(a).
G. Respondent failed to comply with the terms of 29 C.F.R. 8 1926.651(k)(l) as
charged in Citation 1, Item 2(b).
H l Respondent
* failed to comply with the terms of 29 C.F.R. 8 1926.21(b)(2) as
charged in Citation 1, Item 2(c).
I0 Citation 1, Items 2(a), 2(b), and 2(c) were properly characterized as serious
violations of the Act. The proposed penalty for these violations of $1000 was calculated in
.
conformity with the requirements ol section 17(j) of the Act and is appropriate.
J. Respondent failed to comply with the terms of 29 C.F.R. 0 1926.652(a)(l) as
charged in Citation 2, Item 1. This failure was properly characterized as a willful \;iolation
of the Act. The proposed penalty of $7,000 was calculated in conformity with the
requirements of section 17(j) of the Act and is appropriate.
Iv 0 ORDER
Aa Citation 1, Items l(a), l(b), and l(c) are affirmed as other than serious
violations of the Act.
B. Citation 1, Items 2(a), 2(b), and 2(c) are affirmed as serious violations of the
Act .
21
C l Citation 2 is afEm& as a willfidviolation of the Act.
D l Tot& civil-penalties of $8,000 are assessed.
Dated: JUNI 1 1993
Wihiqgton,D.C.
22
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