Fort Defiance Construction & Supply, Inc.
All three trenching items vacated
Apply this to your situation
This order from 1994 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
Fort Defiance Construction & Supply was installing utilities in a trench at a Dayton, Ohio, road project. OSHA alleged that employees lacked a safe exit, that the onsite foreman was not a competent person, and that the trench lacked adequate cave-in protection. The judge found that employees could safely step onto a bench and out of the trench, and OSHA did not prove that anyone had to travel more than 25 feet to reach that exit. He also found that the experienced foreman had relevant training, visually inspected the soil, performed a thumb-penetration test, and was capable of identifying and correcting hazards. OSHA did not directly measure the open trench, and the judge found its later indirect measurements and poor-quality videotape unreliable. All three citation items were vacated, so no penalty was assessed.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.651(c)(2), 1926.651(k)(1), and 1926.652(a)(1).
- Outcome: Vacated. Both serious citation items and the willful cave-in-protection item were vacated.
- Key point: OSHA must prove the trench dimensions and cited conditions with reliable evidence; indirect estimates and an unclear video did not establish these violations.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
one Lafay8tt8 Cent!‘9
11%) 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
M
cou@o2ja-8loo
-mm-=
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-2700
FORT DEFIANCE CONSTRUmON & SUPPLY
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Re ort in the above referenced case was
docketed with the Commission on MarcK 18, 1994. The decision of the Judge
will become a final order of the Commission on April 18, 1994 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW..
Any such etition should be received by the Executive Secret on or before
April 4, 1f 94 in order to ermit sufficient time for its review.Y ee
Commls.cion Rule 91,29 8 .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. DOc
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 nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION
DOCKET NO. 92-2700
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mkk, m.
Counsel for RC 'onal Trial titi ation
Office of the Soptl
citor, U.S. DOPL
Room S4004
200 Comitution Ave., N.W.
Washington, D.C. 20210
John H. Secaras
Re ‘onal Solicitor
O&e of the Solicitor U S DOL
Federal Office Build&g, kbom 881
1240 East Ninth Street
Cleveland, OH 44199
Roger Sabo, Esq.
Schottenstein, 20x & DUM
. 41 South Hi Street
Columbus, 8 H 43215
John H. Frye, III
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
00103377123:05
OCCUPATIONAL SAF~N~~~~~~~~~c~EV,EW COWW~SION
One bfay8tt8C8ntm
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
0
l
SECRETARY OF LABOR, 0
0
Complainant,
v. Docket No. 92-2700
l
FORT DEFIANCE CONSTRUCIION ;
SUPPLY, INC., l
l
Respondent.
Appearances:,
Benjamin T. Chinni, Esq. Roger L Sabo, Esq.
Elizabeth R Ashley, Esq. Schottenstein, Zox 8tlDunn
Office of the Solicitor Columbus, Ohio
U.S. Department of Labor For the Respondent
Cleveland, Ohio
For the Secretary
BEFORE: Administrative Law Judge John H Frye, III
This matter is before the Commission pursuant to 510(c) of the Occupational
Safety and Health Act of 1970) 29 C.F.R. 9651 et seq.), hereinafter referred to as the
Act. Respondent is an employer engaged in a business affecting interstate commerce as
defined by #3(5) of the Act and has employees as defined by 53(6) of the Act (Exhiiit C-
1; Respondent’s Pro@ Conclusions of Law). Respondent is charged with viokai~~ of
thrtc OSHA 8t8duds relating to trenching.
On Juiy 10 ti 13,1992, an Occupational Safety and Health Administration
(OSM) compliance officer inspected at Respondent’s worksite at the intersection of
North Fairfield and Ambassador Roads in Dayton, Ohio, where Respondent’s employees
were working in a single trench. Respondent was issued Serious Citation No. 1, alleging
two separate violations. Item 1 alleges that Respondent violated 29 C.F.R.
1926.651(c)(2) by not providing a safe means of egress for employees working in a trench
on July 10, 1992. Item 2 alleges that Respondent violated 29 C.F.R 1926.651@)(l) by
failing to have a competent person within the meaning of the OSHA excavaticm
requirements on site. Respondent was also issued Willful Citation No. 2, aU@ng that
Respondent violated 29 C.F.R. 1926.652(a)(l) in that employees of respondem wurking
in the trench were not protected from cave-ins by an adequate protective system. In his
Complaint, the Secretary also alleged that Citation No. 2 was serious within the meaning
of #17(k) of the Act.
I0 BACKGROUND
Respondent Fort Defiance Construction & Supply, Inc. is engaged in the
construction business.’ Beginning in May of 1992, the Respondent was working on a
‘Fort Dehna is 8 havy ti highway construction contractor(Tr. 203). The majority of its work imnhres
bridges and roadways including excavation of trenches surrounding those roads (Tr. 204-213). The
Companyworks throughout the State of Ohio and does work with state agencies that include the Ohio
Department of Transportation with whom it has a certificateof prequalihtion to perform work (‘It. 213).
The Company is certified as a DisadvantagedBusiness Enterprise because it is owned by American Indians
(Tr. 213). The Company’semployees are members of the Operating Engineers &d LaborersUnion fir.
176) l
2
roadway im-xnent project at the imrscction of North Fairfield and Ambassador
Roads, wher8 it UIu 8 subcontractor to the John R. Jurgensen Company, who h tufn had
a contract with the Ohio Department of Transportation for certain improvements (Tr.
62). Jurgensen was doing roadway work and Fort Defiance was installing sewers, catch
basins, fire hydrants, and waterlines (Tr. 169, 176).
On July 10, 1992, OSHA Compliance Officer Richard Liston arrived at the project
pursuant to the general inspection schedule which listed John R. Jurgensen as the
general contractor (Tr. 8,62). Prior to entering the site, Liston surreptitiously videotaped
the activities of Respondent’s employees from his car parked at locations on public
streets from 75 to 150 yards from the work (Tr.9, 6!5).2 After two hours of vUeotapin&
he physically entered the work area, first going to the Fort Defiance trench (Tr. XJ)?
Liston observed no trench boxes in the excavation. He testified that the west wall
of the trench was cut virtually straight up and down and that the east wall of the trench
was benched for about one-third of its length. (Tr. 36-37.) There was no ladder or other
ZThevideotape was introduced into evidence as Secretarys exhibit C-2 Respondent’s counsel did not
object to the admission of the graphic representationscontained in the videotape, but did object to the
admission of verbal statements contained in it on the grounds that they are hearsay and constitute an
attempt to refresh Mr. Liston’s recollection without having shown that to be neceswry. (Tr. 9-M) I ruled
that I would not consider the vwbal statements of others, but that I would consider h4r. Liston’s
statemnts remdcd on the t8pe subject, howwer, to specific objections and to cro6s examination (Tr. 12).
A rwicw of the tape ~CVWUS that none of the verbal statements contained on it are wcess~~ to a
decisioninthis~ haotaav#, it is very difficult to correlate the questioning of Mr. Liston with the
specific scenes and statements on the tape to which those questions were directed. Consequently, I lwe
not relied on any of the valml statements on the tape in reaching this decision.
In the Mare, if the Secretaryintends to introduce a videotape containing graphic representations
and/or verbal statements, he should furnish some means of providing the necessary correlation and should
also be prepared to wmpiy with Rule 1002, Federal Rules of Evidence.
he had not at this time talked to any representative of the contractor,Jurgensen, nor had he conducted
an opening conference (Tr. 70). He continued to videotape the Fort Defiance work area (Tr. 70), but he
did not test the soil or measure the trench (Tr. 70-71).
3
mew of egress pr&ded which Mr. Liston considered to be safe. Employees exited the
trench by steppiq onto the bench at the south end and from there onto the street (Ex
c-2 [~deotqe~ Mi. L&on testified that, when asked, Mr. Green, Respondent’s
competent person on site, stated that he did not know the type of soil in which the
trench had been dug (Tra 20)*
The opening conference was held away from the jobsite. Upon his return to the
jobsite, Liston discovered the trench had been closed-and the employees were gone,
leaving some equipment behind. (Tr. 1%20,21&21.) Prior to leaving the site, I&ton
took some measurements of the backhoe used to dig the trench. On July 13,l992,
L&on held a closing conference at which time the apparent violations were dij;cusjed.
Afterwards, L&on returned to the site, where he found that another conzicfolr bad
begun excavating where the Respondent’s trench had stopped, and made some nmre
measurements. On July 30,1992, OSHA issued citations to Respondent alleging willfbl
and serious violations of the Act based on the CSHO’s investigation, A valid notice of
contest was filed by Respondent. Trial was held in Dayton, Ohio, on April 7, 1993.
‘On June 23, Respondent filed a motion to correct numerous ,errors in the transcript.
On July 14, the Secretary responded, agreeing with the vast majority of Respondent’s
proposed corrections. Those corrections on which the parties agree are approved.
4
II 0 mATION l,m1 -ALLEG~~O~TION OF29 CF.R 1%6.651(c)(2)-
SAFB:MEANS OF EGRESS FOR Eh@LWEEs WORKING IN THE TRENCH.
The Senetary III&~&~ that Respondent violated 29 C.F.R. 1926.651(c)(2) by not
prh&g a safe means of egress for employees working in the trench on July 10, 1992.
The cited standard provides:
A stairway, ladder, ramp or other safe means of egress shall be located in trench
excavations that are 4 feet (1.22m) or more in depth so as to require no more
than 25 feet (7.62m) of lateral travel for employees.
It is uncontroverted that no ladder was provided for egress from the trench.
Liston observed and videotaped employees exiting the trench by climbing up the east wall
of the trench. Liston testified that the distance between the bench in the trench wall that
the employees used in exiting and the bottom of the trench was about three #kt.
However, he also testified that the employees stepped first on the pipe, then tiw bench,
and the videotape clearly shows that the height of the steps required was far less than
three feet and posed no difficulty. (See Ex C-2; Tr. 37.) In fact, the videotape
demonstrates that the employees were able to get out of the trench easily, that a safe
means of egress was available.
The standard requires no more than twenty-five feet of lateral travel to reach a
means of egress from. the trench. Mr. Green, Respondent’s foreman, estimated that
about 25 feet of the trench was open when Mr. Liston arrived. (Tr. 180.) Mr. Liston
absented three sections of eight-foot pipe were laid end to end along the length of the
trench, from which Mr. Liston concluded that the length of the trench exceeded 24 feet.
He estimated that the trench was 32 feet long on July 10 (Tr. 24-26). His estimate is an
inadequate substitute for actual measurements. The Secretary has established only that
5
there & 8 possibility that it ~85 neceSSaI”yto tmd more than twenty-five feet to reach a
safe mm of cgrcrr, -t is;insufficient to establish a violation of the standard.
Citation 1, Item & is Watti
III mATION 1, m 2 - ALLEGED VIOLATION OF 29 C.F.R 1926.651(k)(l) -
&n?E’I’ENT PERSON ON SITE
The Secretary takes the position that Melvin Green was not a competent person
within the meaning of the OSHA excavation requirements? Section 1926.650(b) defines
a competent person as:
one who is capable of identifying existing and 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.
The preamble to the Final Rule provides guidance as to what constitutes a competent
person. It states:
In order to be a “competent person” for the purposes of this standard one
must have had specific training in, and be knowledgeable about, soils
analysis, the use of protective systems, and the requirements of this
standard. One who does not have such training or knowledge cannot
possibly be capable. 54 Fed. Reg. 45909 (1989).
The Secretary relies on the following in arguing that Green was not competent.
First, when Liston arrived at the trench, he asked Green “what kinds of soil was in the
trench.” Mr. Green stated that he did not know. (Tr. 20.) The Secretary regards this
?he standard under which Respondent was cited, 1926651(k)(l), provides in pertinent part, that:
Daily inspections of cxavations, 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 Eailure of protective systems, hamdous atmospheres, or other hazardous
conditions....
6
rap= m &cresting for m individual who CKIIISto have knowledge of soil
cautions A, B, ad C set forth in the Appendix A to Subpart P. However, given the
wording of the question, the response is not surprising. Paragraph (b) of Appendix A
defines some 11 different kinds of soils in addition to classifications A, B, and C.
Second, the Secretary urges that Green also testified that he knew there was
backfilled soil in the area but still classified the soil as Type A (Tr. 180-81), pointing out
that this conclusion is inconsistent with Appendix A, which provides that previously
disturbed soil may not be classified as Type A. However, Green’s testimony is not clear
on this point. While he classified the soil as Type A, it is ndt clear that he applied this
classification to the portion of the trench dug in backfill. It is clear that he treated this
portion of the trench more carefilly than he did the portion dug in undismbcd suiL
Moreover, Respondent’s expert, Mr. Krieger, confirmed that Green’s assessment and
treatment of the soil was conservative.”
Third, the Secretary points out that, in order to classify soil, Appendix A to
Subpart P requires the competent person to perform at least one visual and one manual
test. The Secretary incorrectly maintains that Green acknowledged that he performed
only a visual test. Green testified that he visually inspected the soil and performed a
thumb penetration test. (‘Tr. 180-81.)
Green IUUworked in the construction industry approximately twenty years. He
has been a foreman for nine or ten of those years. He has received general safety
training with his prior employers as well as trenching and excavating training at a course.
%eger made four borings, took samples, ran a series of tests, and found that the soil exceeded, by far,
the strength requirement for Type A fir. 232-36.)
7
(Tr. 170474; R ML G.) The Secretary has not demonstrated that he was incapable of
iden- e and mble hazards or hmdous working conditions. Citation 1,
IV. CITATION 2, ITEM 1 - ALLEGED VIOLATION OF 29 C.F.R 1926.652(a)(l) -
mfI%OYEES NOT PROTECTED FROM CAVEINS BY AN ADEQUATE
PROTECllVE SY-
The Secretary maintains that Respondent violated 29 C.F.R. 1926.652(a)(l) in that
the trench in which it was working was five feet or more in depth and was not properly
sloped or otherwise protected. There was considerable circumstantial evidence
concerning the dimensions of the trench presented at trial. However, there was no
evidence concerning its actual dimensions because the Compliance Officer did not m&c
any measurements of the trench. He chose instead to spend some two hours
surreptitiously videotaping the activity in the trench from considefible distances before
officially commencing his inspection. (Tr. 65-66.) When he eventually set out to
measure the trench after haying conducted an opening conference, it had beeri closed
because a buried telephone cable had forced the cessation of work. (Tr. 21849.)
At the end of the opening conference, Liston indicated to Respondent’s General
Superintendent, Jeffkey F. Dayy, that he wished to continue the inspection at the site of
the trench. Davy told him that nothing was going on at the site, and Liston responded
that he would inspect Fischel and finish his walk around on Monday. (Tr. 220-21.)
Despite this, he returned to the site of the trench. by himself on Friday afternoon, July 10.
(Tr. 133-34.) Liston took some measurements of the backhoe used to dig the trench.
&ause L&cm believed &at the backhoe had been straddling the width of the trench, he
measured the ~~SUIECbetween the tracks of the backhoe on the assumption that that
&s- would qpximatc the top width of the trench. The distance was sixty-two
inches. (Tr. 23) Because the width of the bucket of the hoe would approximate the
bottom width of the trench, he measured it and found it to be thirty-three inches. (22)
Thus he estimated the width of the bottom of the trench to be three feet (Tr. 21.23).
On Monday, July 13, Davy looked for Liston &om 10 AM until noon, but could
not find him. Davy left, and was called back to site for a &sing conference at 1 PM.
Liston told him he was not through with the walk-around, but that he would do an
informal closing because Davy could not be present on Tuesday. (Tr. 221-22) Following
this conference, Liston returned to the site where Fischel had begun excavating at the
point where Fort Defiance’s trench had stopped, apparently uncovering some of the
same area where Respondent had worked on July 10. (Tr. 24, 103-W)
Liston measured the distance between the top of the trench and the top of a pipe
in the trench and found it to be 54.5 inches. (Tr. 25.) He never identified this pipe as
one installed by Respondent, although he thinks it was laid by Respondent. (Tr. 24-27,
94.) Liston also measured some sewer pipe located on the site which appeared to be
identical to the pipe which he had seen in the trench on July 10. The pipe measured
22.5 inches in outside diameter. (Tr. 27-28.) He also measured the width of the black
top patch which covered the excavation and found it to be 105 inches. (Tr. 9142.)
Apparently, Fischel was the only contractor on site when these measurements were
made. (Tr. 94-95, 103.)
Liston also testified that he reviewed the plans for the project at the State
Engineer’s m bhmiing to L&ton, these indicated that the drain line of the pipe was
to be placed at a depth of 5.75 feet and that the pipe was to rest on six inches of gravel
fill. Adding these figures and the thickness of the wall of the pipe (2.25 inches), L&on
concluded the depth of the trench was approximately 6.5 feet? (Tr. 27-29, 10614.)
The Secretary argues that the best evidence of the dimensions of the trench is
provided by the video. For example, he maintains that the video, taken born some
distance away, clearly shows a white measuring rod moving back and forth in the trench,
while the person in the trench I who presumably is carrying the rod cannot be seen. Later,
when Liston walked up to the trench with the recorder on, the Secretary urges that it is
obvious from the tape that the trench walls are over the head of an empee in the
trench, and that another employee illustrates the narrowness of the trench by virtue of
the fact that his right hand rests on one bank while his left elbow is almost touching the
other bank of the trench. (Secretary’s brief, pp. 1749.)
The videotape is of poor quality. While it might serve to illustrate the results of
actual measurements of the trench, if those existed, it is simply not a substitute for them.
The videotape creates conflicting impressions of the dimensions of the trench. At times
it seems to show employees in the trench with their heads and shoulders above ground
level, and at other times creates the inference that an employee is standing in the trench
but is not viG%leabove ground level. Camera angles and the focal length of the lens,
‘Depth to drain line (5,75 fwt) plus thickness (0.1875 feet) plus gravel fill (0.5 feet) equals 6.4375 feet.
This compares with the depth of the trench based on Liston’s measurement of the pipe he found in the
Fiihel excavation: 54.5 inches to the top of the pipe plus 225 inches outside diameter of the pipe plus 6
inches of gravel fill equals 83 inches or 6.9166 feet.
. 10
coupled with the failure to hold t& mefa steady and to properly focus, fan well create
inaccurate impertioru of the dimensions of the trench, particularly when the scenes are
ta@ from cxxWmable distance in the absence of a representative of Respondent. In
short, 1 find the videotape is not a reliable indication of the dimensions of the trench.
Nor are Mr. L&ton’s indirect measurements of the trench reliable. None of them
were made in the presence of a representative of Respondent. All require certain
assumptions, some of which appear to be more valid than others. Thus, while there can
be little w
doubt that the trench was at least as wide as the bucket of the backhoe, there is
considerable doubt that it could not be wider than the distance between the tracb of’the
backhoe. While the distance between the tracks might serve to limit the width of the
trench closest to the backhoe, it would not limit the operator’s ability to widen the trench
in front oE, rather than beneath the backhoe. While Liston’s measurement of the
blacktop patch would seem to provide an upper limit to the width of the trench, he did
not make that measurement in Respondent’s presence, nor did he indicate whether he
measured the widest or narrowest portion of the patch, or whether the patch was of
uniform width. His testimony with regard to the depth of
. the trench is both inconsistent
and disputed by Respondent. Roth Green and Davy testified that the depth, according
to the drawings goveming the work, was essentially five feet? (Tr. 185-88, 198,216;
Respondent’s E;lrE)
In short, the Secretary has not established that this trench violated the provisions
of g 1926.652(a)(l). Had Mr. Liston taken a few minutes out of the time he spent
%eir testimony indicates that the plans called for a depth which was a fraction of an inch over 6ve feet.
11
videotaping in order to measure the open trench in the presence of Respondent’s
representative, ht might have established a violation. The Secretary has advanced no
reason for his &lure to take this straightforward step. His indirect measurements and
videotape are unreliable and an insufficient substitute for direct measurement of the
trench. Citation 2 is vacated.9
V0 CONCLUSIONS OF IAW
A. Respondent Fort Defiance Construction & Supply, Inc., was at all times
pertinent hereto an employer within the meaning of Section 3(5) of the Occupational
Safety & Health Act of 1970, 29 U.S.C. Section 651-678 (1970).
B l The Occupational Safety & Health Review Commission has jwkktion of
the parties and the subject matter.
C l Respondent Fort Defiance Construction & Supply, Inc., was not in violation
of the standard set out at 29 CFR 0 1926.651(c)(2) as charged in Citation 1, Item 1.
D0 Respondent Fort Defiance Construction & Supply, Inc., was not in violation
of the standard set out at 29 CFR 8 1926.651(k)(l) as charged in Citation 1, Item 2.
‘Citing Scctcuuy v. canctrtc &UWCM Co., 15 BNA OSHC 1614, 1621-22 (Rev. Corn, MU),
Respondent takes the position that any violation of 0 1926&2(a)(l) was dc minimis. Respondent bases
this position on tk oMlontmdictedtestimony of its expeft, Mr. Krieger, who testified that in his opinioa,
there was no danp that the walls of this trench, even though vertical, might collapse at a depth of sis to
seven feet. (Tr. 24842) SpecificaUy,Mr. Kriegertestified that the soil sampleswhich he analped had a
safety factor of 13 for a 0.5 horizontal to 1 vertical slope and 9.5 for a vertical f&x in a trench six to seven
feet deep, compared with an OSHA safety factor of 5 for a 1.5 horizontal to 1 vertical slope in a trench
twelve feet deep and an Army Corps of Engineers safety factor of 1.5 for earthen dams. (Tr. 2454)
While Concrete Construction lends support to Respondent’s position, I would be reluctant to
conclude that any violation of the trenching standards is & minim3 based on an expert’s after-the-&t
analysis. Trenching is dangerous. Employers should not be encouraged to deviate from applicable
standards based on a less than adequate on-site analysis in the hope that, if a citation is issued, that
analysis will be confirmed by an after-the-fact expert examination and analysis.
12
Ee Respondent Fort Defiance Cmmwtion 8t Supply, Inc., was not in violation
of t& standard m out at 29 CFR 6 1910.652(a)(l) as charged in the Citation 2, Item 1.
I
l ORDER
Citation 1, Items 1 and 2, tid Citation 2 are vacated.
Dated: MARi 7 I’,94
c YE,d,O C
/
III
Washington, D.C.
13
Get today's answer for your situation
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