DiGioia Brothers Excavating, Inc.
Trench protection and inspection violations affirmed
Apply this precedent to your situation
This is citable Commission precedent from 1995, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
DiGioia Brothers Excavating installed residential water and sewer lines in an excavation more than eight feet deep. The Commission found that most contemporaneous soil tests showed compressive strength below the threshold for Type A soil, while tests performed months later at nearby locations did not reliably establish the original trench conditions. The trench's 50- and 60-degree slopes were too steep for Type B soil, and its five-foot bench exceeded the four-foot limit even if the soil had qualified as Type A. The Commission also found that the company's inspectors were not competent persons because their visual checks and limited manual tests could not identify the sloping and benching hazard. Both violations were affirmed as serious, with penalties of $1,000 for inadequate trench protection and $500 for inadequate inspection.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.652(a)(1) and 1926.651(k)(1).
- Outcome: Affirmed. Two serious excavation violations were affirmed with $1,500 in total penalties.
- Key point: A competent-person inspection must be capable of identifying hazards that affect the protective system, including the soil conditions used to select trench slopes and benches.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. -9th Floor
Washington, DC 20036-3419
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SECRETARY OF LABOR, .
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Complainant. l
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Ve : OSHRC Docket Noe 92-3024
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DIGIOIA BROTHERS EXCAVATING, INC., .
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Respondent. ..
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DECISION
BEFORE: WEISBERG, Chairman; FOULKE and MONTOYA, Commissioners.
BY THE COMMISSION:
The issue presented here is whether DiGioia Brothers Excavating, Inc. (“DiGioia”)
violated two safety and health standards promulgated under the Occupational Safety and
Health Act of 1970, 29 U.S.C. 59 651-678 (“the Ati”)e We must decide whether DiGioia’s
pipeline trench exceeded the excavation standards’ slope and bench limits, and whether
DiGioia adequately and competently inspected the trench. We must also decide whether,
if affirmed, these two violations were S&OUS.
On July 30, 1992, Occupational Safety and Health Administration (“OSHA”)
Compliance Officer (“CO”) James Denton inspected a worksite in Brecksville, Ohio, where
DiGioia was installing residential water and sewer lines. As a result of that inspection, the
Secretary issued a citation on September 9, 1992, alleging that DiGioia committed serious
violations of OSHA’s excavation standards, and proposing penalties totalling $6000.
1995 OSHRC No. 24
2
Administrative Law Judge Nancy J. Spies affirmed the citation, and assessed penalties
tot&g $1500. For the reasons set forth below, we affirm the judge’s decision.
I. TRENCH PROTECTION--29 C.F.R. 8 1926.652(a)(l)’
The OSHA excavation standards provide that where an employer chooses its slope and
bench system by using the classification and design option set forth at 29 C.F.R.
8 1926.652(b)(2), as did DiGioia, the following sloping angle and bench height limits apply:
“Type A” soils, with an unconfined compressive strength of 1.5 tons per square feet (“tsf’)
or greater, generally must be sloped at an angle that does not exceed 53 degrees;3 “Type
B” soils, with an unconfined compressive strength greater than 0.5 tsf but less than 1.5 tsf,
must be more protectively sloped at an angle not exceeding 45 degrees; and “Type C” soils,
with an unconfined compressive strength of 0.5 tsf or less, must be sloped at an angle not
exceeding 34 degrees.4 The standard states, however, that “no soil is Type A if . . . [it] has
been previously disturbed.” (Subpt. P., App. A(b).) The bench height limit for any soil with
an unconfined compressive strength above 0.5 tsf is 4 feet?
‘That standard provides:
8 1926.652 Requirements for protective systems.
(a) Protection of empZoyees in e~c~vatiorzs, (1) Each employee in an excavation
shall be protected from cave-ins by an adequate protective system designed
in accordance with paragraph (b) or (c) of this section . . . .
?hat standard provides:
8 1926.652 Requirements for protective systems.
ibj Oesi&n of sloping and benching systems.
i$ bption (2)-Determination of slopes and configurations using Appendices A
and B. Maximum allowable slopes, and allowable configurations for sloping
and benching systems, shall be determined in accordance with the conditions
and requirements set forth in appendices A and I3 to this subpart.
3A 63-degree angle for this soil type is permitted for a short term simple (unbenched) slope
(Subpt. P., App. B(c)(4), Table B-l, n.2).
4Subpt. P., App. A (b ) ; Subpt. P., App. B(c)(4), Table B-1.
‘Subpt. P., App. B(c)(4), Figure B-1.1(2).
3
During his inspection, CO Denton measured the pipeline trench dug by DiGioia as 8
feet 8 inches deep and 25 feet long, with one S-foot, l-inch-high wall bench and inside slopes
of 50 and 60 degrees at the point of exposure. Denton observed that the trench soil was
cohesive clay, with little variation or evidence of foreign material such as rock or gravel, and
was told by DiGioia’s foreman-operator that the worksite soil contained backfill. He tested
the unconfined compressive strength of the soil with ten applications of a pocket
penetrometer to a sample taken from the side wall of the excavation. The penetrometer
readings ranged from .5 to 1.5 tsf, with the majority between .5 and 1.0 tsf. Only two or
three of the readings were at or near 1.5 ts% the figure associated with Type A soil.
DiGioia never mechanically tested the trench soil, but its president, Nick DiGioia, tested
the soil’s unconfined compressive strength manually, finding that the ground was so hard he
couldn’t put his thumb into it. On two occasions approximately four and six months later,
Solar Testing Laboratories (“SIX”) evaluated the worksite soil for DiGioia. STL visually
inspected the soil from five test pits and collected three Shelby tube samples for laboratory
unconfined compressive strength tests. To avoid damage to the recently laid pipelines, STL’s
soil samples were not dug fiorn the precise location of the original trench, but &orn test sites
not more than 20 feet away. STL described the test pit soils as silty clay fill, containing
particles of asphalt, gravel, sand, and cobbles, but found variations among them in color and
foreign material content. The unconfined compressive strength test results on the three
Shelby tube samples were 1.73 tsf, 2.72 tsf and 3.08 tsf. Sixty-two pocket penetrometer
readings obtained on the same samples ranged from 1.0 tsf to 4.5 tsf, with at least thirteen
readings below 1.5 tsf and averaged readings ranging from 1.20 tsf to 4.08 tsf.
Although the Commission has accepted evidence of soil type obtained from re-
excavations, we find that DiGioia’s re-excavation evidence is insufficiently related to the
conditions present in the original trench to be indicative of its soil characteristics. See, e.g.,
Broshear Contractors, Inc., 16 BNA OSHC 2094, 2097, 1994 CCH OSHD ll 30,591, pp.
45366-67 (No. 91-2125, 1994), petition for revkw filed, No. 941768 (D.C. Cir. Dec. 22,
1994)(proximityto original excavation, change in physical conditions over time, and evidence
that re-excavation reasonably re-creates original are factors to consider when determining
weight accorded to re-excavation evidence). STL’s unconfined compressive strength tests
4
were conducted over six months after the original excavation, during which time some
natural compaction could have occurred. In addition, although STL’s Shelby tube samples
were collected within 20 feet of the original trench, it appears that the worksite soil varied
considerably over that small distance. Thus, STL noted observable variations in the color
and foreign material content among the five test pits dug just 16 to 20 feet apart from each
other. Moreover, STL identified particles of asphalt, gravel, sand, and cobbles in the soil
it examined, none of which was observed by Denton or Nick DiGioia in the trench itself.
Finally, SE’s own engineer testified that soil, including fill, can lack uniformity over a large
area. Based on these factors, we accord little or no weight to STL’s soil tests.
Aside from the re-excavation evidence, DiGioia relies only on its visual and “thumb
penetration” observations to support its claim that the soil had an unconfined compressive
strength of at least 1.5 tsf. The Secretary’s evidence consists of CO Denton’s penetrometer
tests, a majority of which indicate that the compressive strength of the trench soil was below
1.5 tsf. On this record, we find that a preponderance of the evidence shows that the
unconfined compressive strength of the trench soil was below 1.5 tsf and therefore it was not
Type A soil. Accordingly, the trench slopes should not have exceeded 45 degrees, and we
find that DiGioia violated 0 1926.652(a)(l) for sloping the trench walls at 50 and 60
degrees6 Alternatively, we find that even assuming it was Type A soil, DiGioia violated
8 1926.652(a)(l) because its 5-foot, l-inch-high trench wall bench exceeded the 4-foot height
limit applicable to both Type A and Type B soils.’
A violation is serious under section 17(k) of the Act, 29 C.F.R. 6 666(k), if “an accident
is possible and there is a substantial probability that death or serious physical harm could
6Based on our co nclusion that Respondent failed to establish that the unconfined
compressive strength of the trench soil was 1.5 tsf or greater, we need not pass on the
question whether previously disturbed soil with that level of unconfined compressive strength
would require use of the more protective sloping angles associated with Type B soil.
‘The remainder of the Secretary’s prima facie case was established and is not in issue.
Broshear Contractors, 16 BNA OSHC at 2096 n.4, 1994 CCH OSHD at pp. 42,365.66 n.4
(“Secretary must establish applicability of cited standard, existence of violative condition,
employee exposure thereto, and employer knowledge thereof ‘).
5
result from the accident.” Consolidated Freightways Cop., 15 BNA OSHC 1317,1324,1991-
93 CCH 0SI-D f 29,500, p. 39,813 (No. 86-351, 1991). If a cave-in occurred in an &foot
deep trench, it is clear that there is a substantial probability that the likely result would be
death or serious physical harm. ‘Ihunid Construction Co. Inc., 14 BNA OSHC 1784, 1789,
198790 CCH OSHD li 29,078, p. 38,859 (No. 86-1139,199O). Accordingly, the violation of
0 1926.652(a)(l) is properly classified as serious.
The penalty amount originally sought by the Secretary for this item was $3000, and the
judge assessed a penalty of $1000. Although the appropriateness of the penalty was directed
for review, the parties have not discussed it in their briefs. We find no reason to disturb the
judge’s penalty assessment.
II. COMPETENT PERSON INSPECTION--29 C.F.R 6 1926.651(k)(1)8
The inspection requirement of 29 C.F.R. 0 1926.651(k)(l) provides that a competent
person must inspect any excavation for evidence of hazardous conditions prior to employee
exposure. A “competent person” is “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.” 29 C.F.R. 8 1926.650(b).
Nick DiGioia and his two supervisory employees, Ed Sutherland and Joseph Mosko,
collectively assumed responsribilityfor inspecting the trench for hazardous conditions.
Although all three men had at least some knowledge of the requirements of the new
that standard provides:
8 1926.651 General requirements.
~~;>‘~uI+I+&vzs.(1) Daily 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.
Inspections shall also be made after every rainstorm or other hazard increasing
occurrence. These inspections are only required when employee exposure can be
reasonably anticipated.
6
excavation standards, Nick DiGioia admitted finding them confusing. Mosko and Sutherland
visually inspected the excavation prior to employee exposure each day and observed no
moisture, cracks or layers in the soil, or water in the trench from the previous days’ rain.
Nick DiGioia manually tested the soil after work had commenced on two of the three
workdays by sticking his thumb into a piece of excavated soil. On the first day, Nick DiGioia
performed this test one time and concluded that the ground was very hard. On the other
day, he picked up a piece of dirt, stuck his finger into it, and noted that the dirt remained
the same.
These inspections were insufficient to identify the recognizable hazard that resulted from
Respondent’s deficient sloping and benching of the trench. Mosko and Sutherland visually
inspected the trench walls and observed their condition, but neither ever manually inspected
the soil, a necessary pre-requisite to its proper classification and sloping under Appendix
A(c)(2) of Subpart P. The only manual tests ever performed on the trench soil were those
of Nick DiGioia, which occurred on only two of the three workdays, and only after work
commenced. Moreover, DiGioia’s examination of the soil was, at best, superficial.
Therefore, we find that the trench inspections conducted by Respondent failed to conform
to the requirements of the standard.g We also find that the inspectors were not “competent
person[s]” because they were not “capable of identifying existing and predictable hazards
in the surroundings, or working conditions which are unsanitary, hazardous, or dangerous to
employees.” See Ed Taylor Constmction Co., 15 BNA OSHC 1711, 1718, 1991-93 CCH
OSHD ll 29,764, pp. 40,481-82 (No. 88-2463, 1992) (inspectors’ ignorance of hazard and
applicable OSHA standards demonstrates their lack of competence); EL. Davis Contracting
Co., 16 BNA OSHC 2046,2050-51, 1994 CCH OSHD Ii 30,580, p. 42,341 (No. 92-35, 1994).
Accordingly, we affirm the violation of 8 1926.651(k)( 1).
‘We note that although the soil classification scheme under 8 1926.652(b)(2) prescribes
manual soil testing (Subpt. P, App. A(c)(2)), th e inspection requirement of 0 1926.651(k)( 1)
is not specific as to the manner in which the inspection is to be conducted. Therefore, we
rely here on DiGioia’s inadequate manual soil classification tests only to the extent that such
tests would have been necessary to properly inspect the trench and identify the cave-in
hazard that resulted from Respondent’s deficient sloping and benching.
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We conclude that the violation is serious. As we stated above, if a cave-in occurred in
a trench of this depth, it is clear that there is a substantial probability that the likely result
would be death or serious physical harm. The failure to inspect presents the same risk. See
LA. Jones Construction Co., 15 BNA OSHC 2201,2208, 1991-93 CCH OSHD Ii 29,964, pp.
41,027.28 (No. 87-2059, 1993)(citing R & R Builders, 15 BNA OSHC 1383, 1393-94, 1991
CCH OSHD 829,531, p. 39,866 (No. 88=282,1991)(violation for deficient fall safety program
serious where fall hazard is from height sufficient to cause serious injury)).
The penalty amount originally sought by the Secretary for this item was $3000, and the
judge assessed a $500 penalty. As with the trench protection violation, we find no reason
to disturb the judge’s penalty assessment.
III. ORDER
Accordingly, we affirm the citation for serious violations of 0 1926.652(a)( 1) and
0 1926.651(k)(l), and affirm the penalty assessment of $1000 and $500, respectively.
/Sikh& 5 w&z
Stuart E. Weisberg
Chairman
Commissioner
Velma Montoya
Commissioner
Dated: April 18, 1995
UNITED STATES OF AMERICA
OCCUPAlblONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. -9th Floor
Washington, DC 200364419
PHONE
COM(202)6O6-S100
m@02)606-5100
SECRETARY OF LABOR,
Complainant,
v. Docket No. 92-3024
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DIGIOIA BROTHERS ..
EXCAVATING, INC., ..
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Respondent.
The attached decision by the Occupational Safety and Health Review Commission was issued on
Amill8.1995. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES TO
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and He&h Act of 1970,29 U.S.C. 8 660.
FOR THE COMMISSION
April 18. 1995
Date
Docket No. 92-3024
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Benjamin T. Chinni
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
F. Benjamin Riek, III
Roetzel and Andress
75 East Market Street
Akron, OH 44308
Nancy J. Spies
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3119
-
UNITED STATES OF AMERJCA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419PHONE FAR
COM(202)6OS5100 coM(2o2)6oMoa
Fl=S(2O2l6064100 -w=l-SECRETARY OF LABOR Complainant, v. OSHRC DOCKET NO. 92-3024 DIGIOIA BROTHERS EXCAVATING INC. Respondent. NOTICE OF DOCKETING OF ADMINISTRATMZ LAW JUDGE’S DECISION The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on January 3, 1994. The decision of the Judge will become a final order of the Commission on February 2, 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 COMMTSSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW. Any such etition should be received b the Executive Secretary on or before January 2 f , 1994 in order to ermit sdi cient time for its review. See Comrmssion Rule 91, 29 CF. k . 2200.91. All further pleadings or communications regarding this case shah 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 shah also mail a copy to: Daniel J. Mick, Esq. Counsel for Regional Trial Liti ation Office of the Solicitor, U.S. DO% Room S4004 200 Constitution Avenue, N.W. Washington, DC. 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 havrng questions about review nghts may contact the Commission’s Executive Secretary or call (202) 606-5400. FOR THE COMMISSION Date: January 3, 1994 -DOCKET NO. 92-3024
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOc
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
William S. Kloepfer
Assoc. Re *onal Solicitor
Office of tf e Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
F. Benjamin Riek, III, Esq.
55 Public Square
Illuminating Buildin Suite 1604
Cleveland, OH 4411.
Nancy J. Spies
Admmistrative Law Jud e
Occupational Safety an 8 Health
Review Commission
1365 Peachtree St., N. E.
Suite 240
Atlanta, GA 30309 3119
00108827726:OS
UNITED STATESOF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, N.E., SUITE 240
ATLANTA, GEORGIA 30309-3119
PHONE: FAX:
COM (404) 347-4197 COM (404) 347-0113
F-E (404) 347-4197 FTS (404) 347-0113
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SECRETARY OF LABOR, 00
Complainant,
v. OSHRC Docket No. 92-3024
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DiGIOIA BROTHERS EXCAVATING, ..
INC., ..
Respondent.
APPEARANCES:
Bruce C Heslop, Esquire F. Benjamin Riek, III, Esquire
Office of the Solicitor Cleveland, Ohio
U. S. Department of Labor For Respondent
Atlanta, Georgia
For Complainant
Before: Administrative Law Judge Nancy J. Spies
DECISION AND ORDER
On September 9,1992, the Secretary issued a citation to DiGioia Brothers Excavating,
Inc. (DiGioia), alleging violations of the Occupational Safety and Health Act of 1970 (Act).
The citation resulted from a July 30,1992, excavation inspection by the Occupational Safety
and Health Administration (OSHA) Compliance Officers James Denton and Anthony
Incristi. Violations of 51926.651(k)(l) and 51926.652(a)(l) were charged for failure to have
a competent person conduct daily inspections and for failure to use an adequate protective
system in the excavation. DiGioia denies that it violated the cited standards.
BACKGROUND
DiGioia is a construction contractor specializing in trenching and dirt excavation (Tr.
458). At the time of the inspection it was laying water and sewer lines from the street to
a newly constructed house in Brecksville, Ohio (Tr. 379). There is no dispute that the
excavations were dug at a location well known as a place where fill material was dumped ’
and spread over a period of more than a decade (Tr. 352, 463).
At the time of the inspection, two trenches were opened. Only the longer of the
trenches is in issue. That trench was intended to run 110 feet to the house, but only 25 feet
was open at the time of the inspection (Exh. C-5; Tr. 379). The trench ran north to south
and was dug perpendicular to the road. The trench held two 6-inch sewer pipes and a
smaller copper water pipe. Laborer Bill Keiper had laid a portion of the pipe in this trench
at the time of the inspection. Denton considered the location where the pipes ended as a
point of exposure, and he took measurements at that point with an angle indicator and
engineering rod and recorded them (Tr. 33.35,38, 59). The west trench wall had a l-foot
8-inch bench and then sloped up an additional 7 feet at a 60-degree angle. The east trench
wall had a vertical bench of 5 feet 1 inch and then sloped up 3 feet 7 inches at a 50-degree
angle (Exh. C-4, Tr. 56, 60). The site was muddy from previous heavy rains, but Denton
noted that water was not seeping through the trench sidewalls. The trench walls had some
small pitting and cracking (Tr. 95).
The maximum slope permissible for Type B soil is 45 degrees. If Type B soil, this
excavation exceeded the maximum angle by at least five and 15 degrees on alternate walls.
If the soil was properly classified by DiGioia as Type A, the sloped portion of the trench
complied with the standard.’ Regardless of the soil classification, however, and contrary to
1 The Secretary’s brief asserts,without explanation,
that the slope of the trench wall was 67O(Secretary% Brief,
pg. 14). Respondent’s brief contends, based on estimates, thatthetrenchwallwas52Omeasured from the base
of the trench (Respondent’s Brief, pg. 26). The evidence supports a Ending that the slope of the trench
measured from its base to the top was not more than 63Oand, thus, would comply with required sloping for
Type A soil.
2
DiGioia’s argument, the maximum height for a vertical wall in a benching system is 4 feet
(Tr. 108; App. B, Figure B-1.1.2, “Simple Bench”). DiGioia’s 5-foot l-inch vertical Wall
exceeded the maximum height for a vertical bench even for Type A soil (Tr. 72).
Classification of the Soil
The parties primarily dispute the proper classification of the soil. Specifically, the
question is whether the “backfilled” soil which existed at the site must be considered
“previously disturbed,” as defined by the standard, or whether, through compaction or by
natural process, it sufficiently lost the characteristics of “previously disturbed” soil so that
it could be classified as Type A soil.
DiGioia argues that although soil might have been previously disturbed for some
purposes, it need not be considered such for purposes of the standard. In DiGioia’s opinion,
if the soil were previously disturbed, it need not necessarily be classified as Type B.
Nick DiGioia explained that he knew the worksite was extensively layered with fill
material. He testified (Tr. 463):
Q. Were you aware if there was any-that there might be fill on this particular
land site?
A Yes, I was.
Q. How did you become aware of that?
A The site has been filled for the last 20 years that I know of. They have been
putting fill material in there for a long time.
Q. Did that cause you any concern?
A Yes, it did.
Q. Why is that?
A Well, because fill ground is disturbed ground so that caused both me and
Ed concern.
Superintendent Ed Sutherland assumed that fill need not be considered Type B soil if, for
example, the fill soil was “nice and tight” (Tr. 348). Likewise, foreman Joe Mosko, who was
aware that the area had been backfilled, concluded that this was not determinative of the
soil classification. He stated (Tr. 400):
A. Well, the first day we got there, me and Ed had talked about that this
might be a fill area.
***
Q. Have you had problems with fill, working fill areas?
_ A Sometimes, yes.
Q. What has developed on other sites?
A. Basically, it turns into like a Class-B or A-depending on the compaction.
The Secretary asserts that the standard requires that backfilled material must always
be classified as Type B and, further, that Denton’s soil tests established that the trench soil
was Type B at the location he tested.
OSHA’S Soil Classification
At Denton’s request, Mosko, who was also the backhoe operator, removed a soil
sample from along the trench wall. The sample separated into large soil clumps as it was
removed. Denton secured ten penetrometer readings Tom separate portions of the sample.
The majority of those results ranged between .5 to 1 ton per square foot (tsf) unconfined
compression strength. Two or three readings tested close to 1.5 (Tr. 64). Denton also ran
a thumb penetration test and rolled a part of the soil in his hand (Tr. 66). The soil was
easily penetrated and was cohesive and “clay-type” (Tr. 97, 127). DiGioia foreman Joseph
Mosko advised.Denton that they were in “a fill” area, which Denton took to mean an area
with previously disturbed soil (Tr. 66). Based on his tests and upon Mosko’s identification
of the soil as “fill,” Denton classified the soil as Type B? The Secretary performed no
further soil analysis.
Months before the inspection, an independent consultant for the city, Chris Lopez,
was concerned with the stability of the soil. It was obvious from his observation of the soil
around the house footers that the soil was fill material which contained asphalt, brick and
concrete fragments, and that there was no distinct stratification (Tr. 154). The footers had
already been dug to the standard depth of 6 feet, but Lopez required them to be dug deeper
until they reached virgin soil. He considered the soil as previously disturbed since it “came
from someplace else and was placed at the site” (Tr. 161, 165).
DiGioia’s Soil Classifkation
On July 28, 1992, DiGioia began to lay pipes from the street to the house. That first
day foreman Joe Mosko dug a receiving hole. “Because I saw that [the soil] was coming out
in clumps, [tlhere were no layers in it.” Mosko and superintendent Ed Sutherland both
considered the soil to be Type A (Tr. 384). Later that morning Nick DiGioia, owner, arrived
at the site. He checked the soil by picking it up and shaking it in his hand. He stated, in
.
hlS opinion, the soil was Type A.
On July 29,1992, at 8:00 a.m. Mosko began excavating the trench and had to “bang
the bucket” to dislodge clumps of soil (Tr. 391). Since in Mosko’s opinion this soil
‘behaved” like Type A soil, the fact that it was backfilled was of no overriding consequence
to him (Tr. 401). When superintendent Ed Sutherland came to the jobsite, he made a
similar visual observation and the men discussed the fact that the soil was Type A. For at
least thirteen years Sutherland had observed fill being brought onto the lot (Tr. 344, 348,
352). Sutherland also knew that because it was iill, there would be no guarantee that the
soil would be homogeneous (332). Later that morning, according to Mosko, Nick DiGioia
2 ‘Qpe A soil is defined as “cohesive soils with an unconfined compressive strength of 1.5 tons per square foot
(tsf)(l44kPa) or greater” but not if, among otherthin@“[t]he soil has been previously di~turbed.~ Similarly,
Tvpe B soil is defined as “[c]ohesive soil with an unconfined compressive strength greater than 0.5 tsf (4SkPa)
but less than 1.5 tsf’ or “[p]reviously disturbed soils except those which would othenvise be classed as Type
C soil.” (Subpart P, App. A) (Emphasis added)
5
again checked the worksite, picked up soil, did a thumb penetration test, and manually
tested the soil3 He again classified the soil as Type A.
On July 30,1992, when Sutherland arrived at the worksite, he noted that the rain had
not penetrated the soil. He advised Mosko to continue sloping the trench in conformity with
Type A soil (Tr. 311).
Six months after the inspection, DiGioia hired Solar Testing Laboratories, Inc.
(Solar), to conduct an extensive soil analysis of the Royalton Road site. Solar performed
various soil analyses which were described in detail at the hearing. Solar concluded:
[O]ur visual classification and laboratory test results indicated that the soil
encountered at the site is equivalent to soil Qpe B as far as description,
however, the unconfined compressive strength and pocket penetrometer
results meet the soil Qpe A requirements. (Exh. C-9, pg. 2) (Emphasis
added)
This statement of Solar’s succinctly summarizes the case.
DISCUSSION
The accuracy of Solar’s unconfined compressive strength tests is accepted for the
areas tested. Solar’s tests were more exacting and reliable than those performed by the
Secretary.
The Secretary argues that Solar took samples from a different location along the
trench than had Denton. Neither sample was taken at the precise “point of exposure.” Two
of Solar’s tests were taken adjacent to the house, and the third was taken within 2 feet of
. the edge of the house (Exh. C-9, pg. 4). Denton’s sample was taken from a location which
was not as far south as Solar’s samples, but the distance between the two samples is
estimated to be no more than 20 feet.4
3 Both Mosko and Nick DiGioia recall that DiGioia manually tested the soil on two of the three days.
DiGioia recalls that he picked up the soil on the first and third days (Tr. 464). Mosko believes that he did
so on the first and wnd days (Tr. 450).
4 The trench born the street to the house measured 110 feet, Portions of the trench were opened and filled
as the days progressed. By the second day Mosko laid 30 to 40 feet of pipe. Before the inspection on the third
(continued...)
6
Over the previous seven years, the homeowner had brought backfill to the excavation
site. The material has consisted of asphalt and debris, as well as soil (Exh. C-11). The
homeowner spread the fill material with his front-end loader. By the time the trench was
excavated, the fill extended to a depth beyond 6 feet (Tr. 161). Even though the
homeowner distributed the fill, this could not be considered an engineered or controlled fill
(one in which each lift was monitored during placement and compacted to a known density)
(Tr. 168). Considering how and over what period the lot was backfilled, it is reasonable to
assume that the compaction and compressive strengths occurring in one area of this site
would not necessarily be found in all areas. Both Denton’s and Solar’s classifications may
be correct since they tested different areas.
The parties raise a larger question. The record established that previouslydisturbed
soils may become compacted. Even the Secretary’s expert, Dr. Allan Peck, explained that
it is possible for disturbed cohesive soils to re-establish a “molecular interaction” which
equals the soil’s original strength (Tr. 217). Compaction, according to Peck, is one method
by which soil can be restored, but the length of time or degree of compaction necessary to
return disturbed soil to the cohesive strength of virgin soil cannot mathematically be
determined (‘I?. 227, 253).
The new excavation standards were designed, in part, to avoid the uncertainty and
subjectiveness of the predecessor standard. Given that objective, it cannot be assumed, as
DiGioia argues, that the standard purposely omitted defining “previously disturbed soil” in
order to recognize a “long standing” acceptance that soils “can have their strength
parameters restored by accepted engineering principles such as compaction” (Brief, pg. 24).
The standard .is specific, and an employer may not craft an exception to it by implyingsuch
a significant caveat.
4(...continued)
day, Mosko laid another 30 to 40 feet. Afterthe inspection he finished the job by laying an additional 30 to
40 feet (Tr. 403,406). Denton’s soil sample was taken somewhere between the house and a point 60 to 80
feet south of the street. As Mosko noted, “I was cutting that part of the trench when he asked for [the
sample]. I didn’t go back to where we were working at . . . I was in the piece here in the picture between the
house and the end of my pipe. So, I took a chunk, a bucket of dirt out and put it there for him to test” (Tr.
440).
7
The uncertainties of the compaction process for disturbed soils may have been
considered when the standard was written. Since the existence of a standard presumes a
hazard when its terms are not met, it is unnecessary to consider possrble rationale.
Contrary to DiGioia’s argument, an employer may not choose between classifyingsoil
(as Solar would have it) “by description” or “by strength.“5 The previously disturbed soil
in which DiGioia excavated must be classified as Type B.
Citation No. 1
Item 1: §1926.651(k)( 1)
The Secretary charges DiGioia with a serious violation of 51926.65l(k)( 1) which
provides:
(k) Iiwpectiom. (1) Daily inspections of excavations, the adjacent areas, and
protective systems shah be made by a competent person for evidence of a
situation that could result in possible cave-ins, ...or other hazardous conditions.
An inspection shall be conducted by the competent person prior to the start
of work... (Emphasis added)
According to the definition section of the excavation standards in §1926.650@):
Competent person means 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.
DiGioia asserts that it had three competent persons at the jobsite: Joe Mosko,
foreman and backhoe operator; Ed Sutherland, superintendent; and Nick DiGioia, president.
It asserts that these men combined complied with each of the standard’s requirements and
properly classified the soil as Type A. More than one competent person may be on the
jobsite. It is only necessary that a competent person perform and make required judgments
before the work is begun.
5 The standard would permit DiGioia to secure the services of a registered professional engineer to approve
an alternate sloping design, but that should have been done before employees entered the trench.
8
Subpart P, Appendix A(c)(l), requires that the competent person classify the soil as
either stable rock, Type A, Type B, or Type C soil. Appendix A(c)(2) requires that the
competent person make the classification “based on at least one visual and at least one
manual analysis.” Mosko and Sutherland each knew that a manual test was required when
classifyingthe soil, but neither performed that test on any of the three days. Sutherland and,
in his absence, Mosko were in charge of the site, and Sutherland gave directions to “open
[the trench] back up” (Tr. 308). DiGioia did test the soil manually on two of the three days,
but only after work was under way.
Although knowledgeable about the excavation standards in a general way, DiGioia
and his employees erroneously believed that there was little difference between the old and
new excavation standards (Tr. 477). After the new standards were enacted, DiGioia made
an effort to inform employees of the new standard by holding a meeting lasting
approximately one hour (Tr. 429). The standard is somewhat technical, and one can
sympathizewith the sentiment expressed by Nick DiGioia that “there is a part under there
under Type-A that just completely gets ridiculous and you can’t even follow it.” (Tr. 486).
Trenching comprises a substantial portion of DiGioia’s business. Although technical,
compliance with each portion of the standard is required. Failure to have a competent
person conduct required tests and to follow the standard’s classification of previously
disturbed soil classified as Type B establishes the violation, and it is affirmed.
Item 2: 51926.652(a)( 1)
The Secretarv asserts that DiGioia violated 51926.652(a)(l) when it failed to slope
the excavation for Type B soil. DiGioia contends that the trench was properly sloped for
Type A soil. As discussed, the soil at this excavation site was Type B. The standard
requires:
(a) Protection of employees in excavations. (1) Each employee in an
excavation shah be protected from cave-ins by an adequate protective
system designed in accordance with paragraph (b) or (c) of this section
except, when:
(ii) Excavations are less than 5 feet (1.52m) in depth and examination of
the ground by a competent person provides no indication of a potential
cave-in.
The excavation was over 8 feet deep. The slope was greater than the maximum
allowed for Type B soil. Further, the bench on the east trench wall was 5 feet 1 inch and
exceeded the 4-foot maximum bench height. The standard does not anticipate that an
individualwho is not a registered professional engineer can make decisions which, in effect,
override the plain requirements of the standard. The violation is affirmed.
CLASSIFICATION AND PENALTY
DiGioia contends that if violations are found, given the stability of the soil, they are
de minim&. A finding that a violation is de minimis must be assessed “in the particular
factual circumstances at that employer’s workplace.” El Paso Crane & Risging Co., Inc., 16
BNA OSHC 1419, 1993 CCH OSHD li 30,231 (No. 90-1106, 1993). DiGioia relies on the
Commission’s decisions in Shane, Inc., 5 BNA OSHC 1217, 1219, 1977-78 CCH OSHD
ll21,694 (No. 13136,1977), and Concrete Constructida Co., 15 BNA OSHC 1614,1622,1992
CCH OSHD ll 29,219 (No. 89-2019,1992). In the particular facts of those decisions, decided
under the old excavation standards, the Commission held that compacted soil had sufficient
stability to preclude collapse. The same is not shown by this record. The lot at Royalton
Road was backfilled over a prolonged period and was not a homogenous fill. Portions of
the lot were compacted to the level found by Solar, but there is no guarantee that such
stability existed throughout the trenched area. Denton’s tests indicated Type B soil may
have been present. Failure to conduct manual tests of the soil and failure to classify the soil
in accordance with the standards could result, as it did here, in incorrectly sloping the trench.
De minimis violations are “trifling in that [the violations] never really compromised any
protection meant for employees under the terms of the standard.” El Paso Crane & Rigging,
16 BNA at 1429, 1993 CCH at p. 41,624. In the present case, the safety of DiGioia’s
employees was compromised. Failure to have a competent person inspect a trench and
failure to implement an adequate protective system in a trench are not “trifling” violations.
10
Each of the violations could result in collapse of an 8-foot trench, which could cause serious
injury or death. The violations are properly classified as serious.
The Commission is the final arbiter of penalties in all contested. cases. Sectaly v.
OSHRC and Intentate Glass Co., 487 F.2d 438 (8th Cir 1973). In determining the
appropriate penalty, statutory factors were considered. At the time of the inspection,
DiGioia had fifty to sixty employees (Tr. 338). The Secretary failed to document any history
of previous violations (Tr. 130-131). DiGioia had a safety program and cooperated with the
investigation. It attempted to advise its employees of the requirements of the excavation
standard. DiGioia analyzed the soil believing that backfilled material could be Type A if it
met certain requirements. DiGioia was incorrect, but it had not ignored the standard.
The gravity of the offense is the principal factor to be considered in assessing a
penalty, and the likelihood of an accident is important in determining gravity. See, e.g.,
Bethlehem Steel Cop. v. OSHRC, 607 F.2d 1069 (3d Cir. 1979). Considerations of gravity
include the fact that only one employee was exposed to the violations for a few hours over
a two-dayperiod and that the condition of the soil was relatively stable. A penalty of $500
is appropriate for the violation of 51926.651(k)(l); a penalty of $1,000 is appropriate for the
violation of 51926.652(a)( 1).
FINDINGS OF FACT AND
CONCLUSIONS OF MW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).
ORDER
Based on the foregoing decision, it is ORDERED:
(1) That the violation of 51926.651(k)( 1) is affirmed as serious, and a penalty in the
amount of $500 is assessed.
11
(2) That the violation of 51926.652(a)(l) is affirmed as serious, and a penalty in the
amount of $1,000 is assessed.
Y. 1+
NANCY J. SPIES
Judge
Date: December 23, 1993
12
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