OSHRC ALJ decision
Docket 93-1462
Decided September 12, 1994
Mixed result
Judge Paul L. Brady
Gardner Fire Protection
Trench egress and cave-in items affirmed, daily-inspection item vacated
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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.
Final order, not Commission precedent
This decision by an OSHRC
Administrative Law Judge became a final order of the Commission
because no Commissioner directed review (29 U.S.C. § 661(j)). It
binds the parties but is not binding precedent in other cases. The
full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)
Plain-English summary
Gardner Fire Protection, a small pro se contractor, was installing sewer and fire-hydrant lines at a KOA campground in Seminole, Florida. A December 1992 OSHA inspection came the day after a broken water line flooded the excavation overnight and eroded one wall. OSHA cited four serious trench-safety violations: no ladder or other safe means of egress, excavated soil piled too close to the edge, no daily competent-person inspection, and no cave-in protection for an employee in the trench. Administrative Law Judge Paul L. Brady affirmed three items as serious, finding the eroded, steep walls created a cave-in hazard for the exposed worker even though he stood in a part about 4 feet deep. He vacated the daily-inspection item, concluding the owner (a 30-year-veteran and competent person) had inspected the site and that employee exposure was not reasonably anticipated once the work was finished. Penalties totaled $1,200.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.651(c)(2); § 1926.651(j)(2); § 1926.651(k)(1); § 1926.652(a)(1)
- Outcome: Three serious items affirmed (egress $200, spoil placement $500, cave-in protection $500); daily-inspection item vacated. Total assessed $1,200.
- Key point: Cave-in protection is required even in a sub-5-foot excavation when a competent person sees indications of a potential cave-in, such as wall sloughing from water erosion.
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
PHONE:
COM (202) 6os51oo
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-1462
GARDNER FIRE PROTECTION
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 August 11, 1994. The decision of the Judge
will become a final order of the Commission on September 12, 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 petition should be received b the Executive Secretary on or before
August 31, 1994 in order to ermit suf ricient time for its review. See
Commission Rule 91, 29 C. rp.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
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
Date: August 11, 1994
DOCKET NO. 93-1462
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Jaylynn Fortney
Re ronal Solicrtor
Of&e of the Solicitor, U.S. DOL
Suite 339
1371 Peachtree Street, N.E.
Atlanta, GA 30309
Mr. Tom Gardner
Gardner Fire Protection
5331 - 5th Avenue South
St. Petersburg, FL 33707
Paul L. Brady
Administrative Law Jud e
Occupational Safety an cf Health
Review Commissron l
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119
00109716381:04
UNITED STATEST)F 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) 347-011:
FE (404) 347-0113
SECRETARY OF LABOR, 0
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Complainant, .
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v.
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l OSHRC Docket No. 934462
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GARDNER FIRE PROTECTION, 0a
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Respondent. l
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APPEARANCES:
Leslie John Rodriguez, Esquire Mr. Thomas Gardner, President
Office of the Solicitor Gardner Fire Protection
U. S. Department of Labor St. Petersburg, Florida
Atlanta, Georgia For Respondent h Se
For Complainant
Before: Administrative Law Judge Paul L Brady
DECISION AND ORDER
On December 23, 1992, Gardner Fire Protection (Gardner) was engaged in the
installation of sewer and fire hydrant lines at the KOA Campground in Seminole, Florida.
On April 8, 1993, the Secretary of Labor (Secretary) issued a citation to Gardner alleging
four serious violations of the Occupational Safety and Health Act (Act). The citations
resulted from an inspection conducted by Compliance Officer Robert Chadwick Gardner,
represented pro se by President Thomas Gardner, contested the alleged violations and
proposed penalties.
There is no dispute regarding jurisdiction or the basic facts in this case, and Exhibits
C-1 through C-14 were received into evidence by stipulation. Gardner was installing sewer
and fire hydrant pipe l8*% feet long by 8 inches in diameter at the time of the inspection.
The pipe was placed in an excavation 36 to 38 inches in depth with 30 inches of cover.
Cable was also placed in the excavation. At least three or four employees were on the
worksite.
Mr. Gardner testified that on December 22, the day before the inspection, a water
line was accidentally broken causing the excavation to become flooded. A pump was placed
in the excavation which remained overnight. On the morning of December 23, it was
necessary to redig most of the excavation, and an additional pump was used to remove water
(Tr. 9-11, 55-56).
Alleged Violation of 29 C.F.R. S 1926.65lfcu2\
The standard, which pertains to the means of egress from trench excavations, provides
as follows:
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 citation alleges that:
The excavation measured approximately 11 feet long by 12 feet wide and the
depth of the excavation ranged from 4 feet deep to 6 feet deep and a ladder
was not provided for safe access and egress, on or about 12/‘23/92.
Mr. Gardner admits there was no ladder in the excavation at the time of the
inspection (Tr. 22). He contends, however, that~ the sides of the excavation were terraced
while the work was being performed (Tr. 28).
Mr. Chadwick testified that he observed employee Robert Britt climbing out of the
excavation, which measured approximately 4 feet deep (Tr. 38). Gardner agrees that at the
time of the inspection the sides weie not terraced, and no other safe means of egress was
provided Mr. Britt at the 4-foot depth (Tr. 17, 29).
The violation occurred as alleged.
Alleged Violation of 29 C.F.R. S 1926.651@(21
The standard, which pertains to protection of employees from loose rock or soil,
requires that:
Employees shall be protected from excavated or other materials or equipment
that could pose a hazard by falling or rolling into excavations. Protection shall
be provided by placing and keeping such materials or equipment at least 2
feet (.61 m) from the edge of excavations, or by the use of retaining devices
that are sufficient to prevent materials or equipment from falling or rolling
into excavations, or by a combination of both if necessary.
Chadwick testified that the excavated soil was not placed at least 2 feet from the edge
of the excavation. He stated the condition was more hazardous where Britt was working
because the water had undermined the east wall (Exhs. C-3, C-4, C-5; Tr. 3940).
In defense, Thomas Gardner explained that the soil placed on the bank was mostly
excavated mud spread out to dry (Tr. 55-56). He further asserted that ail of the excavating
work had been completed, and Britt was simply in the shallow part of the excavation to
briefly check a wire (Tr. 57-58).
The evidence clearly establishes the violation as alleged.
Alleged Violation of 29 C.F.RA 1926.651[k)(lJ
The standard, which pertains to inspections of excavations, states as follows:
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 possrble 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.
The citation alleges that:
Daily inspections prior to the start of work, and as needed throughout the
shift, were not made of the excavation(s) for evidence of hazardous conditions:
a) Buena Vista Street, at the Seminole K0.A Campground,
an inspection was not conducted to determine the extent of the
hazards associated with working in the excavation after the
broken P.V.C. water line caused severe erosion to the east side
of the excavation wall, on or about 12/23/‘93[sic].
Chadwick testified the standard was violated because the employee was in the
excavation with the soil to the edge, and the wall was undermined (Tr. 43-44). He did not
discuss the matter of daily inspections with Gardner (Tr. 4445).
Thomas Gardner, with thirty years’ experience, must be deemed a competent person
within the meaning of the standard (Tr. 8). He testified that he inspected the worksite prior
to beginning work on December 23 prior to Chadwick’sarrival (Tr. 23-25, 30).
The evidence adequately establishes that a competent person conducted inspections
in compliance with the standard. Since the standard does not place a duty on the employer
after the inspections, it is not indicated in this case how Gardner failed to comply. Here,
the evidence supports the contention that the work had been completed, and employees
were not required to be in the excavation. In fact, it is shown Tom Gardner asked Britt
what he was doing in the excavation (‘I?. 58). For the purpose of the standard, the facts do
not indicate employee exposure could be “reasonably anticipated.”
The evidence fails to establish the violation as alleged.
Alleged Violation of 29 C.F.R. S 1926.652(a1)!1)
The standard sets forth requirements for protection of employees in excavations and
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 of the ground by a competent person provides no
indication of a potential cave-in.
4
The alleged violation is described in the citation as follows:
Each employee in an excavation was not protected from cave-ins by an
adequate protective system designed in accordance with 29 C.F.R. 1926.652(c).
The employer had not complied with the provisions of 29 CFR
1926.652(b)(l)(i) in that the excavation was sloped at an angle steeper that
one and one-half horizontal to one vertical (34 degrees measured from the
horizontal):
a) Buena Vista Street, at the Seminole K.0.A Campground,
the employee working in the north end of the excavation was
working in depths ranging from 4 feet to 6 feet. The west wall
of the excavation was cut to approximately 60 degrees from the
horizontal and the east wall was approximately 80 degrees from
the horizontal due to the water erosion, and no type of
protective system was provided or utilized, on or about 12/23/92.
Mr. Chadwick testified that he took the measurements of the excavation. He
determined the sides were not sloped to an angle of 36Oas required by the standard (Tr.
4647). Chadwick acknowledged that the area of the trench in which he observed Britt was
approximately 4 feet in depth and contained water. No protection was provided (Tr. 29,49).
The evidence establishes that the violation occurred as alleged.
Chadwick’s testimony that employee Britt was in the trench without protection, and
that sloping was not in accordance with the standard, is not denied. Although Britt was in
an area less than 5 feet in depth, the exceptions to the standard do not apply. Tom
Gardner, a competent employee, testified that there was sloughing or “breaking up” of the
soil due to the broken water line (Tr. 27). This obviously created a condition for a potential
cave-in.
The violations in this case are classified as serious. In this regard, section 17(k) of
the Act provides as follows:
For purposes of this section, a serious violation shall be deemed to exist in a
place of employment if there is a substantial probability that death or serious
physical harm could result Tom a condition which exists, or from one or more
practices, means, methods, operations, or processes which have been adopted
or are in use, in such place of employment unless the employer did not, and
could not with the exercise of reasonable diligence, know of the presence of
the violation.
The evidence shows that a collapse of the excavation walls could result in death or
serious harm to exposed employees. In the determination of penalties, the Commission held
that:
Section 17(j) of the Act, 29 U.S.C. 5 666(j), requires that when assessing,
penalties, the Commission must give “due consideration” to four criteria: the
size of the employer’s business, the gravity of the violation, good faith, and
prior history of violations. J. A. Jones Conrtr, Co., 15 BNA OSHC 2201,
2213-14, 1993 CCH OSHD ll 29,964, P. 41,03Z(No. 87-2059, 1993). These
factors are not necessarily accorded equal weight. Generally speaking, the
gravity of a violation is the primary element in the penalty assessment. Zig
I’~, 15 BNA OSHC 1481,1483,1992 CCH OSHD 129,582, p. 40,033 (No.
88-2691, 1992). The gravity of a particular violation depends upon such
matters as the number of employees exposed, the duration of the exposure,
the precautions taken against injury, and the likelihood that any injury would
result. J. A. Jones, 15 BNA OSHC at 2214, 1993 CCH OSHD at p. 41,032. *
Hem Iron Workq Inc., 16 BNA OSHC 1247,1994 CCH OSHD li 30,155 (No. 88-1962,1994).
The record discloses Gardner had approximately five employees at the worksite, and
one was exposed to the violative conditions. The area in which the exposed employee stood
was not in excess of 4 feet in depth.
Gardner’s good faith was shown by its compliance with the standards during the
process of excavation and pipe-laying. The presence of the employee in the excavation at
the time of the inspection was due to the emergency created when a pipe was accidentally
broken. No history of prior violations was shown.
Upon due consideration of the foregoing factors, it is determined that the following
penalties are appropriate for the violations.
Standard Penalty
8 1926.651(c)(2) $200.00
8 1926.651(j)(2) 500.00
8 1926.652(a)(1) 500.00
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing decision, it is hereby ORDERED that the items contained
in the citation be disposed of as follows:
Standard DisDosition Pena@
8 1926.651(c)(2) Affirmed $200.00
8 1926.651(j)(2) Affirmed 500.00
6 1926.65 l(k)( 1) Vacated O-
6 1926.652(a)( 1) Affirmed ;oo .00
/s/ Paul L. Brady
PAUL L. BRADY
Judge
Date: August 4, 1994
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