Humbert Sanitary Service, Inc.

Plain-English summary

Humbert Sanitary Service is a small Ohio construction contractor that installs
and cleans septic tanks and lays sewer pipe. While Humbert was tapping a main
sewer line on Cleveland Avenue in North Canton, an OSHA compliance officer
responded to a complaint and found a laborer working in a vertical-walled trench
about 10 to 12 feet deep, dug in previously disturbed soil next to a busy road,
with a trench box on site but not used. OSHA cited four serious trenching items,
which Humbert contested in an "E-Z" simplified trial before Judge Nancy J. Spies.

The judge affirmed three of the four items: failing to train employees to
recognize and avoid trench hazards under § 1926.21(b)(2), failing to have a
competent person inspect the excavation under § 1926.651(k)(1), and failing to
protect the worker from a cave-in with an adequate protective system under
§ 1926.652(a)(1). She found the foreman was not a competent person because his
only trench-safety training came about a month before the hearing, after the
inspection, and he still misjudged the soil as the safest type despite the road
vibration and disturbed ground. The judge vacated the fourth item, which cited
§ 1926.1053(b)(1) for a ladder that did not extend three feet above the trench,
holding that ladder-extension standard applies to ladders reaching a "landing"
surface, not to a ladder used to climb out of a trench. Because Humbert ignored a
county inspector's advice to use trench protection, gravity was high; the judge
assessed $600 each for items 1 and 2 and $1,500 for item 3, for $2,700 total.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.21(b)(2); 29 C.F.R. § 1926.651(k)(1); 29 C.F.R. § 1926.652(a)(1); 29 C.F.R. § 1926.1053(b)(1)
• Outcome: Items 1, 2, and 3 affirmed serious ($600 + $600 + $1,500); item 4 (ladder) vacated; $2,700 total
• Key point: A foreman trained only after the inspection is not a "competent person," and the three-foot ladder-extension rule for reaching a landing does not apply to a ladder used simply to climb out of a trench.

Full text (OSHRC public release)

                                 United States of America
          OCCUPATIONAL SAFETY AND EIEALTH REVIEW COlVEMISSION
                            1120 20th Street, N.W., Ninth Floor
                               Washington, DC 20036-34 19

                                                    Phone: (202) 606-5 100
                                                     Fax: (202) 606-5050
SECRETARY OF LABOR
            Complainant,
      v.                                                          OSHRC DOCKET
                                                                  NO. 95-1437
HUMBERT      SANlTARY SERVICE
                  Respondent.


                    NOTICE OF DOCKETING
              OF ADMINISTR4.”  LAW JUDGE’S DECISION
     The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on January 22, 1996. The decision of the Judge
will become a final order of the Commission on February 21, 1996 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.
An such etition should be received by the Executive Secretary on or before
Fe 8 ruary P2, 1996 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 C.F.IQ.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. DO5
                       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 @I represent the Department of Labor. Any party
havmg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 6063400.

                                         FOR THE COMMISSION


Date: January 22, 1996
DOCKET NO. 95-1437
NOTICE IS GIVEN TO THE FOLLOWING:



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



Mike Humbert, President
Humbert Sanitary Service, Inc.
PO Box 2126
1581 A plegrove Road, N.W.
North 8 anton, OH 44721



Robert L. Burch, President
Burch and Associates
6254 Market Avenue, North
North Canton, OH 44721



Nancy J. Spies
Admmistrative Law Jud e
Occupational Safety an B Health
 Review Commission
1365 Peachtree St., N. E.
Suite 240
Atlanta, GA 30309 3119




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                      b          OCCUPATIONAL SAFETY AND EIEALTH REVIEW COMMISSION
                                             1365 Peach= Stnet, N.E., Suite 240
                                                 Atlanta, Georgia 30309-3119



        Phone: (404) 347-4197                                                                   Fax: (404) 347-0113



           SECRETARY OF LABOR,
                Complainant,

                            v.                                          OSHRC Docket No. 95-1437

          HUMBERT SANITARY SERVICE, INC.,                       ;                  E-Z
              Respondent.


          Appearances:

                    Betty Klaric, Esquire                               Robert L. B&h, President
                             Office of the Solicitor                            Burch and Associates
                             LJ.S. Department of Labor                          North Canton, Ohio
                            Cleveland, Ohio                                             For Respondent
                                      For Complainant

          Before:           Administrative Law Judge Nancy J. Spies

                                                   DECISION AND ORDER
                * Humbert Sanitary Service, Inc., is a small construction contractor engaged in installing and
          cleaning septic tanks, laying sewer pipe, and performing related activities (Tr. 166). Occupational
          Safety and Health Administration (OSHA) compliance officer Thomas Henry inspected one of
          Humbert’s worksites on August 3,1995. As a result of Henry’s inspection, the Secretary issued two
          citations to Humbert on August.1 1, 1995. Hubert       contests the four items contained in citation
          No. 1, involving trenching violations. Humbert did not contest the “other” violations contained in
          citation No. 2.
                    This case was heard on December 1,1995, pursuant to the “E-Z” trial procedures set out in
          Commission Rules 2000211,29 C.F.R.§§2200.200-211. The E-Z trial is a pilot program designed

                                                            1

to provide simplified proceedings for resolving contests under the Occupational Safety and Health
Act of 1970 (Act).


            Humbert contracted to work on a sewer construction project at 9474 Cleveland Avenue in
North Canton, Ohio, (Tr. 6). Humbert’s assignment was to tap a main sewer line and install a lateral
connection to it. On August $1995, OSHA compliance officer Henry inspected Humbert’s worksite
in response to a complaint that Humbert’s employees were working in an unsafe trench (Tr. 7,59).
           Cleveland Avenue runs north-south, with two lanes going in each direction. The trench
began at the southbound lane on the west side of Cleveland Avenue and ran east-west. Cleveland
Avenue was kept open. The Stark County Sheriffs office detoured the southbound tra.& into the
northbound lanes. The trench exposed a pipe line that had been previously installed (I&h. C-5). The
trench was excavated in previously disturbed soil. The trench was 10 to 12 feet deep (Tr. 16-l 7,
66-68). It was 17 feet long and 5 to 6 feet wide (Tr. 69). The sides of the trench were vertical
(Tr. 15,70). A trench box was on the site but was not used (Tr. 12-13).
       On August 2,1995, the day before Henry’s inspection, John Crawford visited the worksite.
Crawford is a construction inspector for the Stark County Engineering Department             (Tr. 6).
Crawford observed Humbert employee Chris Rothwell working in the bottom of the trench.
Humbert had no protection against a trench cave-in. Crawford and his supervisor, Pat Danley,
advised Humbert’s foreman Larry Froelic to use a trench box (Tr. 1O-11,53). Crawford noted in his
work diary that “Contractor elected to use no trench box nor road plates in trench” (Exh. C-l;
Tr. 11).
                                           Citation No. ]L

                       Item 1: Alleged Serious Violation of 8 1926.2Ub)QJ

       The Secretary alleges that Humbert violated 0 1926.21(b)(2) which provides:
       The employer shall instruct each employee in the recognition and avoidance of
       UIlsafeconditions and the regulations applicable to his work environment to control
       or eliminate any hazards or other exposure to illness or injury.

       Henry interviewed the three Humbert employees present at the worksite: the foreman, Larry
Froelic, and the laborers Chris Rothwell and Bernard Cromi (Tr. 61). Henry determined that

                                                 2
Humbert had not instructed the employees in the recognition and avoidance of un&e conditions.
Rothwell was working in an unprotected trench, 10 to 12 feet deep with vertical walls, which was
excavated in previously disturbed soil. Neither Rothwell nor Cromi were aware of the rquirements
of the trenching standards (Tr. 6344). Henry testified that Rothwell and Cromi “stated they had not
had any training in trenching” (Tr. 63).
        The Secretary has established a violation of $1926.21(b)(2). The hazed created by the
violation of the cited standard is that of a cave-in, which would likely result in death or serious
physical injuries. Humbert committed a serious violation of 11926.21(b)(2).
                        Item 2: Alleged Serious Violation of 81926.651fi)Cl)

        The Secretary alleges Humbert violated 9 1926.65 1(k)( 1) which provides:
       Daily inspections of excavations, the tijacent 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 shifi. 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.


       Section 1926.650 defines “competent person” as:

       [O]ne 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.

       Humbert claims that its foreman, Larry Fro&c, was its competent person on the site. Henry
testified that Froelic was not competent within thi meaning of the Act because Froelic had not
received any formal training in trench safety and did not appear to understand the requirements of
the excavation standards (Tr. 65).
       At the hearing, Humbert submitted a signed statement handwritten by Froelic which reads
(Exh. R-10; Tr. 135):
               Under the definitions as explained by Bob Burch the instructor of our safety
       classes [and Humbert’s representative at the hearing] I believe I was the competent
       person on the project.
                                                                                      L




                Thursday Aug. 3 1995 I inspected the job & the soil & believed it to be at
        least type A now that I know the terms out of the CFR 1926.650 Reg.

        Froelic’s statement immediately raises two issues regarding his status as a competent person.
First, the safety classes to which Froelic refers started approximately one month before the hearing,
three months afkr the inspection (Tr. 136). At the time of the inspection, Froelic had not received
any safetj instruction. This point is emphakzd by Froelic’s statement that he believed the soil in
the trench was Type A “now that I know the terms out of the CFR 1926.650 Reg.” The implication
is clear that prior to Burch’s safety classes, Froelic was unfamiliar with the requirements of the
OSHA standards.
        Second, Froelic states that he believes that the soil was Type A. Henry did not conduct a test
on a soil sample, but he stated that the soil was at best Type B. Henry’s assessment is supported by
Appendix A to Subpart P (“Soil Classification”).        Paragraph (b) of the Appendix provides in
pertinent part:
        No soil is Type A if:
                  ...

        (ii)      The soil is subject to vibration from heavy trafEc, pile driving, or similar
                  effects; or
        (iii)     The soil has been previously disturbed [.J

       The
         c trench was immediately adjacent to a four lane roadway, where trafEc was maintained.
Thus, it was subject to vibrations. The soil was also previously disturbed, as evidenced by the
existence of a previously installed pipe (Exh. C-5; Tr.17). Froelic’s belief that the soil was Type A,
despite these two obviously disquali@ing conditions, demonstrates that he was not “one who is
capable of identifying existing and predictable hazards.” See E. L. Davis Contracting Co., 16 BNA
OSHC 2046 (No. 92035,1994).
        The Secretary has established that Humbert was in violation of 6 1926.65 1(k)(l). The failure
to have a competent person inspect the trench exposed the employee working in the trench to the
possibility of a cave-in. The violation was serious.
                        Item 3: Alleged Serious Violation of ~1926.652[a)~

       The Secretary alleges that Humbert violated $1926.652(a)(l) which provides:


                                                   4
           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:

                  0        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.

           Crawford gave unrefuted evidence that he observed Rothwell working in the unprotected
trench, which was at least 10 feet deep and excavated in previously disturbed soil, on August 2,1995
(Tr. 10-l 1,53). Humbert had a trench box at the worksite but did not use it in the trench (Tr. 12-l 3).
No other means of protect& was used.’
        The Secretary has established that Humbert violated $1926.652(a)(1). Humbert exposed its
employee in the trench to death or serious physical injury caused by a cave-in. The violation was
serious.
                         Item 4: Alleged Serious Violation of §1926.1053(bjlJ

        The Secretary asserts a violation of § 1926.1053(b)(l), which provides:
        When portable ladders are used for access to an upper landing surface, the ladder side
        rails shaLlextend at least 3 feet (.9 m) above the upper landing surface to which the
        ladder is used to gain access; or, when such an extension is not possible because of
        the ladder’s length, then the ladder shall be secured at its top to a rigid support that
        will not deflect, and a grasping device, such as a grabrail, shall be provided to assist
        employees in mounting and dismounting the ladder. In no case shall the extension
        be such that ladder deflection under a load would, by itself, cause the ladder to slip
        off its support.

        Humbert had a ladder in the trench which extended 12 to 14 inches above the trench’s
opening (Exhs. C-2, C-3; Tr. 80). The Secretary argues that the ladder needed to extend at least 3
feet above the opening, in accordance with 5 1926.1053(b)(l).
        To establish a violation of a standard, the Secretary must show by a preponderance
        of the evidence that: (1) the cited standard applies, (2) its terms were not met, (3)
        employees had access to the violative condition, and (4) the employer knew or could


        ’ At the hearing, Humbert’s representative spent a great deal of time questioning the method of
abatement, conditionally approved by Henry, which Humbert subsequently used. The concern of this court is
whether Humbert was in violation of the cited standard at the time of the inspection.

                                                      5
        have known of it with the exercise of reasomble diligence. See, e.g., FKSbr Towing
        Corp., 14 BNA OSHC 2072, 2074, 1991 CCH OSHD 29,239, p. 39,157
        (No. 8701359,199l).

        Seibel Manufacturing & Welding Corporation,               15 BNA OSHC 1218, 1221-1222
(No. 88-821).
        The Secretary has failed to prove that the cited standard applies in this case.
Section 1926.1053(b)(l) states that ladders used to reach “an upper landing surface” must extend 3
feet above the landing surface. “Landing” is defined as “[a]n intermediate platform on a flight of
stairs”or “[t]he area at the top or bottom of a staircase.” The American Heritage Dictionary, 2d ed.,

1982. By using the word “ianding,” the standard would appear to apply to ladders used to access
an area of a structure. The standard does not apply to a ladder used as a means of egress from a
trench to the upper ground. Otherwise, the drafters of the standard could have worded the standard
to read %n upper surface.” The use of the word “landing” is redundant if the application of the
standard is not restricted in this way.
        Humbert was not in violation of $1926.1053@( 1).
                                          Penalty Determination
        The Commission is the final arbiter of penalties in all contested cases. Under section 17(j)
of the Act, in determining the appropriate penalty the Commission is required to find and give “due
consideration” to (1) the siz of the employer’s business, (2) the gravity of the violation, (3) the good
faith of the employer, and (4) the history of previous violations. The gravity of the violation is the
principal factor to be considered.
        Humbert employed eight employees at the time of the hearing. The company had no history
of previous violations. Humbert demonstrated a lack of good faith in ignoring Crawford and
Danley’s advice to use some form of trench protection (Tr. 83). The gravity of items I, 2, and 3 is
high. The hazard created by each of these violations was the possibility of a trench cave-in.
        Upon due consideration of these factors, the court determines that the appropriate penalties
are $600.00 each for items 1 and 2, and $1500.00 for item 3.
        The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).


       Based upon the foregoing decision, it is hereby ORDERED that:
        1.     Item 1 of citation No. 1, alleging a serious violation of 6 1926.2 1(b)(2) is aiT!i!ied,
and a penalty of $600.00 is assessed;
       2.      Item 2 of citation No. 1, alleging a serious violation of 61926.65 1(k)(l) is aE&med,
and a penalty of $600.00 is assessed;
       3.      Item 3 of citation No. 1) alleging a serious violation of 3 1926.652(a)( 1) is affirmed,
and a penalty of $1500.00 is assessed; and
       4.      Item 4 of citation No. 1, alleging a serious violation of 3 1926.1053@( 1) is vacated,
and no penalty is assessed.


                                                             ISI NANCY J. SPIES
                                               NANCY J. SPIES
                                               Judge

Date: January 11, 1996
      Atlanta, Georgia