Trine Construction Corp.

Plain-English summary

Trine Construction Corp. was the contractor on a 3-mile water main project for the City of Wheeling, Illinois. During a January 1997 inspection, an OSHA compliance officer found an excavation 8 to 9 feet deep with essentially vertical walls and no cave-in protection. Witnesses said a Trine employee had been in the deep, unprotected part of the trench earlier that morning removing soil around the pipe, in previously disturbed soil. Trine argued the worker had only been in a shallow 3-to-4-foot south end, but its main witness admitted he was never at the site, and the judge credited the consistent testimony of the compliance officer and the city's inspector. The judge found the trench required sloping, shoring, or a trench box, and that the violation was properly classified as repeat because Trine had a 1994 final order for the same standard. The item was affirmed and the proposed $2,800 penalty assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1) (cave-in protection for employees in excavations)
• Outcome: Citation 1, Item 1 affirmed as a repeat violation; $2,800 penalty assessed.
• Key point: A repeat classification stands on a prior final order for a substantially similar violation, and testimony from a witness who was never at the site cannot overcome consistent eyewitness accounts.

Full text (OSHRC public release)

                              United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                         1120 20th Street, N.W., Ninth Floor
                            Washington, DC 20036-3419




SECRETARY OF LABOR,                            :
                                               :
               Complainant,                    :
                                               :
       v.                                      :              OSHRC DOCKET NO. 97-0241
                                               :
TRINE CONSTRUCTION CORP.,                      :
                                               :
               Respondent.                     :

APPEARANCES:

               Helen Schuitmaker, Esquire                     Melissa Giannini, Esquire
               Chicago, Illinois                              Oak Brook, Illinois
               For the Complainant.                           For the Respondent.

Before: Chief Judge Irving Sommer

                                    DECISION AND ORDER

       This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”) inspected
a work site in Wheeling, Illinois, on January 23, 1997, where Respondent Trine Construction
(“Trine”) was engaged in excavation; the site was part of a 3-mile water main project of the City of
Wheeling, and Trine was the contractor on the project. As a result of the inspection, Trine was issued
a repeat citation alleging that an excavation was not shored or properly sloped, in violation of 29
C.F.R. 1926.652(a)(1). Trine contested the citation, the case was designated an E-Z Trial case
pursuant to Commission Rule 203(a), and the hearing in this matter was held on September 3, 1997.
                                      The Relevant Testimony
       Ron Payne, the OSHA compliance officer (“CO”) who inspected the site, testified that he saw
the subject excavation from the road as he was on his way to another work site; the excavation was
about 13 feet long and 11 feet wide, and, based on his later measurements, 8 to 9 feet deep except

for the south end, which was 6 to 7 feet deep. Payne further testified that the excavation walls were
essentially vertical and that while no one was in it when he arrived he spoke to several people at the
site, including Alan Miller, an engineer who was overseeing on the project, Octavio Celese, Trine’s
foreman, and Raul Buenrostro and Frank Pallimetti, two other Trine employees; Miller told him that
Buenrostro had been in the excavation earlier that morning removing the soil from around the piping
at the bottom, Celese told him they were going to be laying pipe in the excavation and that he had
no plans to use protection as he believed it was safe, and Buenrostro and Pallimetti made statements
consistent with that of Miller. Payne noted that the area where Buenrostro had been working was 8
to 9 feet deep, that the soil had been previously disturbed due to the piping that was already in it, and
that his concern was that a cave-in could occur; he also noted that after discussing the matter further,
Celese agreed to get a trench box from another site and use it in the excavation. (Tr. 4-32).
        Alan Miller testified that he was the City of Wheeling’s consultant inspector on the project,
that Buenrostro had been in the excavation for five to ten minutes shortly before Payne’s arrival, and
that the excavation was 8 to 9 feet deep in the area where Buenrostro removed the soil around the
pipe; he further testified that Buenrostro had also been in another area of the trench that was about
6 feet deep when he was probing for an additional pipe. Miller said the excavation walls were vertical,
and that the soil had been previously disturbed due to prior excavations in the same area; he also said
that no protection was used during Buenrostro’s work, and that although Trine got a trench box to
the site and used it later that day he had previously seen employees at other sites on the same project
work in excavations over 5 feet deep without protection. (Tr. 32-39).
                                              Discussion
        29 C.F.R. 1926.652(a)(1), the standard cited in this case, provides as follows:
        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 (1.52m) in depth and examination of the ground by a competent
        person provides no indication of a potential cave-in.
        The record establishes, and Trine does not dispute, that the excavation was 8 to 9 feet deep
except for the south end, that the sides were essentially vertical, and that no protection was used
when Buenrostro was in the excavation. Trine contends, rather, that Buenrostro worked only in the

south end to probe for the additional pipe and that that end was only 3 to 4 feet deep. (Tr. 60-63).
In support of this contention, Trine presented the testimony of Michael Rendina, Trine’s project
superintendent, and Frank Pallimetti. Rendina testified that the excavation had just been completed
that morning, that no one had been in the 8 to 9-foot area before OSHA arrived, and that the
company’s intent had been to use shoring or trench boxes before proceeding. (Tr. 40-47). Pallimetti
testified that Buenrostro had been only in the south end in order to probe for the pipe, that that area
was 3 to 4 feet deep, and that there had been no need to be in the 8 to 9-foot area. (Tr. 49-59).
However, Rendina conceded that he had not been at the site and had not seen the excavation. (Tr.
42; 48). Moreover, Pallimetti’s testimony was not persuasive in light of that of Miller and the CO,
which was consistent and convincing, and I find as fact that Buenrostro had been working in the
unprotected excavation at a depth of 8 to 9 feet. I also find, based on the evidence that the soil had
been previously disturbed, that Trine was required to use protection such as sloping, shoring or trench
boxes. (Tr. 12-13; 36; 42-43; 52-59). See Appendices A through F to the standard.
        The citation in this case has been characterized as a repeat violation. A violation is properly
classified as repeated if at the time of the alleged violation there was a Commission final order against
the same employer for a substantially similar violation. See Potlatch Corp., 7 BNA OSHC 1061,
1063 (No. 16183, 1979). The CO testified that a citation issued to Trine in 1994 alleging a violation
of 29 C.F.R. 1926.652(a)(1) had become a final order of the Commission and that C-1 was a copy
of that citation. (Tr. 14-15). Michael Rendina testified that in settling the 1994 citation and paying
a reduced penalty, Trine had not known the citation would stay on its record for three years. (Tr. 45-
47). Regardless, on the basis of the record, Trine was in repeated violation of the standard.
        The Secretary has proposed a penalty of $2,800.00 for this citation. The CO testified that
although the violation was serious, the gravity was not high due to the excavation’s width and his
opinion that a cave-in would likely have resulted in injuries such as broken bones and not a fatality;
he also testified that the penalty was reduced in light of the company’s size but that no further
reductions were given because the violation was serious as well as repeated. (Tr. 16-17). In my view,
the proposed penalty is appropriate, and it is accordingly assessed.

                                        Conclusions of Law
        1. Respondent Trine Construction Corporation is engaged in a business affecting commerce
and has employees within the meaning of section 3(5) of the Act. The Commission has jurisdiction
of the parties and of the subject matter of the proceeding.
        2. Respondent was in repeated violation of 29 C.F.R. 1926.652(a)(1).
                                                Order
        On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ordered that:
        1. Item 1 of citation 1 is affirmed, and a penalty of $2,800.00 is assessed.




                                                        Irving Sommer
                                                        Chief Judge

Date: