Lanzo Construction Co., Inc.

Plain-English summary

Lanzo employees worked in an unprotected 12-foot excavation and used a ladder perched on unstable, sloping soil. The ladder was not missing a rung as first alleged, but its extension-ladder design left nonuniform spacing that created a misstep hazard. Judge Ken S. Welsch affirmed the two ladder items for $2,800 and the cave-in item as serious for $6,000 because the excavation contained sand above limestone and was not entirely stable rock. He rejected the repeated classification because OSHA offered only an unauthenticated web printout with no proven final-order date. A competent-person inspection item was vacated because OSHA had cited the same training deficiency one week earlier and Lanzo arranged training within the first citation's still-open abatement period.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.1053(b)(6); 29 C.F.R. § 1926.1053(b)(16); 29 C.F.R. § 1926.1053(a)(2); 29 C.F.R. § 1926.651(k)(1); 29 C.F.R. § 1926.651(k)(2); 29 C.F.R. § 1926.652(a)(1).
• Outcome: Two serious ladder items affirmed for $2,800; cave-in item affirmed as serious rather than repeated for $6,000; inspection item vacated.
• Key point: Repeat status requires proof of a prior final order, and a second training-based citation should not punish the same deficiency while the first citation's reasonable abatement period remains open.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 97-1512

Lanzo Construction Co., Inc.,
Respondent. APPEARANCES
John A. Black, Esq.
David R. Elder, Esq.
Dana L. Ferguson, Esq. Maury L. Udell, Esq.
Office of the Solicitor Elder, Kurzman, & Vaccarella, P.A.
U. S. Department of Labor Miami, Florida
Atlanta, Georgia For Respondent
For Complainant

Before: Administrative Law Judge Ken S. Welsch

                                       DECISION AND ORDER
     Lanzo Construction Co., Inc., (Lanzo) an underground utility contractor, contests two

citations issued to it by the Occupational Safety and Health Administration (OSHA) on
August 18, 1997.
Citation No. 1 contains Item 1a, which alleges a serious violation of § 1926.1053(b)(6)
for placing a ladder on an unstable surface; Item 1b, which alleges a serious violation of
§1926.1053(b)(16) for using a ladder with a missing rung, or, in the alternative,
of § 1926.1053(a)(2) for using a ladder whose rungs were not uniformly spaced; and Item 2,
which alleges a serious violation of § 1926.651(k)(1) for failing to have a competent person
make daily inspections of Lanzo’s worksite, or, in the alternative, of § 1926.651(k)(2) for the
competent person failing to remove exposed employees from an excavation when the possibility
of a cave-in existed. The citation proposes a total penalty of $8,400.00.

     Citation No. 2 contains Item 1,1 which alleges a repeat violation of § 1926.652(a)(1) for

failure to implement an adequate protective system for employees working in an excavation
whose depth exceeded 5 feet. The citation proposes a penalty of $11,200.00.
Lanzo contends that the excavation was in stable rock and argues that the Secretary failed

     1
       Citation No. 2 contains only one item, which is listed as “item 2" in the citation. In her complaint, the

Secretary amended this to “item 1" (Tr. 51).
to meet her burden of proof with regard to all of the items. Lanzo also argues that Item 2 of
Citation No. 1, citing Lanzo for failure to have a competent person make daily inspections,
unfairly charges Lanzo with the same violation that OSHA cited in a separate inspection that
occurred only a week before the inspection that gave rise to the present case.
Lanzo admits jurisdiction and coverage. A hearing in this matter was held on June 24,
1998. The parties have submitted post-hearing briefs. For the reasons set out below, the
Secretary prevails on Items 1a and 1b of Citation No. 1, and on Item 1 of Citation No. 2 (the
classification of the violation is changed from repeat to serious). Item 2 of Citation No. 1 is
vacated.

                                        Background
   Lanzo was laying underground water and sewer lines for the City of Sunrise, Florida, on

February 27, 1997 (Tr. 112). Lanzo had begun the project approximately four months earlier
(Tr. 136).
OSHA compliance officer Charles Lankford and OSHA trainee Danezza Quintero arrived
at the east end of the worksite, which was approximately 5 miles long, between 11:15 a.m. and
11:30 a.m. on February 27, 1997. Lankford observed an excavation approximately 40 feet long,
12 feet deep, and varying in width from 10 to 27 feet (Exhs. C-1, C-2, and C-3; Tr. 27). Two
employees were standing at the bottom of the excavation (Tr. 28).
Lankford held an opening conference with site foreman Ray Fernandez, who identified
himself as a competent person to make daily inspections (Tr. 26, 29). Lankford took
measurements of the trench and also took a soil sample (Tr. 33). He measured the slope of the
excavation at its most horizontal location to be 55 degrees (Tr. 56).

                                      Citation No. 1
   The Secretary has the burden of proving her case by a preponderance of the evidence.
   In order to establish a violation of an occupational safety or health standard, the
   Secretary has the burden of proving: (a) the applicability of the cited standard,
   (b) the employer’s noncompliance with the standard’s terms, (c) employee access

to the violative conditions, and (d) the employer’s actual or constructive
knowledge of the violation (i.e., the employer either knew or, with the exercise of
reasonable diligence could have known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
In order to establish that a violation is "serious" under § 17(k) of the Act, the Secretary
must establish that there is a substantial probability of death or serious physical harm that could
result from the cited condition. In determining substantial probability, the Secretary must show
that an accident is possible and the result of the accident would likely be death or serious
physical harm. The likelihood of the accident is not an issue. Spancrete Northeast, Inc., 15
BNA OSHC 1020, 1024 (No. 86-521, 1991).
Item 1a: Alleged Serious Violation of § 1926.1053(b)(6)
The Secretary alleges that Lanzo committed a serious violation of § 1926.1053(b)(6),
which provides:
Ladders shall be used only on stable and level surfaces unless secured to prevent
accidental displacement.

   The only means of ingress to and egress from the excavation was a ladder resting on a

ledge of soil created when the ground was excavated (Exhs. C-1, C-2, and C-3; Tr. 36, 131-132).
Lanzo concedes the applicability of § 1926.1053(b)(6) to the cited condition (Lanzo’s
brief, p. 5). Lanzo argues that the ladder was in compliance with the standard because the
surface on which the ladder rested was stable rock. Lankford testified that the ladder was resting
on previously disturbed soil and a review of the photographs entered into the record as Exhibits
C-1, C-2, and C-3 bears this out. The legs of the ladder sank into the soil. Also, Exhibit C-2
shows that the legs were not set firmly on a flat surface. Instead, the ladder was perched on the
wall of the excavation itself, with the surface immediately below the legs of the ladder sloping
downward. The positioning of the ladder was in noncompliance with § 1926.1053(b)(6).
Lanzo argues that the Secretary failed to prove that employees actually used the ladder
because Lankford did not personally observe its use. Lankford testified without contradiction
that Quintero observed an employee exiting the trench using the ladder. Furthermore, the
employees had access to the ladder, which was the sole means of exit from a trench measuring 12
feet deep and having almost vertical walls.
The ladder was in plain sight, and Lanzo’s foreman was on the site. Lanzo had actual
knowledge of the violation.
Lanzo’s final defense with regard to this item is that the water at the bottom of the trench
“prevented the use of the bottom as a stable level surface to place the ladder” (Lanzo’s brief, p.
7). Water in the bottom of a trench does not entitle an employer to disregard the requirements of
§ 1926.1053(b)(6). The standard requires ladders to be used only on stable and level surfaces,
regardless of whether the bottom of the trench is unavailable as such a surface. Lanzo’s
argument is rejected.
The Secretary has established a violation of the cited standard. The hazard created by
placing the ladder on a surface that was neither stable nor level was that an employee could slip
off, causing “a strain, a sprain, perhaps up to a broken bone” (Tr. 39). The violation was serious.

                Item 1b: Alleged Serious Violation of § 1926.1053(b)(16)
                       Or, In the Alternative, of § 1926.1053(a)(2)

   The Secretary alleges that Lanzo committed a serious violation of § 1926.1053(b)(16),

which provides:
Portable ladders with structural defects, such as, but not limited to, broken or
missing rungs, cleats, or steps, broken or split rails, corroded components, or other
faulty or defective components, shall either be immediately marked in a manner
that readily identifies them as defective, or be tagged with “Do Not Use” or
similar language, and shall be withdrawn from service until repaired.

   When Lankford observed the ladder at Lanzo’s site, he believed that the second rung

from the top of the ladder was missing (Exh. C-1; Tr. 43). The Secretary concluded that the
ladder was defective and cited Lanzo for violating § 1926.1053(b)(16). Lanzo subsequently
represented to the Secretary that the ladder was not defective, but that it was part of an extension
ladder and was designed not to have a rung in the space where the Secretary believed a rung was
missing. Lanzo general superintendent Glenn Straw testified that the ladder was the base for a
two part extension ladder (Tr. 125): “On certain types of these extension ladders, there’s a rope
and pulley system for extending the ladder, and that is where the rope and pulley would come
through the ladder in order to be able to extend the use.” The Secretary failed to prove that the
ladder was defective.
The Secretary amended the citation to allege, in the alternative, a violation of
§ 1926.1053(a)(2) (Tr. 15). Section 1926.1053(a)(2) provides:
Ladder rungs, cleats, and steps shall be parallel, level, and uniformly spaced when
the ladder is in position for use.

   Exhibit C-1 shows that the rungs of the ladder were not uniformly spaced. The ladder

was the only means of egress from the trench. The employees used the ladder, which was in
plain view of the foreman. The Secretary has established a violation of § 1926.1053(a)(2) for
using a ladder whose rungs were not uniformly spaced.
Lankford characterized the hazard created by the unevenly spaced rungs to be “a human
factor hazard,” in which an employee might misstep because he expected the rungs to be
uniformly spaced, causing him to fall back into the excavation. The violation is serious.

Penalty Determination
The Commission is the final arbiter of penalties in all contested cases. Under § 17(j) of
the Act, in determining the appropriate penalty, the Commission is required to find and give “due
consideration” to (1) the size 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.
Lanzo had approximately 200 employees at the time of the inspection and had been cited
for OSHA violations within the previous three years (Tr. 41-42). Lanzo demonstrated good faith
during the inspection. The gravity of the violations of § § 1926.1053(a)(2) and (b)(6) is
moderate. While the condition of the ladder and its location created the likelihood of an
accident, the injuries likely to result from an accident were not severe. A total penalty of
$2,800.00 is assessed for Items 1a and 1b.
Item 2: Alleged Serious Violation of § 1926.651(k)(1)
Or, In the Alternative, Of § 1926.651(k)(2)

   The Secretary charges Lanzo with violating § 1926.651(k)(1), or, in the alternative,

§ 1926.651(k)(2). Those sections provide:
(k) Inspections. (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.
(2) Where the competent person finds evidence of a situation that could
result in a possible cave-in, indications of failure of protective systems, hazardous
atmospheres, or other hazardous conditions, exposed employees shall be removed
from the hazardous area until the necessary precautions have been taken to ensure
their safety.

    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.”
When Lankford interviewed foreman Fernandez, Fernandez “indicated a lack of
knowledge of the OSHA soil classification system; he indicated that he did not understand the
different types of protective options available; he indicated that he had not received any
excavation training; and finally, he admitted not knowing anything about excavation safety” (Tr.
48). General superintendent Straw, who testified that he had been at the inspection site before
Lankford arrived on February 27, considered himself a competent person within the meaning of
the standard but admitted that he did not understand OSHA’s soil classification system at that
time (Tr. 140, 142-143). The Secretary has established that Lanzo committed a violation of §
1926.651(k)(1).2
Lanzo argues that the Secretary unfairly cited the company for this violation because
OSHA had inspected Lanzo and found the same violation only a week before Lankford’s
inspection. Lanzo contends that it is being penalized twice for the same infraction.
On February 20, 1997, OSHA compliance officer Eileen Atkinson inspected an
excavation dug by Lanzo on the same project that Lankford inspected. The excavation Atkinson
inspected was located approximately 1.9 miles from the excavation at issue in this case (Tr. 92).
The Secretary issued a citation for a serious violation of § 1926.651(k)(1) to Lanzo on March 19,
1997, and gave as the “Date By Which Abatement Must be Abated” as May 5, 1997 (Exh. J-1).
One week later, on February 27, 1997, Lankford conducted the inspection that gave rise to this

    2
        Because the Secretary has established that Lanzo did not have a competent person on the site, the

alternative allegation that Lanzo violated § 1926.651(k)(2) must fail. The section presupposes that a competent
person within the meaning of § 1926.650(b) is present at the worksite.
proceeding. Lankford recommended citing Lanzo for a serious violation of § 1926.651(k)(1),
which the Secretary did on August 18, 1997. Lanzo’s supervisory employees completed OSHA
competent person training on April 26, 1997 (Exh. R-5). Lanzo argues that the Secretary should
not be allowed to cite it for a violation of § 1926.651(k)(1) between the initial February 20
inspection date and the May 5 abatement date.
The Secretary cites Andrew Catapano Enterprises, Inc., 17 BNA OSHC 1776 (Nos. 90-
50, 90-189, 90-190, 90-191, 90-192, 90-193, 90-771, 90-772, 91-26, 1996), in support of its
position that the abatement period given in a prior citation, at a different worksite with different
employees, does not prevent the Secretary from citing the employer for the same violation at a
later date at a different worksite. A review of Catapano, however, reveals that the case lends
more support to Lanzo’s position than to that of the Secretary.
In Catapano, the Secretary issued nine separate sets of citations to Catapano after
inspecting nine separate worksites on the same project over the course of a month. Catapano
argued that the Secretary violated its due process rights by “not treating these worksites as one
construction project and one case by issuing one citation and proposing one penalty for each
instance of a violation. . .” Ibid. at 1778. The Review Commission found that the trenches
constituted different worksites and were thus subject to multiple citations.
The worksites were blocks rather than miles apart and the Secretary’s inspection
of them was separated in time by days rather than months or years, but abating
one violation of a standard did not abate the violations of that same standard at
other worksites. . .
Violations of some of the standards were alleged at more than one but not
all worksites. The facts cited in support of these allegations are peculiar to the
worksite where they were observed. The employer’s defense to each allegation
also would vary with the worksite. Clearly, with the exception of the training
standards, which we address infra, these cases do not involve the “same offense.”

Ibid.
The training standards are what the Commission refers to when it states, “We find that,
with one exception, the Secretary’s decision to prosecute these cases in the manner he did was
within his discretion and did not violate Catapano’s due process rights.” Ibid. The Secretary
cited Catapano for violating the § 1926.21(b)(2) training standard at seven separate worksites.
The Commission agreed that the record established that Catapano violated the training standard.
But, the Commission noted, “[T]he Secretary cited a failure to train in the first inspection for the
same reasons he cited a failure to train in all the succeeding inspections. . . Catapano was cited
six more times in the succeeding docket numbers, all for the same failure to train. We find that
the evidence adduced in these cases permits only a single citation and penalty assessment under
the language of § 1926.21(b)(2).” Ibid.
In the present case OSHA found a violation of § 1926.651(k)(1) on February 20, 1997.
The failure to have a competent person on the site is more akin to a training violation than to the
violations which the Commission found to be “peculiar to the worksite where they were
observed.” The Secretary recognized this distinction by allowing Lanzo approximately a month
and a half to abate its violation of § 1926.651(k)(1) from the time of the issuance of the citation.
The Secretary realized that the company needed some time to arrange for the training of its
personnel. The failure to have someone at the site who is capable of identifying existing and
predictable hazards is not a failure that can be remedied immediately.
Lanzo responded in good faith by arranging the required training within the abatement
period given in the citation resulting from the February 20, 1997, inspection. It would be unfair
to affirm the Secretary’s second citation for a violation of § 1926.651(k)(1) that occurred prior to
the May 5 abatement date. Item 2 is vacated.

                                    Citation No. 2
                  Item 1: Alleged Repeat Violation of § 1926.652(a)(1)

   The Secretary alleges that Lanzo committed a repeat violation of § 1926.652(a)(1), which

provides:
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 pro-
vides no indication of a potential cave-in.

   The excavation at issue measured 12 feet deep and was 10 to 27 feet wide (Tr. 27).

Lanzo used no protective system in the excavation. The excavation was inadequately sloped for
Types A, B, and C soil.3 Lankford took a soil sample from the spoil pile and had it analyzed at
OSHA’s laboratory. The OSHA lab classified the soil sample as Type B soil (Tr. 34).
Lanzo contends that the excavation was dug in stable rock. Thomas Kaderabek, a geo-
technical and environmental consultant hired by Lanzo, obtained a 15-foot bore sample from the
vicinity of the excavation. The bore sample was not taken from the immediate area of the
excavation. Kaderabek found that the top 5½ feet of the bore sample consisted of sand. From 5½
feet down to 15 feet, Kaderabek found limestone (Exh. R-6).
Section 1926.652(a)(1) requires excavations deeper than 5 feet to be dug “entirely in
stable rock.” According to Kaderabek, Lanzo’s own witness, the top half of the bore sample he
took was in sand. The excavation was not dug entirely in stable rock and was deeper than 5 feet.
The Secretary has established a violation of the cited standard.
The Secretary alleges that the violation was a repeat violation. A violation is considered
a repeat violation “if, at the time of the alleged repeat violation, there was a Commission final
order against the employer for a substantially similar violation.” Potlatch Corp., 7 BNA OSHC
1061, 1063 (No. 16183, 1979). “A prima facie case of substantial similarity is established by a
showing that the prior and present violations were for failure to comply with the same standard.”
Superior Electric Company, 17 BNA OSHC 1635, 1638 (No. 91-1597, 1996).
The only evidence the Secretary adduced to establish a repeat violation was a computer
printout taken from OSHA’s web site. The printout summarized a citation issued to Lanzo in
1994. Lankford found the summary by searching OSHA’s web site databases. He was not the
inspecting compliance officer in that case and knew no details of the inspection. The original
citation had apparently been destroyed by OSHA in the regular course of business (Exh. C-4; Tr.
65-67).
The Secretary contends that the computer printout of the summary is sufficient to
establish that a final order existed against Lanzo affirming a violation of § 1926.652(a)(1). The
Secretary cites Island Lathing & Plastering, Inc., 18 BNA OSHC 1500 (No. 97-1026, 1998), an

      3
         Lanzo contends in its post-hearing brief that the width of the excavation was 27 feet. If the soil was

Type B soil, the 12-foot deep excavation needed to be 24 feet wide to achieve the required slope ratio of 1:1 (Pt.
1926, Subpt. P, App. B, Figure B-1.2). Lanzo cites to transcript page 27 for the width measurement, but mis-
characterizes Lankford’s testimony on that point. Lankford states that the excavation “varied in width from like ten
feet at the narrowest to twenty-seven feet at the widest” (Tr. 27).
unreviewed administrative law judge (ALJ) decision with no precedential value, in support of her
contention. However, it appears that in Island the information regarding the prior inspections
provided by the computer printout and the testimony of the compliance officer was more
extensive and specific than the information available in the present case. For example, the dates
that the citations became final orders were known. Island, Ibid. at 1501. No final order date is
given on the printout in the instant case (Exh. C-4).
Lanzo’s general superintendent and its assistant secretary testified at the hearing. The
Secretary did not question either one of them regarding a previous citation issued to Lanzo. The
Secretary did not adduce admissions made by the employer in response to her request for
admissions (as she did in Island) establishing that a previous citation had become a final order
against Lanzo. Lankford, the Secretary’s only witness, had no personal knowledge of the
previous citation. Without further evidence, the Secretary cannot establish the authenticity and
relevance of the printout. The violation is not shown to be a repeat violation.
The violation of § 1926.651(a)(1) is serious. Lanzo’s employee were working in an
unsloped 12-foot deep trench excavated in Type B soil with no protective system. The
employees were exposed to the possibility of a cave-in, which would likely result in death or
serious physical injuries.

Penalty Determination
The gravity of the violation is high. The conditions of the excavation increased the
potential for a cave-in. Trench cave-ins generally result in grievous physical injuries or death. A
penalty of $6,000.00 is assessed.

                 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:
1. Items 1a and 1b of Citation No. 1, alleging serious violations of § 1926.1053(b)(6) and
(a)(2) respectively, are affirmed and a total penalty of $2,800.00 is assessed;
2. Item 2 of Citation No. 1, alleging a serious violation of § 1926.651(k)(1), is vacated
and no penalty is assessed; and
3. Item 1 of Citation No. 2, alleging a repeat violation of § 1926.652(a)(1), is affirmed as
serious and a penalty of $6,000.00 is assessed.

                                          KEN S. WELSCH
                                          Judge

Date: May 10, 1999