Norm's Utility Contractors, and its successors

Plain-English summary

Norm's Utility Contractors used trench boxes in a wet excavation about ten feet deep, but several feet of nearly vertical, sloughing soil remained above the boxes. Employees worked from the top of a box below the trench edge and lacked a safe ladder or ramp after earlier ramp access was removed. Judge Benjamin R. Loye held that trench depth is measured from the bottom to the surface without subtracting benches or the trench box. The cave-in item was repeated because a recent final order under the same standard had already notified the company of compliant sloping and shoring requirements. The safe-egress item was also affirmed. A competent-person inspection item was vacated because it cited the wrong duty for the alleged conduct and did not prove that the foreman lacked the required competence. Total penalties were $2,400.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.651(c)(2), 1926.651(k)(1), and 1926.652(a)(1).
• Outcome: Repeated cave-in protection and serious access items affirmed; competent-person item vacated; $2,400 total penalty assessed.
• Key point: A trench box or bench does not reduce the measured depth of an excavation for determining protective-system requirements.

Full text (OSHRC public release)

                                                           United States of America
                    OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                               1244 North Speed Boulevard, Room 250
                                                     Denver, Colorado 80204-3582

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,
Complainant,

                           v.                             OSHRC DOCKET NO. 98-0019

NORM’S UTILITY CONTRACTORS, and its
successors,
Respondent.

APPEARANCES:

      For the Complainant:
               Matthew L. Vadnal, Esq., Office of the Solicitor, U.S. Department of Labor, Seattle, Washington

      For the Respondent:
               Stanley D. Moore, Esq., Winston & Cashatt, Coeur D’Alene, Idaho

Before: Administrative Law Judge: Benjamin R. Loye

                                         DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Section 651 et seq.; hereafter called the “Act”).
Respondent, Norm’s Utility Contractors, and its successors (Norm’s), at all times relevant to
this action maintained a place of business at County Road 4A, Naples, Idaho, where it was engaged in
utility construction. Respondent admits it is an employer engaged in a business affecting commerce and
is subject to the requirements of the Act.
On November 21, 1997 the Occupational Safety and Health Administration (OSHA) conducted
an inspection of Norm’s Naples, Idaho work site. As a result of that inspection, Norm’s was issued
citations alleging violations of the Act together with proposed penalties. By filing a timely notice of
contest Norm’s brought this proceeding before the Occupational Safety and Health Review Commission
(Commission).
On September 16, 1998, a hearing was held in Coeur D’Alene, Idaho. The parties have
submitted briefs on the issues and this matter is ready for disposition.
 Because “repeat” citation 2 is at the basis of the above captioned matter, that alleged violation
will be discussed first.
Alleged Violation of §1926.652(a)(1)
Repeat citation 2, item 1 alleges:
29 CFR 1926.652(a)(1): Each employee in an excavation was not protected from cave-ins by an
adequate protective system designed in accordance with 29 CFR 1926.652(b) or (c):

    (a) County Road 4A, Naples, ID: Employee was working in an approximately 10 foot deep
    trench from a 6 foot deep trench shield with approximately 4 vertical feet of wet sloughing soil
    exposed above the top of the trench shield. The design and use of sloping and the shield system
    did not meet the requirements of appendix B of this subpart in accordance with 29 CFR
    1926.652(b)(2).

Facts
On November 21, 1997, OSHA Compliance Officers (CO) Van Howell and David Kearns
arrived at Respondent’s Naples, Idaho work site (Tr. 21-23). At the site Howell and Kearns videotaped
an approximately 37 foot east-west trench which ranged between nine and eleven feet wide (Tr. 32, 48).
Two six foot trench boxes had been placed against the south wall of the trench, which was vertical and
extended three and one half to four feet above the top of the trench box (Tr. 31-33, 39, 75). The slope
of the north wall was nearly vertical, down to a bench created by fill dirt that Norm’s added between the
box and trench wall to stabilize the box (Tr. 75, 127). The north wall showed a series of fissures and
soil had begun to separate from the trench wall (Tr. 39, 43; Exh. C-5). The trench boxes contained
approximately two feet of ground water, and the surface soil was also wet, from rain which had been
falling on and off throughout the day (Tr. 41, 55). CO Howell testified that soil was sluffing into the
trench from the south wall as he and Kearns watched (Tr. 52-53).
CO Howell testified that the foreman, Tyler Eberle, and an employee, Julio Gayton, both told
him that they had been in and out of the trench throughout the day (Tr. 23-24, 69). Howell stated that
Gayton told him he had been working in the east end of the trench standing on some angle iron
approximately half way down the inside of the trench box, attempting to “adjust for the pumping of
water,” and that he had just exited the trench (Tr. 24, 34, 37, 56-57, 91-92). Howell noted a shovel and
a two by four on top of the trench box, which he believed Gayton had been using (Tr. 24, 35-36; Exh.
C-3, C-5).
CO Kearns’testimony was consistent with Howell’s testimony in all respects (Tr. 112-13).
Tyler Eberle testified that the trench box was originally placed at ground level, but that ground
water from the adjacent creek washed the soil out from under the box, which began to sink (Tr. 118,

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121-22). Eberle stated that his crew later used the excavator to tap the box down into the unstable soil
in an attempt to seal out the water (Tr. 122, 128). Eberle testified Julio Gayton was in the trench box
early in the day, to set a casing; Eberle stated that the top of the box was level with the ground at that
time (Tr. 126, 136, 160). Eberle testified that later he and Julio took grade shots from the top of the
box at the east end of the trench, below the north trench wall, but that no one actually entered the
trench box after it sank below grade (Tr. 137, 167-69). Eberle did not remember Gayton telling Howell
that he had just come out of the trench (Tr. 123). Eberle further stated that the shovel Howell saw had
been used to level the gravel fill between the box and the north trench wall (Tr. 127). The 2 x 4 had
been used to push a piece of plywood down between the first and second box (Tr. 127).
Julio Gayton testified that he might have told CO Howell he had just been in the trench, but that
he was on top of, not in the trench box (Tr. 173-74). Gayton stated that he had been in the trench just
before noon, setting some casing, but that the top of the box was level with the roadway at that time
(Tr. 175-78). Gayton stated that everything was done from the top of the box from then on (Tr. 175).
Gayton stated that there were approximately three and a half feet of soil above the top of the trench
box, reaching to his hip level, as he stood on the lip of the trench box (Tr. 186).
In rebuttal, CO Howell testified that an employee on the top of the trench box was exposed to a
hazard in that the sloughing soils from the trench walls above the top of the trench could knock an
employee into the trench, where he could be buried or drown (Tr. 204).
Discussion
The citation. The citation in this matter alleges that Norm’s employees worked from the
bottom of the trench box. After hearing the testimony of Norm’s employees, it became apparent to the
Complainant that those employees worked mainly from the top of the trench box, rather than in the box.
Complainant moved to amend the specifics of the citation to allege, in the alternative, that employees
working on top of the trench box were exposed to a hazard from the wet sloughing soil above the top
of the box (Tr. 214-17).
Pursuant to Rule 15(b) of the Federal Rules of Civil Procedure, made applicable to Commission
proceedings by 29 CFR §2200.2(b), post-trial amendment of the pleadings is proper “[w]hen issues not
raised by the pleadings are tried by the express or implied consent of the parties.” Peavey Co.,16 BNA
OSHC 2022, 1994 CCH OSHD ¶30,572 (No. 89-2836, 1994). In this case the citation placed Norm’s
on notice of the matter at issue generally, i.e. the adequacy of its protective systems. Norm’s itself
raised the specific issue, i.e. the employees’position on, rather than in the trench box, and introduced all

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the evidence pertaining to that issue. I find that Norm’s is not prejudiced by the Complainant’s
requested amendment, having fully tried the issue.
Citation 2, item 1, instance (a) is hereby amended to conform to the evidence as set forth at trial.
The standard. The relevant portion of the cited standard provides:

    (a) Protection of employees in excavations. (1) Each employee in an excavation shall be
    protected from cave-ins by an adequate protective system designed in accordance with
    paragraph (b) or © 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.

    Paragraph (b)(2)(ii) refers the reader to Appendix B, which sets forth the allowable

configurations for excavations in unclassified soils1.
All excavations 20 feet or less in depth which have vertically sided lower portions shall be
shielded or supported to a height at least 18 inches above the top of the vertical side. The
support or shield system must extend at least 18 inches above the top of the vertical side.

    Norm’s argues that the north wall of its trench was less than 5 feet in height as measured from

the ledge at the top of the trench box, and so is exempt from the requirements of ¶(b) under
subparagraph (a)(1)(ii), quoted above. This judge has previously rejected this method of measuring the
depth of a trench. See, Globe Contractors, Inc., 17 BNA OSHC 2165, 1996 CCH OSHD ¶31,172 (No.
95-0494, 1996), aff’d., 132 F.3d 367 (7th Cir. 1997). In order to determine a trench’s compliance with
OSHA standards, it is measured from the toe of the trench to the surface, without regard to any
benching, or the presence of a box in the trench. The record shows that the cited trench was between
nine and one half and ten feet deep.
It is clear from the evidence in the record that the support system in the nine and one half to ten
foot trench did not comply with ¶(b), Appendix B, which prohibits vertical, or benched walls above a
trench box, and requires that sloping be cut at least 18 inches below the top of the box.
Though CO Howell had no direct evidence of employee exposure at the bottom of the trench, it
is undisputed that both Gayton and Eberle worked on the ledge three and one half to four feet below the
lip of the trench. In affirming Globe Contractors, supra, the Seventh Circuit found that the Secretary
has previously interpreted §1926.652(a)(2) as applying to employees in the excavation, regardless of
their position in the excavation, so long as the employees are exposed to a hazard. Globe Contractors,

        1
           Norm’s does not claim Eberle made any attempt to classify the soils at the site; unclassified soils are

treated as Type C soils (Tr. 105).

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Inc. V. Secretary of Labor, 132 F.3d 367 (7th Cir. 1997), citing, Ford Dev. Corp., 15 BNA OSHC
2003 (No. 90-1505, 1992).
Howell stated that an employee in the trench could be struck by the saturated soil, be buried, or
knocked into the water and drown (Tr. 40). CO Howell’s testimony and the photographic evidence
establish that there was a danger that the saturated soil could slough off, knocking an employee into the
trench. Complainant has established employee exposure, and the violation will be affirmed.
Classification
The violation was cited as a repeat violation. A violation is repeated under section 17(a) of the
Act if, at the time of the alleged repeated violation, there was a final order against the same employer
for a substantially similar violation. Potlatch Corporation, 7 BNA OSHC 1061, 1979 CCH OSHD
¶23,294 (No. 16183, 1979). Norm’s was cited for violation of the identical standard in April 1997; the
citation was affirmed in a final order of the Commission dated October 31, 1997 (Tr. 78, 99; Exh. C-2).
Norm’s maintains that the violation affirmed here is not substantially similar to the April 1997
violation, because in that case employees were working in the bottom of a trench without benefit of a
trench box (Tr. 101). I find, however, that the April 1997 citation was substantially similar, in that it
served to put Norm’s on notice of the need to take steps to ensure its employees’use of sloping and
shoring which complied with §1926.652 et seq., See, Caterpillar, Inc. v. Herman, 154 F.3d 400 (7th
Cir. 1998).
Penalty
A penalty of $4,000.00 was assessed for this item, representing a gravity based penalty of
$2,000.00 and a multiplier of 2 for repeat violations. I find that the CO’s overstated the gravity of the
hazard, believing that Norm’s employees had been working in the bottom of the trench, rather than on
the ledge at the top of the trench box.
Taking into account the limited exposure of Norm’s employees, and the low probability of an
accident occurring, I find that a gravity based penalty of $800.00 is appropriate. The repeat multiplier
shall be applied, and a penalty of $1,600.00 assessed.
Alleged Violation of §1926.651(c)(2)
Citation 1, item 1 alleges:
29 CFR 1926.651(c)(2): A stairway, ladder, ramp or other safe means of egress was not located in
trench excavations that were 4 feet (1.22m) or more in depth so as to require no more than 25 feet
(7.62m) of lateral travel for employees:

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(a) County Road 4A, Naples, ID: Employee working at the east end of an approximately 10 foot
deep trench gained access and egress via a wet and uneven slope at the opposite end of the
approximately 37 foot long trench.

    The cited standard provides:

    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.

Facts
Howell testified that Gayton told him that he had climbed into the trench using the spreader bars
where the two trench boxes came together (Tr. 62-63, 93). At the hearing Gayton testified that he
climbed into the box using the holes in the box as steps (Tr. 177-78; Exh. C-4). Gayton testified that he
might have used the angle iron to exit the box after he placed the casing (Tr. 183-85).
Eberle admitted that there was no ladder on the site, but stated that earlier in the day, there was
a ramp down to the pump location which was used for access (Tr. 64, 160-164). The ramp was
obliterated by the backhoe as it dug towards the east (Tr. 160-61). Gayton confirmed that there was a
ramp before the second trench box was placed in the trench (Tr. 178).
Discussion
The evidence establishes that, although there was ramp access into the trench early in the day,
the ramp was obliterated by the backhoe before the east trench box was placed in the trench. There was
no safe means of access available to Julio Gayton when he climbed down the holes in the eastern trench
box pictured in Complainant’s exhibit C-4. The citation has been established.
Penalty
CO Howell testified, without contradiction, that an employee climbing the trench box could slip
and fall, possibly hitting his head on the metal trench box (Tr. 66). At a height of six feet, Howell stated
that such a fall could result in serious injury (Tr. 66).
This item was properly classified as “serious.” A penalty of $800.00 was proposed and is
deemed appropriate.
Alleged Violation of §1926.651(k)(1)
Citation 1, item 2 alleges:
29 CFR 1926.651(k)(1): Daily inspections of excavations, the adjacent areas, and protective systems
were not made by a competent person for evidence of a situation that could have resulted in possible
cave-ins, indication of failure of protective systems, hazardous atmospheres, or other hazardous
conditions:

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(a) County Road 4A, Naples, ID: Foreman on site, responsible for conducting daily inspections
failed to remove an employee from an approximately 10 foot deep trench which was not
adequately protected from cave-ins from wet and sloughing soil.

    The cited standard provides:

    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.. . .

Facts
Howell testified that Eberle, who claimed to be the competent person on site, had not classified
the soil in the trench and was unfamiliar with OSHA regulations requiring that trench walls above the
top of a trench box be sloped to 18" below the top of the box (Tr. 69-70).
Eberle testified that he has taken safety courses in construction, excavation and environmental
hazards (Tr. 142), that he is familiar with OSHA standards relating to trenching (Tr. 144), and that he
understands OSHA’s system of soil classifications, though he had not “been out to classify soils (Tr.
145-46.” Eberle stated that “[w]e respond to what we find (Tr. 145-46). Specifically, Eberle stated
that the standards require a slope of 1-1/2 to 1 in type C soil, and that the slope must be cut 18" below
the top of any trench box in use (Tr. 147-48).
Discussion
As a threshold matter I note that the citation specifically refers to Eberle’s failure to remove an
employee from a 10 foot trench which was not adequately protected from cave-ins, circumstances
addressed by §1926.651(k)(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.

    The appropriate subsection, (k)(2), was not cited here, and Complainant makes no attempt to

address the cited circumstances in her brief. Rather Complainant argues that Eberle was not a
competent person, as required under the cited subsection (k)(1). As noted by the Complainant,
“competent person” is defined at §1926.650 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.

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The evidence shows that Eberle was trained in excavation safety, was familiar with the relevant
OSHA standards and soils classifications. Complainant failed to show that Eberle was not a competent
person, as contemplated by the cited standard2.
Complainant failed to establish the cited violation; citation 1, item 2 is vacated.

                                                   ORDER

1. Citation 2, item 1, alleging violation of §1926.652(a)(1) is AFFIRMED as a repeated violation,
   and a penalty of $1,600.00 is ASSESSED.

2. Citation 1, item 1, alleging violation of §1926.651(c)(2) is AFFIRMED as a “serious” violation,
   and a penalty of $800.00 is ASSESSED.

3. Citation 1, item 2, alleging violation of §1926.651(k)(1) is VACATED.

                                                          Benjamin R. Loye
                                                          Judge, OSHRC
   

Dated:

         2
           Complainant’s reliance on this judge’s decision in Womack Brothers, __ BNA OSHC __ , 97 CCH
 OSHD ¶31,375 (No. 96-0640, 1997) is misplaced. The cited standard does not require employers to provide
 competent person training. In Womack the employer was cited under the training standard at §1926.21(b)(2).

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