D.W.K. Contractors, Inc.

Plain-English summary

D.W.K. dug a trench to install a rainwater drain and placed excavated soil directly at both edges. OSHA measured one wall at eight and one-half feet by measuring from the top of the spoil pile, but Judge Covette Rooney held that trench depth must be measured from original ground level and OSHA had not established where that level was. She therefore vacated the cave-in-protection item based on depth. She affirmed the separate spoil-placement item because a company employee and an electrician entered the trench while loose soil remained at the edges without retaining devices or other protection. The serious violation carried a $1,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1); 29 C.F.R. § 1926.651(j)(2).
• Outcome: Cave-in-protection item vacated for unreliable depth proof; spoil-pile setback item affirmed as serious for $1,000.
• Key point: Trench depth is measured from original ground level, not the top of a spoil pile, while excavated material still must be kept two feet back or restrained from falling into the trench.

Full text (OSHRC public release)

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

SECRETARY OF LABOR,
Complainant,
v. DOCKET NO. 98-1948
D.W.K. CONTRACTORS, INC.,
Respondent.

Appearances:

           Maureen Russo, Esquire                           Nathan Criste, Esquire
           Maria L. Spitz, Esquire                          5301 Tollgate Road
           Office of the Solicitor                          Pipersville, Pennsylvania
           U.S. Department of Labor                         For the Respondent
           Philadelphia, Pennsylvania
           For the Complainant.

Before: Administrative Law Judge Covette Rooney

                                DECISION AND ORDER

   This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (“the Act”). Respondent, D.W.K. Contractors (“DWK”), at all times relevant
to this action maintained a job site at 2775 Buck Road, Bryn Athyn, Pennsylvania, where it was
engaged in trenching. DWK admits it is an employer engaged in a business affecting commerce
within the meaning of section 3(5) of the Act and that it is subject to the requirements of the Act.
On September 15, 1998, OSHA compliance officer (“CO”) Mark Stelmack conducted an
inspection of DWK’s job site. As a result, on October 5, 1998, DWK was issued a citation alleging
two serious violations with a proposed total penalty in the amount of $1,500.00. DWK brought this
matter before the Commission by filing a timely notice of contest, and a hearing was held before the
undersigned on May 10, 1999, in Philadelphia, Pennsylvania. Counsel for the parties have submitted
post-hearing briefs and reply briefs, and this matter is ready for disposition.
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                                        Background
   DWK was engaged in installing a rainwater conductor system at the site. DWK began the job

on September 14, 1998, by digging a trench about 5 feet long to expose an existing drainpipe located
12 feet from the field house at the site. This trench ran from the field house and toward a road that
was parallel to the field house. At the time of the inspection on September 15, 1998, DWK had dug
a second trench that was about 23 feet long; this trench was perpendicular to the first trench and was
parallel to and midway between the field house and the road, and there was a spoil pile of excavated
earth on either side of the trench. Upon arriving at the site, CO Stelmack held an opening conference
with Steve McKenna, the general contractor’s superintendent. During their walk-around, they came
upon the two trenches; the first had been partially backfilled, while the second had a pipe laid in it
with one end that was not yet connected to anything. The CO observed that one of the sidewalls in
the second trench was higher than the other and that there was no protective system in that trench.
McKenna told the CO that DWK was the subcontractor and that DWK’s foreman, who was on a
backhoe at the time, was the person in charge. The CO summoned the foreman, who introduced
himself as Scott Price. Price told the CO that the new drainpipe in the second trench had been tied
into the existing drainpipe in the first trench. Stelmack noted the sidewall he had observed in the
second trench and asked what protective system had been used, and Price indicated no protective
system had been used when they were doing the work. Stelmack also noted that the spoil piles were
not set back 2 feet from the edge, and Price explained that there had not been much room to work
in because of the curb that was adjacent to the trench and that he had had to dig across the trench.
The CO took various measurements of the trench, and one of his depth measurements on the side
with the higher sidewall was 8.5 feet.1 (Tr. 22-39, 47-49, 89, 135, 223).
The Secretary’s Burden of Proof
The Secretary has the burden of proving her case by a preponderance of the evidence. In
order to establish a violation of an OSHA standard, the Secretary must show (a) the applicability of
the cited standard, (b) the employer’s noncompliance with the standard’s terms, (c) employee access

   1
     R-4 is the CO’s sketch of the site, although Price made the red markings on R-4; the

subject sidewall was on the side shown as “spoil pile #1” on R-4. G-2-4 are DWK’s photos of the
trench, and G-5 is the CO’s video of it. (Tr. 24-28, 39-46, 53-57, 112-16, 135, 140-42).
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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 condition). Atlantic Battery Co., 16 BNA OSHA 2131, 2138 (No. 90-1747, 1994).
Citation 1, Item 1a
29 C.F.R. 1926.652(a)(1), the cited standard, 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 (1.52 m) in depth and examination of the ground by a competent
person provides no indication of a potential cave-in.
The citation alleges as follows:
a) Asplundh Field House Site - Shoring or other protective systems were not used to
protect employees from cave-in hazards when installing a roof drain connection at
the site. The trench was excavated through a spoil pile thus increasing the depth of
one side wall to approximately 8 feet 6 inches. An employee was thus exposed to a
cave-in hazard on this side of the trench.
CO Stelmack testified that he took depth measurements from two locations on the field house
side of the trench, indicated as “A” and “B” on photo G-2, and that these measurements revealed
depths of 8.5 and 6 feet, respectively; he also took depth measurements from three locations on the
other side of the trench, indicated as “C” on G-2, and these measurements revealed depths from 4.5
to 5 feet.2 The CO said that his tape measure was essentially vertical when he took his depth
measurements and that he rounded his measurements down to the nearest half foot to allow for
uneven surfaces at the bottom. He also said his measurements in the “A” and “B” areas on G-2 were
taken from the top of the spoil pile down. The CO noted the spoil pile on the field house side of the
trench had been incorporated into the sidewall and that there was no delineation between the two.
He accordingly made no determination as to where the grade level was when he took the “A” and
“B” measurements, stating that “as far as [he] was concerned, grade was where [he] took the

   2
   The 4.5 to 5-foot measurements were obtained by measuring down to the “shelf” or

“bench” on which the gray telephone conduit, shown on the left side of G-2, rested; the very
bottom of the trench in this area was a foot below the bench. (Tr. 32-34, 42).
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measurements.”3 In this regard, the CO pointed out that the spoil pile on the road side of the trench
had formed an “angle of repose,” the natural angle that earth makes when it is piled up, while the
spoil pile on the field house side had no such angle. (Tr. 26-39, 42, 61-68, 98-101; G-2-5).
The CO further testified that based on what he learned during the inspection, an employee
had been in the trench to uncover the telephone conduit, shown on the left side of G-2, and to install
and connect the new drainpipe, shown on the right side of G-2. The CO said that the employee would
have entered the trench at the shallow end, where the worker and the open end of the pipe are
depicted in G-2, and that the trench was deeper at the other end, where the drainpipe was connected;
he also said that his 8.5-foot measurement was approximately in the middle of the trench and that
his 6-foot measurement was towards the area the connection was made and in the area where the
employee would have used a shovel to uncover the telephone conduit. The CO noted that the
employee had been exposed to a cave-in of the wall shown on the right side of G-2 because it was
over 5 feet deep and there was no protective system in place. (Tr. 49-53, 68, 97-98, 121-23).

   3
     Q      Did you consider where grade level was when you were taking these

measurements?
A No, as far as I was concerned, grade level was where I took the measurements to.
Q Can you explain what you mean by that?
A Well, yes. That was where -- that was in the area where I considered the top of the
trench wall to be, on both the measurements for A and the measurements for B. That’s where I
considered the top of the trench wall to be.
Q Okay. And with regard to the grade that would have been or may have been the
original grade before the excavation, did you make any determination as to where that would
have been?
A No.
Q Is there anything about the conditions in the trench that would tell you where that
might have been?
A No.
Q And in your opinion, does it matter where the original grade level was in this
excavation?
A No.
Q And why is that?
A Because the areas where I measured, they were essentially part of the trench wall.
There was no delineation between the top of the trench wall to where I measured it and what may
or may not have been the ground level prior to the excavation. (Tr. 35-36).
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    DWK has stipulated that one of its employees worked in the trench referred to in Citation 1,

Item 1a. See J-1, No. 11.4 However, it is clear from the language of the citation and the CO’s
testimony that the alleged hazard was the employee’s exposure to the side of the trench where the
CO obtained his 8.5 and 6-foot measurements. It is also clear that the CO obtained both of these
measurements by measuring from the top of the spoil pile down to the bottom of the trench. DWK
contends that the CO’s manner of measuring the cited sidewall was improper and that the Secretary
has not established the alleged violation. I agree, for the following reasons.
29 C.F.R. 1926.650(a) defines “trench” as “a narrow excavation ... made below the surface
of the ground.” The Commission has recognized that a trench’s depth is properly measured from the
original ground level. Trumid Constr. Co., Inc., 14 BNA OSHC 1784, 1786 (No. 86-1139, 1990).
The record in this case establishes that the CO’s depth measurements of the cited sidewall were
taken from the top of the spoil pile down to the bottom of the trench. He readily acknowledged he
had no information as to the location of the original ground level on that side and that he took his
measurements without regard to the original ground level. I find that it was improper for the CO to
include the spoil pile material to determine the depth of the cited sidewall and that his measurements
in this regard were inaccurate. I also find, in light of his measurements of the cited sidewall, that the
CO’s measurements of the other wall are suspect and not persuasive evidence that the trench was
over 5 feet deep; this finding is supported by DWK’s witnesses, who all testified that the trench was
under 5 feet deep. (Tr. 166, 188, 203-08, 223-31, 239). Finally, G-3 and G-4 do not convince me the
trench was over 5 feet deep. As the CO indicated, G-3 shows an individual in the deeper end of the
trench holding a tape measure that is extended to over 6 feet, while G-4 show the same person in the
conduit area holding a tape measure that is extended to over 5 feet. (Tr. 39-46). However, that the
cited sidewall, shown on the left in G-3, appears to be over the top of the tape measure is of no
moment as the CO never determined the ground level of the trench on that side. Moreover, as the
CO did not specify where the ground level of the trench was on G-4, the location of the tape
measure’s 4-foot and 5-foot markers in that photo is meaningless. In any case, photographs can be
misleading and provide a distorted view of a scene. On the basis of the record, the Secretary has not
demonstrated the alleged violation. This citation item is accordingly vacated.

    4
     Exhibit J-1 is a list of the parties’ stipulations.

6

                                       Citation 1, Item 1b
    29 C.F.R. 1926.651(j)(2), the cited standard, provides as follows:
    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.
    The citation alleges as follows:
    a) Asplundh Field House Site - Spoil piles were not kept at least two feet back from
    the edge of the trench. The spoil piles on both sides of the trench were placed right
    at the edge of the trench sides walls.
    CO Stelmack testified that on both sides of the trench, the spoil piles were within 2 feet of

the edges of the trench. He said that on the drainage pipe side, where the spoil pile was incorporated
into the sidewall, there was an enhanced cave-in hazard because the pile consisted of material that
was not compacted and was prone to sloughing off or rolling into the trench. He also said that on the
conduit side, the angle of the spoil pile was such that the bottom of the pile was right at the sidewall.
The CO stated that the average weight of soil is 100 pounds per cubic foot and that while he had not
determined how much soil was in the piles there was enough to represent a serious hazard. He
opined that the placement of the spoil piles increased the probability of a cave-in occurring because
of the additional weight on the sidewalls. (Tr. 48-49, 68-73, 78, 118; G-2, G-5).
The preamble to the standard states that its intent is to protect employees from materials,
equipment and spoil piles that might fall into excavations. The preamble notes that “[o]bviously,
materials such as excavated soil ... can superimpose loads on the walls of an excavation ... [that] can
be the cause of cave-ins.” The preamble further notes that “employers who encounter site conditions
that do not permit a 2-foot set-back must use retaining devices to prevent materials or equipment
from falling into the excavation.” 54 Fed Reg. 45894, 45925 (1989). The CO testified that it was his
impression that the spoil piles could have been moved back or out of the area completely and that
even if they could not have been, a protective system such as shoring or trench boxes could have
been used to protect the employees working in the trench. (Tr. 82-83).
In view of the foregoing, which DWK did not rebut, the spoil piles were not set back 2 feet
from the trench edges and no protective measures were used to prevent the spoil piles from falling
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into the trench. Accordingly, I find that the cited standard applies to the circumstances of this case.
I further find that the Secretary has demonstrated a violation of the standard. The record shows that
on September 15, 1998, Price broke the gray telephone conduit while digging the trench and a DWK
employee entered the trench to uncover the conduit to see what it was. DWK then contacted an
electrician, who had the employee expose more of the conduit, after which the electrician went into
the trench to repair the conduit. The new pipe was then put in and the DWK employee went back
in the trench to connect the new pipe to the existing one. (Tr. 49-53, 79, 84, 121-22, 158-62, 166-67,
174, 199, 202). These tasks exposed the DWK employee and the electrician to the spoil piles and
sidewalls, and although both individuals were in the trench for brief periods of time, their exposure
was sufficient to establish the alleged violation. See Flint Eng’g & Constr. Co., 15 BNA OSHC
2052, 2056 (No. 90-2873, 1992); H.H. Hall Constr. Co., 10 BNA OSHC 1042 (No. 76-4765, 1981).
DWK has stipulated that one of its employees worked in the trench referred to in Citation 1,
Item 1b, and that its management knew or could have known with reasonable diligence of the cited
condition. See J-1, Nos. 10, 12. In addition, the testimony of Price and Joel Harris, DWK’s general
manager, clearly shows that DWK’s management was aware that the spoil piles were placed at the
edges of the trench because of space limitations. (Tr. 169, 227, 239-40). When a supervisory
employee has actual or constructive knowledge of the violative condition, that knowledge is imputed
to the employer. Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-0862, 1993); Dun-Par
Eng’d Form Co., 12 BNA OSHC 1962 (No. 82-928, 1986). This citation item is therefore affirmed.
Section 17(k) of the Act, 29 U.S.C. § 666(k), provides that a violation is “serious” if there
is “a substantial probability that death or serious physical harm could result.” To establish a violation
is serious, the Secretary need not show that an accident is likely, but, rather, that an accident is
possible and that it is probable that death or serious physical harm could occur. Flintco, Inc., 16
BNA OSHA 1404, 1405 (No. 92-1396, 1993). Based on the record, Item 1b was properly classified
as serious. The photographs and video show a substantial amount of excavated earth at the trench’s
edge, and, as the CO testified, if a cave-in had occurred, serious physical harm or death could have
resulted. (Tr. 79). Citation Item 1b is consequently affirmed as a serious violation.
Turning to the assessment of an appropriate penalty, the Commission, as the final arbiter of
penalties, must give due consideration to the gravity of the violation and the employer’s size, history
and good faith. J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2213-14 (No. 87-2059, 1993). These
 8

factors are not necessarily accorded equal weight, and gravity is generally the most important factor.
Trinity Indus., Inc., 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992). The gravity of a violation
depends upon such matters as the number of employees exposed, duration of exposure, precautions
taken against injury, and the likelihood that an injury would result. J.A. Jones, supra. I find the
severity of the violation in this case to be high because of the injuries that could have resulted from
a cave-in. However, since the record does not establish that the trench was over 5 feet in depth, I
conclude that there was a lesser probability of a cave-in and that a gravity-based penalty of $2,500.00
is appropriate. I further conclude that adjustments for size and history are warranted, as DWK had
only ten employees and no history of previous serious OSHA violations, and that no credit for good
faith is due because the company provided no cave-in protection. In light of these conclusions, a
penalty of $1,000.00 is assessed for this citation item.
Findings of Fact and Conclusions of Law
The foregoing decision constitutes my findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing, it is hereby ORDERED that:
1. Citation 1, Item 1a, alleging a serious violation of 29 C.F.R. § 1926.652(a)(1), is
VACATED.
2. Citation 1, Item 1b, alleging a serious violation of 29 C.F.R. § 1926.651(j)(2)652(a)(1),
is AFFIRMED, and a total penalty of $1,000.00 is assessed.

                                                   Covette Rooney
                                                   Judge, OSHRC

Dated:
Washington, D.C.