B & B Plumbing, Inc.

Plain-English summary

B & B Plumbing was installing sanitation plumbing at a school on the White Mountain Apache reservation in Arizona. Employees worked in a trench with vertical sides that reached about eight feet deep and had no protective system or adequate means of egress; an employee died in a cave-in. The judge affirmed serious violations for inadequate safety training, failure to require hard hats, and lack of a ladder or other safe exit, assessing $5,000 for those items. He also found violations involving cave-in protection, falling soil or rock, and the competent person's duty to remove employees from a hazardous excavation. Those three items were not willful because the record did not show the heightened awareness, conscious disregard, or aggravating circumstances required for that classification. The judge reclassified them as serious and assessed $7,000, for a total penalty of $12,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.21(b)(2); 29 C.F.R. § 1926.28(a); 29 C.F.R. § 1926.651(c)(2); 29 C.F.R. § 1926.651(j)(1); 29 C.F.R. § 1926.651(k)(2); 29 C.F.R. § 1926.652(a)(1)
• Outcome: Modified. Six trench-safety items were affirmed; three alleged willful items were reclassified as serious, and total penalties of $12,000 were assessed.
• Key point: Serious excavation hazards do not become willful without evidence of heightened awareness or plain indifference beyond the knowledge needed to establish the underlying violations.

Full text (OSHRC public release)

                                                           |
SECRETARY OF LABOR,                                        |
     Complainant,                                          |
                                                           |
          v.                                               |
                                                           |                 OSHRC DOCKET
B & B PLUMBING, INC.,                                      |                 NO. 99-0401
                                                           |
          Respondent.                                      |
                                                           |


APPEARANCES:

                         William W. Kates, Esq., Office of the Solicitor, U.S. Department of Labor,
                          Seattle, Washington

                         Wayne Boring, President, B & B Plumbing, Inc., Taylor, Arizona


Before:                  Administrative Law Judge Sidney J. Goldstein


                                       DECISION AND ORDER


          In this action the Secretary of Labor seeks to affirm two citations issued by the Occupational
Safety and Health Administration to the Respondent for the alleged violations of safety regulations
adopted under the Occupational Safety and Health Act of 1970. The matter arose after a compliance
officer for the Administration investigated a fatality at the workplace of the Respondent, concluded
that it was in violation of a number of safety regulations and recommended that the citations be
issued. The Respondent disagreed with the conclusion of the Agency and filed a notice of contest.
After a complaint and answer were filed with this Commission, a hearing was held in Phoenix,
Arizona.
Citation 1, item 1, charged that:

       The employer did not instruct each employee in the recognition and avoidance of unsafe
condition(s) and the regulation(s) applicable to his work environment to control or eliminate any
hazard(s) or other exposure to illness or injury:

        (a)    Alchesay High School, Whiteriver, AZ: Employer did not train his
        employees in the environment hazard and injuries when working in 8 foot trenches,
        how to recognize and avoid hazards. Employees were exposed to cave-ins from
        unprotected trenches.

in violation of the regulation appearing at 29 CFR §1926.21(b)(2) which reads as follows:

        (2)     The employer shall instruct each employee in the recognition and avoidance
                of unsafe conditions and the regulations applicable to his work environment
                to control or eliminate any hazards or other exposure to illness or injury.

Item 2 of the serious citation stated that:

       Appropriate personal protective equipment was not worn by employee(s) in all operations
where there was exposure to hazardous conditions:

        (a)     Alchesay High School, Whiteriver AZ: Employees working in a trench 8 to
                9 feet deep were not provided and were not wearing hard hats. Employees
                were exposed to soil and rocks rolling from the soil being laid back on the
        hillside (sic) on the hillside on the edge of the trench.

violating the regulation at 29 CFR §1926.28(a) reading:

        (a)    The employer is responsible for requiring the wearing of appropriate personal
               protective equipment in all operations where there is an exposure to
        hazardous conditions or where this part indicates the need for using such equipment
        to reduce the hazards to the employees.

Citation 1, item 3, is shown below:

        (a)    Alchesay High School, Whiteriver, AZ: No ladders, ramps or other safe
        means of egress were provided for employees working in a trench 79 feet 4 inches
        long and 8 to 9 feet deep. employees were exposed to being trapped       by cave-
        ins.

in violation of the regulation at 29 CFR §1926.651(c)(2) found below:

        (2)     Means of egress from trench excavations. A stairway, ladder, ramp or other

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               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.

       The material facts in this case are not in substantial dispute and may be briefly summarized.
The Respondent is a sanitation plumber and was under contract to furnish and to install plumbing
at an Indian reservation school which was to resume classes on Monday, January 3, 1999. The son
of the Respondent’s principal, Wayne Boring, was in charge of the project. At his son’s request
Wayne Boring took over the management of the project on Saturday, January 1, 1999. He had not
been near the worksite for some time and was surprised that the trench was not competed. The
trench he encountered was about 75 feet long, unfinished, and in some areas as deep as 8 feet when
plans called for a maximum of 4 feet. The reason for the slower completion and different depth was
a pipe which was not shown on the blueprints.
       The first forty feet of trenching seemed stable despite the fact that it was open for some time.
Mr. Boring did not feel insecure that there was no shoring or protection for him and two other
employees who worked in the trench. There was no evidence of instability. Nevertheless there was
a cave-in in the 8 foot depth area, resulting in the death of an employee in the trench. Mr. Boring
was of the opinion that the cave-in was the result of a pipe which was not shown on the project
papers. At no time did he consider the trench to be dangerous, merely a couple of feet deeper. There
was no problem with falling rocks or sloughing off.
       Immediately after the accident, the safety director of the White Mountain Apache Tribe
arrived on the scene to investigate the mishap. He took photographs of the immediate area and
observed that the trench had vertical sides and appeared unstable. Its length was about 80 feet
without the benefit of shoring or ladders. There was an adjacent side trench but of no benefit as an
escape route in case of an emergency. Mr. Boring, president of the Respondent, remarked that he
knew shoring was necessary in an 8 foot deep trench, but he did not have the equipment.
       The Administration’s compliance officer who investigated the accident a few days after the
mishap furnished the same information as provided by the tribe’s safety director. He learned that it
was Respondent’s intent to complete the job before school was to start. There had been no safety
training, and employees did not wear hard hats.
       As noted, Citation 1, item 1 charged that the Respondent did not instruct each employee in

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the recognition and avoidance of unsafe conditions and regulations applicable to the work
environment. The record supports this charge. While there was vague evidence with respect to the
Respondent’s training, the only training was supplied by the general contractor. This item of the
citation was therefore violated.
         With respect to item 2 regarding personal protective equipment, there is no dispute of the
fact that employees were not wearing hard hats while in the trench. This item of Citation 1 is also
affirmed.
       Item 3 of Citation 1 stated that there was no means of egress from the trench such as a
stairway, ladder, ramp or other safe means. With respect to the trench in question, there was no safe
egress. There was a ramp in another adjacent trench, but there is no proof that the ramp was within
the 25 feet required by the regulation. This item of the citation is affirmed.
       The willful citation also contained three items. Item 1 asserted that employees were not
protected from cave-ins by an adequate protective system as required by the regulation at 29 CFR
§1926.652(a)(1) reading:
       (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:
       (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 second item of the willful citation related that the Respondent did not provide adequate
protection from falling loose rock or soil to employees working in an 8 foot deep trench, thus
violating the regulation at 29 CFR §1926.651(j)(1) which states:
       (j)     Protection of employees from loose rock or soil. (1) Adequate protection
       shall be provided to protect employees from loose rock or soil that could pose a
       hazard by falling or rolling from an excavation face. Such protection shall consist
       of scaling to remove loose material; installation of protective    barricades at
       intervals as necessary on the face to stop and contain falling     material; or other
       means that provide equivalent protection.



       The third item of the willful citation alleges that the Respondent's competent person who
found evidence of a situation which could result in a possible cave-in did not remove exposed

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employees from the hazardous area to ensure their safety, a violation of the regulation at 29 CFR
§1926.651(k)(2) shown below:
       (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 main concern at the hearing was the willful designation of Citation 2. It is uncontested
that the competent person permitted work in an unshored trench 8 feet deep with perpendicular
walls; that employees were in an excavation 8 feet deep without shoring or other protective system;
and that employees were not protected from loose rock or soil which could pose a hazard by falling
or rolling in from the excavation face.
       Based upon the record in this case, the Complainant asserts that the infractions were properly
designated as willful because the employees were in a trench about 8 feet in depth with straight walls
and no shoring. The Secretary points out that Mr. Boring knew that employees were to be protected
working at that depth but did not supply the safety equipment. Also, the Respondent was in a hurry
to complete the job before school was to commence, even to the point of neglecting safety.
       On the other hand, Mr. Boring maintains that he would not be in a dangerous trench and
would not permit any employee to work in an unsafe place. Mr. Boring explains that the first portion
of the trench remained stable despite its exposure for a number of days, and he had no inkling that
the newer portion of the trench was in a worse condition. There was no feeling of insecurity while
working in the trench. In his opinion the cause of the accident was the presence of a pipe which did
not appear in the blueprints.
       Commission precedent defines a willful violation as one "committed with intentional,
knowing or voluntary disregard for the requirements of the Act or with plain indifference to
employee safety." According to the cases it is not enough for the Secretary to show that an employer
was aware of conduct or conditions constituting the alleged violation because such evidence is


already necessary to establish any violation. A willful violation is differentiated by heightened
awareness of the illegality of the conduct or conditions and by a state of mind of conscious disregard


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or plain indifference.
       The Commission has found heightened awareness where the employer was previously cited
for violations of the standards in question and is on notice that violative conditions exist; where an
employer allowed three employees to work in an unprotected excavation despite prior citations and
a city inspector’s warning; and where the employer ignored the compliance officer’s warning that the
trench was not properly sloped.
       There must be evidence of aggravating circumstances apart from mere lack of diligence or
adequate care in order to establish a finding of a willful citation. Simply failing to address a
recognized hazard will not support a willful violation.
       In this case the blueprints called for a trench about four feet deep, and Mr. Boring was
surprised to learn that a portion of the trench was deeper than five feet. The major portion of the
trench was exposed for a number of days with no indication of collapse. No soil sloughing was
noted. Mr. Boring believed it was safe to work in the trench; the danger was due to the presence of
a pipe not shown in the plans.
       Comparing the Commission’s interpretation of the term "willful" with the facts in this case,
I cannot conclude that the Respondent was in willful violation of the three regulations in
Citation 2.
       While the Respondent’s failure to comply with the regulation in issue was not willful, it does
come within the definition of "serious" which is defined in Section 17(k) of the Occupational Safety
and Health Act of 1970 as follows:
       (k)     For purposes of this section, a serious violation shall be deemed to exist in
               a place of employment if there is a substantial probability that death or
       serious        physical harm could result from a condition which exists, or from one
       or more        practices, means, methods, operations, or processes which have been
       adopted        or are in use, in such place of employment unless the employer did
       not, and       could not with the exercise of reasonable diligence, know of the
       presence of the violation.




       I find that the Respondent violated the regulations found at 29 CFR §1926.652(a)(1); 29 CFR
§1926.651(j)(1); and 29 CFR §1926.651.(k)(2), in that the regulations applied to the cited condition;


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that at least two employees had access to the hazardous condition; that Respondent knew or could
have known of the hazardous condition with the exercise of reasonable diligence; and that death
resulted.
       In summary, items 1, 2 and 3 of Citation 1 are AFFIRMED with a penalty of $5,000.00;
items 1, 2 and 3 of Citation 2 are designated as serious and AFFIRMED with a penalty of $7,000.00.




                                                            Sidney J. Goldstein
                                                            Judge, OSHRC

Dated: May 1, 2000




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