Rawson Contractors, Inc.

Plain-English summary

Rawson Contractors allowed employees to work on and below pavement that had been undermined by a sewer excavation, with part of an excavator resting near the unsupported area. The judge held that the cited standard presumes a hazard when pavement is undermined without support or other protection, and affirmed that item with a $2,500 penalty. A separate cave-in item was vacated because the foreman with firsthand knowledge testified that he installed the replacement pipe from a shallower benched area without entering the narrow deeper trench.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.651(i)(3) and 1926.652(a)(1)
• Outcome: The undermined-pavement item was affirmed with a $2,500 penalty, and the cave-in item was vacated.
• Key point: When a standard specifically requires protection for undermined pavement, the Secretary need not separately prove that noncompliance created a hazard.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Compla inant,

                          v.                                 OSHRC DOCKET NO. 02-1921

RAWSON CONTRACTORS, INC., and its
successors.
Respondent.

APPEARANCES:

    For the Co mpla inant:
             Rafael Alvarez, E sq., Office of the S olicitor, U.S. Dep artment of Labor, Chica go, Illinois

    For the Re spondent:
             Charles B. Palm er, Esq., M ichael Best & Freidrich, LLP , W aukesha, W isconsin

Before: Administrative Law Judge: James H. Barkley

                                          DECISION AND ORDER

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

651-678.; hereafter called the “Act”).
Respondent, Rawson Contractors, Inc. (Rawson), at all times relevant to this action maintained a
work place at the intersection of East Capitol and North Palmer in Milwaukee, Wisconsin, where it was
engaged in sewer and water pipe installation. Respondent admits it is an employer engaged in a business
affecting commerce and is subject to the requirements of the Act.
On October 1, 2002 the Occupational Safety and Health Administration (OSHA) conducted an
inspection of Rawson’s Milwaukee work site. As a result of that inspection, Rawson was issued citations
alleging violations of the Act together with proposed penalties. By filing a timely notice of contest Rawson
brought this proceeding before the Occupational Safety and Health Review Commission (Commission).
On March 12, 2002, an E-Z hearing was held in Milwaukee, Wisconsin. The parties have
submitted briefs on the issues specified by this judge, and this matter is ready for disposition.
 Facts
On October 1, 2002 Compliance Officers (CO), Larry Campion and Craig Zdoini conducted an
inspection of the cited work place (Tr. 21-23). CO Campion testified that he observed an excavation
running east to west, and measuring 14 feet wide, and 13-1/2 feet deep (Tr. 27, 64). A trench box had been
placed in the deepest part of the excavation (Tr. 28; Exh. C-1). To the south of the trench box, the
excavation was 7 feet 3 inches deep (Tr. 27; Exh. C-4). The south side of the trench was vertical (Tr. 33;
Exh. C-4). The soil in the trench consisted of free-flowing Type C granular material (Tr. 25, 33). The soil
had been previously excavated, and was subject to vibration from heavy traffic (Tr. 33, 67, 116).
Outside the trench box, a 12 foot long, 12 inch diameter PVC storm sewer had been replaced (Tr.
26, 37, 55, Exh. C-5). Thomas Birch testified that on the day preceding the inspection, Rawson began
excavation of a water main at the work site. The excavator opened a14 foot wide trench, between 48 and
54 inches deep, and was beginning to excavate down one side of the main, when the bucket damaged a
second pipe, a green 12" PVC pipe, which ran parallel and adjacent to the water main (Tr. 169-70, 178).
Birch stated that the operator removed the damaged section of the PVC pipe and opened a trench 7 feet,
3 inches deep and the width of the bucket, i.e. 24 inches, so that a new section of PVC could be inserted
(Tr. 171, 173).
CO Campion did not observe the placement of the new pipe, but testified that Rawson’s foreman,
Thomas Birch, told him that Rawson employees had replaced the pipe the preceding day, prior to the
installation of the trench box (Tr. 26). According to CO Campion, no benching or sloping was in place
at that time (Tr. 54). Campion testified that, in his experience, a worker must enter the trench to prep each
end of the pipe, cleaning and re-sawing jagged edges, prior to installing replacement pipe (Tr. 57). An
employee’s presence is also required to guide the new segment into place, and push the boot, or coupling
on the replacement section over the existing pipe (Tr. 58). CO Campion testified that in the more than 300
pipe installations he had been involved in, it was always necessary for a worker to enter the trench to make
the final coupling (Tr. 60).
Birch testified that the PVC pipe was replaced without any employee going into the trench. Birch
stated that he pulled the rubber gasket out of the pipe himself, and “stuffed” the new section of PVC pipe
onto the old. He then pounded the Fernco coupling on with a shovel while standing on the benched soil
over the still buried water main (Tr. 171, 173). Birch stated that the pipe was only a foot to a foot and a
half below the level of the benched soil (Tr. 175). According to him, Rawson replaces pipe from the top
“every day” (Tr. 172).

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On the east end of the trench, the roadway had been undermined (Tr. 28). Campion observed
employees, including Mr. Birch, walking on top of the undermined pavement (Tr. 28, 38, 86; Exh. C-3).
When Campion first saw them, the employees were standing in front of the southern-most tread of a Link-
Belt Excavator, which rested partially on the undermined pavement (Tr. 28, 48). The CO attempted to
measure the undermining, and determined that a minimum of five feet of pavement was unsupported in
the area where the employees and excavator were seen (Tr. 29, 45). He testified that undermining created
the potential for failure of the concrete pavement (Tr. 41). Workers on the concrete would fall, with the
concrete, into the excavation (Tr. 41-42). In addition, Campion estimated that the front two feet of the
excavator tread rested on unsupported pavement (Tr. 32, 81-82, 93). When the OSHA COs arrived on
the site, two Rawson employees were working in the trench (Tr. 23, 48). Campion stated that employees
in the trench could be injured should the excavator move too far out on the undermined pavement and tip
into the excavation (Tr. 42).
Steven Elver of STS Consultants, Ltd. testified that because counter weights were installed at the
rear of its cab, the Link-Belt Excavator’s center of gravity was located behind the cab’s pivot point (Tr.
156, 158, Exh. R-7). In its position at the time of the inspection, Elver opined, there was no danger of the
excavator falling into the excavation (Tr. 156). Elver admitted that undermined pavement would not
support as much weight as it did prior to its being undermined (Tr. 162). According to Elver, however,
even if the undermined pavement should fail, the excavator would remain stable even, and would not tip
into the excavation (Tr. 157-158). Elver testified that he analyzed the stability of the excavator as it was
parked at the time of the inspection; he conceded that picking up a load, such as the trench box, would
move the excavator’s center of gravity toward the front of the frame, and increase the likelihood of the
excavator tipping (Tr. 159). If the loaded excavator had been moved forward, and the center of gravity
shifted toward the edge of the excavation, the excavator could tip into the hole (Tr. 160, 163).
Alleged Violations
Serious citation 1, item 1 alleges:
29 CFR 1926.651(i)(3): Sidewalks, pavements, or appurtenant structures had been undermined and a
support system or another method was not provided to protect employees from the possible collapse of
such structures:

   (a) On or about October 1, 2002, at the trench located in the meridian and the inside lane of the
   highway located at E. Capitol and N. Palmer, Milwaukee, WI, the employer did not provide the
   employees working in the 13 foot deep trench with a support system to protect employees from the
   possible collapse of the undermined concrete pavement, which was supporting the Link-Belt track
   hoe excavator. When employees were in the trench and preparing to repair a lead joint in the


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54-inch cast-iron water main, they were exposed to a pavement collapse and a crushed-by-the-track
hoe hazard.

   The cited standard provides:

   (i) Stability of adjacent structures (3) Sidewalks, pavements, and appurtenant structure shall not
   be undermined unless a support system or another method of protection is provided to protect
   employees from the possible collapse of such structures.

Discussion

      In order to prove a violation of section 5(a)(2) of the Act, the Secretary must show by a

preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with
the cited standard, (3) employees had access to the violative condition and (4) the cited employer either
knew or could have known of the condition with the exercise of reasonable diligence. See, e.g., Walker
Towing Corp., 14 BNA OSHC 2072, 2074, 1991-93 CCH OSHD ¶29239, p. 39,157 (No. 87-1359, 1991).
The evidence clearly establishes that the cited standard was violated, in that the soil beneath the
pavement on the east end of the cited excavation had flowed into the excavation, undermining the
pavement by at least five feet. Respondent argues, nonetheless, that undermining of pavement is not a “per
se” violation, and that the standard is pre-empted by §1926.651(j)(2). This judge disagrees.
Most occupational safety and health standards include requirements or prohibitions that by their
terms must be observed whenever specified conditions, practices or procedures are encountered. These
standards are predicated on the existence of a hazard when their terms are not met. Therefore, the
Secretary is not required to prove that noncompliance with these standards creates a hazard in order to
establish a violation. Austin Bridge Company, 7 BNA OSHC 1761, 1979 CCH OSHD ¶23,935 (76-93,
1979). It is well settled that when a standard prescribes specific means of enhancing employee safety, a
hazard is presumed to exist if the terms of the standard are violated. Clifford B. Hannay & Son, Inc., 6
BNA OSHC 1335, 1978 CCH OSHD ¶22,525 (No. 15983, 1978).
Section 1926.651(i)(3) presumes that undermined pavement is no longer capable of supporting the
loads such pavement could sustain before being undermined, and so presents a hazard to employees
working within the zone of danger. In any event, CO Campion testified that undermining created the
potential for failure of the concrete pavement; Rawson’s expert conceded the hazard. Employees were in
the zone of danger. Employees standing on the roadway could fall with failing pavement. Employees in
the trench could be injured should the excavator move too far out on the undermined pavement and tip into
the excavation. A violation has been established.

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The standard specifically addresses the undermining of pavement, and is clearly applicable. The
subparagraph referred to by Respondent, §1926.651(j)(2), provides that “employees shall be protected from
excavated or other materials or equipment that could pose a hazard by falling or rolling into excavations”
and would also be applicable in the cited circumstances, and could have been cited in lieu of
§1926.651(i)(3). Rawson argues that because subparagraph (j)(2) is more specific, the Secretary should
be prohibited from citing it under the “more general” subparagraph (i)(e). Rawson’s position is not
supported by the case law. Subparagraph (i)(e) addresses rolling equipment and an additional hazard, i.e.,
pavement collapsing under employees standing on the roadway. The Commission has held that general
standards remain applicable where they “provide meaningful protection to employees beyond the
protection afforded” by specific standards. See Quinlan t/a Quinlan Enterps., 15 BNA OSHC 1780, 1991-
93 CCH OSHC ¶29,765 (No. 91-2131, 1992). The Secretary chose to cite Rawson under subparagraph
(j)(2), and to treat the presence of the excavator on the undermined pavement as a exacerbating factor; that
decision is well within her prosecutorial discretion. Accordingly, item 1 is affirmed.
Penalty
In determining the penalty the Commission is required to give due consideration to the size of the
employer, the gravity of the violation and the employer’s good faith and history of previous violations.
The gravity of the offense is the principle factor to be considered. Nacirema Operating Co., 1 BNA OSHC
1001, 1972 CCH OSHD ¶15,032 (No. 4, 1972). The gravity based penalty is based on: (1) the number of
employees exposed to the risk of injury; (2) the duration of exposure; (3) the precautions taken against
injury, if any; and (4) the degree of probability of occurrence of injury. Kus-Tum Builders, Inc. 10 BNA
OSHC 1049, 1981 CCH OSHD ¶25,738 (No. 76-2644, 1981).
CO Campion testified that there was a high probability of an accident occurring as a result of the
cited condition (Tr. 49-53). Employee exposure was sporadic throughout the period the trench was open.
On October 1, two employees were observed standing on the undermined pavement, two employees were
in the trench. In the scenario most likely to lead to an accident, the operator of the excavator would also
be exposed to the cited hazard. No precautions were taken to minimize the hazard posed by the
undermined pavement. Should an accident have occurred, it would most likely have resulted in the serious
injury or death of any employees involved. CO Campion suggested a gravity based penalty of $5,000.00.
The proposed penalty of $2,500.00 reflects a 40% reduction based on Rawson’s size, and an additional
10% reduction reflecting the absence of any OSHA citations within the prior three years (Tr. 51).
It is clear from both the testimony and the photographs of the undermined area, submitted by both
parties, that Rawson knew both of the undermining and the proximity of the backhoe. To allow employees

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to work in the trench under these conditions seems an act of plain indifference to employee safety meriting
a higher penalty than the Secretary’s proposed penalty of $2,500.00. Nonetheless, this judge defers to the
Secretary’s proposed penalty in this case;$2,500.00 will be assessed.

   Serious citation 1, item 2 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 paragraph (b) or (c) of this section:

   (a) On or about September 30, 2002, at the trench located in the meridian and the north inside of
   lane an active highway (sic) located at E. Capitol and N. Palmer, Milwaukee, WI, the employer did
   not ensure that employees repairing a 12-foot section of the 12-inch VC storm sewer, at a depth of
   7 feet to the bottom of the sewer pipe in previously disturbed soil, were protected from cave-ins
   by an adequate protection system.

   The cited standard 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. . . .

Discussion
CO Campion had no first hand knowledge of the events of September 30, when the 12" PVC pipe
was replaced. He reasonably presumed that employees were exposed to an engulfment hazard based on
his interview with Rawson’s foreman, Birch, who told him that the pipe was installed prior to the
installation of the trench box, and on his prior experience with pipe installation, which generally requires
entry into the trench. However, Birch, the only witness with direct knowledge of the methods used to
install the pipe, described the subject trench on September 30 as consisting mainly of a 41 to 54 inch deep,
14 foot wide excavation, in which he stood to install the replacement pipe, located in a 24" wide trench
2-1/2 feet deeper than the main excavation.
Weighing the testimony of the CO against a witness with first hand knowledge, this judge is
compelled to find that the Secretary failed to carry her burden with respect to this item. Citation 1, item
2 is vacated.

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ORDER

1. Citation 1, item 1, alleging violation of §1926.651(i)(3) is AFFIRMED and a penalty of $2,500.00
   is ASSESSED.

2. Citation 1, item 2, alleging violation of §1926.652(a) is VACATED.

                                                 /s/
                                                 James H. Barkley
                                                 Judge, OSHRC
   

   Date: April 28, 2003

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