McLeod Land Services, Inc.
Four serious trench violations affirmed
Apply this to your situation
This order from 2003 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
McLeod Land Services installed underground drainage pipe at a retirement-community construction project in Sarasota, Florida. Two employees worked in a trench while an excavator's tracks extended over its unsupported vertical end wall. The judge found that McLeod did not adequately train its rank-and-file employees, keep the excavator away from the trench edge, provide daily inspections by a competent person, or adequately slope the trench in Type C soil. All four violations were affirmed as serious because the conditions exposed employees to cave-ins, falling equipment, and crushing injuries. Penalties totaling $7,000 were assessed.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.21(b)(2), 1926.651(j)(2), 1926.651(k)(1), and 1926.652(a)(1)
- Outcome: Four serious violations were affirmed, with penalties of $1,000, $2,000, $2,000, and $2,000, totaling $7,000.
- Key point: Experience and voluntary safety meetings did not replace required employee training, competent-person inspections, and compliant excavation protections.
Full text (OSHRC public release)
Secretary of Labor,
Complainant,
v. OSHRC Docket No. 03-0832
McLeod Land Services, Inc., EZ
Respondent.
Appearances:
Gwenevelyn Anderson, Esquire Andrew From an, Esquire
Sharon D. Calhoun, Esquire Brown, Clark, Christopher &
DeM ay
Office of the Solicitor Sarasota, Florida
U. S. Department of Labor For Respondent
Atlanta, Georgia
For Com plainant
Before: Administrative Law Judge Stephen J. Simko, Jr.
DECISION AND ORDER
McLeod Land Services, Inc., is a corporation engaged in the construction of
underground utilities with headquarters in Sarasota, Florida. On April 1, 2003, the Occupational
Safety and Health Administration (OSHA) conducted an inspection of respondent’s jobsite at Glen
Ridge on Palmer Ranch, a retirement community in Sarasota. As a result of this inspection, McLeod
was issued a citation. A hearing was held pursuant to the EZ trial procedures in Sarasota, Florida,
on September 4 and 5, 2003. At the hearing, the parties stipulated to the violative conditions listed
in Citation No. 1, Item 2. For the reasons that follow, Citation No. 1, Items 1, 2, 3 and 4, are
affirmed and penalties totaling $7,000 are assessed.
Background
Complainant’s compliance officer, Warren Knopf, conducted a comprehensive
inspection of the jobsite at Glen Ridge on Palmer Ranch. The inspection began on March 31, 2003.
The Weitz
Company was the general contractor on this project. On April 1, 2003, the second day of this
inspection, the compliance officer observed McLeod’s crew installing an underground drainage line.
Respondent was installing 8-foot long sections of 24-inch diameter concrete pipe. At the time of the
inspection, McLeod had installed 120 feet of the planned 166-foot drainage line.
The compliance officer observed two employees in the trench while pipe sections
hooked to the excavator were placed in the bottom of the trench. When Mr. Knopf arrived at the
excavation, the tracks of the 154,000-pound excavator extended over the vertical end wall of the
trench. Mr. Knopf told the excavator operator to shut down the machine. The lead superintendent
for Weitz ordered the employees to get out of the trench. The operator was McLeod’s utility
foreman. He identified himself to the compliance officer as Terry Jenkins, McLeod’s management
person onsite. Mr. Knopf then presented his credentials to Mr. Jenkins and proceeded to conduct
the inspection. He interviewed Jenkins and the two McLeod employees after they exited the trench.
He measured various dimensions of the trench and took soil samples, which were later analyzed at
complainant’s Salt Lake City laboratory and determined to be Type “C” soil.
Discussion
The Secretary has the burden of proving violations of standards promulgated under
the Act.
In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (1) 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).
There is no dispute that all standards at issue in this case are applicable to the
construction activities involved at this jobsite.
Alleged Serious Violation
of 29 C.F.R. § 1926.21(b)(2)
2
The Secretary, in Citation No. 1, Item 1, alleges that:
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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) On site, east club home area -
employees were in a trench 10 feet
deep b y 18.8 feet wide and 29 feet
long without sloping trench walls or
support systems, installing pipe, and
the employees did not recognize the
hazards associated with these
conditions, on or about 4/1/03.
The standard at 29 C.F.R. § 1926.21(b)(2) provides:
Employer responsibility. (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.
To establish a violation of 29 C.F.R. § 1926.21(b)(2), the Secretary must show that
the employer failed to instruct employees on “(1) how to recognize and avoid unsafe conditions they
may encounter on the job, and (2) the regulations applicable to those hazardous conditions.”
Superior Custom Cabinet Co., 18 BNA OSHC 1019, 1020 (No. 94-200, 1997), aff’d without
published opinion, 158 F.3d 583 (5th Cir. 1998). An employer’s instruction must be modeled on the
applicable standards and must be “specific enough to advise employees of the hazards associated
with their work and the ways to avoid them.” El Paso Crane & Rigging Co., 16 BNA OSHC 1419,
1425, fn. 6 & 7 (No. 90-1106, 1993). “A reasonably prudent employer would attempt to give
instructions that can be understood and remembered by its employees, and would make at least some
effort to assure that the employees did, in fact, understand the instructions.” Pressure Concrete
Construction Co., 15 BNA OSHC 2011, 2017 (No. 90-2668, 1992). Employers must provide more
than “weak admonitions” or “vague advice” for safety training and hazard recognition in order to
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give its employees the opportunity to protect themselves. Anderson Excavating and Wrecking Co.,
17 BNA OSHC 1890, 1892 (No. 92-3684, 1997).
The Secretary argues that McLeod failed to give site-specific instructions to its
employees, who were working in the trench, on the means of avoiding hazards posed by the
excavator hanging over the edge of the trench, by the improperly sloped trench, and by water in the
bottom of the trench. Foreman Terry Jenkins was operating the excavator digging the trench, and
laying pipe. He was supervising the crew of employees in the trench and was aware of the violative
conditions of the trench. This knowledge is imputed to respondent.
Mr. Knopf testified that during his inspection, he interviewed two employees, who
had been in the trench. Mr. Jenkins identified those two employees as Willie Smith and Keith Willis.
Knopf asked the two employees if they saw anything wrong with the trench, and they told him “No.”
During the interviews the employees told Knopf that they did not remember seeing a training
manual.
Respondent argues that it provided the required safety training. Jenkins testified that
he attended monthly safety meetings, and that he attended one training session conducted by Jim
McLeod prior to the date of the inspection. This session addressed sloping of a trench and use of
a trench box but not types of soil. McLeod stated that respondent’s Safety Policy and Procedures
Manual, revised May 2001, which had an entire section (22 pages) on excavation and trenching
modeled on applicable OSHA requirements, was given to every foreman and management employee
(Exh. R-4).
McLeod testified that respondent only hires experienced (“skilled and educated”) employees
for trenching operations. McLeod stated that the “rank and file” employees are provided a mini
version of the safety manual when they are hired, and they have to sign that they received it.
McLeod said that respondent counts on its foremen to relay information from the monthly safety
meetings to the rank and file employees. He also stated that attendance by those employees at the
safety meetings was voluntary.
Although McLeod had a monthly safety meeting for management employees, it did not
provide regularly scheduled safety meetings (such as daily or weekly toolbox talks) for rank and file
employees. It relied on its foremen to provide safety training to the employees. However,
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respondent did not have a system to verify that the foremen provided training. It had no record of
meetings, no record of employee attendance, and no record of what training was provided. Mr.
McLeod admitted that he did not know if Jenkins met with his crew to discuss safety concerns. In
addition, safety training meetings for rank and file employees were “voluntary.” The standard does
not allow voluntary attendance for safety training. Respondent did nothing to ensure that rank and
file employees were trained as required by the standard.
Despite the fact that McLeod provided management employees with its safety manual, rank
and file employees only received a mini version of the safety manual. The two employees who were
interviewed said they did not remember seeing any manual. The mini manual was not introduced
into evidence, so it is unknown if the mini manual provided information on the hazards of working
in a trench and the applicable regulations. Respondent did not make certain, and had no record, that
employees had actually read and understood the mini-manual. See Concrete Construction Co., 15
BNA OSHC 1614 (No. 89-2019, 1992) (employer that provides no training other than safety booklet
violated § 1926.21(b)(2) training standard).
Respondent’s reliance on hiring only experienced employees does not meet the requirements
of the standard. An employer has a duty to provide adequate training even if employees are
experienced. Ford Development Corp., 15 BNA OSHC 2003, 2009 (No. 90-1505, 1992), aff’d
without published opinion 16 F.3d 1219 (6th Cir. 1994).
The testimony of Mr. McLeod and Mr. Knopf establishes that respondent failed to instruct
employees, who were assigned to work in a trench, in the recognition and avoidance of unsafe
conditions and hazards posed by working in a trench and the applicable regulations. Respondent’s
employees were not properly instructed regarding hazards encountered while working in excavations,
including cave-ins and collapse of trench walls that could result in death or serious physical harm.
Therefore, the violation of 29 C. F. R. § 1926.21(b)(2) is affirmed as a serious violation.
Alleged Serious Violation
of 29 C.F.R. § 1926.651(j)(2)
The Secretary, in Citation No. 1, Item 2, alleges that:
Protection was not provides by placing and keeping excavated or
other materials or equipment at least 2 feet (.61 m) from the edge of
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excavations, or by the use of retaining devises that were sufficient to
prevent materials or equipment from falling or rolling into
excavations, or by a combination of both if necessary:
On site, south end of the trench - an employee was
operating a Dynamic Acera SK 250LC excavator with
the front end of the excavator track hanging over into
the trench by 7-8 track shoes, on or about 4/1/03.
The standard at 29 C.F.R. § 1926.651(j)(2) provides:
(2) 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 cited standard specificallyrequires that equipment and excavated material be kept
at least 2 feet from the edge of the excavation to protect employees in the excavation. The standard,
as written, presumes the hazard, specifically, that equipment or material at the edge of an excavation
could roll or fall into the trench and onto employees.
At the hearing, the parties, through counsel, stipulated to the violation listed in
Citation No. 1, Item 2. At issue are the classification as a “serious” violation and the reasonableness
of the proposed penalty. It is undisputed that the front tracks of respondent’s 154,000-pound
excavator extended over the end of the trench by 7- or 8-track shoes when the compliance officer
arrived at McLeod’s portion of the jobsite.
The wall that supported the excavator at the end of the trench was vertical. It was
not shored, braced, or otherwise supported. The excavator had just placed an 8-foot section of pipe
in the trench. When work was stopped by the compliance officer, the excavator bucket was still
hanging above that pipe. Two employees of McLeod were in the trench. At least one employee
worked between the pipe and the excavator, directly below the bucket and the excavator arm.
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These employees were clearly exposed to the hazard of being crushed by the
excavator, its arm, or its bucket should the unsupported vertical dirt wall collapse under the
weight of this 2,700-ton machine.
Respondent, through Jenkins, its foreman and excavator operator, not only knew of
the existence of these violative conditions, but created them. Jenkins dug the trench, placed the pipe,
and directed the work of his crew.
It is certainly possible that the vertical end wall could collapse, allowing the excavator
to fall into the trench and onto the exposed employees. There is a substantial probability that death
or serious physical harm could result from such collapse. The violation of 29 C.F.R. §
1926.651(j)(2) is affirmed as a serious violation.
Alleged Serious Violation
of 29 C.F.R. § 1926.651(k)(1)
The Secretary, in Citation No. 1, Item 3, alleges that:
Daily inspections of excavations, 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, indications of
failure of protective systems, hazardous atmospheres, or other
hazardous conditions:
Or in the alternative:
29 CFR 1926.651(k)(2): Where the competent person found evidence
of a situation that could result in a possible cavein [sic], indications
of failure of protective systems, hazardous atmospheres, or other
hazardous conditions, exposed employees were not removed until the
necessary precautions had been taken to ensure their safety:
a) On site, east club homes site -
employees were in a trench 10 feet
deep by 29 feet long and 18.8 feet
wide without a protective system, not
sloped 1 to 1.5 (34 degrees), and an
excavator hanging 7 to 8 feet over the
trench wall and employees were not
removed from the trench, on or about
4/1/03.
8
(Note: During these proceedings, the parties agreed that the above words “7 to 8
feet” should read “7 to 8 track shoes.”)
The standards at 29 C.F.R. § 1926.651(k)(1) and (2) 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.
It is undisputed that employee exposure could be reasonably anticipated prior to the
start of work on the day of the inspection. Two employees were observed in this excavation during
the inspection, and respondent’s employees worked regularly in excavations. The standard is
applicable and requires respondent’s competent person to conduct an inspection, at least daily, in
accordance with its terms.
The threshold question before me on this issue is whether respondent had a
“competent person” on the jobsite on April 1, 2003.
The standard at 29 C.F.R. § 1926.650 defines a “competent person” as follows:
Competent person means 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
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has authorization to take prompt corrective measures to eliminate
them.
At the beginning of the inspection, McLeod employees exiting the trench stated that
Terry Jenkins was management for McLeod on this site. Mr. Knopf, the compliance officer, asked
Terry Jenkins, McLeod’s foreman at this site, whether he was the competent person on this job. Mr.
Jenkins testified that he replied “No,” and that he did not have an OSHA competency card. The
safety manager for the general contractor, Jose Ortega, heard this conversation. He testified that
when asked this question, Mr. Jenkins replied that he has been digging ditches for twenty-five years.
Consistent with Mr. Ortega’s testimony, and contrary to that of Mr. Jenkins, Mr. Knopf testified as
follows:
A. Mr. Jenkins, whose name I learned after the opening conference with
him, came out the cab, joined me there.
I asked him the name of the company, he supplied it. I asked him if
he was the management person on site, he indicated he was. I then
asked him who the competent person on site, and he replied back that
he had 20-some-odd years, and I guess he was competent.
And, I said, “No, I’m looking for the competent person who has
knowledge of soil mechanics of the conditions that are existing here
presently that can abate these conditions and recognize them.”
He said, “Well, I’m still the competent person.” (Tr. 170)
Mr. Knopf further testified he explained the responsibilities of a competent person
and Mr. Jenkins said, “I guess I’m not it” (Tr. 173). Jenkins told Knopf he had not done any field
tests to classify soil. Knopf stated there were no soil classification records onsite. Mr. Jenkins did
not know if any soil tests had previously been done. Jenkins later told Knopf that he did not know
who was the competent person on this site. At the hearing, Jenkins testified he does not do soil tests
and that respondent had done no testing of the soil as of the date of the inspection.
James McLeod, respondent’s president, testified that Dan Brenton, respondent’s
utility superintendent for this and other jobs, was actually the designated competent person for this
site, and not Jenkins. Mr. Knopf testified, however, that Bill Eastwood, McLeod’s general
superintendent, Brenton’s and Jenkins’ boss, arrived at the site during the inspection on April 1,
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2003. When Knopf asked Eastwood for the competent person on this site, he identified Jenkins as
the competent person. Knopf’s testimony was corroborated by Mr. Ortega. Eastwood gave Knopf
a letter indicating that he had scheduled employees for competent person training on April 19, 2003,
almost three weeks after the inspection.
At no time during the inspection did Mr. Eastwood state, or otherwise indicate, that
Dan Brenton was McLeod’s competent person on this jobsite. He affirmatively stated that Jenkins
was the competent person. Jenkins first said he was the competent person, but later denied he was,
stating he did not know who was respondent’s competent person onsite. It is inconceivable that
neither Eastwood nor Jenkins identified Brenton as McLeod’s competent person on this jobsite if,
in fact, he had been so designated as such by respondent. This confusion demonstrated by Eastwood,
the general superintendent, and Jenkins, the foreman and on-site management representative, leads
to the only logical inference that there was no one designated as a competent person for respondent
on the jobsite. I find the testimony of James McLeod to be lacking in credibility. His unsupported
testimony is inconsistent with statements by Eastwood and Jenkins during the inspection. Clearly,
neither the general superintendent nor the foreman stated that Brenton had been designated as the
competent person. Mr. Brenton’s name was never even mentioned in this context throughout the
inspection.
Respondent relies on Brenton’s logbook to show not only that he was the competent
person, but also that he made daily inspections of excavations on the jobsite. This reliance is
misplaced, and respondent’s assertions are rejected.
Mr. McLeod testified that all foremen, superintendents and other management
personnel are given logbooks to record daily conditions, comments, and jobsite conditions. Brenton
was the utility superintendent with responsibilities for this jobsite and for other sites. Respondent
submitted excerpts from Brenton’s logbook to prove that he was the competent person and made the
daily inspections required by the standard. After careful review of this evidence, I conclude that
there is no indication that this logbook was kept by Brenton in the capacity of a competent person.
Furthermore, there is no information even suggesting that he made any inspection of this trench as
required by 29 C.F.R. § 1926.651(k). At most, it shows that Brenton may have been at this site on
April 1, 2003, consistent with his duties as utility superintendent. After careful review of all
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testimony and documentary evidence, I conclude that daily inspections were not made by a
competent person as required by 29 C.F.R. § 1926.651(k)(1).
As discussed above, Mr. Eastwood, the general superintendent for McLeod, told the
compliance officer that his foreman, Mr. Jenkins, was McLeod’s competent person onsite. At that
time, he also produced a letter indicating that competent person training would be provided later that
month. Mr. Jenkins had not tested the soil, had no knowledge of soil types, and had no soil records
onsite. Respondent, through Eastwood and Jenkins, knew or, with the exercise of reasonable
diligence, could have known that it did not have a competent person on the jobsite who performed
daily inspections of the excavation as required by the standard.
Respondent’s failure to assure that required daily inspections of excavations were
performed by a competent person could result in cave-ins or collapse of trench walls, or other
hazardous conditions while employees worked in those excavations. There is a substantial
probability that death or serious physical injury by crushing could result from such hazardous
conditions. The violation of 29 C.F.R. § 1926.651(k)(1) is affirmed as a serious violation.
Having determined that respondent has violated 29 C.F.R. § 1926.651(k)(1), it is
unnecessary to discuss or consider the alleged violation of 29 C.F.R. § 1926.651(k)(2).
Alleged Serious Violation
of 29 C.F.R. § 1926.652(a)(1)
The Secretary, in Citation No. 1, Item 4, alleges that:
Each employee in an excavation was not protected from cave-ins by
an adequate protective system designed in accordance with 29 CFR
1926.652(c). The employer had not complied with the provisions of
29 CFR 1926.652(b)(1)(i) in that the excavation was sloped at an
angle steeper than one and one-half horizontal to one vertical (34
degrees measured from the horizontal):
a) On site, east club home site -
employees were in a trench 10 feet
deep by 29 feet long and 18.8 feet
wide that was not sloped 1 to 1.5 and
did not have a protective system to
prevent cave-ins, on or about 4/1/03.
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The standard at 29 C.F.R. § 1926.652(a)(1) provides:
Protection of employees in excavations. (1) Each employee 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 standard is clearly applicable. The excavation was not in solid rock and was at
least 5 feet deep. The Secretary asserts that the trench was dug in Type C soil and was improperly
sloped. Respondent argues that the soil was Type B and that the trench was properly sloped. In the
alternative, respondent argues that the trench was sufficiently sloped should the soil be determined
to be Type C soil.
Mr. Knopf, the Secretary’s compliance officer, took a soil sample from the side wall
of the trench at the bed of the trench, alongside the last pipe laid, in the area where employees were
working. This sample was bagged, sealed, labeled, and sent to the Secretary’s laboratory in Salt
Lake City, Utah, for analysis. There the sample was analyzed and determined to be Type C soil. Syd
Aslami, the Secretary’s analytical chemist, testified as to his testing methodology and his results.
Christopher Cole, respondent’s consulting engineer, testified that he does not disagree
with the Secretary’s test results showing the tested soil sample as Type C soil. Mr. Cole’s firm dug
a test pit about 20 feet from the excavation. The pit was dug about 8 feet deep. Mr. Cole admitted
that soil is not homogeneous and can vary in type over a distance of 20 feet. In analyzing this
sample, Mr. Cole’s company mixed the soil like preparing a cake. Cole’s technicians tested this
mixture and found it to be Type B soil. This sample was not from the lowest layer of soil. The
layers of soil were mixed. Mr. Cole admitted there could be layers of Type C soil below layers of
Type B soil. He stated that the weakest layer can have an influence on the safety and stability of the
trench sidewall. Appendix A to Subpart P of 29 C.F.R. Part 1926 requires that in a layered soil
system, the system shall be classified in accordance with its weakest layer. In this case, Type C soil
is the weakest type soil, and it was found at a depth of 10 feet, 2 feet below the lowest level of Mr.
Cole’s sample.
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Mr. Cole analyzed a mixture that averaged out soil types. The average result was
Type B soil. His firm performed only the gradation analysis pursuant to ID-194 (Exh. C-7). He did
not perform an unconfined compressive strength test of the soil sample. He testified that OSHA did
additional tests that he did not do, specifically, the clumps test, the fissures test, and the compressive
strength test. Mr. Cole stated that in determining trench wall stability, it was important to observe
the trench walls to look at the layers, color of soil, and fissures. His analysis of his soil sample as
Type B was done without the benefit of such observations. Having performed this analysis, Mr. Cole
testified that his analysis does not disprove the Secretary’s results and that he does not dispute the
results of the Secretary’s tests, finding the soil taken from the bottom of the trench, where employees
worked, to be Type C soil. I find that the soil in this trench was properly classified by the Secretary
as Type C soil.
Prior to the date of the inspection, respondent had been warned by the general
contractor to treat the soil as Type C soil. Mr. Jenkins, respondent’s foreman, testified that he does
not do soil tests and that respondent had done no testing of the soil as of that date. He did mention
that some soil testing had been done on the site, but did not indicate who performed those tests or
when they were done. He stated that he relies on others to tell him the soil type. He was not trained
regarding soil types, and types of soil were not discussed in respondent’s safety class. With this prior
warning as to soil type by the general contractor, respondent had a responsibility to treat the soil as
Type C soil or to make further diligent inquiry to determine whether the soil was something other
than Type C before digging the trench. Respondent had requisite knowledge that the soil in the area
of the trench was Type C soil.
During the inspection, Mr. Knopf, the compliance officer, took several measurements
of the various dimensions of the trench. Mr. Ortega, the general contractor’s safety manager, was
present at the trench and observed this activity, which he estimated taking twenty to thirty minutes.
Mr. Hinkle, the lead superintendent for the general contractor, assisted Mr. Knopf with some of his
measurements.
Mr. Knopf used a tape measure to determine the depth of the trench to be 10 feet.
While respondent argues that Mr. Knopf’s measurements are not believable, it produced no contrary
evidence as to the depth of the trench at the specific location where Mr. Knopf took his
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measurements. The time taken to measure the dimensions of this trench is indicative of the
compliance officer’s concern for accuracy.
The width was measured and double-checked by Mr. Knopf using two devices. He
first used a Sonin, which is an instrument that shoots a beam across the trench to a point that reflects
back to the instrument. Using this device, Mr. Knopf obtained the width distance of 18.8 feet. He
took three additional readings to verify his results. He then used a tape measure to double-check the
Sonin readings. Assisted by Mr. Hinkle, Mr. Knopf measured the width at 18 feet 10 inches. Mr.
Hinkle then double-checked this distance with the tape. This area of the excavation where
employees were working was a narrower section. This factor was considered by Mr. Knopf and can
be seen in the photographs in evidence (Exhs. C-1 thru C-6).
Respondent challenges the readings as to depth and width of the trench. It has
presented arguments and assertions attempting to discredit the testimony of Mr. Knopf, but no
credible evidence to defeat this evidence.
Construction plans called for the pipe invert, the lowest elevation of the pipe to be
6.9 feet below grade or ground level. Adding the 2- to 3-inch thickness of the pipe, the bottom of
the pipe should be 7.1 feet below the ground level when finally installed. While site plans and
blueprints indicate the planned depth of the bottom of the finished pipe, such evidence does not
diminish the testimony of Mr. Knopf as to the actual depth measured in the trench area where
employees were working. No measurements were taken during the inspection other than those by
Mr. Knopf and Mr. Hinkle. The plans do not show the actual depth of the trench at the time of the
inspection.
Mr. Jenkins, respondent’s foreman, testified that he used a transit to measure the
depth of the trench when this job began on April 1, 2003. He stated that he used a level on a tripod
to set the depth of the first pipe at 7 feet. At the time of the inspection, Mr. Jenkins’ crew had laid
120 feet of the pipeline planned to be 166 feet long. Throughout that 120-foot length of pipeline,
Mr. Jenkins took no other depth measurements of the trench in which at least two members of his
crew worked. He felt no need to use his transit or any other device to determine how deep the actual
trench was as work progressed. Mr. Ortega testified that he did not recall seeing a transit at the
trench during the inspection. For an employer to accurately determine the necessary slope, it must
15
continuously measure changes in excavation depth. As depth changes, so must the slope to provide
adequate protection for employees working in these trenches.
I find the testimony of the compliance officer, Mr. Knopf, to be credible and
convincing as to the depth and width of the trench at the location where employees were working
at the time of the inspection. This testimony was consistent with the photographs, as well as the
testimony of Mr. Ortega. I observed Knopf’s demeanor during his testimony. He was forthright in
his answers and consistent in his explanations of his methodology used during his inspection. Mr.
Knopf is an experienced compliance officer with fourteen years with OSHA and twenty-two years
as an accident investigator with the State of Pennsylvania. His demeanor during his testimony was
firm, direct and unwavering.
Respondent argues that Mr. Knopf did not measure the length of the trench correctly
when he determined it to be 29 feet long from the mouth of the last pipe laid to the unshored vertical
end wall over which McLeod’s excavator was extending. Respondent submits that the distance is
little more than the length of one 8-foot pipe. If I accept this argument, I must find that respondent’s
employees would be exposed to the collapse of the vertical end wall on top of them and not just the
side walls and excavator. This would actually increase the hazard to which respondent’s employees
are already exposed. In addition, without other evidence, photographs cannot be used as an accurate
means to measure distance. Mr. Bill Eastwood was at the site after Mr. Knopf made his
measurements of depth, width and length of the trench. He disputed none of these findings.
The soil at the bottom of the trench was wet. Mr. Knopf found there was some water
in the bottom of the trench. This is consistent with the laboratory findings that the soil sample taken
from the bottom of the trench wall was very wet. Mr. Knopf described the soil as moist, very wet,
and with no cohesiveness. I find his testimony to be credible and consistent.
Mr. Jenkins’ testimonyserves as the primary basis for respondent’s argument that the
excavation was properly sloped even if the soil is determined to be Type C soil. Jenkins did not
observe the compliance officer taking length or depth measurements of the trench, so he has no
knowledge of those measurements. He said he saw Knopf aim an instrument or tool across the
trench. This was the Sonin device discussed above. Jenkins said Knopf was 8 feet down the slope
of the trench when he used this device. Ortega testified that Knopf was only about a foot or two
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down. This is consistent with Knopf’s testimony. Mr. Ortega also testified that, when questioned
at the site, Jenkins told Knopf that the trench was about 6 feet deep. At the hearing, Jenkins was
confident that the depth was precisely 7.1 feet deep even though he made no depth measurement
after laying the first pipe of the day.
In uncorroborated testimony, Jenkins claimed that he painted the center line down the
length of the proposed pipeline and then two lines 14 feet on either side of the center line so the
trench would be 28 feet wide at the top. He failed to mention this to Knopf or anyone else on the
inspection team during the inspection. He offered no explanation how he determined the direction
of the center line. His prior statement submitted by respondent gives no further information relating
to the above testimony of Jenkins.
During the hearing, I observed the demeanor of this witness. Throughout his
testimony, Mr. Jenkins was confusing and appeared unwilling to give direct answers to specific
questions. His answers were inconsistent on whether he was a competent person. Even his
description of his backhoe bucket varied. During the inspection, he told Knopf the bucket was 3 feet
wide. At the hearing, it was 4.5 feet wide. He seemed to project an image that he was being ill-
treated by the compliance officer. He was concerned to the extreme that Mr. Knopf was rude to him.
Mr. Ortega described Knopf’s behavior as firm and not hostile. I conclude that Mr. Jenkins’
testimony and prehearing statement are not credible, and I afford them no evidentiary weight.
The standard at 29 C.F.R. § 1926.652 allows an employer to use an adequate
protective system designed in accordance with paragraphs (b) or (c) of that standard. An employer
may choose to slope or bench excavations or use support, shield, or other protective systems.
Here, McLeod chose to slope its trench walls and is subject, therefore, to the requirements of 29
C.F.R. § 1926.652(b)(2) which provides:
(b) Design of sloping and benching systems. The slopes and
configurations of sloping and benching systems shall be selected and
constructed by the employer or his designee and shall be in
accordance with the requirements of paragraph (b)(1); or, in the
alternative, paragraph (b)(2); or, in the alternative, paragraph (b)(3);
or, in the alternative, paragraph (b)(4), as follows:
(2) Option (2)--Determination of slopes and
configurations using Appendices A and B. Maximum
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allowable slopes, and allowable configurations for
sloping and benching systems, shall be determined in
accordance with the conditions and requirements set
forth in appendices A and B to this subpart.
Appendix A relates to Soil Classification. I have determined that the soil in the trench
where employees worked was Type C.
Appendix B contains specifications for sloping and benching of the face of
excavations where, as here, the employer chooses to use this system to protect its employees.
Appendix B specifies the maximum allowable slope for an excavation face in Type C soil is 1.5:1
(34 degrees) (See Table B-1 of Appendix B).
As discussed above, the excavation was 10 feet deep and 18.8 feet wide at the top.
It was 3 to 4.5 feet wide at the bottom. The end face of the excavation was vertical. To comply with
the requirements and specifications of the cited standard, all faces of the excavation must be sloped
1.5:1, or 34 degrees, in Type C soil. Considering facts most favorable to the respondent, the top of
the trench was required to be at least 33 feet wide (assuming a trench width of 3 feet at the bottom).
Respondent failed to comply with the terms of the standard.
Even using respondent’s depth measurements of 7.1 feet with a 3-foot wide trench
bottom, the trench width at the top must be at least 24 feet to comply with the standard.
Respondent, through Jenkins, its management representative onsite, knew or, with
the exercise of reasonable diligence, could have known of the violative conditions. Jenkins was the
foreman and backhoe operator. He created the conditions at issue. His crew, under his direction,
worked in the trench. Jenkins failed to measure the depth of the trench, by his own admission. He
did not otherwise determine the precise depth or width of the excavation or the type soil in which
he was digging. He was warned by the general contractor before digging to treat the soil as Type C
soil. He dug the trench without regard for employees in that excavation exposed to the hazard of
cave-in or collapse of the trench walls. Had a collapse occurred, respondent’s employees would have
been crushed. Such collapse or cave-in could result in death or serious physical injury. The
violation is affirmed as a serious violation of 29 C.F.R. § 1926.652(a)(1).
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Penalty Assessment
Section 17(j) of the Act requires that when assessing penalties, the Commission must
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. 19 U.S.C. § 666(j).
The Commission has wide discretion in penalty assessment. Kohler Co., 16 BNA OSHC 1769, 1776
(No. 88-237, 1994).
McLeod is an employer with approximately 100 employees. It has no history of
violations, which were affirmed in the last three years.
Generally, the gravity of the violation is the primary consideration in assessing
penalties. Trinity Industries, Inc., 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992). The gravity of
a particular violation “depends upon such matters as the number of employees exposed, the duration
of the exposure, the precautions taken against injury, and the likelihood that any injury would
result.” J. A. Jones Construction Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). Two
employees were observed being exposed to the hazard of cave-in and falling materials and
equipment for a short period of time during the inspection. Respondent’s crew, however, had laid
120 feet of pipeline over several hours on the day of the inspection. These conditions could result
in serious injury and possibly death. Thus, the gravity of the violation is moderate. McLeod was
cooperative and demonstrated good faith throughout the investigation.
Based on these factors, appropriate penalties for the violations found are as follows:
For the violation of 29 C.F.R. § 1926.21(b)(2), the appropriate penalty is $1,000.
For the violation of 29 C.F.R. § 1926.651(j)(2), the appropriate penalty is $2,000.
For the violation of 29 C.F.R. § 1926.651(k)(1), the appropriate penalty is $2,000.
For the violation of 29 C.F.R. § 1926.652(a)(1), the appropriate penalty is $2,000.
FINDINGS OF FACT
AND CONCLUSIONS OF LAW
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The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is hereby ORDERED:
1. Citation No. 1, Item 1, alleging a serious violation of 29 C.F.R. §
1926.21(b)(2), is affirmed and a penalty of $1,000 is assessed;
2. Citation No. 1, Item 2, alleging a serious violation of 29 C.F.R. §
1926.651(j)(2), is affirmed and a penalty of $2,000 is assessed;
3. Citation No. 1, Item 3, alleging a serious violation of 29 C.F.R. §
1926.651(k)(1), is affirmed and a penalty of $2,000 is assessed; and
4. Citation No. 1, Item 4, alleging a serious violation of 29 C.F.R. §
1926.652(a)(1), is affirmed and a penalty of $2,000 is assessed.
/s/
STEPHEN J. SIMKO, JR.
Judge
Date: October 22, 2003
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