Mosser Construction, Inc.

Plain-English summary

Mosser employees worked in a 6-foot, 6-inch excavation whose benching did not meet the required dimensions. The judge affirmed the protective-system violation as other-than-serious and assessed $500, reasoning that Mosser had substantially attempted to bench the excavation. The Commission found Mosser's expert opinion that the soil would only slowly ravel unpersuasive because it did not adequately connect the soil characteristics to the conclusion that no cave-in hazard existed. A cave-in in the noncompliant excavation could have caused death or serious injury. The Commission reclassified the violation as serious and increased the penalty to $4,500, while crediting Mosser's attempt to provide protection.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.651(k)(2); 29 C.F.R. § 1926.652(a)(1)
• Outcome: Protective-system violation reclassified as serious and penalty increased from $500 to $4,500; competent-person item remained vacated.
• Key point: Partial benching may support good-faith credit, but it does not prevent serious classification when a noncompliant excavation still presents a cave-in hazard.

Full text (OSHRC public release)

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 08-0631

MOSSER CONSTRUCTION, INC.,

Respondent.

APPEARANCES:

Ronald J. Gottlieb, Attorney; Charles F. James, Counsel for Appellate Litigation; Joseph M. Woodward,
Associate Solicitor; Carol A. De Deo, Deputy Solicitor for National Operations; U.S. Department of
Labor, Washington, DC

For the Complainant

Roger L. Sabo, Esq.; Schottenstein, Zox & Dunn, LPA, Columbus, OH

For the Respondent

DECISION

Before: ROGERS, Chairman; THOMPSON and ATTWOOD, Commissioners.

BY THE COMMISSION:

STATEMENT OF THE CASE

Mosser Construction, Inc. (“Mosser”) contracted to perform excavation and concrete work in
preparation for the construction of a new sports arena located in Toledo, Ohio. As a result of a March
17, 2008 inspection of Mosser’s excavation at the arena worksite, the Occupational Safety and Health
Administration (“OSHA”) issued Mosser a serious citation under the Occupational Safety and Health
Act of 1970 (“OSH Act”), 29 U.S.C. §§ 651-78, alleging that Mosser failed to “ensure that employees
in an excavation . . . were protected from cave[-]ins by a protective system, or by sloping or
benching,” as prescribed by 29 C.F.R. § 1926.652(a)(1), and proposing a $5,000 penalty.

Following a hearing, Administrative Law Judge G. Marvin Bober affirmed the citation based
on his determination that Mosser’s attempt to bench the excavation fell short of the required benching
angle, but characterized the violation as other-than-serious, finding that “[i]f an accident had occurred
. . . there was not a substantial probability that death or serious physical harm could result.” The judge
also lowered the penalty for the violation to $500 based on his determination that employee exposure
was limited to two hours and the excavation’s benching, though inadequate, reduced the probability of
a cave-in. For the reasons that follow, we reverse the judge’s characterization determination, affirm
the violation as serious, and assess a $4,500 penalty.

ISSUES

Mosser does not contest the judge’s affirmance of the violation, but the Secretary contends the
judge improperly characterized it as other-than-serious. The Secretary argues that any failure to meet
the specifications of the standard establishes that a cave-in was possible, and that cave-ins are serious
violations because they pose a substantial risk of death or serious harm. The Secretary also contends
that the judge’s $500 penalty assessment does not accurately reflect the gravity of the violation.
Mosser responds that the excavation posed no cave-in hazard because it was subject only to a “slow-raveling” of surface material rather than a catastrophic failure, and that the raveling would flatten the
slope and increase the safety factor. Mosser also argues that there is no basis to increase the $500
penalty amount assessed by the judge.

At issue on review is only whether the judge properly characterized Mosser’s violation of the
cited excavation standard as other-than-serious, and whether his penalty assessment was appropriate.

FINDINGS OF FACT

Compliance Officer (“CO”) Kip Reiher was looking out a window of the Toledo OSHA Area
Office, which is located within view of the arena worksite, when he noticed an employee working
inside an excavation. After leaving his office and going to the worksite, the CO discovered that a
number of Mosser employees were working inside the excavation and at least one of them had
performed work there for approximately two hours. The excavation was 56 feet long, 3 feet, 5 inches
wide at the excavation floor, and 6 feet, 6 inches deep. Although the excavation was benched
throughout, the CO testified that a portion of the benching appeared to lack the proper dimensions
required under the excavation standard. The bench dimensions were as follows: 4 feet, 1 inch high
from the excavation floor to the two horizontal bench cuts; 2 feet wide from the excavation walls to
the end of each bench cut; and 2 feet, 5 inches high from the benches to the top of the excavation.

Analysis

I. Characterization

The Commission has recognized that under the excavation standard, the Secretary need not
specifically establish the existence of a cave-in hazard to prove a violation. Austin Bridge Co. , 7 BNA
OSHC 1761, 1765-66, 1979 CCH OSHD ¶ 23,935, p. 29,021 (No. 76-93, 1979). Nonetheless, the
presence of such a hazard and consequences of its occurrence would be relevant to determining
whether a violation is serious. Id. at 1767. Indeed, under the Act a violation is serious “if there is a
substantial probability that death or serious physical harm could result from [the violative] condition
. . . .” OSH Act § 17(k), 29 C.F.R. § 666(k). “This does not mean that the occurrence of an accident
must be a substantially probable result of the violative condition but, rather, that a serious injury is the
likely result if an accident does occur.” Oberdorfer Indus. Inc. , 20 BNA OSHC 1321, 1330-31, 2002
CCH OSHD ¶ 32,697, p. 51,645 (No. 97-0469, 2003) (consolidated) (citation omitted).

Here, the judge characterized the violation as other-than-serious based on his findings that “one
end of the trench was considered by OSHA to be in compliance, the height and width of the bench
varied . . . , and [] Respondent made a substantial attempt to bench throughout the excavation.” The
Secretary contends the judge erred, citing the CO’s testimony that he personally observed the
conditions of the excavation and concluded that an employee could have sustained fatal mechanical
asphyxia or serious physical injury had a cave-in occurred. Mosser maintains on review that the
violation is not serious because in its expert’s opinion, the excavation was subject only to a “slow-raveling” of surface material rather than a catastrophic failure. Mosser’s expert witness specifically
testified about the characteristics of the excavation soil as it pertained to classifying the soil under the
standard’s appendix,

and whether the excavation posed a cave-in hazard. In his decision, the judge
relied on the expert’s opinion about the excavation soil characteristics in addressing the merits of the
violation, but never addressed the expert’s opinion that the excavation posed no cave-in hazard.

The Secretary has determined that “excavation work is one of the most hazardous types of
work done in the construction industry [and] [t]he primary type of accident of concern in
excavation-related work is [the] cave-in . . . .” See Excavations; Construction; Trenching; Shoring;
Sloping; Benching; Final Rule , 54 Fed. Reg. 45,894, 45,897 (October 31, 1989). See also Austin
Bridge , 7 BNA OSHC at 1761, 1979 CCH OSHD at p. 29,017. Despite Mosser’s claim that its
expert’s opinion showed that no cave-in hazard existed here, we find that the expert’s opinions about
the characteristics of the excavation soil do not support his ultimate conclusion that no cave-in hazard
was presented by the noncompliant excavation. In discussing the soil’s characteristics, Mosser’s
expert stated that it was compacted and highly angular crushed limestone rock that “start[s] to
recement.” But he did not indicate how long the recementing process might take, or whether his
review of the excavation photographs—the only contemporaneous visual evidence of the cited
condition on which he relied in forming his opinion about the excavation’s safety—showed that this
particular soil had yet cemented. Moreover, Mosser’s own competent person at the worksite, who
personally examined the excavation soil on the morning of the OSHA inspection, identified the soil as
granular and not cohesive—a soil characteristic that may require greater protective measures than
those taken by Mosser here. See e.g., 29 C.F.R. pt. 1926 subpt. P app. A (defining Type A soil as
“cohesive”); 29 C.F.R. pt. 1926 subpt. P app. B-1.2 (illustrating permissible benching for Type B
“cohesive soil only”). And the competent person’s assessment of the excavation soil is consistent with
that contained in the OSHA Technical Center’s analysis of a soil sample removed from the excavation
that same day. We find that the expert failed to establish an adequate link between the soil
characteristics and his opinion that the excavation was safe, particularly in view of his failure to
account for the competent person’s contrary soil assessment in proffering that opinion.

In these circumstances, we find unpersuasive the expert’s opinion that there was no cave-in
hazard presented by this noncompliant excavation that was six-feet, five-inches deep and, therefore,
we conclude that Mosser’s failure here to meet the specifications of the standard posed a cave-in
hazard that could have resulted in serious physical injury or death. 29 C.F.R. § 1926.650(b) (defining
cave-in to include potentially serious or deadly consequences—the sudden “separation of . . . soil or
rock . . . into the excavation . . . in sufficient quantity so that it could entrap, bury, or otherwise injure
and immobilize a person”). Therefore, we conclude the violation is appropriately characterized as
serious.

II. Penalty

In assessing a penalty, the Commission must give due consideration to four factors: (1) the
employer’s size; (2) the gravity of the violation; (3) the employer’s good faith; and (4) the employer’s
prior history of violations. OSH Act § 17(j), 29 U.S.C. § 666(j). When determining gravity, typically
the principal factor, the Commission considers (1) the number of exposed employees; (2) the duration
of their exposure; (3) whether precautions have been taken against injury; (4) the degree of probability
that an accident would occur; and (5) the likelihood of injury. Capform Inc. , 19 BNA OSHC 1374,
1378, 2001 CCH OSHD ¶ 32,320 p. 49,478 (No. 99-0322, 2001), aff’d , 34 F. App’x 152 (5th Cir.
2002) (unpublished).

Based on our review of the § 17(j) factors, we conclude that a penalty of $4,500 is appropriate.
The judge reduced the Secretary’s $5,000 proposed penalty to $500 based, in part, on his
determination that the excavation’s partial benching reduced the probability of a cave-in. However,
regardless of the probability of a cave-in, we find that the gravity of the violation remains moderate to
high considering the serious consequences in the event a cave-in occurred. In addition, we find that
Mosser’s attempt to provide cave-in protection as part of its excavation safety program warrants some
credit for good faith. Accordingly, we assess a $4,500 penalty.

conclusions of Law

Based on the foregoing analysis, we conclude that the excavation standard violation is properly
characterized as serious. We also conclude that an appropriate penalty for this violation is $4,500.

order

We reverse the judge’s characterization determination, affirm the violation as serious, and
assess a $4,500 penalty.

SO ORDERED.

/s/________

Thomasina V. Rogers

Chairman

/s/_______

Horace A. Thompson III

Commissioner

/s/_______

Cynthia L. Attwood

Dated:   February 23, 2010                                           Commissioner

Secretary of Labor,

Complainant,

v.

OSHRC DOCKET NO. 08-0631

Mosser Construction, Inc.,

Respondent .

Appearances:

Paul G. Spanos, Esq., Office of the Solicitor, U.S. Department of Labor, Cleveland, Ohio

For Complainant

Roger L. Sabo, Esq., Schottenstein, Zox & Dunn, LPA, Columbus, Ohio

For Respondent

Before: G. Marvin Bober, Administrative Law Judge

DECISION AND ORDER

Procedural History 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”). On March 17, 2008, the Occupational Safety and Health
Administration (“OSHA”) conducted an inspection of Mosser Construction’s (“Respondent”) work
site located at 401 Madison Avenue in Toledo, Ohio. (Tr. 156). As a result of that inspection,
OSHA issued one citation to the Respondent alleging two violations of the Act. Citation 1 Item 1
alleges a serious violation of 29 C.F.R. §1926.651(k)(2) for the failure of a competent person to
remove employees from an excavation after finding evidence of a cave-in or other hazardous
condition. A penalty of $5,000 was proposed for this violation. Citation 1 Item 2 alleges a serious
violation of 29 C.F.R. §1926.652(a)(1) for failing to properly implement a protective system in an
excavation more than five feet deep. A second penalty of $5,000 was proposed for this violation.
Respondent timely contested the citations and an administrative trial was held on October 28, 2008
in Toledo, Ohio. Prior to the trial, the Court denied Secretary’s Motion for Partial Summary
Judgment on October 17, 2008. Both parties have filed post-trial briefs, and this case is ready for
disposition.

Jurisdiction

The parties agree that jurisdiction of this action is conferred upon the Occupational Safety
and Health Review Commission pursuant to Section 10(c) of the Act. The parties also agree that at
all times relevant to this action, Respondent was engaged in construction and maintained a place of
business in Fremont, Ohio and a work place at 401 Madison Avenue in Toledo, Ohio. (Secretary’s
Complaint and Respondent’s Answer ). Respondent constructs hospitals, prisons, sports arenas,
bridges, and water treatment facilities. It employs approximately 500 employees and conducts
more than $100 million in business annually. (Tr. 272). Therefore, I find that Respondent is
engaged in a business affecting commerce and is a covered employer within the meaning of Section
3(5) of the Act. Slingluff v. OSHRC , 425 F.3d 861 (10 th Cir. 2005).

The OSHA Inspection

On March 17, 2008, Respondent was engaged in the preparation of an excavation to install
the foundation of a new sports arena. (Tr. 156). The worksite was located across the street from the
local office of the Occupational Safety and Health Administration ("OSHA"). From the windows
of the Toledo OSHA Office, compliance personnel observed individuals working on this jobsite.
(Tr. 61). OSHA took several photographs of the site through their office windows. (Tr. 60; Ex. C-1, C-2). Compliance Safety and Health Officer Kip Reiher ("Compliance Officer") was
subsequently assigned by OSHA to conduct an inspection of the site. (Tr. 61). The OSHA
inspection lasted approximately 40 minutes. (Tr. 29). As a result, on March 31, 2008, OSHA
issued a Citation and Notification of Penalty alleging two serious violations of the Act.

TESTIMONY

Kip Reiher

Mr. Reiher has been an OSHA Compliance Safety and Health Officer for seven years. (Tr.
24).

During that time, he has conducted approximately 400 inspections, 20-30 of which involved
trenches. (Tr. 25). When Mr. Reiher arrived at the worksite, he observed four of Respondent’s
employees working in the excavation at issue in this case. (Tr. 29). The e mployees had been
working in the excavation for approximately two hours prior to OSHA coming on site. (Tr. 33).

The Compliance Officer did not take measurements of the trench himself. Instead, he asked
the employees that were working in the excavation to measure the dimensions of the trench. (Tr.
43). Using a steel tape measure, they called out the dimensions of the various horizontal and
vertical surfaces to the Compliance Officer. (Tr. 43). The excavation was measured at various
points, however, only the narrow end of the excavation was considered to be in violation. (Tr. 44,
69-70). Although the dimensions of the trench varied tremendously throughout its length, the
dimensions of the trench location at issue in this case were: 3 feet 6 inches wide horizontally at the
bottom; 4 feet 1 inch high vertically from the bottom to the bench

level; 2 feet wide horizontally at
the bench level; and then 2 feet 5 inches high vertically (sloped approximately 10°) to the ground
surface level. (Tr. 45-46; Ex.C-6). These dimensions were not disputed by the Respondent. (Tr.
18).

To determine the type of soil in the excavation, the Compliance Officer submitted an
approximately three -pound sample of soil from the excavation to OSHA’s laboratory in Salt Lake
City. (Tr. 68, 86, 125). OSHA’s soil sample was collected by one of Respondent’s on-site
superintendents, Rod Meyer, from a spoils pile near the excavation. (Tr. 80-81). OSHA’s
laboratory analysis of the sample collected by the Compliance Officer determined that the soil was
Type “C.”

(Tr. 68). Although the Compliance Officer acknowledged during the trial that the
excavation was benched, he does not believe that benching was appropriate in this particular
excavation because it was Type “C” soil. (Tr. 51). He maintains that the regulations do not allow
benching in Type “C” soil, and therefore, the excavation did not have an adequate protective
system. (Tr. 54). This is the basis for Citation 1 Item 2. The Compliance Officer was concerned
that the condition of the trench exposed employees to the hazards associated with a cave-in,
including mechanical asphyxia. (Tr. 52, 54).

As additional support for his conclusions, the Compliance Officer points to Respondent’s
Excavation Safety Checklist as well as disciplinary action against Respondent’s on-site
superintendents: Rod Meyer and Keith Bostelman. The Excavation Safety Checklist was
completed by Mr. Meyer about three hours before the OSHA inspection. (Tr. 38-39). Mr. Meyer
indicated on the checklist that the soil in the excavation was Type “C.” (Ex. C-7). However, two
days later during follow-up witness interviews, Mr. Meyer and Mr. Bostelman told the Compliance
Officer that the soil in the excavation was actually Type “B.” (Tr. 40-41). After the inspection, Rod
Meyer and Keith Bostelman were disciplined on the basis that Respondent‛s "preliminary internal
investigation has concluded that the excavation may not have met OSHA standards.” (Tr. 55; Ex.
C-8, C-9).

The Compliance Officer testified that Citation 1 Item 1, which the Secretary referred to as
the “competent person” violation, was based on the fact that Respondent conducted only a visual
examination of the trench conditions but no manual examination. (Tr. 53-54). The only
information the Compliance Officer obtained about the training of Mr. Meyer and Mr. Bostelman
was that they both completed a 30-hour OSHA training course. (Tr. 71). The Compliance Officer
had no knowledge of their length of employment with the Respondent, additional training received
by either person, or their background in excavation work. (Tr. 72).

In calculating a penalty for each of the two citation items in this case, the Compliance
Officer considered the fact that Respondent has more than 120 employees, and pursuant to OSHA
policy, did not reduce the proposed penalties for the employer’s size. (Tr. 57-58). He further
testified that because the violations were considered by OSHA to be high gravity serious violations,
there was no penalty reduction for good faith. (Tr. 58). Nor did OSHA reduce the proposed
penalty based on Respondent’s violation history due to the fact that Respondent had a serious
violation in “the recent past.” (Tr. 58).

Clint Merrell

Clint Merrell is an Analytical Chemist in the OSHA Salt Lake Technical Center in Utah.

(Tr. 100-101). He has been working in that position for approximately twenty-eight years. (Tr.
101). He has a bachelor’s degree in chemistry and a master’s degree in biochemistry. (Tr. 104).
During his tenure with OSHA, Mr. Merrell has conducted more than 2,500 soil sample analyses.
(Tr. 102). The court accepted Mr. Merrell as an expert in the area of laboratory testing of soil
samples. (Tr. 106-108). Mr. Merrell analyzes the soil samples he receives in his laboratory using
the ID-194 method. (Tr. 108). This method consists of placing the sample in a bread pan, recording
visual observations of the sample, photographing the sample, testing the compressibility of the
sample, placing the sample in an oven for two days, adding water to the sample, draining the
water/sample mixture through a No. 200 sieve,

placing the remaining sample back in the oven
overnight, and then calculating the percentage of sand and gravel remaining in the sample. (Tr.
106-107). After this process, if the sample contains more than 85% sand and/or gravel, OSHA
considers it to be Type “C” soil. (Tr. 113). Through this process, Mr. Merrell concluded that the
soil sample provided to him by the Compliance Officer in this case was 94% sand and gravel. (Tr.
113). Consequently, he classified it as Type “C” soil. (Tr. 113).

As part of his visual observations, Mr. Merrell compared particles of the soil to a chart used
in his office to determine whether the soil particles were “rounded” or “angular.” (Tr. 120; Ex. C-11). Rounded gravel tends to fall apart. Angular gravel tends to cleave together and is more stable.
(Tr. 137-138). He testified that angular particles indicate Type “B” soil and round particles indicate
Type “C” soil. (Tr. 120). Referring to his chart, he testified that the particles in the soil sample he
was provided by the Compliance Officer were “sub-rounded” or “rounded.” (Tr. 121; Ex. C-11).
He conceded that his office does not test the compactness of the soil. (Tr. 147).

Keith Bostelman

Keith Bostelman was a superintendent on this jobsite for Respondent, and the designated

competent person

for this particular excavation. (Tr. 155, 165). Mr. Bostelman has been employed
by Respondent for approximately twenty-five years. (Tr. 152). He was at the jobsite when the
Compliance Officer arrived. (Tr. 156). It was the first day that the Respondent’s crew had been
working at this location. (Tr. 157). When the Compliance Officer arrived, the crew was “digging
grade beams for the first pour.” (Tr. 157). Mr. Bostelman testified that the crew was having
difficulty digging in the excavation with shovels and the excavator machine because the soil was
“very dense compacted material.” (Tr. 161). He testified at trial that he believes the soil was Type
“B.” (Tr. 169). Bostelman testified that he performed visual observations of the soil as well as
manual tests with shovels, the backhoe, and his finger. (Tr. 173). He did not observe any sloughing
or falling off of soil. (Tr. 165). He does not believe that the conditions of the trench were unsafe or
that his crew was in any jeopardy. (Tr. 182).

Rod Meyer

Rod Meyer was the General Superintendent for Respondent at this jobsite. (Tr. 183). He
was also present on the day of the inspection. (Tr. 201). Mr. Meyer prepared the Excavation Safety
Checklist for this trench at 10:00 a.m. on the morning of the inspection. (Ex. C-7). He admitted to
categorizing the soil in the excavation as Type “C” on the form but testified at trial that he had
made a mistake

and that the classification should have been Type “B.” (Tr. 191). Mr. Meyer also
testified that the soil sample he obtained for OSHA was taken from the spoils pile, and that he
intended the sample to be representative of the soil in the trench. (Tr. 202).

Richard Hoppenjas

Richard Hoppenjas is the Chief Civil Engineer for Bowser-Morner, a geotechnical

engineering and testing laboratory with locations in several states. (Tr. 205-206). He has been
employed with them for thirty-two years. (Tr. 206). He holds a bachelor’s and master’s degree in
civil engineering and is a registered civil engineer in five states. (Tr. 207). He is a member of
several civil engineering organizations and has served as an expert witness in various cases for
approximately twenty years. (Tr. 209-211). His primary responsibilities with Bowser-Morner are to
identify soil materials based on field samples, prepare engineering reports, and to make
recommendations to other engineers regarding projects like building foundations, dams, and
roadways. (Tr. 208). The court accepted Mr. Hoppenjas as an expert in the area of geotechnical
and soil engineering, including soil typing. (Tr. 231-234).

Mr. Hoppenjas is the civil engineer who prepared the pre-construction engineering reports
for this project and determined that the soil in the area should be removed and replaced with 304
material prior to setting the foundation for the new sports arena. (Tr. 211-213). He described 304
material as blasted solid limestone rock which is crushed and screened into various sizes. (Tr. 215).
It is re-mixed with large and small particles so that there is little void space when it is packed. (Tr.
215). The particles range in size from 1 inch to smaller particles that will pass through a No. 200
sieve. (Tr. 216). The requirement for this project was that the 304 material used to replace the
original soil had to be packed so that it was at least 95% dense. (Tr. 223, 227-228). The 304
material was installed in 8-10 inch layers, then compacted after each layer to ensure high density.
(Tr. 220). Following his engineering recommendations, a third party contractor removed all of the
soil at this site down to a depth of approximately 10 feet and replaced it with compacted 304
material. (Tr. 158, 212).

Three months prior to the OSHA inspection, Mr. Hoppenjas conducted testing of the 304
material at the location of this excavation to verify that the soil met the minimum 95% density
requirement for this project. (Tr. 249-251; Ex. R-12 Tab B). He analyzed soil samples taken from
multiple locations on multiple days. After the OSHA inspection and at Respondent’s request, Mr.
Hoppenjas reviewed his original density test results, information about 304 material, and the soil
classification descriptions in the regulations. He then prepared an opinion of the soil type for the
Respondent. (Tr. 230, 235). Based on the angularity of the soil particles, the density of the
compacted 304 material, and most importantly the fact that 304 material is crushed limestone rock,
he determined that the soil was Type “B.” (Tr. 230, 235; Ex. R-12). He focused heavily on the fact
that the definition section of Appendix A to Subpart P of 29 C.F.R. §1926 describes Type “B” soil
as “angular gravel (similar to crushed rock).” (Tr. 235). Mr. Hoppenjas went further to analyze the
“frictional angle of the soil” and concluded that a safe slope angle for the 304 material in this
excavation would be 1 to 1 (45°). (Tr. 244). No one from OSHA made any determination of the
frictional angle of the 304 material in the excavation. (Tr. 96-97).

He disagrees with OSHA’s conclusion that the soil is Type “C” primarily on the basis that
the single three-pound soil sample taken from the spoils pile lacks any evidence that it is a
representative sample of the soil in the excavation. (Tr. 257). To obtain a true representative
sample, he testified that the ASTM’s (American Society for Testing and Materials) standard for this
type of soil analysis is 100 pounds of soil. (Tr. 258).

George Moore

George Moore is Director of Risk Management and Safety Director for Respondent. (Tr.

270). He has worked for Mosser Construction for seventeen years. (Tr. 270). He testified that
Respondent employs Safety Officers who visit Respondent’s job sites at least once weekly. (Tr.
272-273). They visit Respondent’s larger job sites multiple times each week. (Tr. 273).
Respondent has implemented a progressive discipline policy when safety violations are discovered .
(Tr. 275).

DISCUSSION

To establish a prima facie violation of the Act, the Secretary must prove: (1) the standard
applies to the cited condition; (2) the terms of the standard were violated; (3) one or more of the
employer’s employees had access to the cited conditions; and (4) the employer knew, or with the
exercise of reasonable diligence could have known, of the violative conditions. Ormet
Corporation , 14 BNA OSHC 2134, 1991 CCH OSHD ¶29,254 (No. 85-0531, 1991).                          

Citation 1 Item 1

The cited regulation provides:

§1926.651 Specific excavation requirements:

*            *            *

(k) Inspections

*            *            *

(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.

This standard mandates the action a designated competent person must take when he or

she observes hazardous conditions in an excavation. The standard clearly applies to the cited
condition. The record also establishes that four of Respondent’s employees were working in the
trench and exposed to the condition. I further find that knowledge of the condition of the
excavation can be imputed to the Respondent through the immediate presence and supervision of
Superintendent Bostelman. A.P. O’Horo Co. , 14 BNA OSHC 2004, 1991 CCH OSHD ¶29,223
(No. 85-0369, 1991).

The Secretary argues that Respondent violated this standard because “Mr. Bostelman failed
to perform a manual test of the soil in the trench.” Secretary’s Post-Hearing Brief, p.16. Mr.
Bostelman denies this allegation and testified to making visual observations of the soil as well as
manual tests with shovels, the backhoe, and his finger. The record reveals that the parties seem to
have focused their evidence and argument on the language of 29 C.F.R. 1926.651(k)(1) rather than
the cited subparagraph: 651(k)(2). The standard cited by the Secretary in this instance does not set
out any requirement for manual testing of the soil in the trench. Nor does the cited subparagraph
address the methodology for a competent person inspection or the qualifications of the competent
person. On the contrary, the subparagraph cited by the Secretary requires an evidentiary showing
that Respondent’s designated competent person found evidence of a situation in the trench that
could have resulted in a cave-in, failure of a protective system, or other hazardous condition yet
failed to remove employees from the area until the condition could be remedied. The record is
devoid of any such evidence.

Testimony presented by both parties focused on the qualifications of Mr. Bostelman to serve
as a competent person and the type of testing he performed. The Secretary has failed to establish
that Mr. Bostelman personally recognized a situation that could result in a cave-in, the failure of a
protective system, or the existence of other hazardous conditions and then failed to remove
employees from the area. Consequently, there has been no showing that the language of the cited
standard was violated.

Citation 1 Item 2

The cited regulation provides:

§1926.652 Requirements for protective systems:

(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 (c) 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 cited standard mandates minimum employee protection that should be implemented

when working in excavations. The citation alleges that the Respondent did not implement one of
the acceptable methods of employee protection. Therefore, the standard applies to the cited
condition. As with Citation 1 Item 1 above, the record establishes that four of Respondent’s
employees were working in the trench and exposed to the violative condition. It also establishes
that knowledge of the condition of the excavation can be properly imputed to the Respondent
through the immediate presence and supervision of Superintendent Bostelman. A.P. O’Horo Co. ,
supra .  

The primary issue in dispute is the proper classification of the soil in the excavation at the
time of the OSHA inspection. The Secretary’s expert witness argues that the soil was Type “C”
which prohibits the angle of an excavation wall to exceed 1½ vertical to 1 horizontal (34°).
Appendix B to Subpart P for 29 C.F.R. §1926, Table B-1 . Respondent’s expert witness argues that
the soil was Type “B” which prohibits the angle of an excavation wall to exceed 1 vertical to 1
horizontal (45°). Id . It is undisputed that the method of protection used by Respondent at this
excavation was benching.

I find that the Secretary has not presented sufficient evidence to establish that the single soil
sample obtained by Respondent’s employee at the direction of the Compliance Officer fairly and
accurately represented the soil type located at this excavation. Respondent’s expert was not simply
retained to conduct a post-inspection analysis of the soil. Rather, Mr. Hoppenjas was the chief
engineer for the pre-construction phase of this project, analyzed the pre-existing soil at this
location, recommended that the 304 material replace the existing soil based on building
specifications, and conducted compaction and density analyses of the 304 material after it was
placed in the area. He further explained that the 304 material in which this excavation was created
is simply crushed limestone rock and characterized it as “highly angular.” Appendix A to
Subpart P of Part 1926 - Soil Classification

lists examples of Type “B” soil as “angular gravel
(similar to crushed rock).” Therefore, the preponderance of the evidence presented at trial supports
the conclusion that the soil in the excavation was Type “B.”

However, with regard to whether Respondent violated the cited standard, it makes little
difference whether the soil was Type “B” or Type “C.” The dimensions of Respondent’s
excavation did not satisfy the maximum sloping or benching angles for either soil type. The
vertical wall of the first and only bench was 4 feet 1 inches from the bottom of the trench.
Therefore, to fully comply with the 1 to 1 slope angle for Type “B” soil, the horizontal surface of
the bench should have been 4 feet 1 inch. It was not. It was 2 feet wide, and therefore, 2 feet 1
inch too narrow. The Secretary has established that Respondent violated the terms of the cited
standard.          

To prove that a violation of the Act was serious, the Secretary must establish that there was
a substantial probability that death or serious physical harm could result if an accident were to
occur. 29 U.S.C. §666(k) . It is not necessary to prove that there was a substantial probability that
an accident would actually occur. Thomas Industrial Coatings, Inc. , 21 BNA OSHC 2283, 2008
CCH OSHD ¶32,937 (No. 97-1073, 2007 ) citing Consol. Freightways Corp ., 15 BNA OSHC 1317,
1991-1993 CCH OSHD ¶29,500 (No. 86-0351, 1991); see also Usery v. Hermitage Concrete Pipe
Co. , 584 F.2d 127 (6th Cir. 1978). Based on the facts that one end of the trench was considered by
OSHA to be in compliance, that the height and width of the bench varied as depicted in the
photographs, and that Respondent made a substantial attempt to bench throughout the excavation, I
am not convinced that the violation is properly characterized as serious. The bench in this
excavation was four feet high and two feet wide at one particular point, instead of 4 feet high and 4
feet wide as required in this soil. If an accident had occurred in this six foot deep excavation as a
result of this condition, there was not a substantial probability that death or serious physical harm
could result. Oklahoma Natural Gas Co. , 16 BNA OSHC 1278, 1993 CCH OSHD ¶30,062 (No.
90-1330, 1993). I find that the Secretary has established an other-than-serious violation of 29
C.F.R. §1926.652(a)(1).

Section 17(j) of the Act requires the Commission to give “due consideration” to four criteria
when assessing penalties: (1) the size of the employer's business, (2) the gravity of the violation, (3)
the good faith of the employer, and (4) the employer's prior history of violations. 29 U.S.C.
§666(j) . Gravity is the primary consideration and is determined by the number of employees
exposed, the duration of the exposure, the precautions taken against injury, and the likelihood of an
actual injury. J.A. Jones Construction Co. , 15 BNA OSHC 2201, 1993 CCH OSHD ¶29,964 (No.
87-2059, 1993). This was the first day the Respondent was performing excavation work at this
location. Respondent’s four employees had been working in the excavation for approximately two
hours prior to the OSHA inspection. Although not in full dimensional compliance, the trench was
benched throughout the length of the excavation. The Commission has held that partial compliance
with a standard can serve to reduce a determination of actual probability of an accident, and
accordingly, the appropriate penalty for a violation. Del-Cook Lumber Co. , 6 BNA OSHC 1362,
1978 CCH OSHD ¶22,544 (No. 16093, 1978); Lawrence B. Wohl, 17 BNA OSHC 1004 (No. 92-2109, 1994). Considering these factors, I assess a penalty of $500.00 for this violation.

Affirmative Defenses

Respondent pled the affirmative defense of unpreventable employee misconduct in its
Answer . However, Respondent did not argue the merits of the alleged defense in its brief, and it is
therefore deemed abandoned. ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Citation 1 Item 1 is VACATED;

2. Citation 1 Item 2 is AFFIRMED as an other-than-serious violation of 29 C.F.R.
   1926.652(a)(1) and a penalty of five hundred dollars ($500.00) is ASSESSED.

/s/_______

Date: February, 3 2009                                                 G. MARVIN BOBER

Washington, D.C.                                                         Administrative Law Judge