Sand Cut Properties, LLC.

Read the official release (oshrc.gov)

Plain-English summary

Sand Cut Properties sent an employee into an excavation that was 6 to 9 feet deep, accumulating water, and repeatedly collapsing in unstable soil. A roughly 15-foot-high spoil pile overhung the edge, and the owner directed the employee to attach a sling to a concrete structure before the collapsing soil buried it. The employee then exited by riding in the bucket of the owner's excavator. Sand Cut did not contest the serious bucket-riding and water-accumulation items, and the judge found that the owner knowingly disregarded obvious spoil-pile and cave-in hazards, supporting willful classifications for those two items. All four items were affirmed, with penalties totaling $140,000 after one proposed willful penalty was reduced from $70,000 to $65,200.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. § 1926.651(h)(1); 29 C.F.R. § 1926.651(j)(2); 29 C.F.R. § 1926.652(a)(1)
• Outcome: Two serious and two willful excavation items were affirmed, with total penalties of $140,000.
• Key point: Directing an employee into an obviously unstable, unprotected excavation despite knowing cave-in protection is required supports a willful classification.

Full text (OSHRC public release)

                 United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, D.C. 20036-3457

SECRETARY OF LABOR,

      Complainant,

             v.                          OSHRC Docket No. 09-0020

SAND CUT PROPERTIES, LLC,

       Respondent.

APPEARANCES:

   James L. Polianites, Jr., Esquire, U.S. Department of Labor
          Boston, Massachusetts
          For the Complainant.

   William R. Donaldson, Esquire, Donaldson, Kershaw & Norris
          Danbury, Connecticut
          For the Respondent.

BEFORE: Dennis L. Phillips
Administrative Law Judge

                            DECISION AND ORDER

   This proceeding is before the Occupational Safety and Health Review

Commission (“the Commission”) under section 10(c) of the Occupational Safety and

Health Act of 1970, 29 U.S.C. § 651 et seq. (“the Act”). The Occupational Safety and

Health Administration (“OSHA”) inspected a work site of Respondent, Sand Cut

Properties, LLC (“Respondent” or “Sand Cut”) on May 28, 2008. The site was located in

Brookfield, Connecticut. The inspection resulted in Respondent being issued a two-item
serious citation and a two-item willful citation. Both of the citations alleged violations of

OSHA’s excavations standard. Respondent contested the citations and the proposed

penalties. The hearing in this matter took place in Hartford, Connecticut, on June 28,

2011. Only the Secretary has filed a post-hearing brief.

                                The OSHA Inspection
      

      OSHA compliance officer (“CO”) Charles Robert Colman went to Sand Cut’s

work site on May 28, 2008. He went to the site after his office received a complaint that

employees had been riding in the bucket of an excavator. Upon arriving at the site, the

CO saw an employee, later identified as Joe DeCarma, in an excavation. Mr. DeCarma

was employed as a laborer at Sand Cut. He was standing in the middle of the excavation

in front of the bucket of an excavator and near a concrete “swirl concentrator”

(“concentrator”). The CO took a number of photographs at the site, which were admitted

as S-3A through S-3O. Photographs S-3E and F show the employee in the excavation,

and S-3F shows him holding an engineering rod. Photograph S-3F and others show the

wire rope sling (“sling”) the employee was trying to wrap around the concentrator. The

CO estimated the excavation to be about 6 feet deep, where the employee was, and about

25 feet wide. The CO then saw Garrett Meade, the excavator's operator and Sand Cut’s

owner, who he knew from prior inspections. Mr. Meade told Mr. DeCarma that it was

“time to get out.” Mr. DeCarma got into the excavator bucket, and Mr. Meade lifted him

out with the excavator. (Tr. 24-32, 53, 59, 78; S-1, p. 3, S-2, S-3A through S-3O).

   CO Colman explained to Mr. Meade that he was there due to the complaint about

employees riding in the bucket. The CO also pointed out to him the cave-in hazard,

because of the excavation’s depth and the spoil pile of excavated material that was on the
excavation’s edge. The CO observed two spoil piles.1 He marked the larger one and the

smaller one with “B” and “C,” respectively, on S-3L. He also marked the larger pile with

“A” on S-3M, and the sling and where the employee had been standing with “B” and

“C,” respectively. The CO noted that the large spoil pile was undercut, overhanging the

edge, and within two feet of the excavation’s edge.2 He further noted that the front edge

of the excavation was also undercut, which made a depth measurement difficult.3 Mr.

Meade told him that when they first dug the excavation, it was circular and about 12 feet

deep and 8 feet wide. It had expanded to a width of approximately 27 feet because it kept

collapsing due to the extremely unstable soil. Mr. Meade also told him they had not been

able to place the top piece of the concentrator over the bottom piece that was already in

the excavation. United Concrete had brought the wrong truck and could not lift the top

piece to place it on the bottom piece. Mr. Meade had sent Mr. DeCarma into the

excavation to put the sling around the bottom piece so they could lift it out before the

collapsing soil buried it. (Tr. 32-42, 48, 53-57; S-2).

     During his inspection, the CO saw water seeping into the excavation, which made

the soil even more unstable.4 He was told that the employee was in the excavation to pull

the concentrator out due to the fairly steady running water and constantly eroding and

collapsing soil in the excavation. The CO also observed large sections of the excavation

1
CO Coleman testified that spoil piles were comprised of excavated material, mostly soil and rocks, dug
from excavations and pushed up by earth moving equipment. Spoil piles are required to be set two feet
from the edge of the excavation. (Tr. 33).
2
The large spoil pile was about 15 feet high, at least 25 feet long, and on the back edge of the excavation.
(Tr. 54-55).
3
The CO testified that he measured the depth of the excavation with the engineering rod and the help of
Mr. Meade. The depth where the employee was standing in S-3F was about 6 feet. The depth of the area in
front of the wooden stake in S-3F was about 9 feet; that area was undermined almost all the way back to the
stake. The CO noted that the feet showing in S-3H were those of Mr. Meade. (Tr. 40, 65, 67; S-3F, H).
4
The CO testified that water running through the walls of an excavation erodes the excavation and makes it
unstable. (Tr. 40).
wall and nearby spoil pile falling into the excavation, and he began videoing what he saw

with his camera. As he did so, a large section of the soil right on the edge of the spoil pile

fell into the excavation and landed very near to where the employee had been. After this

occurred, Mr. Meade told the CO he would move the spoil pile back and slope the sides.

Mr. Meade also told him he had been doing construction work for many years and that

his work included excavation. Mr. Meade informed the CO that the work site was next to

a wetlands area and the Still River. He further informed him that low-lying areas of the

site had been filled in with sand to raise the elevation. The CO also learned, based on a

survey done by the local county and the U.S. government, that the soil at the site was

loose sand and fill or gravel. The CO determined the soil was Class C, especially since it

was previously disturbed soil. (Tr. 36-49, 53, 56; S-3H, S-4, S-8).

     CO Colman believed that the failure to move the spoil pile back and the failure to

have any cave-in protection constituted willful violations.5 Mr. Meade had been in the

construction business for many years. He had actual knowledge of the conditions at the

site, and those conditions were plainly hazardous. The soil was unstable, and areas of the

excavation were undermined. And, soil from the spoil pile was continually falling down

into the excavation. Further, Mr. Meade told him that he knew that cave-in protection

was required for excavations over 5 feet deep. CO Coleman testified that he did not

observe any methods at the site of the excavation to prevent cave-ins. There was no

ladder set up so that an employee could enter and exit the excavation. CO Coleman

testified that Mr. DeCarma was exposed to the danger of being pinned by a collapse

     5
       Robert Kowalski, Area Director, Bridgeport Area Office, also testified that he reviewed this case

and concluded that Citation 2’s two items were both appropriately classified as willful violations due to the
conditions documented by the CO. (Tr. 72-74).
while in an excavation where there was no cave-in protection. (Tr. 47-48, 51-58, 62; S-1

through S-2).

                                      Jurisdiction

      Respondent admitted in its answer that, at all relevant times, it was a corporation

engaged as a developer with an office in Danbury, Connecticut. It also admitted that, in

its business activities, it and its employees had received, handled and otherwise worked

on, and with, goods and materials that had moved in interstate commerce. It further

admitted that, during the relevant period, it was an employer engaged in a business

affecting commerce within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5).

See R. Answer, ¶¶ II, III. The Court finds that the Commission has jurisdiction of the

parties and the subject matter in this case under section 10(c) of the Act, 29 U.S.C. §

659(c).

                                   Serious Citation 1

      Item 1 of Citation 1 alleges a violation of the general duty clause, § 5(a)(1) of the

Act, 29 U.S.C. § 654(a)(1), in that an employee was observed riding in the bucket of the

excavator at the site in order to exit the excavation. The proposed penalty for this item is

$2,800.00.

      Item 2 of Citation 1 alleges a violation of 29 C.F.R. §1926.651(h)(1), in that an

employee was observed working in an excavation which was steadily accumulating water

and there were no measures in place to control the accumulation of the water or mitigate

the hazard. The proposed penalty for this item is $2,000.00.
 At the hearing, Respondent advised the Court that it was not contesting Items 1

and 2 of Serious Citation 1 or their proposed penalties. (Tr. 16, 69, 75). Items 1 and 2 are

accordingly AFFIRMED, and the proposed penalties for those items are assessed.

                         The Secretary’s Burden of Proof

   To prove a violation of an OSHA standard, the Secretary must show by a

preponderance of the evidence that: (1) the cited standard applies; (2) its terms were not

met; (3) employees had access to the violative condition; and (4) the employer either

knew or could have known with the exercise of reasonable diligence of the violation.

Astra Pharm. Prod., Inc., 9 BNA OSHA 2126, 2129 (No. 78-6247, 1981), aff’d in

relevant part, 681 F.2d 69 (1st Cir. 1982).

                                 Willful Citation 2

   Item 1 of Willful Citation 2 alleges a violation of 29 C.F.R. §1926.651(j)(2), in

that an employee was observed working in an excavation which ranged between 6 and 9

feet in depth and had a large spoil pile (approximately 15 feet high) directly next to the

edge of the excavation. The cited standard provides as follows:

   Employees shall be protected from excavated or other materials or
   equipment that could pose a hazard by falling or rolling into excavations.
   Protection shall be provided by placing and keeping such materials or
   equipment at least 2 feet (.61 m) from the edge of excavations, or by the
   use of retaining devices that are sufficient to prevent materials or
   equipment from falling or rolling into excavations or by a combination of
   both if necessary.

   Item 2 of Willful Citation 2 alleges a violation of 29 C.F.R. § 1926.652(a)(1), in

that an employee was observed working in an excavation which ranged from 6 to 9 feet

in depth without any form of cave-in protection in place. 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 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 CO’s testimony about his inspection is set out above. His testimony is

supported by the photographs he took. It is also supported by the video clips showing the

condition of the excavation and the soil falling into it. See S-3E-H, S-3J-M, S-4. Mr.

Meade testified on behalf of Respondent. His testimony was not credible, however. He

testified, for example, that once the concentrator was placed in the excavation, the

excavation was only about 4 feet deep.6 (Tr. 80-81). He also testified that Joe DeCarma,

the employee in the excavation when the CO arrived, as shown in S-3E, was standing on

top of the concentrator and that “[n]o one ever entered the bottom of the excavated hole.”

(Tr. 81). This testimony is belied by S-3F, which depicts the employee standing on the

floor of the excavation and several feet away from the concentrator. Mr. Meade himself

admitted that the hole had expanded, noting that “it just kept growing and growing in

size, that’s what they, that’s what they do.” (Tr. 83). Based on the record, the Court finds

that the Secretary has shown all of the elements necessary to meet her burden of proof in

regard to both of the alleged violations. The Court finds that there was no protection for

the exposed employee, Mr. DeCarma, from cave-ins, as he worked to dislodge the

concentrator. There was no proper egress from the excavation and Respondent made no

attempt to bench or shore up the excavation or use a trench box. The Secretary has

established knowledge through Mr. Meade, Sand Cut’s owner, who had actual knowledge

of the conditions at the work site. See Lakeland Enters. of Rhinelander Inc. v. Chao, 402

F.3d 739, 747-48 (7th Cir. 2005)(Willful violation upheld on plain indifference basis

6
Mr. Meade testified that the excavation’s depth at the point shown in S-3H, where he and the CO were
measuring it, was 6 feet. (Tr. 82).
when supervisor knew that employee was in a trench without adequate protection from

cave-in and did nothing to eliminate the obvious danger or to remove him from the

trench). The alleged violations are affirmed.

                        Whether the Violations were Willful

    As the Secretary notes, a willful violation is one committed with either an

intentional disregard for the requirements of the Act or plain indifference to employee

safety. “A willful violation is differentiated by heightened awareness of the illegality of

the conduct or conditions and by a state of mind of conscious disregard or plain

indifference…” Hern Iron Works, Inc., 16 BNA OSHC 1206, 1214 (No. 89-433, 1993)

(citations omitted). S. Brief, p. 10.

    The CO’s testimony and his inspection narrative show that Mr. Meade was

operating the excavator on the day of the inspection and that he had dug the excavation.

Mr. Meade told the CO the hole was at first 12 feet deep and 8 feet wide, but had

expanded as it kept collapsing due to the unstable soil. He also told the CO the site was

next to a wetlands area and that areas of the site had been filled in with sand. Mr. Meade

said he had sent the employee into the excavation to put a sling around the bottom piece

of the concentrator so it could be removed before the collapsing soil buried it. He

explained that United Concrete had brought the wrong truck to the site and had not been

able to lift the top piece of the concentrator to place it on the bottom piece. He further

explained that the bottom piece alone costs $5,000.00. Mr. Meade advised the CO he had

been in the construction business for many years and that his work included excavation.

He was not aware of the different classifications of soil, but he told the CO that he knew

that cave-in protection was required in excavations over 5 feet deep. After the large
section of soil fell from the spoil pile into the excavation, Mr. Meade said he would move

the spoil pile back and slope the sides. (Tr. 37-38, 42-49, 52-59; S-1, p. 3).

    Respondent stated in its opening statement at the hearing that the willful

classification did “not apply based on the lack of actual knowledge and the lack of

pertinent experience in regard to this type of excavation.”7 Mr. Meade testified that he

did not “know any of the exact OSHA rules and regulations” and that he had “never read

anything about it.” He further testified that he had never “come into contact or heard of

[the cited provisions] before.” (Tr. 79). In light of the CO’s testimony, inspection

narrative, and photographic evidence, the Court finds Mr. Meade’s testimony was not

persuasive and Respondent’s arguments to that effect to be without merit.8 The Court

further finds that the spoil pile was not set back the requisite 2 feet from the excavation’s

edge and that the excavation was at least 6 feet deep. (Tr. 34-35, 37, 67). The Court finds

that Mr. Meade intentionally exposed Mr. DeCarma to the risk of injury or death from the

unstable adjacent spoil pile while working in an excavation where there were no

protective systems. On the basis of the record, the Court finds that the Secretary has

shown that the violations were committed with intentional disregard for the requirements

of the Act and with plain indifference to employee safety. See Lakeland Enters., 402

F.3d 739; Globe Contractors Inc. v. Herman, 132 F.3d 367, 373 (7th Cir. 1997)(ignoring

obvious violations of OSHA safety standards amounts to “plain indifference” for

7
Respondent chose not to make a closing statement at the hearing. (Tr. 87A).
8
To establish knowledge, the Secretary must prove that an employer knew or could have known with the
exercise of reasonable diligence of the “physical conditions constituting the violation.” Schuler-Hass
Electric Corp., 21 BNA OSHC 1489, 1493 (No. 03-0322, 2006); citing Phoenix Roofing Inc., 17 BNA
OSHC 1076, 1079 (No. 90-2148, 1995), aff’d without published opinion, 79 F.3d 1146 (5th Cir. 1996).
She need not show that the employer understood or acknowledged that the physical conditions were
actually hazardous. Phoenix Roofing, 17 BNA OSHC at 1079.
purposes of a finding of willfulness). Items 1 and 2 of Willful Citation 2 are AFFIRMED

as willful. (Tr. 75-76).

                                      Penalty Assessment

     The Secretary has proposed a penalty of $70,000.00 for each of the two willful

violations in this case. In its answer, Respondent asserted that the penalties proposed by

the Secretary were excessive. See R. Answer, ¶ IX. In assessing penalties, the

Commission must give due consideration to the gravity of the violation and to the

employer’s size, history and good faith. See section 17(j) of the Act, 29 U.S.C. § 666(j).

In this regard, the Area Director (“AD”) of the OSHA office that issued the citations

testified that part of his job is to review proposed citations. He further testified that in this

case, he eliminated all the adjustment factors and proposed the maximum penalty for the

willful violations.9 The AD noted that in cases where the proposed penalties are greater

than $100,000.00, the regional OSHA office and a regional solicitor review the case, after

which the director of construction in Washington, D.C. also reviews the case. The AD

additionally noted that, after all the required reviews, the subject citations were approved

to be issued. (Tr. 71-75). In view of the above, the Court does not find the fines proposed

by the Secretary for the two serious items and Item 1 of Willful Citation 2 to be excessive

and, instead, finds that the proposed penalties for these items are appropriate and are,

accordingly, assessed by the Court as proposed by the Secretary. With regard to Item 2 of

Willful Citation 2, the Court finds it appropriate to reduce the $70,000.00 penalty

9
See Ho, 20 BNA OSHC 1361, 1379 (Nos. 98-1645, 98-1646, 2003)(extreme lack of good faith warrants
assessment of the statutory maximum penalty). The Court finds that Mr. Meade’s conduct at the site
relating to Mr. DeCarma’s presence in the excavation with a large, unstable spoil pile directly next to the
excavation’s edge exhibited an extreme lack of good faith.
proposed by the Secretary to $65,200.00 and a penalty of $65,200.00 is assessed by the

Court for this willful violation.10

                                Findings of Fact and Conclusions of Law

       The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Federal Rule of Civil Procedure 52(a).

                                                ORDER

       Based on the above Findings of Fact and Conclusions of Law, it is ordered that:

       1. Item 1 of Serious Citation 1, alleging a violation of § 5(a)(1) of the Act, 29

U.S.C. § 654(a)(1), is AFFIRMED, and a penalty of $2,800.00 is assessed.

       2. Item 2 of Serious Citation 1, alleging a violation of 29 C.F.R. § 1926.651(h)(1),

is AFFIRMED, and a penalty of $2,000.00 is assessed.

       3. Item 1 of Willful Citation 2, alleging a violation of 29 C.F.R. § 1926.651(j)(2),

is AFFIRMED, and a penalty of $70,000.00 is assessed.

       4. Item 2 of Willful Citation 2, alleging a violation of 29 C.F.R. § 1926.652(a)(1),

is AFFIRMED, and a penalty of $65,200.00 is assessed.

                                                      ___/s/______________________________
                                                         The Honorable Dennis L. Phillips
                                                               U.S. OSHRC JUDGE

Date: October 2, 2011
Washington, D.C.

10
Id. at 1379 (Commission has discretion to assess the penalties it finds appropriate).