B & B Underground Contractors

Plain-English summary

B & B Underground Contractors operated a deep boring pit for a wastewater pipeline project in Alabama. The judge affirmed a serious violation for unsecured gas cylinders and found that the pit's only ramp was unsafe and more than 25 feet from employees' work area. Water was accumulating in the pit, and the trench boxes were too high above the bottom and inadequately supported in eroded Type C soil. Those excavation conditions exposed five employees to cave-in hazards. The judge vacated the cylinder-storage item because the cylinders were in use and vacated the tabulated-data item because OSHA cited an inapplicable design option. Other items were withdrawn, and the affirmed violations carried total penalties of $8,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.350(a)(7); 29 C.F.R. § 1926.350(a)(10); 29 C.F.R. § 1926.651(c)(2); 29 C.F.R. § 1926.651(h)(1); 29 C.F.R. § 1926.652(e)(2)(i); 29 C.F.R. § 1926.652(a)(1); 29 C.F.R. § 1926.652(c)(2)(iii); 29 C.F.R. § 1926.651(k)(1); 29 C.F.R. § 1926.251(b)(1)
• Outcome: Five serious items were affirmed, two items were vacated, two were withdrawn, and total penalties of $8,000 were assessed.
• Key point: A trench box does not provide adequate cave-in protection when erosion, accumulating water, excessive clearance below the box, and damaged support components undermine the system.

Full text (OSHRC public release)

                                         United States of America
               OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                           1924 Building - Room 2R90, 100 Alabama Street, SW
                                       Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 11-0466
B & B Underground Contractors, Inc.,
Respondent.

Appearances:
Charna C. Hollingsworth-Malone, Esq., U. S. Department of Labor, Office of the Solicitor,
Atlanta, Georgia
For Complainant

      David A. Lester, Esq., Jones, Walker, Waechter, Poitevent, Carrère & Denègre, Birmingham, Alabama
      For Respondent; and

      Stephen Decker, Pro Se., West Palm Beach, Florida
      For Respondent

Before: Administrative Law Judge Sharon D. Calhoun

                                     DECISION AND ORDER

      B & B Underground Contractors, Inc. (B & B) performs jack and bore services for pipeline

installation. On October 5 – 6, 2010, B & B was engaged in boring operations for the Beaver
Creek Waste Water Treatment Project for the City of Dothan, Alabama when Occupational Safety
and Health (OSHA) compliance officer Dale Schneider conducted an inspection of B & B’s
worksite on Highway 84 West & Green Valley Road in Dothan, Alabama. As a result of OSHA’s
inspection, the Secretary issued one serious citation and one other citation to B & B on January 21,
2011, alleging B & B committed violations of nine construction standards of the Occupational
Safety and Health Act of 1970 (Act). Prior to the hearing, the parties entered into an agreement
whereby the Secretary withdrew, citation 1, item 4 and citation 2, item 1. Further, Respondent
contests only the classification of the violation cited in citation 1, item 1a.
 Citation 1, Item 1a alleges B & B committed a serious violation of 29 C. F. R.
§ 1926.350(a)(7), for failing to secure gas cylinders. It was grouped with item 1b which alleges a
violation of 29 C. F. R. § 1926.350(a)(10), for failing to properly store oxygen and fuel cylinders.
Item 2 alleges a serious violation of 29 C.F.R. § 1926.651(c)(2), for failing to provide a safe means
of egress within 25 feet of where employees were working in the excavation. Item 3a alleges a
serious violation of 29 C.F.R §1926.651(h)(1), for failing to utilize adequate precautions to protect
employees against hazards posed by water accumulation in excavations. It was grouped with item
3b which alleges a violation of 19 C.F.R. § 1926.652(e)(2)(i), for failing to ensure trench boxes
were placed no more than 2 feet from the bottom of the excavation. Item 5a alleges a serious
violation of 29 C.F.R. § 1926.652(a)(1), for failing to provide an adequate protective system in the
excavation. It was grouped with item 5b which alleges a violation of 29 C.F.R.
§ 1926.652(c)(2(iii), for failing to have tabulated data for trench boxes. The Secretary proposed
total penalties of $14,000.00 for these alleged violations.
B & B timely contested the citations. This case was designated for Simplified
Proceedings under Subpart M, § 2200.203(a), of the Commission Rules. The undersigned held a
hearing in this matter on May 10 – 11, 2011, in Abbeville, Alabama. The parties have filed
post-hearing briefs.
For the reasons discussed below, Items 1b and 5b are vacated. Items 1a, 2, 3a, 3b and 5a
are affirmed, and a penalty of $8,000.00 is assessed.
Jurisdiction
At the hearing, the parties stipulated that jurisdiction of this action is conferred upon the
Commission pursuant to Section 10(c) of the Act. The parties also stipulated at the hearing that at
all times relevant to this action, B & B was an employer engaged in a business affecting interstate
commerce within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5) (Tr. 10).
Background
B & B was engaged in boring operations for the Beaver Creek Waste Water Treatment
Project for the City of Dothan, Alabama at a worksite on Highway 84 West & Green Valley Road
in Dothan, Alabama (Tr. 46, 255). The Beaver Creek Waste Water Treatment Project involved
the installation of 25,000 feet of 48-inch diameter trunk line running underground from the Beaver
Creek Wastewater Treatment Plant to the Little Choctawhatchee Treatment Plant. To complete
2
the project, it was necessary to cross underneath Highway 84. B & B was contracted by Eutaw
Construction, general contractor on the jobsite, to perform the underground boring to enable the
pipe to be installed without destroying the highway (Tr. 18).
Compliance Officer Schneider, was assigned by OSHA to conduct an inspection of the
construction site for the Beaver Creek Wastewater Treatment Plant pursuant to the Dodge1 report
(Tr. 46). On October 5, 2010, Schneider initiated an inspection at the bore pit where B & B was
working on the worksite (Tr.46-47). At the time of the inspection, B & B was working on the
south side of the westbound lane of Highway 84 (Tr. 21-22). B & B had been working onsite for
approximately 2 months at the time of the inspection (Tr. 51). Schneider testified that the
conditions on the jobsite at the time of his inspection had not changed substantially from the
conditions present 2 months prior, based on photographs taken in August, 2010 (Tr. 133-134).
On the day of the inspection, B & B’s employees had worked in the excavation from 10:00 a.m.
until lunch (Tr. 51). Owner Oneal Bates was onsite until 10:00 that morning. Sean Rice was
competent person and supervisor when Bates left the site (Tr. 50-51,148; Exh. C-3).
During his onsite inspection, Schneider observed a large excavation with a boring machine
located in the bottom. The excavation was supported by two trench boxes with steel sheeting
placed behind them. The excavation measured 18 feet wide, 45 feet long and was approximately
14 feet deep (Tr. 58). The excavation essentially consisted of two trenches, one on either side of
the boring machine in the excavation, one to the east and one to the west of the casing of the boring
machine. There was less than 15 feet from either side of the casing to the east or west wall of the
excavation (Tr. 81). Unsecured oxygen and acetylene cylinders used for welding, were located at
the bottom of the excavation (Tr. 82; Exhs. C-1, C-8). Also, an unsecured oxygen cylinder was
located outside of the excavation (Tr. 83; Exhs. C-9, C-10). Schneider estimated the oxygen and
acetylene cylinders in the bottom of the excavation were approximately six feet apart from each
other (Tr. 90). The gas cylinders were for welding sections of pipe.
Schneider determined the soil in the excavation was Type C soil, based on his visual
observation and the manual test he performed (Tr. 62). Schneider collected 2 soil samples from
the spoil pile of the excavation and sent them to OSHA’s Salt Lake City Laboratory for analysis

1
A Dodge report identifies construction activities. It lists several employers, and several contracts that are
occurring. The Dodge report is generated by OSHA (Tr. 46-47).
3
(Tr. 63). The OSHA laboratory analysis concluded both soil samples were Type C soil (Tr. 67).
B & B does not dispute the Type C soil classification (Tr. 318-319). Boring reports reveal that
rock was present in the excavation at a level of 6 - 8 feet below ground surface (Tr. 239-240).
Schneider observed a ramp leading into the excavation (Tr. 57). The ramp was used by
the employees for access to and egress from the excavation (Tr. 92, 95). Schneider estimated the
ramp to be 3 to 4 feet wide, and spanned 5 to 6 feet from the top to the bottom of the excavation. It
was 35 to 40 degrees steep (Tr. 95-96, 188). The ramp contained loose dirt in the area where the
employees entered, and the access point partially was blocked by a piece of wood which Schneider
described as a 2 x 4, and Bates described as a 4 x 4. The wood went across the access point at an
angle (Tr. 97). When Schneider was onsite, this ramp was the only means of access and egress, as
there was no ladder or other means of egress in the excavation for employees working in the
excavation (Tr. 99). Schneider determined the employees had to travel 35 to 40 feet from where
they were working in the excavation to get to the ramp (Tr. 102).
Employees told Schneider that the ramp was how they accessed and exited the excavation,
and that they did so approximately 2 to 3 times per day (Tr. 99-100). One employee told
Schneider that he used a ladder to enter and exit the trench during the welding operation (Tr. 91,
221). No other employees stated they used a ladder for access and egress (Tr. 100, 191).
Foreman Rice told Schneider that he considered the ramp to be a safe means of access and he was
aware that employees used it (Tr. 99-101). Bates also identified the ramp as an access and egress
area and stated he too was aware it was used by employees (Tr. 101). According to Bates,
although a ladder was onsite, the employees probably did not use it because they accessed the
excavation from the back (Tr. 291-292).
Schneider’s visual observations revealed the east and west wall of the excavation
contained a lot of erosion; water accumulation in the bottom of the excavation; and water trickling
out of trench walls on the east and west sides (Tr. 61-63). His inspection revealed water had
accumulated in both the east and west sides of the excavation (Tr. 108-109). Schneider
determined the water was seeping through the west wall of the excavation in two locations, and
could cause the wall to de-stabilize and collapse (Tr. 109). Schneider testified the water was
being controlled by the use of a pump set up at the northeast corner of the excavation, however the
employees were working between the boring machine and the west wall, and there was no pump
4
controlling the water in that area (Tr. 110-111). Schneider determined the water control to be
inadequate because of the standing water on both the east and west floors of the excavation, and
there was nothing to stop the trickling in or accumulation of the water in the excavation (Tr. 111).
In order to control the water in the excavation, B & B initially installed a well-point system
which would allow water to flow into wells; however, water failed to migrate through the rock
(Tr. 318-320). B & B then installed a pump which pumped water out of the excavation. A
6-inch bed of gravel was placed on the floor of the excavation to facilitate pumping water out of
the excavation (Tr. 265).
The support system used by B & B was designed by its General Manager and Professional
Registered Engineer Stephen Decker (Tr. 391). The support system consisted of two trench boxes
placed end to end, but not touching, with steel plating placed behind them (Tr. 116-117, 283).
Bates testified that one trench box was 10 x 24 and the other was 8 x 24 (Tr. 274, 279, 352).
Schneider testified both were 8 x 24 (Tr. 116). The area behind the trench box on the west wall
was not totally backfilled (Tr. 118). According to Mr. Bates, one trench box was 2 feet from the
bottom of the excavation and the other was 5 to 6 feet from the bottom of the excavation (Tr. 119).
The protective system used by B & B was found to be inadequate by Schneider because the
trench boxes did not go within 2 feet of the bottom of the excavation and one was not level. Also,
Schneider testified that due to the depth of the excavation, a trench box should have been stacked
on top of each trench box, or the top portion of the excavation should have been sloped. Schneider
determined there was space between the trench boxes and the shields caused by erosion, and there
was inadequate backfilling behind the trench boxes to eliminate the gaps (Tr. 135-139).
In order to assess whether the trench boxes were installed properly and whether they could
provide adequate protection, Schneider requested B & B provide him with the tabulated data for
the protective system (Tr. 143). Schneider made this request of Bates and Decker. They advised
the data was maintained in the office and they would have to send it to him (Tr. 143-144).
Although B & B provided other requested information, they did not provide the tabulated data,
even after three requests from OSHA (Tr. 144-146).

                                              5

The Citation
The Secretary has the burden of establishing the employer violated the cited standards.

   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) the employer
   failed to comply with the terms of the cited standard; (3) employees had access to
   the violative condition; and (4) the cited employer either knew or could have
   known with the exercise of reasonable diligence of the violative condition.

   JPC Group Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).

   Applicability
   The cited standards are found in Subpart P of the construction standards, which covers

excavations, and Subpart J which covers welding and cutting. B & B was engaged in the
installation of a 48 inch diameter trunk line running underground from the Beaver Creek
Wastewater Treatment Plant to the Little Choctawhatchee Treatment Plant. In order to install the
pipe, B & B dug an excavation approximately 14 feet deep, 45 feet long and 18 feet wide. B & B
identified this excavation as bore pit number 3. Installing the pipe required B & B to weld
together sections of pipe which were 20 feet long, after each piece of pipe was driven underground.
Both the excavation standards and the welding standards apply to the activities performed by
B & B at the jobsite. Applicability of the standards is established.
Knowledge
The conditions of the excavation were in plain view. Further, Foreman Rice and owner
Bates supervised the employees working in the excavation. Bates directed the work of the
employees when he was onsite, and when he was not, Rice assumed that task. Bates created the
excavation by using an excavator, and was aware of the installation of the de-watering system for
the excavation. Bates created the ramp used by employees for egress from the excavation and
agreed to the type of protective system used onsite. The water and erosion in the excavation were
in plain view and Bates testified it was 4 to 5 inches deep. Bates testified the employees used the
gas cylinders in the excavation for welding pipes. Rice was left in charge on the day of the
inspection and worked with the employees in the excavation. The owner’s and foreman’s
knowledge of the conditions of the excavation and gas cylinders are imputed to B & B. Thus,
knowledge is established.

                                            6

Access to the Violative Conditions
There is no dispute that employees of B & B had access to the violative conditions. Rice’s
statement to Schneider reveals all five employees of B & B onsite were in the excavation when the
pipe was driven underground (Exh. C-3). The Secretary has met her burden by showing B & B’s
employees had access to the violative conditions.
The only element of the alleged violations at issue is whether B & B failed to comply with
the terms of the cited standards.
Item 1a: Alleged Serious Violation of 29 C. F. R. § 1926.350(a)(7)
Serious citation 1, Item 1a alleges:
On or about 5 October 2010 at the construction site on Hwy 84W and Green Valley
Rd, Dothan: The employer failed to ensure the gas cylinders were properly
secured which exposed employees to the hazards associated with being struck-by
falling tanks.

   Section 1926.350(a)(7) provides:

   A suitable cylinder truck, chain, or other steadying device shall be used to keep
   cylinders from being knocked over while in use.

   B & B does not dispute the violative conditions cited in item1a, however it contends the

violation was not properly classified as a serious violation. Respondent contends that an employee
would only sustain minor injuries if struck by a cylinder. The undersigned disagrees. There
were 4 cylinders in the excavation, 2 of which were connected for use. The cylinders were 5 to 6
feet from the boring machine. When employees walked between the cylinders and the boring
machine rail system the cylinders were 2 to 4 feet from the employees. The red cylinders weighed
between 80-100 pounds empty and the cylinders were not secured in any way. Schneider testified
unsecured cylinders were hazardous because they could tip over and fall or slide into an employee
and could cause minor bruising or minor cuts. Further, Schneider testified, the cylinders could
pose projectile hazards subjecting an employee to being struck by a cylinder, which could result in
a serious injury such as broken bones, and more severe cuts. The undersigned agrees. The
violation was properly classified as a serious violation.

                                              7

Item 1b: Alleged Serious Violation of 29 C. F. R. § 1926.350(a)(10)
Serious citation 1, item 1b alleges:
On or about 5 October 2010 at the construction site on Hwy 84W and Green Valley
Rd, Dothan: The employer failed to ensure extra oxygen and fuel cylinders in the
excavation were removed and properly stored.

      Section 1926.350(a)(10) provides:

      Oxygen cylinders in storage shall be separated from fuel-gas cylinders or
      combustible materials (especially oil or grease), a minimum distance of 20 feet (6.1
      m) or by a noncombustible barrier at least 5 feet (1.5 m) high having a
      fire-resistance rating of at least one-half hour.

      Four cylinders were located in the bottom of the excavation. Two contained oxygen and

the other two contained acetylene, a combustible material. These cylinders were for welding
operations performed by B & B welders who were engaged in welding the pipes being installed.
The photographs show four cylinders lying next to each other in the excavation. Three are inches
from each other. The fourth cylinder was located approximately 6 feet away. Cords were
wrapped around one of the oxygen cylinders, and two were connected for use.
The Secretary contends the cylinders were not stored properly, as they were closer than 20
feet. B & B asserts the cylinders were in use and were not being stored (Respondent’s Brief,
p. 20). Bates testified the cylinders were in use. Schneider testified that two of the cylinders
were in use at the time of the inspection. According to Bates, the cylinders had been in the
excavation for 3 to 7 days to cut and trim steel for 30 – 40 minutes on two occasions (Exh. C-4).
Schneider never observed the cylinders being used while he was at the jobsite, however he testified
two of the cylinders were hooked up to be used.
The Commission has addressed the issue of whether cylinders are “in storage” on
numerous occasions. In the earlier cases, evidence that cylinders were either going to be used or
were available for immediate use was found sufficient to withstand a finding that the cylinders
were “in storage.” See MCC of Florida, Inc., 9 BNA OSHC 1895, 1897 (No. 15757, 1981);
Grossman Steel & Alum. Corp., 6 BNA OSHC 2020, 2023–24 (No. 76–2834, 1978). In later
cases such as American Bridge/Lashcon, J.V., 16 BNA OSHC 1867, 1869, (No. 91-633, 1994),
aff’d, 70 F.3d 131 [17 BNA OSHC 1169] (D.C. Cir. 1995), the Commission considered other
factors including the length of time the cylinders were not in use, to be determinative of the storage
8
issue. See Newport News and Shipbuilding and Dry Dock Co., 16 BNA OSHC 1676, 1679–80
(No. 90–2658, 1994) (cylinders at site of ongoing burning operations which would not be used up
in a day were “in storage”; Hackney/Brighton Corp., 15 BNA OSHC 1884, 1887-88, (No. 88–
610, 1992) (where acetylene cylinder kept together with oxygen cylinders in oxygen cylinder
storage area between 3:00 p.m. one day and 9:30 a.m. next day, cylinders “in storage”. Even
later, the Commission held that based on “the evidence as a whole,” cylinders were not “in
storage” under section 1926.350(j)2 where “it is unclear when the cited cylinders were last used or
when they were to be used next.” Andrew Catapano Enterprises, Inc., 17 BNA OSHC 1776,
1781 (Nos. 90-0050, 90-0189, 90-191, 90-0192, 90-0193, 90-0071, 90-0772, 91-0026, 1996).
The record shows that it took 20 hours to install each segment of pipe. The pipe installation
occurred 24 hours per day. The welding was a part of the pipe installation and the cylinders were
used for the welding. It took approximately 4 hours to weld the pipes. The cylinders were
located inside the excavation where the welding took place. Two cylinders were connected for
use. A cylinder not intended for use was stored outside of the excavation. Bates’s testimony that
the cylinders were being used is credible and is consistent with Schneider’s testimony that two of
the cylinders were connected for use. No testimony was adduced as to exactly when the cylinders
were used or when they were to be used next. This point is unclear. Consistent with the
Commission’s holding in Andrew Catapano Enterprises, Inc., id., based on the evidence as a
whole, it is unclear here when the cited cylinders were last used or when they were to be used next.
Accordingly, the undersigned finds the cylinders were in use and were not in storage. The
Secretary has not established a violation of § 1926.350(a)(10).
Item 2: Alleged Serious Violation of 29 C. F. R. § 1926.651(c)(2)
Serious citation 1, item 2 alleges:
a. On or about 5 October 2010 and times prior at the construction site on Hwy
84W and Green Valley Rd, Dothan: The employer failed to ensure there was
no more than 25 feet distance to a means of egress in that the only means of
egress was at the Southwest corner of the 45 foot long excavation.

2
Section 1926.350(j) is a predecessor to § 1926.350(a)(10), with the same requirements for stored cylinders.
Section 1926.350(j) adopted § 3.2.4.3 American National Standards Institute Z49.1-1967 which provides in part
that: oxygen cylinders in storage must be separated from fuel gas cylinders . . . by a minimum distance of 20 feet
or by a non-combustible barrier . . .
9
 b. On or about 5 October 2010 and times prior at the construction site on Hwy
84W and Green Valley Rd, Dothan: The employer failed to ensure a safe
means of egress was maintained in that the Southwest corner egress point had
items such as but not limited to tripping hazards such as boring machine rails
and gas cylinders, steep ramp, and narrow passage between two steel plates.
Section 1926.651(c)(2) provides:
Means of egress from trench excavations. A stairway, ladder, ramp or other safe
means of egress shall be located in trench excavations that are 4 feet (1.22 m) or
more in depth so as to require no more than 25 feet (7.62 m) of lateral travel for
employees.

   The Secretary contends that at the time of the inspection, the only means of egress from the

excavation was a ramp which was not located so that employees would have no more than 25 feet
of lateral travel. The Secretary also asserts that the ramp was unsafe in that it was too steep and
was littered with debris. Respondent argues because this was an excavation and not a trench, a
means of egress was not required. In the alternative, it argues if the excavation is deemed to be a
trench, B & B provided a safe means of egress within 25 feet of where employees were working.
The standard defines excavation and trench as follows at § 1926.650(b):
Excavation means any man-made cut, cavity, trench or depression in an earth
surface, formed by earth removal.

   Trench (Trench excavation) means a narrow excavation (in relation to its length)
   made below the surface of the ground. In general, the depth is greater than the
   width, but the width of a trench (measured at the bottom) is not greater than 15 feet
   (4.6m). If forms or other structures are installed or constructed in an excavation so
   as to reduce the dimension measured from the forms or structure to the side of the
   excavation to 15 feet (4.6 m) or less (measured at the bottom of the excavation), the
   excavation is also considered to be a trench.

   It is not disputed that the excavation was approximately 14 feet deep, 18 feet wide and 45

feet long. Nor is it disputed that the boring machine was placed slightly off center in the bottom
of the excavation and that it was installed permanently for the boring operation. The boring
machine weighed approximately 40,000 pounds and included a 6-foot diameter casing pipe. It
was placed on a slab of concrete which was 6 inches thick and 8 feet wide. This concrete slab was
placed on top of a 6-foot bed of gravel. Two tracks were situated underneath the boring machine.
As depicted in the photographs, the boring machine consumed a significant portion of the

                                            10

excavation. Schneider testified the placement of the boring machine created two trenches in the
excavation, each measuring less than 15 feet wide. The undersigned agrees. The excavation is a
trench excavation as defined by the standard.
As the trench excavation was more than 4 feet in depth, a safe means of egress pursuant to
§ 1926.651(c)(2) was required. A preponderance of the evidence reveals the ramp observed by
Schneider during his inspection was the means of egress for employees working in the excavation,
as there was not a ladder in the excavation at the time of his inspection. Although Bates testified
that a ladder was onsite for ingress and egress to the boring pit, he testified “[i]n all honesty, did
they use that ladder? Probably not. Because they were accessing the pit from the back”
(Tr. 291-292). Bates’s testimony is consistent with Schneider’s inspection findings which
revealed employees used the ramp for egress from the excavation. The undersigned finds the
ramp was the means of egress for employees at the time of the inspection.
According to Schneider employees had to travel 35 to 40 feet from where they were
working in the excavation to get to the ramp. This is supported by the evidence. The ramp was
located at the rear of the 45-foot excavation. At the time of the inspection, employees were
identified as having worked in the area under the umbrella near the front of the excavation, 8 feet
or closer to the face of the north wall where the pipe was being installed. At the time of the
inspection, there was no other means of egress for these employees. Accordingly, the
undersigned finds the ramp used by employees for egress required more than 25 feet of lateral
travel.
The Secretary also asserts the ramp was unsafe. Schneider estimated the ramp was 35–40
degrees steep, and was only 3 to 4 feet wide. To travel along the ramp, one had to maneuver sharp
corners of the steel plate adjacent to it. The ramp was damp and contained loose soil and material.
The access point of the ramp was blocked partially by a 2 x 4 piece of wood. B & B does not
dispute that a piece of wood lay across the ramp, testifying that the next person using the ramp
could have removed it. Although B & B disagrees with the degree of slope found by Schneider, no
evidence was adduced to counter Schneider’s measurement assessment, other than Bates
testimony he had no difficulty walking on the ramp. The undersigned finds the debris, incline and
proximity of the ramp to the sharp edges of the steel shield renders the ramp unsafe.

                                              11

Accordingly, as the ramp was unsafe and was not within 25 feet of where employees worked, a
violation of § 1926.651(c)(2) is established.
Item 3a: Alleged Serious Violation of 29 C. F. R. § 1926.651(h)(1)
Serious citation 1, item 3a alleges:

   On or about 5 October 2010 at the construction site on Hwy 84W and Green Valley
   Rd, Dothan: The employer failed to ensure employees working in an excavation
   in which water accumulated daily from both side walls were properly protected
   from the hazards associated with water accumulation. A pump was set up at the
   Northeast bottom of the excavation, but there was no means of collection or control
   in the West and Southeast areas.

   Section 1926.651(h)(1) provides:

   Protection from hazards associated with water accumulation. (1) Employees shall
   not work in excavations in which there is accumulated water, or in excavations in
   which water is accumulating, unless adequate precautions have been taken to
   protect employees against the hazards posed by water accumulation. The
   precautions necessary to protect employees adequately vary with each situation,
   but could include special support or shield systems to protect from cave-ins, water
   removal to control the level of accumulating water, or use of a safety harness and
   lifeline.

   There is no challenge to the Secretary’s claim that the excavation contained accumulated

water. B & B argues, however that the water was controlled by the use of a pump and six-inch
bed of gravel serving as a filter to pump out water. B & B asserts that adequate protections had
been taken to protect the employees (Respondent’s Brief, p. 24). Bates admits that on the day of
the inspection approximately 4 to 5 inches of water had accumulated in the excavation at the
deepest spot and that there was water down virtually both sides of the track. He also admits water
had accumulated in both the east and west sides of the excavation and was seeping through the
west wall of the excavation in two locations.
The standard does not preclude employees from working in an excavation in which water
has accumulated where the employer has taken adequate precautions to protect employees against
the hazards posed by water accumulation. B & B utilized a pump and 6-inch layer of gravel on
the excavation floor as the de-watering system to control the water accumulation in the excavation.
In addition, B & B installed trench boxes and shields to protect the employees from cave in. The

                                            12

question to be determined is whether these precautions were adequate. The undersigned finds
they were not.
Schneider testified the water was being controlled by the use of a pump set up at the
northeast corner of the excavation, however there was no pump controlling the water between the
boring machine and the west wall where the employees worked. Photographs depict accumulated
water in the west side of the excavation. Schneider testified that the water coming in through the
west wall of the excavation could cause the soil to destabilize and force a blow out or cause a
cave-in at the bottom of the excavation. The undersigned finds this to be a hazard directly related
to the water accumulation. As it is undisputed 4 to 5 inches of water had accumulated in the
excavation and water continued to seep in from two places on the west wall, the undersigned finds
the dewatering system utilized by B & B was inadequate. Further, as discussed below regarding
item 5a, the protective system in place was inadequate to protect the employees from the hazards
posed by water accumulation. The protective system in the excavation admittedly was placed
more than 2 feet from the bottom of the excavation, exposing employees to a blow-out related to
the water in the excavation. The walls of the excavation supporting the protective system were
washed away on the sides and underneath due to erosion, thereby decreasing the stability of the
protective system, and increasing the potential for a blow out or cave-in. Further, the structural
integrity of the trench box may have been compromised due to a bent structural support bar. A
violation of § 1926.651(h)(1) is established.
Item 3b: Alleged Serious Violation of 29 C. F. R. § 1926. 652(e)(2)(i)
Serious citation 1, item 3b alleges:

   On or about 5 October 2010 at the construction site on Hwy 84W and Green Valley
   Rd, Dothan: The employer failed to ensure trench boxes used as the protective
   system were not more than 2 feet from the bottom of the excavation exposing
   employees to the hazards associated with cave-ins.

   Section 1926.652(e)(2)(i) provides:

   Additional requirements for support systems for trench excavations. (i) Excavation
   of material to a level no greater than 2 feet (.61 m) below the bottom of the
   members of a support system shall be permitted, but only if the system is designed
   to resist the forces calculated for the full depth of the trench, and there are no


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indications while the trench is open of a possible loss of soil from behind or below
the bottom of the support system.

   B & B admits the trench boxes placed in the excavation were placed higher than 2 feet from

the bottom of the excavation. Bates testified that the trench box in the back of the excavation was
probably placed within the 2 foot limitation; however, the front box was about 5 or 6 feet above the
bottom. In addition, Bates admitted there was erosion around the trench boxes. Bates told
Schneider he knew the placement of the trench boxes was not in compliance, but he did not
consider it to be an unsafe hazard. The undersigned disagrees with the assertion that this was
unsafe. Schneider testified that by not having the bottom of the trench boxes within 2 feet of the
bottom, the potential for a cave-in or a blowout was greatly increased. Schneider’s testimony is
supported by the photographs depicting erosion around the support system (Exh. C-13). In
addition, water had accumulated and was accumulating into the excavation posing a hazard of
cave-in due to potentially weakening the walls of the excavation by washing away the soil
supporting the trench boxes. The loss of soil at the bottom of one of the trench boxes is evident
in the photographs (Exh. C-13). B & B’s admissions and the photographic evidence substantiate
a violation of § 1926. 652(e)(2)(i).
Item 5a: Alleged Serious Violation of 29 C. F. R. § 1926.652(a)(1)
The Secretary issued a serious citation to B & B for an alleged violation of
§ 1926.652(a)(1). The citation alleges:
On or about 5 October 2010 at the construction site on Hwy 84W and Green Valley
Rd, Dothan: The employer failed to ensure proper protective systems such as
trench boxes were used properly such as but not limited to the trench boxes not
installed within 2 feet of the bottom, one support beam was bent/damaged, and no
tabulated data was maintained for the protective systems, exposing employees to
the hazards associated with cave-ins.

   Section 1926.652(a)(1) provides:

   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.

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The excavation at issue was not exempt from the cave-in protection requirements of
§ 1926.652(b) or (c). It is undisputed that the excavation was not made entirely in stable rock,
and it was not less than 5 feet in depth.
The parties agree the excavation was approximately 14 feet deep, 45 feet long and 18 feet
wide. To protect its employees, B & B installed a protective system designed in accordance with
section (c) of the standard. Section (c) addresses the design of support systems, shield systems
and other protective systems and sets forth four options from which an employer may select. The
evidence shows B & B selected option 4 which provides for the design by a registered professional
engineer. The protective system designed by Decker for B & B consisted of 8 x 24 ft. trench
shields with 6 ft. spreaders and was designed for Type C soil (Exh. R-9).
B & B installed two trench boxes with steel shields placed behind each box to fill in the
gaps and to provide additional support. According to Bates, one trench box was 8 x 24 feet and
the other was 10 x 24 feet. The trench boxes were placed more than 2 feet from the bottom of the
excavation. The spreader bar on one of the trench boxes was damaged. Bates admits that erosion
was present behind the trench boxes and that 4 to 5 inches of water had accumulated in the bottom
of the excavation. The parties agree that the soil in the excavation was Type C.
Although B & B agrees the soil in the excavation was Type C soil, it argues the excavation
consisted of stable rock in the bottom 8 to 9 feet of the excavation and that this provided additional
protection. B & B argues therefore, this is a layered system and since the more stable rock is
below the Type C soil, the layers may be classified separately. The evidence however fails to
substantiate Respondent’s contention. Bates testified rock was encountered 8 to 9 feet into the
excavation, however he indicated in his statement that the rock layers were sporadic or patchy,
stating “there was a 3 ft. patch here, a 2 ft. patch there, it was not consistent” (Tr. 223, Exh. C-4).
Accordingly, the undersigned finds that the layered system must be classified in accordance with
the weakest layer, in this case Type C, as required by Appendix A to subpart P of Part 1926.
Schneider testified the water in the excavation could weaken the walls and cause a cave-in
and the protective system put in place by B & B was inadequate to protect the employees. The
undersigned agrees. The excavation was made in Type C soil, the least stable soil. There was no
backfilling behind the support system to provide support. Significant erosion was present
underneath and behind the trench boxes and metal shields. In some areas the trench box appeared
15
unsupported from the bottom. Erosion or soil migration was exacerbated by water seeping in and
accumulating in the excavation. B & B did not offer any evidence that it took any measures in
consideration of the migrating soil underneath and behind the trench boxes and steel shields,
reducing the support. The structural integrity of one of the trench boxes may have been
compromised, as one of the support bars was bent. B & B offered no evidence that the structural
integrity was unaffected by this defect. The undersigned finds the protective system inadequate.
The Secretary has met her burden of establishing a violation of the cited standard. Accordingly,
the citation alleging a violation of § 1926.652(a)(1) is affirmed.
Item 5b: Alleged Serious Violation of 29 C. F. R. § 1926.652(c)(2)(iii)
Serious citation 1, item 5b alleges:
On or about 5 October 2010 at the construction site on Hwy 84W and Green Valley
Rd, Dothan: The employer did not have the tabulated data for the trench boxes
either on/off site to establish if the trench boxes were properly assembled and
installed.

   Section 1926.652(c)(2)(iii) provides:
   Manufacturer’s specifications, recommendations, and limitations, and
   manufacturer’s approval to deviate from the specifications, recommendations, and
   limitations shall be in written form at the jobsite during construction of the
   protective system. After that time this data may be stored off the jobsite, but a
   copy shall be made available to the Secretary upon request.

   The Secretary contends she requested from B & B the tabulated data on the trench boxes,

but was never provided the data. Initially, Schneider asked Rice about the tabulated data during
his inspection. Rice told Schneider he did not have the tabulated data for the trench boxes
(Exh. C-3). Subsequent requests for the data were made, but no data was provided.
The protective system for the excavation at issue was designed by B & B’s Engineer,
Decker. The standard sets forth four options an employer may select regarding the design of the
support systems, shield systems, and other protective systems. (§ 1926.652(c)). Option (4) of
the standard provides for support systems, shield systems and other protective systems designed
by a registered professional engineer, and sets forth the requirements. (§ 1926.652(c)(4)). The
evidence establishes that Decker was a registered professional engineer. Further, the evidence
reveals B & B selected option 4, permitting the design of its protective system by a registered

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engineer, in this case, Decker. Option 4 requires the design of the registered engineer is to be
maintained at the jobsite during the construction of the protective system, after which time, it may
be stored offsite, but a copy shall be made available to the Secretary upon request.
(§ 1926.652(c)(4)(iii)).
The Secretary issued a citation to B & B for an alleged violation of 652(c)(2)(iii), which is
option (2). B & B did not design its protective system in accordance with the requirements of
option (2), as it selected option (4). The Secretary did not move to amend the citation to allege a
violation of § 1926.652(c)(4)(iii), therefore it is unnecessary for the undersigned to address
whether the tabulated data required in § 1926.652(c)(2)(iii) also is required in
§ 1926.652(c)(4)(iii). The citation issued by the Secretary is not applicable. Accordingly, the
Secretary has not met her burden as to this item.
Classification
A violation is serious under § 17 of the Occupational Safety and Health Act if it creates a
substantial probability of death or serious physical harm and the employer knew or should have
known of the violative condition. In determining whether a violation is serious, the issue is
whether the result would likely be death or serious harm if an accident should occur.
Whiting-Turner Contracting Co., 13 BNA OSHC 2155, 2157 (No. 87-1238, 1989). Compliance
Officer Schneider testified that the violations were serious because of the potential for death for
employees working in the inadequately protected excavation in the event of a cave-in of soil into
the excavation. 3 Because serious injury or death could have resulted from a cave-in, the
undersigned finds that B & B committed serious violations of the aforementioned standards.
Penalty Determination
The Commission is the final arbiter of penalties in all contested cases. Secretary v.
OSHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). The Commission must determine
a reasonable and appropriate penalty in light of § 17(j) of the Act and may arrive at a different
formulation than the Secretary in assessing the statutory factors. 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

3
The undersigned addressed the classification of the violation for failing to secure gas cylinders in the section
addressing item 1a in this decision.
17
(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 (No. 87-2059, 1993).
In arriving at the proposed penalties Schneider determined that for item 1a the violation
was of low severity and lesser probability (Tr. 148, 150). Items 3a, 5a and 5b were assessed as
high severity and greater probability because of the potential for death due to a cave-in of soil into
the excavation (Tr. 150-152). B & B was given a 30% penalty reduction for size since it was a
small employer with 39 employees (Tr. 147, 152-153). Schneider testified that no good faith
reduction was given because safety talks were not relevant to work being done on the site; B & B’s
program did not address the storage of cylinders; and there was no progressive enforcement. No
reduction for history was given because B & B had been inspected within the previous 5 years
(Tr. 148-149).
As to the violations of the excavation standards, the undersigned finds that a high gravity is
appropriate here because the excavation was approximately 14 feet deep and did not have an
adequate protective system, exposing 5 employees to potential cave-in and serious injury or death.
As to the welding standard violations, the undersigned finds that a lower gravity is appropriate, as
only 2 employees used the gas cylinders for welding. B & B is a small employer. This factor
weighs in favor of a small penalty. Further, B & B corrected the conditions immediately. This
good faith factor weighs against a large penalty. Considering these facts and the statutory
elements, a proposed penalty of $ 8,000.00 is appropriate.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
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 ORDERED that:
1. Citation 1, item 1a, alleging a violation of § 1926.350(a)(7), is affirmed and a penalty
of $500.00 is assessed;
2. Citation 1, item 1b, alleging a violation of § 1926.350(a)(10), is vacated;

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3. Citation 1, item 2, alleging a violation of § 1926.652(c)(2), is affirmed and a penalty
of $1,500.00 is assessed;
4. Citation 1, item 3a, alleging a violation of § 1926.651(h)(1), is affirmed;
5. Citation 1, item 3b, alleging a violation of § 1926.652(e)(2)(i), is affirmed;
6. A penalty of $3,000.00 is assessed for citation 1, items 3a and 3b;
7. Citation 1, item 4, alleging a violation of § 1926.651(k)(1), was withdrawn;
8. Citation 1, item 5a, alleging a violation of § 1926.652(a)(1), is affirmed and a penalty
of $3,000.00 is assessed;
9. Citation 1, item 5b, alleging a violation of § 1926.652(c)(2)(i), is vacated; and
10. Citation 2, item 1, alleging a violation of § 1926.251(b)(1), is withdrawn.

                                               /s/ Sharon D. Calhoun
                                         SHARON D. CALHOUN
                                         Judge

Date: June 27, 2011
Atlanta, Georgia

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