M.V.P. Piping Co., Inc.

Plain-English summary

M.V.P. Piping sent two employees into a 6-foot-4-inch-deep excavation with vertical walls and no cave-in protection. The company used gravel backfill, an exit ramp, and spotters as a temporary safety plan, but none of those measures could prevent a potentially fatal collapse. The Commission held that the judge gave too little weight to the high gravity of the willful violation and increased its penalty from $7,000 to $22,000. MVP had also withdrawn its contest of a serious hard-hat citation at the hearing, so that item and OSHA's proposed $3,000 penalty had already become a final order by operation of law. The judge therefore lacked authority to reduce that penalty to $1,000. The resulting penalties for the two citations were $25,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.100(a); 29 C.F.R. § 1926.652(a)(1)
• Outcome: The hard-hat penalty remained $3,000, and the willful cave-in penalty was increased to $22,000.
• Key point: An employer cannot replace required cave-in protection with its own safety plan or rely on workers to decide whether an unprotected excavation is safe.

Full text (OSHRC public release)

M.V.P. PIPING CO., INC., Docket No. 12-1233

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EN-US
X-NONE
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United
States of America

OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION

1120 20 th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 12-1233

M.V.P. PIPING CO., INC.,

Respondent.

APPEARANCES:

Kristen M. Lindberg, Attorney; Charles F. James,
Counsel for Appellate Litigation; Joseph M. Woodward, Associate Solicitor of
Labor for Occupational Safety and Health; M. Patricia Smith, Solicitor of
Labor; U.S. Department of Labor, Washington, DC

For
the Complainant

Debora R. Durham, Owner; M.V.P.
Piping Company, Inc., Acworth, GA

For
the Respondent

Decision

Before:
ROGERS, Chairman; ATTWOOD, Commissioner.

BY
THE COMMISSION:

M.V.P. Piping Company,
Inc., an underground utilities contractor, was installing new sewer mains in
Rossville, Georgia, when the Occupational Safety and Health Administration
inspected the worksite. OSHA subsequently issued MVP two citations, each alleging
one violation of the Occupational Safety and Health Act of 1970 (“OSH Act”), 29
U.S.C. § 651-678: a serious violation of 29 C.F.R. § 1926.100(a) for
failing to ensure employees were wearing protective helmets, and a willful
violation of 29 C.F.R. § 1926.652(a)(1) for failing to provide cave-in
protection for employees working in an excavation. The Secretary proposed a
$3,000 penalty for the serious citation and a $42,000 penalty for the willful
citation, for a total penalty of $45,000.

Following a hearing,
Administrative Law Judge Sharon D. Calhoun affirmed both citations but assessed
a $1,000 penalty for the serious citation and a $7,000 penalty for the willful
citation. Only the judge’s penalty assessments for these two violations are at
issue on review. For the following reasons, we vacate the judge’s decision as
to the serious citation and assess a penalty of $22,000 for the willful
citation.

Serious Citation

The Secretary argues
that MVP explicitly withdrew its notice of contest for this citation at the
hearing, rendering the citation a final order of the Commission. See OSH Act § 10(a), 29 U.S.C. § 659(a) (absent
notice of contest, Secretary’s citation and proposed penalty become final order
of Commission). As a result, the Secretary contends that the judge lacked the
authority to consider the citation, let alone reduce the proposed penalty from
$3,000 to $1,000.

We agree. When the
Secretary asserted at the hearing that MVP was no longer contesting the serious
citation, the judge asked MVP’s representative whether it was “accurate that
[MVP is] no longer contesting [the serious citation],” and MVP’s representative
responded “Yes, ma’am.” The judge then made it clear that the serious citation
was no longer at issue as MVP had withdrawn its notice of contest, and she
explained that the “violation, classified as serious with a proposed penalty of
$3,000[,] will be a final order of the Commission by operation of law.” See
Wyman-Gordon Co. , 15 BNA OSHC 1876, 1876-77, 1991-93 CCH OSHD
¶ 29,790, pp. 40,536-37 (No. 84-785, 1992) (withdrawal of notice of
contest as to certain violations renders those portions of the citation a final
order of the Commission under § 10(a) of the OSH Act, 29 U.S.C.
§ 659(a)); Weldship Corp. , 8 BNA OSHC 2044, 2045 n.5, 1980 CCH OSHD
¶ 24,750, p. 30,480 n.5 (No. 77-3769, 1980) (“A notice of contest
withdrawal constitutes an agreement to affirmance of the citations.”).
Therefore, we vacate that part of the judge’s decision addressing this citation
and its proposed penalty. The citation, including the $3,000 penalty, is deemed
a final order by operation of law.

Willful Citation

The Secretary argues
that the judge erred in assessing a penalty of $7,000 for this citation and
urges the Commission to assess a penalty closer to his proposed amount of
$42,000. Specifically, the Secretary claims that the judge’s finding of a high
gravity, willful violation is inconsistent with a penalty assessment so close
to the statutory minimum of $5,000. See OSH Act § 17(a), 29 U.S.C.
§ 666(a). The Secretary also disputes the judge’s decision to give
reductions for MVP’s small size, lack of prior history, and good faith. See
OSH Act § 17(j), 29 U.S.C. § 666(j) (setting forth factors Commission
must consider in assessing appropriate penalty).

The Commission “is the
final arbiter of penalties . . . .” Hern Iron Works, Inc. , 16 BNA OSHC
1619, 1622, 1993-95 CCH OSHD ¶ 30,363, p. 41,882 (No. 88-1962, 1994), aff’d ,
937 F.2d 612 (9th Cir. 1991) (table); see Valdak Corp. , 17 BNA OSHC
1135, 1138, 1993-95 CCH OSHD ¶ 30,759, p. 42.742 (No. 93-0239, 1995) (“The
[OSH] Act places limits for penalty amounts but places no restrictions on the
Commission’s authority to raise or lower penalties within those limits.”), aff’d ,
73 F.3d 1466 (8th Cir. 1996). In assessing a penalty, the Commission gives due
consideration to all of the statutory factors with the gravity of the violation
being the most significant. OSH Act § 17(j), 29 U.S.C. § 666(j); 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).
When determining gravity, the Commission considers the number of exposed
employees, the duration of their exposure, whether precautions could have been
taken against injury, and the likelihood of injury. Capform , 19 BNA OSHC
at 1378, 2001 CCH OSHD at p. 49,478.

We agree with the
judge that this violation was of high gravity. On the day of the inspection,
MVP’s foreman knowingly exposed two employees to an unprotected excavation. MVP attempted to justify this exposure by substituting a “temporary
safety plan,” which it had developed with a third-party engineering company,
for the protections required by the standard. None of the measures that
comprised this plan—backfilling the part of the trench where work was already
completed, making a gravel exit ramp, and positioning spotters outside of the
excavation to watch for signs of impending collapse—could have prevented a
potentially deadly cave-in where the two employees were working. According to
the record, these employees were in the excavation that day for at least 20
minutes and possibly as long as 45 minutes. In light of these facts, we find
that the judge erred by failing to accord sufficient weight to the high gravity
of this violation in determining an appropriate penalty. Indeed, a high gravity
violation of the cave-in protection standard typically warrants a substantial
penalty. See Westar Mech. Inc. , 19 BNA OSHC 1568, 1583, 2001 CCH OSHD
¶ 32,483, p. 50,297 (No. 97-0226, 2001) (consolidated); Lanzo Constr.
Co. , 20 BNA OSHC 1641, 1650, 2002-04 CCH OSHD ¶ 32,732, p. 51,926 (No.
97-1821, 2004).

Nor does our
consideration of the remaining penalty factors support assessing a penalty near
the statutory minimum. As to history, the assistant area director testified
only that MVP had not been inspected by OSHA within the past five years. The
record also reflects that MVP has fewer than 25 employees, but establishes that
MVP’s foreman abdicated his safety responsibilities by relying on the
acquiescence of the third-party engineering company to his “safety plan.” See
Conie Constr. Inc. , 16 BNA OSHC 1870, 1872-73, 1993-95 CCH OSHD
¶ 30,474, p. 42,090 (No. 92-0264, 1994) (employer cannot substitute its
own idea of what is safe); see also Martin v. OSHRC (CF&I Steel Corp.) ,
941 F.2d 1051, 1059 n.10 (10th Cir. 1991) (employer may not substitute its own
judgment for that of OSHA). The foreman also acted improperly in relying on his
employees to tell him if they felt safe enough to be in the excavation without
cave-in protection, a fact which the judge failed to take into account. See
Armstrong Cork Co. , 8 BNA OSHC 1070, 1074, 1980 CCH OSHD ¶ 24,273, p.
29,560 (No. 76-2777, 1980) (“An employer cannot shift [its OSH Act]
responsibility to its employees by relying on them to, in effect, determine
whether the conditions under which they are working are unsafe.”).

Based on all of the
evidence in the record and having considered the statutory penalty factors, we
find that $22,000 is an appropriate penalty for this willful citation.

SO ORDERED.

/s/ _______

Thomasina V. Rogers

Chairman

/s/ _______

Cynthia L. Attwood

Dated: January 22,
2014                                            Commissioner

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.: 12-1233

M.V.P. Piping Co., Inc.,

Respondent.

Appearances:                                 

Yasmin
K. Yanthis-Bailey, Esquire, Office of the Solicitor, U.S. Department of Labor,
Atlanta, Georgia

For the Secretary

Debora
R. Durham, Owner, pro se, M.V.P. Piping Company, Inc., Acworth, Georgia

For
the Respondent

BEFORE:       Administrative
Law Judge Sharon D. Calhoun

DECISION AND
ORDER

On
December 29, 2011, Fred King, a compliance safety and health office (CSHO) for
the Occupational Safety and Health Administration (OSHA) conducted an
inspection of a worksite in Rossville, Georgia, where M.V.P. Piping Company,
Inc. (MVP) had excavated a trench. Based on his inspection, on April 23, 2012,
the Secretary issued two citations to MVP alleging violations of the
Occupational Safety and Health Act of 1970 (Act).

Item 1 of
Citation No. 1 alleges a serious violation of 29 C.F.R. § 1926.100(a), for
failing to ensure MVP’s employees were wearing protective helmets while working
in an area where there was a possible danger of head injury. The Secretary
proposed a penalty of $3,000.00 for this item.

Item 1 of
Citation No. 2 alleges a willful violation of 29 C.F.R. § 1926.652(a)(1), for
failing to provide cave-in protection for employees working in an excavation 5
feet or more in depth. The Secretary proposed a penalty of $42,000.00 for this
item.

MVP timely
contested the Citations. The undersigned held a hearing in this matter on June
5, 2013, in Atlanta, Georgia. MVP was ably represented pro se by its
Financial Officer and part-owner, Debora Durham. MVP stipulates the Commission
has jurisdiction over this proceeding under § 10(c) of the Act and that it is
an employer covered under § 3(5) of the Act (Tr. 11).

The parties
have filed post-hearing briefs. MVP does not dispute the violation cited in
Item 1 of Citation No. 1, but asks for a reduction in the penalty. MVP does not
dispute the violation cited in Item 1 of Citation No. 2, but argues the
violation was not willful and that the penalty should be reduced.

For the
reasons discussed below, the undersigned affirms Item 1 of Citation No. 1 and
Item 1 of Citation No. 2, and assesses a penalty of $1,000.00 and $7,000.00,
respectively, for the two items.

Background

MVP is a
family-owned underground utilities contractor, specializing in water and sewer
line installation (Tr. 24). In 2011, Catoosa County in Georgia hired MVP to
install new sewer mains for a subdivision currently using septic systems (Tr.
23). MVP began work on the project in September or October of 2011 (Tr. 23).
Catoosa County also hired CTI, an engineering firm, to oversee MVP’s work. CTI
provided a full-time Site Inspector, who was at MVP’s worksite every day. The
Site Inspector’s immediate Supervisor sometimes showed up at the worksite (Tr.
31-32).

MVP is owned
by Financial Officer Debora Durham, her husband Billy Durham, and their son,
who is a Foreman for MVP. The Catoosa County project was the Foreman’s first
experience as a supervisor (he graduated from the University of West Georgia
with a degree in Environment Science in May of 2011) (Tr. 18, 22). The Foreman is
a licensed utility foreman and holds a level 1-A certification in Georgia soil
and water conservation. He took a trench safety class put on by Archer Western
Company and was certified as a competent person (Tr. 20-21).

On December
29, 2011, MVP’s Foreman was supervising a four-man crew at its worksite on
South Lake Terrace in Rossville, Georgia. MVP had excavated a trench 18 to 20
feet long down the center of the asphalt street. The walls of the excavation
were vertical. MVP had a trench box at the site but was not using it in the
excavation that day because the crew was experiencing difficulty leveling the
floor of the excavation. At some point the excavation exceeded 5 feet. MVP’s
Foreman and CTI’s Site Inspector instructed two of MVP’s employees to enter the
excavation after backfilling most of it with gravel to help stabilize it (Tr.
31).

After
backfilling most of the excavation and creating two gravel ramps for egress,
the Foreman stationed two employees above the excavation with ladders and
instructed them to keep a close eye on the excavation walls. Then, as the two
crew members kept watch on top (as well as the Foreman, Billy Durham, and CTI’s
Site Inspector), the other two crew members entered the excavation in order to
set the sewer pipe (Tr. 31-34).

While the
MVP employees were working in the excavation, CSHO Fred King arrived at the
site. He had been sent there by his Assistant Area Director upon receipt of a
phone referral regarding an unprotected excavation (Tr. 64). The CSHO held an
opening conference with the Foreman. He photographed the excavation and took
measurements (Exhs. C-1 through C-10). The excavation was 6 feet 4 inches deep
in the area where the employees were working (Tr. 30). The CSHO also took a
soil sample from a spoil pile and sent it to OSHA’s laboratory for analysis.
The lab report stated the soil sample was Type B soil (Exh. C-11; Tr. 80-82).

Citation No. 1

The
Secretary has the burden of establishing the employer violated the cited
standard.

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 (5) 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).

Item 1

Item 1 of
Citation No. 1 alleges:

29 CFR 1926.100(a): Employees were not protected by
protective helmets while working in areas where there was a possible danger of
head injury from impact, or from falling or flying objects, or from electrical
shock and burns:

a)  Trench excavation.
Two employees were not wearing hard hats while installing 8 inch PVC pipe for a
gravity sanitary sewer system in an approximately 6 feet 4 inches deep trench
excavation.

Section
1926.100(a) provides:

Employees working in areas where there is a possible
danger of head injury from impact, or from falling or flying objects or from
electrical shock and burns, shall be protected by protective helmets.

Applicability
of the Cited Standard

Two of MVP’s
employees were working in an area of the excavation where the walls were over
their heads (Exh. C-1). Tools and gravel are visible near the edges of the
excavation in the photographs (Exhs. C-1 through C-5). There was a possible
danger of head injury from falling objects. The cited standard applies to the
worksite.

Compliance
with the Terms of the Standard

It is
evident from the photograpic exhibits that the employees were not wearing
protective helmets. Exhibit C-2 clearly shows both employers were wearing cloth
baseball caps. They were in an area where they were at risk for being struck by
falling gravel or tools. MVP failed to comply with the terms of the standard.

Employee
Exposure

MVP’s
employees were exposed to the hazard of being struck by falling objects.

Employer
Knowledge

The Foreman
testified he “was standing above looking down into the trench” while the two
employees were setting the pipe in the excavation, as was his father, co-owner
of the company (Tr. 48). The Foreman had actual knowledge of the violation of
the terms of § 1926.100(a). His knowledge is imputed to MVP.

Under §
17(k) of the Act, a violation is serious “if there is a substantial probability
that death or serious physical harm could result from” the cited condition.
Here, the employees could have been struck by falling tools or rocks, resulting
in serious physical harm. The classification of serious is appropriate. The Secretary
has met his burden, establishing a prima facie case as to the cited standard.
Item 1 of Citation No. 1 is affirmed as serious.

Citation No. 2

Item 1

Item 1 of
Citation No. 2 alleges:

29 CFR 1926.652(a)(1): Each employee was not protected
from cave-ins by an adequate protective system designed accordance with
paragraph (b) or (c) of this section.

a)  Trench excavation.
The employees working in an approximately 6 foot 4 inch deep section of a
trench excavation were not protected from cave-in. The walls of the trench
excavation, which had not been benched or cut at the prescribed 45 degree
angle, were not shielded or supported.

Section 1926.652(a)(1) 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:

. . . 

(ii) Excavations are less than 5 feet (1.52 m) in
depth and examination of the ground by a competent person provides no
indication of a potential cave-in.

Applicability
of the Cited Standard

Section
1926.652(a)(1) is found in Subpart P--Excavations of the Construction
Standards. Section 1926.650(a) provides: “This subpart applies to all open
excavations made in the earth’s surface. Excavations are defined to include
trenches.” It is undisputed that MVP’s employees were working in an open
excavation at its worksite. Section 1926.652(a)(1) applies to the cited
conditions.

Compliance
with the Terms of the Standard

It
is undisputed that at the time of the CSHO’s inspection, the excavation was 6
feet 4 inches deep with vertical walls. As such, some form of cave-in
protection was required to protect employees working in the excavation.

MVP
failed to provide any cave-in protection to its employees, despite having a
trench box on site. MVP failed to comply with the terms of the standard.

Employee
Exposure

The
Foreman instructed two of MVP’s crew members to enter the 6 feet 4 inches deep
excavation. They were exposed to the hazard of being crushed by a cave-in.

Employer
Knowledge

The
Foreman, in the presence of co-owner Billy Durham, instructed the employees to
enter the excavation. MVP had actual knowledge of the violation.

The
record establishes a violation of § 1926.652(a)(1).

Willful
Classification

The
Secretary classified Item 1 of Citation No. 2 as willful.

A willful violation is one
“committed with intentional, knowing or voluntary disregard for the
requirements of the Act, or with plain indifference to employee safety.” Falcon
Steel Co., 16 BNA OSHC 1179, 1181, 1993-95 CCH OSHA ¶30,059, p. 41, 330
(No. 89-2883, 1993) (consolidated); A.P. O’Horo Co., 14 BNA OSHC 2004,
2012, 1991-93 C.H. OSHA ¶ 29,223, p. 39,133 (No. 85-0369, 1991). A showing of
evil or malicious intent is not necessary to establish willfulness. Anderson
Excavating and Wrecking Co., 17 BNA OSHC 1890, 1891, n.3, 1995-97 C.H. OSHA
¶ 31,228, p. 43,788, n.3 (No. 92-3684, 1997), aff’d 131 F.3d 1254 (8th
Cir. 1997). A willful violation is differentiated from a nonwillful violation
by an employer’s heightened awareness of the illegality of the conduct or
conditions and by a state of mind, i.e., conscious disregard or plain
indifference for the safety and health of employees. General Motors Corp.,
Electro-Motive Div., 14 BNA OSHC 2064, 2068, 1991-93 C.H. OSHA ¶ 29,240, p.
39,168 (No. 82-630, 1991)(consolidated).

A.E. Staley
Manufacturing Co., 19 BNA OSHC 1199, 1202 (Nos. 91-0637 &
91-0638, 2000), aff’d 295 F.3d 1341 (D.C. Cir., 2002).

MVP contends it had difficulty excavating the hard soil and could not
dig a stable floor for the trench box. In its post-hearing brief, MVP offered
the following explanation for its failure to provide cave-in protection in the
excavation:

[The Foreman, the CTI Site Inspector,] and the guys
that met onsite the evening prior to the OSHA Inspection had come up with a
temporary safety plan to accommodate the safety of the employees in the trench.
They decided that the two tallest employees would go into the trench and the
other two would stay on top to watch for possible dangers. They decided to
backfill the trench completely with gravel to make the open area sturdier. They
decided to make a gravel ramp from the area where the two employees were
standing all the way out of the trench. They installed the gravel at an
incline. They decided to put the ladder inches away from where the guys were
working in the event of emergency.

The inspector said she would be there on top
monitoring the soil for any signs of pull away also. She also said she would
have to run it by -- [her supervisor]. The next morning [w]e were told by [the
Site Supervisor] that we could do the tie-in with the safety measures we had
put in place. That we should work swiftly to get in and get out minimizing he
risk. There was no digging with Machinery while in the trench to lessen the
likeliness of the soil pulling away from the compacted soil.

(MVP’s brief, pp. 1-2).

The record
does not establish MVP demonstrated plain indifference to employee safety. On
the contrary, MVP, in consultation with CTI, devised a plan it believed would
minimize the risk to the employees it instructed to enter the excavation. MVP
backfilled the excavation with gravel in an effort to stabilize the excavation
walls, and the Foreman set two employees atop the excavation with ladders while
the other two entered it. The undersigned believes MVP’s Financial Officer
Debora Durham is sincere when she writes of MVP’s employees, “We know their
families, we socialize with each other away from the workplace and some are
even relatives. We never willfully put any of them in danger for any amount of
money” (MVP’s brief, p. 4). MVP was not indifferent to the safety of its
employees.

The
Secretary has established, however, that MVP manifested a conscious disregard
for the requirements of the Act. MVP’s defense essentially is that it relied on
a third-party, CTI, to authorize the entry of the employees into the
unprotected excavation.

The Foreman
and CTI’s Site Inspector discussed sending the employees into the excavation
without cave-in protection and, the Foreman testified, the Site Inspector “had
no problem with that at all. We both agreed that, as long as we were trying to
be as safe as possible during the particular time, that everything should be
okay” (Tr. 47). The problem for MVP is that the Foreman, as a certified
competent person, should have known that the Site Inspector had no authority to
suspend the requirements of the Act. It was not reasonable for him to rely on
CTI’s agreement to send two employees into an unprotected excavation, with
instructions to the other employees to “basically, just keep an eye out for the
guys that are down there working” (Tr. 47). The Foreman (as well as his father)
demonstrated a conscious disregard for the requirements of the Act when he
stood at the edge of the excavation and watched the employees enter it. The
Foreman acknowledged at the hearing that the excavation was 6 feet 4 inches
deep and was dug in Type B soil (Tr. 29-30). His father had recommended getting
a trench box “because we were getting deep” (Tr. 28). In the trench safety
class the Foreman took to obtain his competent person certification, he learned
“trench width, trench depths, and different safety aspects of doing trench
work” (Tr. 21). As an underground utility contractor, MVP excavates trenches on
a continual basis. MVP was aware § 1926.652(a)(1) required it to provide
cave-in protection in the excavation at issue, yet it intentionally disregarded
that requirement.

Item 1 of
Citation No. 2 is properly classified as willful and is affirmed as willful.

Penalty
Determination

The
Commission is the final arbiter of penalties of all contested cases. “In
assessing penalties, section 17(j) of the OSH Act, 29 U. S. C. § 666(j),
requires the Commission to give due consideration to the gravity of the
violation and the employer’s size, history of violation, and good faith.” Burkes
Mechanical Inc., 21 BNA OSHC 2136, 2142 (No. 04-0475, 2007). “Gravity is a
principal factor in a penalty determination and is based on the number of
employees exposed, duration of exposure, likelihood of injury, and precautions
taken against injury.” Siemens Energy and Automation, Inc., 20 BNA OSHC
2196, 2201 (No. 00-1052, 2005).

MVP employed
fewer than 25 employees (Tr. 97.98). OSHA had not previously cited MVP for
violations (Tr. 104). MVP demonstrated good faith during this proceeding.

Item 1 of
Citation No.1, § 1926.100(a): The gravity of the violation is moderate. Two
employees were exposed for approximately 20 minutes (Tr. 34). Although it was
possible that tools or rocks could fall on them while they were in the
excavation, a review of Exhibits C-1 through C-5 establish it was not likely. A
penalty of $1,000.00 is assessed.

Item 1 of
Citation No.2, § 1926.652(a)(1): The gravity of the violation is high. Two
employees were exposed to the deadly hazard of a trench cave-in. The employees
were exposed for approximately 20 minutes. Had a cave-in occurred, death or
serious physical injuries would have likely occurred. Exhibit C-1 shows that
the vertical excavation walls were above the heads of the employees. The
employees were at risk for being completely buried in a cave-in.

The penalty
is mitigated, however, by several factors. MVP is a small company with no
history of OSHA violations. The testimony of the Foreman as well as the
representation by Ms. Durham establish the company operated in good faith in
this proceeding and it has a commitment to working safely. The Foreman, while
competent, is inexperienced (this was his first project as a supervisor). His
misjudgment in this instance will not, it is hoped, be repeated on future
projects. The Foreman’s misplaced reliance on the third-party engineering
company, while not excusable with regard to willfulness, does weigh as a factor
in reducing the penalty.

Upon
consideration of the relevant factors, it is determined that a penalty of
$7,000.00 is appropriate for Item 1 of Citation No. 2.

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 HEREBY ORDERED that:

(1) Item 1
of Citation No. 1, alleging a serious violation of 29 C.F.R. § 1926.100(a), is
affirmed and a penalty of $1,000.00 is assessed; and

(2) Item 1
of Citation No. 2, alleging a willful violation of 29 C.F.R. § 1926.652(a)(1),
is affirmed and a penalty of $7,000.00 is assessed.

SO ORDERED.

/s/                                                                                                                         

Sharon
D. Calhoun

Date:     September
20, 2013                                                                Administrative
Law Judge