Tom Kubricky Company, Inc.
Trench egress and cave-in violations affirmed
Apply this to your situation
This order from 2020 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Tom Kubricky Company excavated more than 20 feet below a residential street to repair a broken sewer force main. Two employees worked in a lower trench without a stairway, ladder, or other reliably safe emergency exit. The judge found the earthen end slopes unsafe because they were soft, irregular, partly obstructed, and had already allowed material to collapse into the trench. The judge also rejected the company's claim that the upper excavation and lower trench could be treated as two separate excavations under 20 feet deep. The single excavation required a protective system designed under one of the regulatory options for excavations deeper than 20 feet, including professional-engineer involvement, and the company's slopes and trench box did not meet those requirements. The safe-egress and cave-in items were affirmed with penalties of $2,500 and $3,500. A third protective-system design item was vacated after the Secretary withdrew it.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.651(c)(2), 29 C.F.R. § 1926.652(a)(1), and withdrawn 29 C.F.R. § 1926.652(c)(2)(i).
- Outcome: Two serious excavation items affirmed with $6,000 total penalties; withdrawn third item vacated.
- Key point: A layered excavation is measured as one opening from top to bottom, and earthen slopes must provide safe emergency egress as well as routine access.
Full text (OSHRC public release)
Tom Kubricky Company, Inc. OSHRC Docket No. 19-0232
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3457
SECRETARY OF LABOR,
Complainant,
v.
OSHRC Docket No. 1 9-0232
TOM KUBRICKY CO. , INC.,
Respondent.
DECISION
AND
ORDER
APPEARANCES:
For the Complainant:
Rosemary Almonte, Esq.
U.S. Department of Labor
New York, New York
For the Respondent:
Tom Kubricky
Tom Kubricky Co., Inc.
Gansevoort, New York
BEFORE: William S.
Coleman
Administrative Law Judge
INTRODUCTION
The Respondent,
Tom Kubricky Co., Inc.
(TKC),
repaired a
broken
sewer force main
in the Town of Niskayuna, New York,
on
September 22, 2018. To make the repair,
TKC dug an excavation
that was about 178 feet long,
48
feet wide, and
more than 20 feet deep. The deepest part
of the excavation
was a trench
whose depth varied
between
10 to 12 feet,
whose width varied
between 4 and 10 feet, and whose floor was less than 50 feet long.
On
September 25, 2018, the Occupational Safety and Health
Administration (OSHA)
opened an inspection
into
the repair work.
The
inspection
resulted in OSHA issuing
a serious citation (Citation)
to TKC
on January 24, 2019
that alleged three
violations
(designated
Items 1,
2
&
3)
of OSHA’s
Excavations
standard, 29 C.F.R. §§ 1926.650,
et. seq. ,
with a
total
proposed penalty of $10,798.
TKC timely
contested
the
Citation
and
proposed
penalty
and
thereby
brought
the
matter before the
independent
Occupational Safety and Health Review Commission (Commission) pursuant to section 10(c) of the Occupational Safety and Health Act (Act).
29 U.S.C. § 659(c).
The Commission docketed the matter on February 21, 2019.
The Secretary of Labor (Secretary) thereafter filed his formal complaint
pursuant to Commission Rule 34(a), 29 C.F.R. § 2200.34(a),
in
which
he
re-alleged
Item 1,
amended Item 2,
and withdrew Item 3,
resulting in
a
lower
proposed penalty
of
$6,820
for the two remaining citation items.
Item
1
alleged
a
violation of
§ 1926.651(c)(2)
for
failing to provide a safe means of egress from a trench four feet or greater in depth.
Item
2, as amended by the complaint,
alleged
a violation of § 1926.652(a)(1)
for failing
to provide an adequate protective system
to
protect employees working in an excavation from cave-ins.
The
Commission’s
Chief
Judge
assigned
the
matter
to
the
undersigned
for
hearing and
decision.
The
hearing
was
conducted
in
Albany, New York , on
December 19 -20 , 2019 .
Post- hearing briefing was completed on Ma rch
1 9 , 20 20 .
The principal issues for decision are:
· Did the Secretary prove by a preponderance of the evidence that
the sloped faces
at the
ends of
the
trenched
lower portion of the excavation
did not
provide
safe means of egress from the
trench ? (Item 1; §
1926.651(c)(2)).
Decision : Yes.
· Did the Secretary prove by a preponderance of the evidence that the excavation
lac ked an adequate protective system to protect employees from cave-ins ?
(Item
2 ; §
1926.652( a ) (1) ).
Decision :
Yes.
Because the Secretary
met
his burden of proof on these issues,
Items 1 and 2 are affirmed. Penalties totaling $6,000
for the two violations are assessed.
FINDINGS OF FACT
The following facts were established by at least a preponderance of the evidence:
- On
January 24, 2019, OSHA’s Area Office
located in Albany, New York
issued a citation and notification of penalty to TKC. The citation was related to
an excavation
TKC
dug to
repair a
6-inch
underground
sewer
main
beneath
a residential
street in the Town of Niskayuna
(Town).
The excavation and repair occurred on
Saturday,
September 22, 2018,
in front of
the
house
at 815 Trottingham
Drive
in the Town. (T.
66).
- TKC is a
corporation organized under the laws of New York, does business in New York,
and is engaged in construction work.
(T. 21-24). TKC is in the business of water and sewer line installation and emergency repair work for municipalities. (T. 451). Many of the materials and supplies used by TKC originated or were shipped from outside the State of New York. (T. 21-24).
- Mr.
Tom Kubricky is the president of TKC. (T. 557). He
has
been engaged in
excavation work for
42
years, beginning
as a laborer
with his father’s company. (T.
449-50). He
is not a registered professional engineer. (T. 573).
Prior
Excavation s
in 1978 and 2012
- An
8-inch
gravity sewer and
6-inch
sanitary sewer
force
main were
originally installed
in parallel
under the roadway of Trottingham Drive
in 1978.
(T.
105-06,
458-59,
535,
637,
648-49; Ex. R-8-2). A
company owned by Tom Kubricky’s father
performed
the original excavation
and installation of the
two
lines
in 1978. (T. 459). Tom Kubricky
participated in
the 1978 excavation and installation
as a laborer
for his father’s company.
(T. 459, 529).
-
When the
two sewer lines
were installed in 1978,
an engineering firm involved in the installation created a
record map
that was received in evidence as Court Exhibit 1. The record map reflects the “as-built” measurements for the sewer installation, and among other things shows
the
depths of the lines below the surface, the
relative positions of the two sewer lines,
the slope of the gravity sewer, the location of each manhole for the gravity sewer and the distances between manholes, and the precise depths of the gravity sewer line at its entry and exit points for each manhole. (T. 659-664). At the location in front of 815 Trottingham Drive, the force main is positioned about 1.2 feet higher than the gravity sewer. (Court Ex. 1). (Testimonial evidence established that the force main is slightly offset so that it is not directly above the gravity sewer (T. 470-71).) -
The record map also
depicts
the
two-dimensional
profile
of
a
subterranean
rock formation. (T. 667-68, 675). The rock
formation’s
depth
is irregular, varying from
roughly twelve to eighteen
feet below the surface. (Court Ex. 1). -
When the sewer lines were installed in
1978,
some of
the
subterranean
rock
in front of 815 Trottingham Drive
was
excavated to
create
a
subterranean trench
through which the
two sewer lines
would
pass,
at depths
between
20 to 27
feet
below the
sloped
surface. (T.
78,
95, 460, 483, 681, 683; Ex. R-8-2; Court Ex. 1). The
distance
between the two manholes that
framed this
segment
of the
sewer
lines
is 398.7
linear
feet. (Court Ex. 1). Of that
distance, about 330 linear feet of the gravity sewer line was installed below the level of the rock formation. (Court Ex. 1). Over that same segment, about 270 linear feet of the force main was installed below the level of the rock formation. (Court Ex. 1). (The difference
in
these
lengths
owes
to
the force main
being
installed about
1.2 feet
above
the gravity sewer
and
to
the varying elevation of the rock formation
in this segment.) -
When the
sewer lines were installed
in 1978, none
of the
soil and rock
that had been excavated
was
used to close
the excavation. (T. 462). Instead,
backfill
soil
consisting of sand and
“run
of bank”
(imported natural, unprocessed soil)
was
used to fill the excavation
up to
approximately
16-18
inches below the surface.
Above that
was
12-15 inches of
crushed gravel
and
other
material
that
formed the road’s sub-base, topped by 2-3 inches of
asphalt
pavement. (T. 461, 491, 497).
- In 2012,
TKC
performed an excavation and
repair on
the
same
sewer
line
at a location
slightly
north of
815 Trottingham Drive.
The
backfill
that was
used to close the
excavation in
1978
was
excavated, stored,
and then
reused to close the
2012
excavation. (T.
462,
465, 491-92).
2018
Excavation
- On September 21, 2018,
the
Town
hired
TKC to repair a
break in
the
sewer force main
located
in front of
815 Trottingham Drive (Worksite). (T. 65-66,
143-44,
455). There was no written agreement
for the repair
between TKC and the Town. (T.
452-56,
600).
Tom Kubricky met with the Superintendent of Water and Sewer for the Town, Mr. Matthew Yetto,
at the
Worksite
on Friday, September 21, 2018. (T. 66-67, 535). The Town did not provide an excavation plan to TKC. (T. 97, 456). TKC
started
mobilizing
equipment
at the
Worksite
that
afternoon.
-
The
next day,
Saturday, September 22,
TKC opened the excavation and completed the repair around midnight. The Town closed the excavation
sometime after midnight
(i.e.,
in the
early
hours of
Sunday morning, September 23). (T.
67-68,
137-38,
143-44,
476,
601-02). -
TKC
used its heavy equipment, known as an
“excavator,”
to
dig
the excavation. (T. 355,
519,
639). The Town provided and operated the dump trucks
that
removed
the
excavated material
from the
Worksite. (T.
457, 601). The Town also provided
two vacuum
extraction trucks
and a 35-foot vacuum extraction tube
that were
used to
suction out soil and
effluent from the
excavation. (T. 68, 457). -
Mr. Yetto was at the Worksite on September 21 and 22, 2018.
(T. 66-68, 456). The Town
had about thirteen employees at the
Worksite
involved in operating
the dump trucks,
the vacuum trucks,
and
the
extraction
tube. (T. 518, 712-13).
- Four TKC employees worked at the
Worksite. (T.
517-18). Tom Kubricky
supervised the other three
TKC employees.
Scott Kubricky operated the excavator. (T. 68, 517). Bob Zabielski and Forrest Kubricky worked
at the bottom of
the
excavation, using
hand tools
to expose the broken
pipe,
and
then repairing
it. (T. 66-68, 275-76, 488-89, 502, 517-18, 560; Exs. C-20
&
C-23).
- TKC did not take
precise measurements of the footprint of the excavation, but Tom Kubricky
paced
off
the surface area
and
he
estimated the footprint
to be
approximately 178
feet
long and 48 feet wide. 1
(T. 467, 533-35, 538-39). The
north end of the
2018 excavation overlapped
about 20 feet of the
area excavated in
2012,
and
so the
remaining
approximate 158-foot
length of the excavation to
the south
(where Trottingham Drive ends
in a T-intersection with Whitney Drive)
had not been excavated since the sewer installation in 1978. (T. 78, 503-05; Court Ex. 1). No stable rock was excavated as part of the excavations done in 2012 or 2018. (T. 469, 483).
-
The ground at the Worksite
had a downslope from south to north,
and
so
the
depth
of the
force
main
relative to the
excavation’s
edge
was about 27
feet at the
deeper south
end, gradually
decreasing to
about
20
feet
at the
shallower
north
end. (Court Ex. 1). -
From the side of the excavation, the excavator’s reach was not long enough to
get
to the
depth of the
broken pipe,
so
TKC dug
the excavation in two stages.
(T. 520).
TKC
first excavated
the approximate 178x48 feet
upper
portion,
the deepest part of
which was
about fifteen feet
at the south end
near Whitney Drive. (T. 233, 278,
467,
482, 642). TKC then moved the excavator to the floor of the upper portion,
from
where it
removed the backfill from
a
segment of the
subterranean
trench to get to the
location of the break in the force main. (T. 67, 503-04). The excavator removed the backfill to
expose
the vertical sides of the subterranean trench, which were
constituted of
stable rock.
-
The
composition of the
material excavated
in 2018
was a combination of sand and “run
of bank” backfill from
the original excavation in 1978, brown clay
and
blue clay
excavated from the long sides of the upper portion of the excavation, and crushed stone that had formed the roadbed. (T. 74-75, 78-79, 467). -
The excavation’s wide and long upper portion had a mostly flat floor. (T. 475, 520, 648). The slope of the
upper portion’s
faces varied between
“three-quarter
horizontal
to
one
vertical”
(53 degrees) and
“one
horizontal
to
one
vertical”
(45 degrees), except for the
deeper south end of the excavation
(nearest
Whitney Drive)
where the slope
was
nearly
vertical. (T. 86-87, 468-69,
481,
685; Ex. C-16, C-17, C-24). -
The segment of the subterranean trench that was excavated
had a variable depth between
ten
and
twelve feet
below
the
floor of the
excavation’s
upper portion. (T.
489,
648).
The width at the bottom
of the trench
varied
from
about four feet at its narrowest
to
about ten feet at its widest. (T. 700, 724-25; Ex. R-3-b). The sidewalls were vertical or near vertical. (T. 469, 483, 648-49;
Exs.
C-20 &
C-23).
The trench bottom
appears to have been
less than fifty feet long. (Ex. C-20).
- The narrow ends of the
trenched lower portion
(to
the north and south)
were about four
to
six
feet wide. (Ex. C-23). The ends were
sloped
and
consisted of the backfill soil
that had originally been deposited there
to
backfill the trench
in -
The backfill at the ends of the trench constituted previously disturbed soil. TKC intended the
sloped
ends of the
trench
to function as earthen ramps for employee ingress and egress. (T. 551-52). The north end did not have a consistent slope angle, and
photographs establish that at least part of
that slope
was steeper than 45 degrees. (T. 489, 553-54; Exs. C-20, C-23). The slope
angle of
the south end appears from photographs to have been
at least 45 degrees, possibly steeper. (Exs. C-20 & C-23; T. 489). -
After the
trench
was excavated and TKC employees began working at the bottom of
it, the excavator was backed up against the nearly
vertical south face of the upper portion
of the excavation
so that the
trench
was
directly
in front of
the excavator. (T. 519, 644-45; Exs. C-16, C-17, C-18, C-19, C-20, C-22, C-24, R-3, R-6; Resp’t Br. 5). The excavator’s operator
then
lowered a trench box
that was
suspended
by a chain attached to the excavator’s bucket
into the
trench. (Ex. C-20). TKC’s purpose in
doing so
was to shield the employees working in the
trench
from effluent coming out of the broken pipe. (T. 142, 317; Ex. C-20). TKC
was not using
the trench box for cave-in protection. (T. 317, 353). The trench box was the property of the Town. (T. 69). -
The
Town used its 35-foot vacuum extraction tube to suction out effluent and soil from the
trench
and
into
a
vacuum truck. (T.
68, 457,
509-10, 712
Exs. C-18,
C-20, C-23,
C-24). The two TKC employees working
in the trench
used hand tools to
fully expose the broken pipe, shoveling
the
material
toward the vacuum tube for suctioning out
of the trench. (T. 91; Ex. C-20).
When a vacuum truck
became filled, the vacuum
tube
would be
disconnected
from the truck and then
attached to
the other vacuum
truck. (T. 713). When
the
vacuum was turned off to
make this
switch,
the backfill that
remained in the
vacuum
tube
would
spill
back into
the
trench. (T. 713-15).
-
An extension ladder was used in various locations in the excavation. (T. 87-88, 490; Exs. C-17, C-18). Town employees used the ladder when connecting the vacuum tube to a vacuum extraction truck. (T. 490). The ladder was not present in the
trenched lower portion of the excavation
when the TKC employees were
working in
it. (T. 87,
93,
282, 286, 490; Ex. C-20, C-23). -
While
the
TKC employees were working
in the trench, some of the
backfill from
the face of the
trench’s
sloped
north end
collapsed into the
trench. (T. 97, 132, 139-40). One
of the employees
egressed
the trench by
climbing up the
chain from which the trench box was suspended. The
backfill
submerged the other employee’s feet and
initially
immobilized
him, but he
freed himself
and egressed the trench
by traversing the
sloped
face of
the
trench’s north end
(the end opposite the excavator). (T. 97, 132, 139). Some of the
backfill that
collapsed
into the
trench
was removed before the TKC
employees reentered the
trench
to complete the
repair. (T. 140). -
The photograph at
Exhibit C-20
shows
the
two TKC employees working in
the
trench
prior to the
collapse. (T.
91-92, 275-76). The photograph at
Exhibit C-23
shows the employees
working in
the trench
after the
collapse. The
photographs
reflect the
collapse
having
altered the
slope
angle
and
the
consistency of the
surface of the
trench’s
north end. (T.
94, 96, 668-69). -
TKC employees
were able to
enter and exit the
trenched lower portion
under non-emergency conditions by traversing
either
of the
sloped ends.
(T. 489-90).
-
The sandy
backfill of
the
ends
of the trench
gave way
and slid down the
face of the slope
when
employees traversed it
while
entering
and exiting. (T. 489, 552-53). Soil
that
spilled
from
the
vacuum tube
added
more
loose granular
material to the
north end, as did the collapse of
backfill from that end. (T.
96,
489,
698-99; Ex. C-20, C-23). -
After the repair was complete, TKC backfilled the
trench
with
the previously excavated
material. (T. 137-38). The Town
then
backfilled the
remainder of the excavation,
finishing
after
midnight
(in the early morning hours of Sunday,
September 23, 2018). (T. 137-38;
Exs. C-14
&
C-15).
The OSHA Inspection
-
On Sunday, September 23, 2018,
OSHA
Compliance Officer (CO) Andy Reed
viewed
a photograph of
TKC’s
sewer repair
on
a
social media news feed. (T. 167). He
suspected the
photograph
depicted workers in an excavation without adequate cave-in protection, so he
forwarded the photograph to
his area office’s
acting area director (AD
Amy Phillips). (T. 167, 181). -
Within an hour of receiving the photograph,
AD
Phillips
traveled to the
Worksite
to find
the
excavation
closed and no workers
present. (T. 182-83; Ex. C-14).
AD Phillips
spoke with
the owner
of the residence at 815 Trottingham Drive, who later provided
her
with
photographs
the owner
had taken
when the excavation was open. (T.
150-53, 157-58,
187-88, 184-87, 227-28; Ex. C-14, C-15,
Ex.
C-16,
C-17, C-18, C-19). AD Phillips
instructed
CO Brian
Engelmann
to conduct an inspection and investigation, and
he formally
opened an inspection at TKC’s office on September 25, 2018. (T.
191,
272, 405).
DISCUSSION
The Commission
has
jurisdiction under section 10(c) of the Act.
29 U.S.C. § 659(c).
TKC
has employees and is engaged in
a
business
affecting
commerce. TKC
is thus an “employer”
as defined by section
3(5) of the Act. An employer, as defined by the Act,
must comply with
applicable
occupational safety and health standards promulgated under the Act.
29
U.S.C.
§§ 652(5)
& 654(a)(2).
The two citation
items allege violations of safety standards promulgated pursuant to section 6(b) of the Act.
29 U.S.C. § 655(b).
To establish a violation of
such a
standard, the Secretary must show by a preponderance of the evidence that: (1) the cited standard applies; (2) there was noncompliance with its terms; (3) employees
were exposed to or
had access to the violative conditions; and (4) the employer had actual or constructive knowledge of those conditions. Donahue Indus. Inc.,
20 BNA OSHC 1346, 1348 (No. 99-0191, 2003) ;
Atl. Battery Co. , 16 BNA OSHC 2131, 2138 (No. 90- 1747,
1994) .
Citation
Item 1 –
Section 19 26.651(c)(2)
–
Safe e gress
Item 1
alleges a violation of § 1926.651(c)(2), which provides:
(c)
Access and egress –– (1)
. . ..
(2)
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.
TKC
argues
that the earthen sloped faces of the two ends of the trench constituted ramps that met the requirements of the standard. This argument is rejected. The Secretary proved by a preponderance of the evidence that the earthen sloped ends of the trench were inadequate to provide reliably safe means of egress in emergency conditions.
Defined terms
relevant to the analysis
are
set forth in
§ 1926.650(b) of the
Excavations standard
and
are
as follows:
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…
.
Ramp
means an inclined walking or working surface that is used to gain access to one point from another, and is constructed from earth or from structural materials such as steel or wood.
Faces
or
sides
means the vertical or inclined earth surfaces formed as a result of excavation work.
Applicability of
the
Standard
Section 1926.652(c)(2) requires
an employer to provide
a safe means of egress
for employees working in
trench
excavations
four feet
or more in depth. The
standard applies regardless whether
the top of trench
is
at the earth’s surface or
below the earth’s surface
within a
larger
excavation.
The
trench
here,
dug on the floor of the upper excavation,
falls within the Excavation standard’s
definition
of
“trench.”
This
is consistent with
examples set forth in Appendix B, Figure B-1,
of the
Excavations standard,
which
reflect
sloping
systems for
excavations whose
faces
have multiple slope angles,
including
excavations with
“vertically sided lower
portions”
like the
trenched
lower portion of the excavation here.
The cited standard applies
to the trench
that THC
dug
within
the excavation
(i.e., below the earth’s surface).
TKC does not contend otherwise.
Non-compliance with
the Standard
The purpose of
§ 1926.651(c)(2)
is to “provide employees working down in a trench with a safe means of escape from the trench in case of an emergency.”
E.R. Zeiler Excavating, Inc. , 24 BNA OSHC 2050,
2057
(No. 10-0610, 2014)
citing
Occupational Safety and Health Standards—Excavations, 54 Fed. Reg. 45894, 45918 (Oct.
31, 1989) (to be codified at 29 C.F.R. pt. 1926). Such emergencies
“are not limited to cave-ins, but can include fires, medical emergencies, and flooding.” Id. ,
citing
Occupational Safety and Health Standards; Excavations, 52 Fed. Reg. 12288, 12293 (proposed
April 15, 1987) (to be codified at 29 C.F.R. pt. 1926).
As noted above,
TKC contends that
the
sloped
ends
of the
trench
were
ramps
that provided
safe means of
egress. An
earthen
ramp’s condition
is relevant to determining its adequacy as a
safe
means of
egress
in
an emergency. Joe Richter, Contractor, Inc. , 5 BNA OSHC 2072,
2078
(applying
former standard 29 C.F.R.
§
1926.652(h) (1975), which required
employers to provide
“an adequate means of exit”
for employees working in
a
trench four feet or more in depth,
and
stating that the egress “must be adequate for emergency escape as well as routine egress from the trench” and that
“when determining the adequacy of an earth ramp as a means of egress the condition of the ramp and its accessibility, as well as its slope, must be considered”).
The
soil at both ends of the
trench
was
previously disturbed soil and thus was
either Type B or Type C soil. 2 The
surface
of the
trench’s sloped
ends
was
granular
and
soft––not
conducive to
reliably providing
solid footing
in an emergency. Tom Kubricky described the soil as
sliding
down
the slope when a worker traversed it
for
routine ingress and egress. (T.
489-90).
The surface of the north end
became
even
more unstable
(a)
from
backfill that
spilled out of the vacuum tube
into the egress area,
and
(b)
from
backfill
that had
collapsed
into
the trench on that
end.
(Findings of Fact ¶¶ 23, 25, 28).
Egress via the sloped south face of the trench was partially obstructed by the excavator being positioned at the top of the
trench’s
south end. (Findings of Fact, ¶
22; Ex. C-20).
Neither end
of the trench
had a consistent
slope
angle. (Findings of Fact, ¶
21).
(Ex. C-20). The
lower
part
of the north end’s face
before the
backfill
collapsed
appears
to be
steeper
than the
upper
part
and
most likely
steeper
than 45 degrees. ( Compare
Ex. C-20
with Ex.
C-23). When
backfill
collapsed
into the trench
and
the employees needed to egress
quickly
(since they could not know whether there would be more
backfill
collapsing into the trench)
one
employee
became
temporarily immobilized in the material. 3 After freeing
himself,
he
egressed by traversing
some of
the
material that had
collapsed
into the trench’s
north end. The
other
employee
egressed by
climbing
up the chain
from which the trench box
was suspended
inside the trench. (Findings of Fact ¶
25). The
way
the two
employees
egressed
after the collapse
demonstrates
the
deficiency of the
trench’s
earthen
north and south
faces
in providing
a reliably
safe
means of
egress
in an emergency situation.
The
sloped earthen
ends of the
trench
were inadequate to provide
safe egress
in an emergency situation
due to their
uneven, soft, and granular surface,
irregular
slope
angles, and
the
obstruction
created
by the
position of the
excavator
at the south end. The Secretary established that
TKC
did not
comply with the safe egress requirement of § 1926.651(c)(2).
Employee Exposure
Two TKC employees, Forrest Kubricky and Bob Zabielski, worked
for more than two hours
in the
trench without
safe means of
emergency
egress. (T. 488-89). TKC’s president, Tom Kubricky,
was also exposed to this hazardous condition when
he
trekked to the bottom of the
trench. The
TKC employees were exposed to the
violative condition.
Employer
Knowledge
The Secretary must prove the employer either knew, or with the exercise of reasonable diligence could have known, of the violative condition.
Revoli Constr. Co ., 19 BNA OSHC 1682, 1684 (No. 00-0315, 2001).
The employer’s knowledge is directed to the physical condition that constitutes a violation.
Phoenix Roofing, Inc ., 17 BNA OSHC 1076, 1079-1080 (No. 90-2148,
1995) (citations omitted)
aff’d,
79 F.3d 1146 (5th Cir. 1996). Knowledge may be imputed to the employer “through its supervisory employee.” Am. Eng’g & Dev. Corp ., 23 BNA OSHC 2093, 2095 (No. 10-0359, 2012)
quoting
Access Equip. Sys ., 21 BNA OSHC 1400, 1401 (No. 03-1351, 2006).
Tom Kubricky was at the worksite directing the work. He
knew that TKC employees were working in the
trench,
and
he
had actual knowledge of
the
condition of
its sloped ends,
having
entered
the trench himself
via the north end. (T. 488-89). (Findings of Fact ¶
14). As TKC’s
president
and onsite supervisory employee, his actual knowledge
of the violative condition
is imputed to TKC.
Citation item 1 is affirmed. The Secretary proved the cited standard was applicable, the requirements of the cited standard were not met, TKC’s employees were exposed
to the violative condition,
and
that
TKC
had
knowledge of the
violative
condition.
Citation
Item
2
–
Section 19 26 . 652 ( a ) (1)
– Protection
from cave-ins
Item
2, as amended,
alleges a violation of
29 C.F.R. § 1926.652(a)(1), which provides:
(a)
Protection of employees in excavations.
(1) Each employee in an excavation shall be protected from cave-ins by an adequate protective system designed in accordance with paragraph (b) or (c) of this section except when:
(i) Excavations are made entirely in stable rock; or
(ii) Excavations are less than 5 feet (1.52m) in depth and examination of the ground by a competent person provides no indication of a potential cave-in.
The term
“protective system”
is
defined
in § 1926.650(b)
as follows:
Protective system
means a method of protecting employees from cave-ins, from material that could fall or roll from an excavation face or into an excavation, or from the collapse of adjacent structures. Protective systems include support systems, sloping and benching systems, shield systems, and other systems that provide the necessary protection.
The terms
“sloping system”
and “benching system” are
defined
in § 1926.650(b)
as
follows:
Sloping
(Sloping system) means a method of protecting employees from cave-ins by excavating to form sides of an excavation that are inclined away from the excavation so as to prevent cave-ins. The angle of incline required to prevent a cave-in varies with differences in such factors as the soil type, environmental conditions of exposure, and application of surcharge loads.
Benching
(Benching system) means a method of protecting employees from cave-ins by excavating the sides of an excavation to form one or a series of horizontal levels or steps, usually with vertical or near-vertical surfaces between levels.
The
Secretary
alleges
the
excavation lacked an adequate
protective system. The Secretary’s theory of
non-compliance
is that the excavation was more than 20 feet deep
and
its sloping system was not designed by a
registered professional engineer. Consequently, the excavation
did
not
meet
with the
requirement of the Excavations
standard that any
excavation deeper than 20 feet be designed by a registered professional engineer.
TKC’s theory of
compliance
is that the upper portion of the excavation and the trenched lower portion were
separate and distinct
excavations, each
less than
20 feet deep, and
that
the separate
excavations
each
met
the technical requirements of
§ 1926.652(b)(2)
(Option 2)
for
excavations
no deeper than 20 feet.
Applicability of
the
Standard
Unless
one of the
exceptions set forth in subparagraphs (i) or (ii) of § 1926.652(a)(1) applies, an employer must provide a protective system for its employees working in any excavation.
TKC does not contend that the exception of subparagraph (ii) has any application to any portion of the excavation here. But consistent with
its “two
excavations”
approach, TKC contends that no
protective system was required for the
trenched lower portion
because it
meets
the “stable rock” exception of subparagraph (i). (Resp’t Br. [revised] 5). This argument is rejected.
The term “stable rock” is defined in pertinent part to mean “natural solid mineral material that can be excavated with vertical sides and will remain intact while exposed….” § 1926.650(b). The soil at the sloped ends of the trench
was sandy and non-cohesive––it slid down the face when workers traversed it to enter and exit the trench. (T. 489;
Resp’t Rebuttal Br. 6). The
sloped ends of the
trench
failed to “remain intact while exposed,”
conclusively establishing that
the trench was not
“made entirely
in
stable rock” as the exception
requires. The
trenched lower portion
does not meet the requirements of the “stable rock”
exception of
§ 1926.652(a)(1)(i).
Non-compliance with
the Standard
Permissible
Sloping or Benching Systems under §
1926.652(b)
Paragraph (b) of § 1926.652
specifies
four options
for the design of sloping or benching systems that would
meet the requirement of paragraph (a) to provide an adequate protective system. 4
“ Two
excavation s ”
Approach
As noted above,
TKC’s theory of compliance is that the sloping system of the excavation’s upper portion met
Appendix B’s
requirements for excavations no deeper than 20 feet, and that the trenched lower portion
met Appendix B’s
sloping requirements for
“stable rock” for excavations no deeper than 20 feet.
TKC’s
“two
excavations”
approach
is rejected. Rather, the
greater
excavation must be regarded as a single excavation for purposes of determining
whether it conforms to the technical
sloping or benching requirements of
§ 1926.652(b). And because the greater excavation is deeper than 20 feet,
§ 1926.652(b)
does not permit layered portions of the excavation to be independently assessed against the technical requirements for sloping or benching systems under § 1926.652(b)(2) (Option 2).
The plain text of the Excavations standard does not permit the application of the standard in the manner that TKC argues. The standard defines the term “excavation” to be “any man-made cut, cavity, trench, or depression in an earth surface, formed by earth removal.” § 1926.650(b). Here, there were not two openings into the earth’s surface. Rather,
there was a single excavated opening
that had a
top-to-bottom vertical depth
that
varied from
about
20 to 27 feet.
In the standard’s
Appendix A,
titled “Soil Classification,”
addresses excavations
in
layered
soils . The term “layered system” is defined in paragraph (b) of Appendix A in relevant part as follows: “ Layered system
means two or more distinctly different soil or rock types arranged in layers….”
Paragraph (c)(4)
allows for individual classification of soils in layered systems under certain limited circumstances,
provid ing as follows : “In a layered system, the system shall be classified in accordance with its weakest layer. However, each layer may be classified individually where a more stable layer lies under a less stable layer.”
In t he standard’s
Appendix B ,
titled “Sloping and Benching,”
paragraph
( 4 )
provides: “(4) Configuration .
Configurations of sloping
and benching systems shall be in accordance
with Figure B- 1 . ” Figure B–1
includes
Figure
B – 1.4 ,
which is captioned
“ Excavations Made in Layered Soils . ”
Figure B–1.4
provides examples
of
excavations in layered soils
compl y ing
with paragraph (c ) (4) of Appendix A ,
declaim ing
first that
“ [a] ll excavations
20 feet or less in depth
made in layered soils shall have a maximum allowable
slope for each layer as set forth below ”
( e mphasis added) , and then conclud ing
that “[a]ll other sloped excavations shall be in accordance with the
other options permitted
in § 1926.652(b) . ”
Thus, although
under paragraph (c)(4) of Appendix A
individual classification of
layered soils
may
under certain circumstances
be permitted
for purposes of compliance with
technical
sloping requirements
of § 1926.652(b) ,
under Figure B– 1 . 4
of Appendix B
such individual classification
of layered soils
is not permitted for
excavation s
deeper than
20 feet .
E ven if the Excavations standard allowed the “two excavations” approach that TKC argues, neither the wide upper portion nor the trenched lower portion would me e t the technical requirements of any of the four options permitted by § 1926.652(b) , as discussed below .
Option 1
– –
§ 1926.652(b)(1)
Option 1
is set forth in
§ 1926.652(b ) (1) and
requires an excavation to be sloped no
steeper
than 34 degrees ( one-half
horizontal
to one
vertical)
and according to the configurations set forth in Appendix B . 5
TKC
does not contend that
any of the faces of the excavation were
as flat as
Option 1 requires
(34 degrees) .
In any event ,
a s set forth in
the excavation standard’s
Appendix B,
Figure
B – 1.3
( captioned
“ Excavations Made in Type C Soil ” ),
paragraph 1
thereof
provides that
the 34 degree slope permitted by Option 1 pertains only to
“ excavations
20 feet or less in depth,”
and paragraph 3
thereof
provides that
“[ a ] ll other
sloped
excavations
shall be
acco rdance with the other options permitt e d in
§ 1926.652(b)”
(i.e., Options 2, 3 or 4) .
29 C.F.R. Pt. 1926,
Subpt. P, App. B, Table
B-1 ,
Figure B – 1.3 , paras .
1 and 3 .
Figure B–1.3
in Appendix B
reflects
OSHA’s stated intent ,
articulated in
the preamble to the
E xcavations standard ,
t o
“require
the expertise of an engineer
in all cases ” involving excavations
deeper than 20 feet. 54 Fed. Reg. at 4 5 902
(emphasis
added ) .
The standard’s
A ppendix F, titled “Selection of Protective Systems,” als o
articulat es
this
i ntent,
stating as follows : “Protective systems for excavations more than 20 feet in depth must be designed by a registered professional engineer in accordance with § 1926.652(b) and (c)."
T he excavation did not meet Option 1’s requirements for a
protective
sloping or benching
system.
Option
2
-- § 1926.652(b)( 2 )
Option 2
requires
an
employer to configure sloping according to soil type
( as set forth in Appendix
A )
and the degree of slope for that soil type
( as set forth in Appendix
B ) . 6
Appendix B’s paragraph (c)( 2)
provides that the
“ maximum allowable slope for a soil or rock deposit shall be determined from Table B–1 of this Appendix. ”
Table B-1 is titled “Maximum Allowable Slopes.” 7
By its terms,
Table
B –1
provides slope angles for
excavations “less than 20 feet deep . ”
A s set forth in
footnote 3 to Table B –1,
the “sloping or benching for excavations greater than 20
feet shall be designed by a registered professional engineer .”
8 Table B–1 provides
in its entirety
as follows:
TABLE B-1
MAXIMUM ALLOWABLE SLOPES
SOIL OR ROCK TYPE
MAXIMUM ALLOWABLE SLOPES (H:V)
[ 1 ]
FOR EXCAVATIONS LESS THAN 20 FEET DEEP
[ 3 ]
STABLE ROCK
VERTICAL (90º)
TYPE A
[ 2 ]
3/4:1
(53º)
TYPE B
1:1
(45º)
TYPE C
1½:1
(34º)
NOTES :
- Numbers shown in parentheses next to maximum allowable slopes are angles expressed in degrees from the horizontal.
Angles have been rounded off.
- A short-term maximum allowable slope of 1/2H:1V (63º) is allowed in excavations in Type A soil that are 12 feet (3.67 m) or less in depth.
Short-term maximum allowable slopes for excavations greater than 12 feet (3.67 m) in depth shall be 3/4H:1V (53º).
3.
Sloping or benching for excavations greater than 20 feet deep shall be designed by a registered professional engineer.
29 C.F.R. Pt. 1926, Subpt. P, App. B, Table B-1.
TKC
suggests that Matthew
Yetto, the Town’s Superintendent of Water and Sewer,
is a registered professional engineer and that his involvement in the
sewer
repair met
the
standard’s
requirement
that
a registered professional engineer
design
the
sloping or benching
systems
for excavations
deeper
than 20 feet. (Resp’t Br. [revised] 4; Resp’t Rebuttal Br. 1-2).
Tom Kubricky testified that he believed Mr. Yetto was a registered professional engineer
(T. 455-56), although
he
did
not
explain
how he came to understand this. Mr. Yetto testified as part of the Secretary’s case in chief, and no one elicited any testimony from him respecting his
educational background or
professional credentials. Also, no one elicited any testimony from him about
whether he had a role in the design of the excavation’s protective system. Nevertheless, for purposes of analysis Mr. Yetto will be regarding as being a registered professional engineer in the state of New York.
Nothing in
Mr.
Yetto’s testimony
suggests
that he
assisted
TKC
in devising an
adequate protective system.
Rather, Yetto testified affirmatively that the Town did not provide TKC with any plans (T.
97), and Mr. Kubricky corroborated that
testimony.
(T. 456). Mr. Kubricky testified that TKC dug the excavation to conform to OSHA
requirements
as he understood
them
after decades of professional experience in
excavating. (T. 598-99).
Mr. Yetto did not
design the excavation,
provide an excavation plan to TKC,
or approve TKC’s scheme for a protective system,
either orally or in writing. (Findings of Fact
¶ 10). The excavation,
not having been designed by a registered professional engineer,
did not
meet
Option
2’s requirements for a protective system
for excavations deeper than 20 feet.
Returning to TKC’s “two
excavations”
approach, neither the upper
portion
nor lower
trenched
portion of the excavation, if assessed against the requirements of Option 2
as separate excavations not deeper than 20 feet,
would meet
Option 2’s
technical
requirements.
As regards the upper portion,
the
two long faces that paralleled the path of the sewer lines
shall be
deemed
as having
been constituted
of Type A soil and to have been sloped
no steeper than
53 degrees. 9 Accordingly, those
faces of the upper portion
would be
deemed to have
conformed to the
requirements of Table B-1
for
excavations no deeper than 20 feet in Type A soil.
However,
TKC acknowledges that
the soil at the
south and north
ends of the upper portion were constituted of previously disturbed soil (at the south end,
with the
backfill from the
1978 excavation;
and
at the north end,
with the
backfill from the 2012 excavation).
(Resp’t Rebuttal Br. 6, citing T. 466-67). Thus,
the soil on those ends had to have been either Type B or Type C soil
because it was previously disturbed. See
Appendix A of the Excavations standard, paragraph
(b)
(defining Type B soil to include
“[p]reviously disturbed soils
except those
which
would otherwise
be
classified as Type C soil.”).
For purposes of this analysis, the soil at the north and south ends of the upper portion will be
deemed to
have been Type B soil. Table B-1 of Appendix B
requires
the
slope
of an excavation
no deeper than 20 feet
in Type B soil to be no steeper than 45 degrees. Tom Kubricky
testified
generally
that the sides of the upper portion were sloped between 45 and 53 degrees (T. 468),
and
TKC
argues that the slope of the north end
“appear[s]
to be
about” 45 degrees based on the photograph at Exhibit C-24.
(Resp’t Br.
[revised]
5).
Even though there was no testimony regarding the slope
angle
of the
north end,
for purposes of analysis
it is deemed
to have been no steeper than 45 degrees and
thus
would
have conformed to the sloping requirement
prescribed by
Table B-1
for excavations
in Type B soil
no deeper than 20 feet.
TKC acknowledges that the slope of the
previously disturbed
soil of the
south
face
of the
upper portion
(nearest Whitney Drive)
was vertical or nearly
vertical. (Resp’t Rebuttal
Br.
6-7). TKC does not argue that the slope at the
south end
of the upper portion
conformed to Table B–1,
and indeed any such argument would
have no evidentiary support. However, TKC argues, in essence, that no employees were exposed to a cave-in hazard from that
nearly
vertical
face
because the excavator
was
“against the slope and there is no evidence in any photo
exhibit or testimony that workers were in this area.” (Resp’t Br.
[revised]
5).
This argument is rejected. Exhibit C-
20
reflects two TKC
employees (Tom Kubricky and the operator of the excavator, Scott Kubricky)
standing
at the edge
of the lower portion’s south end
near the
excavator’s
left track, while the other two TKC employees are in the trench
and inside the trench box that
is suspended from the
excavator’s
bucket.
The photograph also
shows
the rear of the excavator backed up to the
excavation’s
south face.
This evidence establishes that
for all four TKC
employees
it was
“reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger”
presented by the
previously disturbed soil of the upper portion’s nearly vertical south
face.
Briones Util. Co. , 26
BNA OSHC
1218,
1219
(No. 10-1372, 2016)
(finding
that an
employee working
in a trench that was only partially protected
from cave-in
had access
to
the
unprotected portion of trench). The upper portion of the excavation, viewed independently of
trench, did not meet the requirements of Table B-1, and would not have
met the requirements of Option 2
for an excavation no deeper than 20 feet.
With respect to whether the
trenched lower portion,
evaluated
as a
stand-alone excavation
not deeper than 20 feet,
would meet
the requirements of Table B–1, that argument fails
also. For purposes of analysis,
the long sides off the lower portion are assumed to have been constituted
entirely of stable rock. 10 But as
previously discussed, the
soil of the
sloped
ends of the trench could not be classified higher than
Type B, so under Table B-1 these slopes could be no steeper than 45 degrees. 11 The
photographs at Exhibits C-20 and C-23 depict two TKC employees working at the bottom of the lower portion
and
depict the sloped surfaces of both
the north and south ends. Even though the angles from which the photographs were taken make it difficult to discern with precision the
exact
slope
angle
of the ends
of the trench, the photographs are reasonably susceptible of the conclusion that
at least portions were
steeper than 45 degrees. Therefore, the sloped ends
of the lower portion
would
not meet the requirements of Table B–1
that
for
excavations
in Type B soil
no deeper than 20 feet,
the
face
be no
steeper than 45 degrees.
Option
3
-- § 1926.652(b)( 3 )
Option 3
requires
sloping
to be
done in accordance with tabulated data, such as tables and charts,
in
a
writing
that identifies
the
registered professional engineer
who approved the data. 12
There is no evidence that TKC
relied upon any tabulated data, and TKC does not contend otherwise. The excavation did not meet Option 3’s requirements for a protective system.
Option
4
-- § 1926.652(b)( 4 )
Option 4 requires
that if Options 1 through 3 are not utilized, a
registered professional engineer
must approve the benching and sloping systems used in an excavation. 13 As discussed in connection with Option 2,
TKC did not
use
a
written design that was approved by a
registered professional engineer. The excavation did not meet Option
4’s requirements for a protective system.
Permissible
Support Systems, Shield Systems and
O ther Protective Systems
un der § 1926.652( c )
An
employer
may
comply with the requirements of
the cited standard,
§ 1926.652(a),
by implementing one of the four options set forth at
29 C.F.R. § 1926.652(c). 14 TKC does not contend, and no evidence establishes, that the excavation conformed with any of the four options set forth in
§ 1926.652(c)(1)––(4). With respect to TKC’s use of the Town’s trench box
in the
trenched lower portion of the excavation, TKC
used
the trench box to protect the employees from
effluent coming from the broken pipe,
not to
protect the employees
from a cave-in. (Findings of
Fact ¶
22).
Accordingly, for the reasons described above,
the excavation did not meet the requirements of any of the options for an adequate protective system permitted under § 1926.652(a)(1). The Secretary established that TKC failed to comply with the cited standard
in the manner alleged.
The Worksite was a single excavation
deeper than 20 feet
without an adequate protective system,
and
TKC
thus failed to comply with the requirements of
§ 1926.652(a)(1).
Employee Exposure
and Employer Knowledge
All four
TKC employees
worked in the
non-compliant
excavation
and were
thereby
exposed to that
violative
condition.
Tom Kubricky was present
at the Worksite
throughout the repair project
supervising the
other TKC employees. As TKC’s president and onsite supervisory employee,
his
actual knowledge
of the violative condition of the excavation
is imputed to TKC.
The Secretary proved
all elements of his burden of proof respecting the alleged violation of § 1926.652(a)(1), and so citation Item
2
is affirmed.
Serious C lassification s
& Penalty A ssessments
The Secretary alleged
that
each citation item was serious in nature. The Act provides that a violation is serious i f there was a substantial probability that death or serious physical harm could result from the violative condition.
29 U.S.C. § 666(k);
Consol. Freightways Corp ., 15 BNA OSHC 1317, 1324 (No. 86-351, 1991).
“This does not mean that the occurrence of an accident must be a substantially probable result of the violative condition but, rather, that a serious injury is the likely result if an accident does occur.”
Oberdorfer Indus. Inc.,
20 BNA OSHC 1321, 1330-31 (No. 97-0469, 2003) (consolidated) (citation omitted).
Cave-in events, and the inability of a worker to egress from a trench excavation in an emergency, can result in death and serious physical injur y .
(T. 200-01, 206- 07).
Both citation items are properly c lassified
as serious.
“Once a citation is contested, the Commission has
the
sole
authority
to
assess penaltie s. ”
Valdak Corp. , 17 BNA OSHC 1135, 1138 (No. 93-0239, 1995) (citation omitted ),
aff'd ,
73 F.3d 1466 (8th Cir. 1996).
The
Commission owes no deference to the
Secretary ’s calculation of proposed penalties .
See
Hern Iron Works , 16 BNA OSHC 1619, 1621 (No. 88-1962, 1994).
Section 17(j) of the Act requires the Commission to give due consideration to four criteria in assessing penalties: the size of the employer's business, the gravity of the violation, the employer's good faith, and its prior history of violations.
Valdak , 17 BNA OSHC at 1138. The maximum penalty allowed for
the
two
serious violation s here
is $13,260
for each .
29 C.F.R.
§ 1903.15(d)(3) (2019) (setting forth
adjusted
maximum
civil
penalties
for penalties
that the
Secretary
propose s
after January 23, 2019). 15
For
I tem 1, the
safe
egress violation,
the Secretary propose s
a penalty of $2,772 . The Secretary
assess ed
t he gravity
of the violation
to be
“ moderate ”
( “ high severity ”
of
a
potential injury, but
“ lesser
probability ”
of
an
injury
occurring )
in calculating
a gravity-based penalty
amount . The Secretary reduced th at
figure
by
70% to account for TKC’s small size .
(T. 20 3-0 4 , 206 ; Ex. C-3 at 1 ).
The Secretary
made no adjustments to account for
good faith or
prior
history. (T. 205).
The undersigned
concurs with the Secretary ’s penalty calculation
for the egress violation , except that the Secretary’s
proposed penalty
is
reduced further by
approximately
10%
for prior history because
TKC
has not been previously cited for any violations . (T.
205). The penalty assessed
for item 1
is $2,500.
For Item 2
involving
the lack of
adequate
cave-in protection, the Secretary proposed a penalty of
$3,888. The
Secretary assessed the
gravity
of the violation to be
“ hi g h ”
( “ high severity ”
of potential injury, with
“ greater
probability ”
of injury occurring )
in calculating
a gravity-based penalty
amount . The Secretary again
reduced th at
figure
by
70%
to account for TKC’s small size . (T. 20 8 -0 9 ; Ex. C-3 at 4 ). The Secretary provided no adjustment for good faith or history. (T. 20 9-10 ).
The
undersigned concurs with the Secretary’s penalty calculation
for the cave-in protection violation , except
that
the
Secretary’s
proposed penalty
is
reduced
further
by
approximately
10 %
for prior history because
TKC
has not
been previously cited
for
any violations . (T. 2 10 ). The penalty assessed is $ 3 ,500.
ORDER
The foregoing decision constitutes findings of fact and conclusions of law in accordance with
Commission Rule 90(a)(1). 29 C.F.R. § 2200.90(a)(1). If any finding of fact is in actuality a conclusion
of
law
or
any
legal
conclusion
stated
is
in
actuality
a
finding
of
fact,
it
shall
be
deemed so, any label to the contrary notwithstanding.
Based upon the foregoing findings of fact and conclusions of law, it is ORDERED
that:
-
Item
1
of
the
Citation,
alleging
a
serious
violation
of
29
C.F.R.
§
19 26.651(c) ( 2 ),
is AFFIRMED ,
and a penalty of $2,500 is assessed. -
Item
2
of
the
Citation
as amended ,
alleging
a
serious
violation
of
29
C.F.R.
§ 19 26.652(a)(1) ,
is AFFIRMED ,
and a penalty of $3,500 is assessed. -
Item
3
of the Citation, alleging a serious violation of 29 C.F.R. § 19 26.652(c) ( 2 )( i ),
having been withdrawn by the Secretary, is VACATED .
__ /s/ _________
WILLIAM S.
COLEMAN
Administrative Law
Judge
Dated:
September 28, 2020
"
1
The transcript incorrectly
reflects the words
“pasted off . ” Mr. Kubricky actually said
“paced it off” at
page 535, line 8, when describing how he estimated the excavation’s length and width . ( See
Resp ’t
Rebuttal
Br.
3) .
2
Appendix A of the Excavations standard establishes a soil classification system for use in determining the adequacy of sloping or benching systems for protecting employees from cave-ins. Type B soil is defined to include “[p] reviously disturbed soils except those which would otherwise be
classified
as Type C soil .” 29 C.F.R.
p t.
1926,
s ubpt. P, App. A. , para. ( b ).
3
Whether the collapse of backfill into the trench
constituted a “cave-in” as that term is defined in the OSHA’s Excavations standar d was not litigated by the parties and is not adjudicated in this Decision. The term “cave-in” is defined in pertinent part to mean “the separation of a mass of soil or rock material from the side of an excavation … and its sudden movement into the excavation, either by falling or sliding, in sufficient quantity so that it could entrap, bury, or otherwise injure and immobilize a person.” § 1926.650(b).
4
Paragraph (b) of § 1926.652 provides:
(b)
Design of sloping and benching systems . The slopes and configurations of sloping and benching systems shall be selected and constructed by the employer or his designee and shall be in accordance with the requirements of paragraph (b)(1); or, in the alternative, paragraph (b)(2); or, in the alternative, paragraph (b)(3), or, in the alternative, paragraph (b)(4) ….
5
Option 1 is contained in § 1926.652(b)(1), which provides :
(1)
Option (1)—Allowable configurations and slopes.
(i) Excavations shall be sloped at an angle not steeper than one and one-half horizontal to one vertical (34 degrees measured from the horizontal), unless the employer uses one of the other options listed below.
(ii) Slopes specified in paragraph (b)(1)(i) of this section, shall be excavated to form configurations that are in accordance with the slopes shown for Type C soil in appendix B to this subpart.
6
Option 2 is contained in § 1926.652(b)(2), which provides:
(2)
Option (2 ) —Determination of slopes and configurations using Appendices A and B.
Maximum allowable slopes, and allowable configurations for sloping and benching systems, shall be determined in accordance with the conditions and requirements set forth in appendices A and B to this subpart.
7
Paragraph (b) of Appendix B defines the term “maximum allowable slope” to mean “ the
steepest incline of an excavation face that is
acceptable for the most favorable site
conditions as protection against cave-ins, and
is expressed as the ratio of horizontal
distance to vertical rise (H:V). ”
8 T he
Excavations
standard defines the term
“ R egis tered
P ro fessional
E ngineer ”
in
pertinent
part
to mean
“ a person who is registered as a professional engineer in the state where the work is to be performed….” 29 C.F.R. § 1926.650(b).
9
Mr. Kubricky
testified that he used an instrument to test the
soil of these
faces, and he determined i t
was Type A soil, meaning that TKC had excavated up to or beyond the
margins
of the original excavation in 1978 .
( T he backfill of the original excavation could not be classified as Type A soil as defined in Appendix A, paragraph (b) of the Excavations standard because it was “previously disturbed” soil). (T. 466-68, 500-03).
T here was no substantial evidence controvert ing
th is
testimony, so it is accepted as
accurate
for purposes of
the
analysis.
10
Mr. Kubricky
went in the trench at some point, and he
testified that
its vertical sidewalls were constituted entirely of stable rock. (T. 472, 483, 488). T here was no substantial evidence to controvert that testimony, so it is
deemed
true for purpo ses of analysis.
11
Considering Tom Kubricky’s description that when workers entered and exited via
a
sloped end ,
sand
s lid down
its face
(T. 489), and considering also that there was a collapse of material from the north end, it
seems very
likely the soil on the north end was actually Type C.
12
Option 3 is contained in § 1926.652(b)(3), which provides in relevant part:
(3)
Option (3)—Designs using other tabulated data.
(i) Designs of sloping or benching systems shall be selected from and be in accordance with tabulated data, such as tables and charts.
(ii) The tabulated data shall be in written form and shall include all of the following: . . .
(iii)
At least one copy of the tabulated
data which identifies the registered
professional engineer who approved
the data ….
13
Option 4 is contained in § 1926.652(b)(4), which provides in relevant part:
(4)
Option (4)—Design by a registered professional engineer. (i) Sloping and benching systems not utilizing Option (1) or Option (2) or Option (3) under paragraph (b) of this section shall be approved by a registered professional engineer.
(ii)
Designs shall be in written form
and shall include at least the following: …
(C) The identity of the registered professional
engineer approving the design.
14
Paragraph (c) of § 1926.652 provides:
(c)
Design of support systems, shield systems, and other protective systems.
Designs of support systems shield systems, and other protective systems shall be selected and constructed by the employer or his designee and shall be in accordance with the requirements of paragraph (c)(1); or, in the alternative, paragraph (c)(2); or, in the alternative, paragraph (c)(3); or, in the alternative, paragraph (c)(4) . . . .
15
In proposing penalties, t he Secretary us ed
as a starting point the lower maximum penalty of $12,934 for a serious violation for penalties proposed between January 2, 2018 and January 23, 2019, rather than the higher maximum of $13,260 permitted for penalties proposed after January 23, 2019. (T. 208; Ex. C-3 at 3). 29 C.F.R. § 1903.15(d)(3) (2018). The undersigned will also assess a penalty based on the same lower maximum figure.
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