Columbia Gas of Ohio, Inc.
Four trench items vacated, cave-in protection violation affirmed for $3,750
Apply this to your situation
This order from 1995 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
Columbia Gas of Ohio, Inc. sent an employee to weld a leaking gas line in an L-shaped excavation dug by an independent contractor in Columbus, Ohio. The Secretary withdrew one citation item before the hearing. Administrative Law Judge Michael H. Schoenfeld vacated the competent-person item because the contractor's trained foreman inspected the shared worksite and protected Columbia Gas's employee. He also vacated the training, access, and spoil-pile items because the evidence showed the welder could recognize trench hazards, workers used an earthen ramp, and the small amount of loose material did not establish an injury hazard. The judge affirmed the cave-in protection item because the 4.5-foot excavation lacked a protective system and the company did not prove the under-five-foot exception, given soil conditions, fissures, traffic vibration, and nearby spoil piles. He classified that violation as serious and assessed the uncontested $3,750 penalty.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.651(g)(2)(i), 1926.20(b)(2), 1926.21(b)(2), 1926.651(c)(2), 1926.651(j)(2), and 1926.652(a)(1).
- Outcome: Mixed. One item was withdrawn, four items were vacated, and the serious cave-in protection item was affirmed with a $3,750 penalty.
- Key point: A trench under five feet still needs cave-in protection unless a competent examination shows no cave-in indication; the employer claiming that exception bears the burden of proving it.
Full text (OSHRC public release)
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3419
Phone: (202) 606-5400
Fax: (202) 606-5050
1
SECRETARY OF LABOR )
Complainant,
V. 1NO.
OSHRC DOCKET
93-3232
COLUMBIS GAS SYSTEMS OF OHIO
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LA\N JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on August 11, 1995. The decision of the Judge
will become a final order of the Commission on September 11, 1995 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received b the Executive Secretary on or before
August 31, 1995 in order to ermit sud ‘cient time for its review. See
Commission Rule 91,29 C.Ep.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shah also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION
)fiii$g
LLGLJjK/Jf+
Date: August 11, 1995 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 93-3232
NOTICE IS GIVEN TO THE FOLLOWING:
Benjamin T. Chinni
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East .Ninth Street
Cleveland, OH 44199
Jenny L. Hi ’ Esq
Columbia F as of Oh&, Inc.
200 Civic Center Drive’
PO Box 117
Columbus, OH 43216
Michael H. Schoenfeld
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
00018176776:OS
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR, ..
Complainant,
v. Docket No. 93-3232
COLUMBIA GAS OF OHIO, INC., I
..
Respondent. .,.
.
.
.
APPEARANCES: Kenneth Walton, Esq.
Office of the Solicitor
United States Department of Labor
For Complainant
Jenny L. Higgins, Esq.
Columbia Gas of Ohio, Inc.
For Respondent
BEFORE: MICHAEL H. SCHOENFELD
Judge, OSHRC
DECISIONAlW ORDER
Background and Procedural History
This case arises under the Occupational Safety and Health Act of 1970,29 USC. 0 $ 651 -
678 (1970) (“the Act”).
Having had its work site inspected by a compliance officer of the Occupational Safety and
2
Health Administration, Columbia Gas of Ohio Inc. (“Respondent”) was issued one citation alleging
six serious violations of the Act. Respondent timely contested. Prior to the commencement of the
trial, the Complainant voluntarily withdrew Citation 1, Item 3, which alleged a violation of 29 C.F.R.
5 1926.65 l(g)(2)(1). Following the filing of a complaint and answer and pursuant to a notice of
hearing, the case came on to be heard on February 6 and 7,1995, in Columbus, Ohio. No a.f$ected
employees sought to assert party status. Both parties have filed post-hearing briefs.
Jurisdiction
Complainant alleges and Respondent does not deny that it is a natural gas distribution
company and that it is engaged in a business which affects commerce.
Accordingly, I conclude that Respondent is an employer within the meaning of 6 3(S) of the
Act.’ The Commission has jurisdiction over the subject matter and the parties.
Citation N o. I, Item la
29 C.F.R. $192620(b)(2)
The cited standard provides:
@O Accident prevention responsibilities.
* * *
(2) Such programs shall provide for frequent and regular
inspections of the job sites, materials, and equipment to be made by
competent persons designated by the employers.
Complainant alleges that Respondent ftiled to comply with the standard in that it failed to
have the Harmon Avenue work site inspected by a competent person. Respondent is engaged in the
distribution and retail sale of natural gas. It owns numerous underground pipelines. On October 4,
1993, a leak was reported in Respondent’s pipeline property located at 1271 Harmon Avenue,
1 Title 29 U.S.C. 8 652(5).
3
Columbus, Ohio. In response to the report, Respondent arranged for an independent contractor, C.J.
Hughes Construction Company (V.J. Hughes”) to repair the leak2. Respondent, consistent with its
usual practice, assigned one of its employees, Robert Cook, a Contract Inspector, to be present at
the site. During the course of C.J. Hughes excavating a trench to allow access to the leaking area
an unanticipated leak from a regulator was found, The trench was expanded and a certified welder,
Kenneth Cook, an employee of Respondent, was called in. The work site consisted of an L-shaped
trench. The first portion of the trench paralleled Harmon Avenue and measured between eight feet,
ten inches and nine feet in length. (Tr. 195, Ex. 23)3. The perpendicular portion of the trench
measured between eleven feet and twelve feet two and one half inches in length. (Tr. 134,195). At
its deepest point, the trench was four and one half feet deep. (Tr. 195). The parallel portion was dug
first to expose the main gas line in order to perform standard leak repair. It revealed a large leak in
an abandoned service line. The perpendicular portion was then dug to reach the leaking service line.
(Tr. 98-99).
Based upon OSHA’s receipt of a complaint, Compliance Officer Richard Burns (‘CO”)
investigated the Harmon Avenue site. (Tr. 241). Upon arrival at the work site the CO approached
Cook. Both the CO and Cook testified that Cook claimed to be the competent person, but that he
had not performed an inspection of the site. (Tr. 24-25,190). Thomas Febes, C.J. Hughes’ foreman
at the site, approached the two and indicated that he was the competent person on the site. (Tr. 52,
2 See, C.J. Hughes Construction Co., OSHRC Docket No. 93-3 177 (March 9,
1995)(ALJ); Commisison review pending.
3 References to the transcript of proceedings at the hearing are identified as “Tr.” and to
exhibits admitted into evidence at the hearing as “Ex.”
4
135, 246). The CO then interviewed Febes and completed a standard form entitled “Competent
Person Interview Schedule” describing his interview (Tr 191,267, Ex. 13) There is no evidence that
the CO completed any other such forms in regard to this inspection..
In support of this alleged violation, Complainant relies on the uncontroverted evidence that
Cook, who claimed to be the competent person on the site, admittedly did not perform any.
inspections. It is uncontroverted that Cook was not a “competent person” as that term is used in $
1926.20(b)(2). The standard, however, seems to assume that there is but a single employer at each.
work site and does not appear to take into account the rather common multi-employer work site.
Based on the unambiguous language of the standard, I conclude that it does not require each
employer on a multi-employer work site to have a competent person at the site. It is enough that an
individual at the site recognizes himself as the competent person and fulfills the duty of a competent
person in such a manner as to inspect conditions to which employees of any cited employer might
be exposed..
It is uncontested that Febes told the CO at the time of the inspection that he was the
competent person on the site. (Tr. 135,246). Febes testified that he performed visual inspectionsof
both portions of the excavation, that he took a random handful from the spoil pile of the parallel
excavation and determined the soil cohesiveness, prior to entering the perpendicular excavation and
performed a manual thumb penetration test while in the excavation. (Tr. 103-105,117-l 19). Febes
testified that during the visual inspections he considered water seepage, spoil or anything rolling in
due to traffic vibrations and fissures in the walls. (Tr. 125).
Respondent produced documentation that Febes attended training seminars pertaining to
competent person, trenching and shoring, soil analysis, and related training in CPR, first aid, fire
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control and protection, and blood borne pathogens. (Tr. 136-144, Ex. 46). Furthermore, Febes
testified that he conducted regular safety meetings with his employees covering several excavation
1
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safety and safe work practices topics. (Tr. 139-140, Ex. 47).
The Secretary claims in his brief that Febes performed no inspection of the perpendicular
excavation prior to the entrance of Cummins or himself because of the emergency created by the gas
leak. (Sec. brief p. 3-4)4. While Respondent produced no evidence that Febes performed any
manual soil tests on the perpendicular excavation prior to his own entrance, Febes testified that he
performed a manual thumb penetration test while he was in the trench, prior to Cummins’ arrival.
(Tr. 105-106). Complainant also states in his brief that Cummins’ testimony to the effect that he
took ten minutes to assess the excavation directly rebuts Febes’ testimony that the leak was
dangerous. (Sec. brief p 3-4). This argument is rejected since Cummins testified that the leak had
been plugged prior to his arrival. (Tr. 84).
The CO testified that he based his decision to charge Respondent with this violation upon
his observation that other hazards on the job site existed. He testified;
I felt that if a person were to be considered a competent person, the
things that I found coming on the site, such as the spoil pile too close
to the trench, the backhoe right up to the back of the trench. Also, the
not having a safe access out of the trench, along with vibration. I
didn’t feel that there were adequate precautions taken.
(Tr. 213). Complainant offers no other evidence, but rather relies on the existence of other alleged
hazards in order to show a violation. The mere presence of an alleged hazard, however, does not
establish a violation of the standard.
4 The failure of the Secretary’s brief to include any citations to the transcript of
proceedings does little to instill confidence in its statements as to the state of the testimonial
evidence.
6
I find that Febes was the competent person on the site and performed the requisite inspections
prior to Cummins’ entering the trench. In addition to a continuing visual inspection of both portions
of the trench, Febes performed two manual soil tests; one of them on the perpendicular trench which
Cummins later entered. Although Febes only performed a visual inspection of the perpendicular
trench prior to his own entry into the trench to plug the leak, the emergency created by the escaping
gas most likely outweighed the need for an additional soil test at that time. The mere fact that Febes
was an employee of C.J. Hughes does not render Respondent in violation of the cited standard
where, as here, an inspection was made by a competent person employed by another in such a
manner as to protect Respondent’s employee at the same site. I thus conclude that Respondent was
not in violation of the requirements of 29 C.F.R. $ 1926.20(b)(2). Citation 1, item la is vacated.
Citation No. I, Item lb
29 C.F.R. $1926.21(b)(2)
The cited standard provides;
b) Employer responsibility.
* * *
(2) The employer shall instruct each employee in the recognition and
avoidance of unsafe conditions and the regulations applicable to his
work environment to control and eliminate any hazards or other
exposure to illness or injury.
Complainant alleges that Respondent violated the standard in that it ftiled to provide safety
training or instruction concerning trenching and excavation to its welder?
The Compliance Officer testified that when he asked Cutnmins if he had received training
on how to ident@ potential trenching and excavation hazards, he replied that he had not. (Tr. 218.
219). The evidence, however, establishes that Respondent provided Cummins with formal training
5 The citation initially alleged that Respondent ftiled to provide training for its Contract
Inspector as well. The Secretary’s post-hearing brief, however, makes no allegation regarding
the inspector. That portion of the alleged. violation has thus been abandoned.
7
in trenching and shoring in 1975. (Tr. 70, Ex. 24).
Curnmins testified that he inspected the Harmon Avenue site for water seepage, traffic
vibrations and solidity of the banks prior to entering the trench. (Tr. 76). Additionally, at the hearing
Cummins was able to state what hazards he should be concerned about as a welder under the
Harmon Avenue conditions and why. (Tr. 81). Finally, Cummins testified that in prior situations
where he had safety concerns about his work environment, he insisted upon some type of protective
system being installed. (Tr. 8 l-82).
The Secretary relies solely on the fact that Cummins received his formal training twenty
years ago in order to establish a violation. The cited standard, however, makes no mention of
refresher training or the frequency of training. Additionally, while the standard does require
instruction regarding the regulations applicable to an employee’s work environment, the fact that the
standards were revised after Cummins received his formal training is not, on its own, enough to
establish a violation. The training that is important to a welder, such as Cummins, is not instruction
on how to slope and shore, but rather “the recognition and avoidance of’ hazards. The Secretary has
failed to show that the hazards Cummins should have been trained to recognize and avoid under the
old regulations are any different from the hazards under the new regulations. The Secretary has ftiled
to meet his burden. Citation 1, item lb, is vacated.
Citation No. 1, Item 2
29 C.F.R. f 1926.651(c)(2)
The cited standard provides:
(c) Access and egress
* * *
(2) A stairway, ladder, ramp, or other safe means of egress shall be
located in trench excavations that are 4 feet (1.22m) or more in depth
so as to require no more than 25 feet (7.62m) of lateral travel for
employees.
In order to perform the leak repair on the main line, Febes, operating a backhoe, excavated
an approximately nine foot long trench parallel to Harmon Avenue. He testified that while
excavating the main line he encountered an unanticipated leak on the service line which was
8
releasing natural gas under rather high pressures. (Tr. 98 - 99). Febes then excavated the service line
which ran perpendicular to Harmon Avenue. (Tr. 99). He testified that he created a ramp at the far
end of the service line excavation. He stated that he did not tamp down the earthen ramp, but that
this was not necessary because of the method by which he dug it out.
I don’t believe I tamped it, I believe it was just a cut into -- by not
moving too much dirt is just the same as tamping it, you don’t -- it is
undisturbed soil. I had been digging a couple inches off the top at a
time.
(Tr. 153). Febes testified that he intended the ramp to be used as an entrance and an exit by all
employees and that he entered and exited the trench via the ramp with no difficulty. (Tr. 162-163).
Cummins also testified that he entered the trench via the ramp! (Tr. 79).
The CO arrived at the excavation after the gas leak had been brought under control. (Tr. 84,
220). He testified that he observed Cummins in the trench. The CO also testified that he did not
observe any type of safe access out of the trench and that at the time of the inspection he did not
consider the ramp to be an access to the trench, although at the hearing he acknowledged that it was
possible that the ramp could be used as an access. (Tr. 220-221).
I find that the ramp was an access to the trench. The CO acknowledged it as such and Febes
and Cummins used it to enter and exit the trench. The issue is whether it could be used safely.
The CO testified that he felt the ramp was not a safe access because the backhoe was placed
squarely at the top of the ramp. (Tr.209). He stated that the backhoe stabilizers were between one
and one half and two feet from the edge7 and that he felt that the employees would have to climb
over them in order to get out. (Tr. 198, 221-222). Febes testified that the backhoe created no
obstruction to his ability to enter or exit the trench. (Tr. 130). Cummins testified that no portion of
the backhoe obstructed the ramp’s entrance. (Tr. 79-80).
The CO also believed that the ramp was unsafe because it did not extend all the way to the
6 Cumrnins testified that he used the ramp to enter the excavation, but was uncertain how
he exited. (Tr. 79). The CO testified that he saw Cummins crawl out of the excavation over the
top of the trench. (Tr. 249).
7 Although the CO was trained to take and record measurements, he failed to do so in
regard to this alleged violation. (Tr. 2330234,268-269).
’ .
.
.
,
L L
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top of the trench; requiring employees to step up in order to exit. He described a “straight cut down
from the top of the trench to the top of the ramp” which created a one and one half to two foot step
in order to exit the trench. (Tr. 221).
Respondent asserts that CO mistook the bucket cut of the service line excavation for the
earthen ramp. Febes testified that the bucket cut was not part of the ramp but that the ramp was
adjacent to the bucket cut. (Tr. 122,153, Exs 1,7). Furthermore Febes testified that he did not recall
there being a step at the top of the ramp and that he exited via the ramp with no difficulty and in an
upright position. (Tr. 130).
The CO also testified that he considered the proximity of the spoil pile to the top of the ramp
as part of the hazard in issuing the citation! He stated that an employee stepping out of the trench
might step into the loose soil on the edge of the pile, slip and fall back into the trench. (Tr. 221).
Febes contradicted the CO, testifying that he was able to use the ramp without slipping or sinking.
(Tr. 130).
The Secretary relies on the CO’s assertions that the backhoe and a spoil pile blocked the top
of the ramp and that there was a one and one half to two foot step from the top of the ramp to the top
of the trench.g
The CO’s testimony that the employees would have to climb over the backhoe stabilizer in
order to exit appears to be pure supposition. He took no measurement of the distance between the
stabilizer and the top of the ramp. He did not attempt to enter or exit the trench via the ramp, nor
did he witness anyone else enter or exit via the ramp. Additionally, his testimony is contradicted by
the testimony of Febes and Cummins, the two individuals who used the ramp, that the backhoe did
not obstruct access to or from the trench. Although the CO testified that he went back to the area
where the backhoe and the top of the ramp were located, (Tr 269), he acknowledged that he had a
responsibility to measure the distance between the backhoe and the ramp, as well as the distance
* The CO apparently did not measure the distance from the spoil pile to the top of the
ramp.
g The Secretary in his post hearing brief stated that the CO felt the ramp could not be
used safely because it was too steep. The Secretary cites no portion of the transcript where the
CO indicated that this was his opinion, nor could any be found.
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between the spoil piles and the ramp. He did not do so. The CO’s supposition alone is not sufficient
to prove a violation of the standard- The Secretary failed to establish that the backhoe or the spoil
pile blocked or to any substantial degree impeded access to the ramp.
Since Complainant has offered no reliable testimony to the contrary, I find that the ramp was
configured in accord with the testimony of Febes; that it did not include the bucket cut above the
service line, but was located adjacent to it. Although there might have been a straight cut from the
top of the trench above the bucket cut of the service line identified by Febes, (Ex. l), it is impossible
to determine from any of the photographs if a step is located at the top of the ramp. The Secretary
offered no other evidence to show that a one and one half foot step was necessary to exit via the
ramp. The Secretary has not met his burden of proof. Citation 1, item 2 is vacated.
Citation No. I, Item 4
29 C.F.R. $1926.6.51@(2)
The cited standard provides:
(i) Protection of employeesfiom loose rock or soil.
* * *
(2) Employees shall be protected from excavated or other materials
or equipment that could pose a hazard by falling or rolling into
excavations. Protection shall be provided by placing and keeping
such materials or equipment at least 2 feet (.61 m) from the edge of
excavations, or by the use of retaining devices that are sufficient to
prevent materials or equipment from falling or rolling into
excavations, or by a combination of both if necessary.
The CO testified that during his inspection of the Harmon Avenue site he observed two spoils
piles; one directly behind the L-shaped point on the northwest side of the trench and the other on the
opposite side. (Tr. 222). He further testified that both piles were within two feet of the edge of the
excavation and that neither was retained in any way.” (Tr. 223). The CO also testified that he
observed a small amount of roll-in, three or four shovels full, trickle into the excavation from the
lo CO did not measure the distance from the spoil piles to the edge of the excavation or
the dimensions of the piles. (Tr. 272-273).
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northwest spoil pile and less from the other pile. (Tr. 279).
Cook, Cummins and Febes all testified that they did not observe any material Tom the spoil
piles fall into the excavation. (Tr. 62,80, 126). Cook testified that both spoil piles appeared to be
within a foot of the trench. (Tr. 61-62). Febes testified that the southeast spoil pile was at least one
and one half feet from the edge of the excavation, but was unable to say exactly what the distance
was. (Tr. 111).
The CO testified that he based his recommendation for issuance of the citation on his belief
that the added weight from the spoil piles might cause a cave-in. (Tr. 224). However, 8 1926.651
(j)(2) does not encompass such a hazard. CJ: Secretary v. Flint Engineering and Construction Co.,
15 BNA OSHC 2052,2056-2057 (No. 90-2873,1992). The standard is concerned with “material
... that could pose a hazard by falling or rolling into excavations.” The standard permits the use of
retaining devices to prevent such rolling or falling materials. If the standard were directed at the
hazard of cave-in caused by added weight, retaining devices would not alleviate it, but would likely
aggravate the cave-in hazard by concentrating additional weight on the excavation’s side.
The secretary relies on the CO’s assertion that the spoil piles were less than two feet from
the edge of the excavation and his observation of a small amount of material from the spoil piles
trickling into the excavation to establish a violation. This is insticient. The small volume of
material that CO observed falling into the excavation did not place employees in danger of physical
harm and thus does not constitute a hazard within the contemplation of the standard. To make a
prime facie case under this standard, the secretary must present at least some specific rationale to
believe that enough material from the spoil piles could fall into the excavation so as to cause some
injury to those in the trench. He has not. The secretary has failed to meet his burden and citation
1, item 4 is vacated. .
Citation No. I, Item 5
29 C.F.R. f 1926.6.52(a)(I)
The cited standard 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
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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.
~In general, to prove a violation of a standard, the Secretary must demonstrate by a
preponderance of the evidence (1) that the cited standard applies, (2) non-compliance with the terms
ofthe standard, (3) employee exposure or access to the hazard created by the non-compliance, and
(4) the employer knew or, with the exercise of reasonable diligence, could have known of the condi-,
tion. Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126’2129 (No. 78-6247,198 1); Dun-Par
Engineered Form Co., 12 BNA OSHC 1949 (NO. 7992553), rev’d & remanded on other grounds,
843 F.2d 1135 (8th Cir. 1988)’ decision on remand 13 BNA OSHC 2147 (1989). It is undisputed
that the standard applies to the cited conditions. It is uncontested that the Harmon Avenue
excavation was not sloped and that no shoring, sheeting, bracing or a trench box was installed. The
Harmon Avenue site consisted of an excavation. There is sufficient evidence that Columbia Gas
employees were exposed to the cave-in hazard. All the witnesses testified that Respondent’s welder,
Cummins entered the excavation. Additionally, Respondent had constructive notice of the conditions
at the excavation. “The actual or constructive knowledge of an employer’s supervisor can be
imputed to the employer.” Secretary v. A.P. O’Horo Co., 14 BNA OSHC 2004,2007 (No. 85-369,
1991). Cook testified that he was in charge of the location and that C.J. Hughes’ foreman Febes
reported to him. Cook further testified that as the Columbia Gas Contract Inspector at the Harmon
Avenue site he represented Columbia Gas, had authority to require C.J. Hughes to address safety and
health issues and the authority to stop the work if he found any violations. (Tr. 57, 29-30, 3 13).
Thus, Respondent’s employee Cook was in a supervisory position at the Harmon Avenue site. He
was present the entire time the trench was open, (Tr. 15)’ he had training in recognizing trenching
hazards and he actually entered the trench. (Tr. 22). Even if Cook did not have actual knowledge
of the violation, he had constructive knowledge and his knowledge is imputed to Respondent. AU
the elements of the alleged violation have been shown.
An exception to these protective system requirements is permitted when
. the excavation is
less than 5 feet in depth. Since 6 1926.65 1 (a)( l)(ii) allows an exception to the requirements of the
13
standard, the burden is on the Respondent to show that the exception applies. Secretary V. Falcon
Steel Co., 16 BNA OSHC 1,179,1181 (NOS.89-2883 and 89-3444, 1993). It is uncontested that the
trench’s maximum depth was less than 5 feet. Thus Respondent must show that upon inspection of
the ground by a competent person there was no indication of a possible cave-in.
Febes testified that during his inspections of the site he found no water seepage, spalling or
fissures. (Tr. 125-127). He found the walls of the trench to be “pretty stable”, with “no crumbs”. (Tr.
113). He classified the soil as type C as dictated by Respondent’s policy. (Tr. 127). He further
testified that there was no vibration from the traffic on Harmon Avenue, but stated that the traffic
was medium to heavy and included truck traffic. (Tr. 112).
The CO agreed in his testimony there was significant trafEc along Harmon Avenue and that
it included truck traffic. He testified that the traffic
was within two to three feet of the excavation
and, although he never entered the trench, he stated that he felt vibrations from the trtic . (Tr. 207).
The CO determined that the soil was type C, with a high content of sand and gravel. (Tr. 198). He
was unable to perform either a torvane shear test or a pentrometer on the soil in the @oil piles
because he was unable to locate a clod of dirt. (Tr. 207). The CO testified that these factors indicated
that the soil was not cohesive. The OSIIA Technical Center’s report, however, indicated that the
soil was actually type B. The report indicated that the soil had a high gravel and sand content, but
that the soil was cohesive. (Tr. 205,260, Ex. 12). The report also indicated that the soil was fissured.
(Tr. 205, Ex. 12).
Looking at the evidence in a light most favorable to Respondent I find that Respondent has
failed to show that there was no indication of a potential cave-in. Fissured, type C soill*, which was
possibly subject to some vibrations from passing truck tra& and to the uncertain effects of the near-
by spoil piles were indications of possible cave-in.
Accordingly, Respondent was in violation of the standard at 29 C.F.R. 6 1926.652 (a)(l).
Citation No 1, item 5 is affirmed.
The violation was alleged to be serious under $ 17(k) of the Act, 29 U.S.C. $ 666(k). A
I1 Although the Technical Center determined that the soil was type B, using this
classification in considering whether there was a violation would be counterproductive to
Columbia Gas’ wise and cautious policy of classifying all soils as type C.
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violation is serious where an accident is possible and there is substantial probability that death or
serious physical harm could result from the accident. Secretary v. Dravo Corp., 7 BNA OSHC 2095,
2 101 (No. 163 17, 1980)’ pet. for review denied, 639 F.2d 772 (3rd Cir. 1980).
The “incidence of cave-ins is high and the likelihood of death or severe injury to employees
in a collapsing trench is also high.” Secretary v. CaZangCorp., 14 BNA OSHC 1789,1794 (No. 85.
03 19,1990). Although, while a cave-in would have been unlikely to completely cover an employee
standing erect in a four and one half foot deep trench, the employee would have been likely to stier
serious physical harm. Moreover, if the employee had been in a bending position, it is likely he
would have been fully covered with soil. Cornell and Company, Inc., 7 BNA OSHC 1598, 1602
(No. 78-2723, 1979). Consequently, the violation was serious. The proposed penalty, $3,750, is
uncontested.12 Accordingly, it is assessed.
. F%NDINGSOF FACT
.
n= i*
rmamgs of fact relevant and necessary for a determination of all issues have been made
above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent
with this decision are hereby denied. -
CONCLUSIONS OF LAW
1. Respondent was, at all times pertinent hereto, an employer within the meaning of 6
3(5) of the Occupational Safety and Health Act of 1970,29 U.S.C. $8 651-678 (1970).
2. The Occupational Safety and Health Review Commission has jurisdiction over the
parties and the subject matter.
3. The Secretary failed to establish that respondent was in violation of the standard at 29
C.F.R. 6 1926.20(b)(2).
4. The Secretary failed to establish that respondent was in violation of the standard at 29
l2 Tr. 6-7.
15
C.F.R. 6 1926.2 1(b)(2).
5. The Secretary failed to establish that respondent was in violation of the standard at 29
C.F.R. 9 1926.65 1(c)(2).
6. The Secretary failed to establish that respondent was in violation of the standard
at 29 C.F.R. 5 1926.651(j)(2).
7. The Secretary established that respondent was in serious violation of the standard
at 29 C.F.R. 1926.652(a)(l).
ORDER
1. Items 1,2 and 4 of Citation No. 1 issued to Respondent on or about November 5, 1993,
are VACATED.
2. Item 5 of Citation No. 1, issued to Respondent on or about November 5, 1993 is
AFFIRMED. A civil penalty of $3,750 is assessed therefor.
Judge, OSHRC
Dated: August 10, 1995
Washington; D. C.
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