ICG Electric, Inc.

Plain-English summary

ICG Electric installs underground lines and was working two excavations at an
intersection in Aurora, Colorado. Acting on a complaint from the Aurora Fire
Department, an OSHA compliance officer inspected the site and found employees in
unshored trenches roughly five and a half to six feet deep, in non-cohesive
Type C soil near a lane of heavy traffic. After some items were dropped or
reduced before decision, two contested items remained: a serious charge that
ICG's competent person never performed the required manual soil tests
(§ 1926.651(k)(1)), and a repeat charge that employees were not protected from
cave-ins by an adequate protective system (§ 1926.652(a)(1)).

Judge Benjamin R. Loye affirmed both. Operating a backhoe was not a recognized
substitute for the mandatory visual-plus-manual soil analysis, so the inspection
violation stood, and the $4,000 penalty was assessed after the judge found ICG
had scrapped a consultant-drafted safety plan and did not enforce its own rules,
outweighing any overstatement of accident probability. On the cave-in item, ICG
argued the trenches were effectively five feet under industry "field
tolerances," but the judge held the standard sets five feet as the fixed trigger
for protection and presumes a hazard once reached. Because ICG had twice before
been cited for the same standard under the same superintendent, the repeat
characterization was upheld and the $8,000 penalty assessed. Total: $12,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.651(k)(1) (serious), § 1926.652(a)(1) (repeat)
• Outcome: Both contested items affirmed; serious inspection item $4,000; repeat cave-in-protection item $8,000; total $12,000
• Key point: Required soil testing cannot be replaced by a foreman's backhoe "feel," and the five-foot trench-protection trigger has no industry "field tolerance"; a prior history of the same violation supports a repeat classification.

Full text (OSHRC public release)

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United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19

                                                                               Phone:(202)606-5400
                                                                                Fax:(202)606-5050

SECRETARY OF LABOR
Complainant,
v. 1NO.
OSHRC DOCKET
95-0166
ICG ELECTRIC, INC.
Respondent. I
)

                        NOTICE OF DOCKETING
                 OF ADMINISTRATIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Re ort in the above referenced case was

docketed with the Commission on Marc R 29, 1996. The decision of the Judge
will become a final order of the Commission on April 29, 1996 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 by the Executive Secretary on or before
April 18, 1996 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 d?.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occu.ational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419

Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO8.
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.

Date: March 29, 1996
DOCKET NO. 95-0166
NOTICE IS GIVEN TO THE FOLLOWING:

Tedrick House, Esq.
Re ional Solicitor
Of&e of the Solicitor, U.S. DOL
1210 City Center Square
1100 Main Street
Kansas City, MO 64105

Lindsay E. Fischer, Es uire
Colorado National Ba zk /Exchange
Buildin , Suite 519
6 South gr e’on Street
Colorado s’pring, CO 80903

Benjamin R. Lo e
Administrative I5 w Jud e
Occupational Safety an cf Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO tr0204 3582

00109568469 :08
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 N. Speer Boulevard
Room 250
Denver, Colorado 80204-3582

PHONE:                                                                                                     FAX:
COM (303) 8444409                                                                                          COM (303) 8444759
--w303)-                                                                                                   Frs (303) 8444759



                                                              i
  SECRETARY OF LABOR,                                         !
                          Complainant,
                                                              f
                               v.                              ; OSHRC DOCKET NO. 95-0166
                                                               I
  ICG ELECTRIC, INC.,                                         I!
                                                              I
                          Respondent.                         !I

APPEARANCES:

           For the Complainant:
                    Kayden B. Howard, Esq., Office of the Solicitor, U.S. Department of Labor, Kansas City, Missouri

           For the Respondent:
                    Lindsay E. Fischer, Esq., Colorado Springs, Colorado

Before: Administrative Law Judge: Benjamin R. Loye
,
DECISION AND ORDER

           This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section
65 1 et seq. ; hereafter called the “Act”).
           Respondent, ICG Electric, Inc. (KG), at all times relevant to this action maintained a place of

business at the corner of Mississippi and Chambers, Aurora, Colorado where it was engaged in
underground line installation. Respondent admits it is an employer engaged in a business affecting
commerce and is subject to the requirements of the Act.
On August 17, 1994 the Occupational Safety and Health Administration (OSHA) conducted an
inspection of ICG’s Aurora work site. As a result of that inspection, ICG was issued citations alleging
violations of the Act together with proposed [email protected] filing a timely notice of contest ICG brought
this proceeding before the Occupational Safety and Health Review Commission (Commission).
On October 25, 1995 a hearing was held in Denver, Colorado. At the hearing, the Secretary
withdrew item l(a) of the Complaint and reclassified item l(b) as a de minimis violation (Tr. 5). ICG
withdrew its notice of contest to item l(b) (Tr. 17). “Serious” citation 1, item 2, and “repeat” citation 2,
item 1, remain at issue. The parties have submitted briefs on the issues and this matter is ready for
disposition.
FACTS

    The relevant facts in this matter are undisputed. On August 17, 1994, pursuant to a complaint by

the Aurora Fire Department, Compliance Officer (CO) Mike Kelly inspected two ICG excavations at the
corner of Mississippi and Chambers in Aurora (Tr. 22-23). CO Kelly arrived at the job site a few minutes
after 8:00 a.m. (Tr. 24).
Kelly observed two ICG employees working in the excavation on the east side of Chambers, the
receiving pit (Tr. 26-27; see also, Stipulation of Facts #l 1). The receiving pit was five feet seven inches
deep on its south end, and six feet deep on the north, including a four inch layer of concrete sidewalk (Tr.
3 l-33; Exh. C-3, C-4). Cleveland Little, ICG’s foreman, agreed that the measurements were accurate..(Tr.
91). The east excavation had vertical walls and was unshored (Tr. 26). CO Kelly tested the soil from the
spoil pile, performing penetrometer tests and ribbon tests (Tr. 34-35). From those tests, Kelly determined
that the east excavation was dug in non-cohesive Type C soil (Tr. 36). Kelly also noted that portions of
the excavation were undercut, and that the excavation was located 10 to 12 feet from a traffic lane used
by large vehicles (Tr. 30,37; Exh. C-5).
ICG stipulated that one or more employees had been in the west excavation the morning of the
inspection prior to the CO’s arrival (Stipulation of Facts #lo). The west excavation, the boring pit, was
four feet, six inches deep sloping to five feet, six inches at the southwest comer (Tr. 40). By observation
and testing, Kelly determined that the boring pit was dug in Type C pre-disturbed soil (Tr. 41.42,44). At
the hearing, Foreman Little agreed that the soil in the excavation was Type C and had been previously
disturbed (Tr. 116). The boring pit was partially benched (Tr. 45), though Little knew that OSHA
regulations state that benching is not an adequate means of preventing cave-ins in Type C soil (Tr. 117).
Kelly testified that traffic passed within a few inches of the gutter side of the west trench (Tr. 43).
ICG stipulated that Harold Little was the “competent person” on site responsible for inspecting the
excavation and adjacent areas (Stipulation of Facts #9). Little visually examined the soil in the cited
excavations on the morning of the OSHA inspection, but did not perform any manual tests (Stipulation of
Facts #8). Little stated that he could tell from his operation of the backhoe that the excavations were stable
(Tr. 93,96). Little testified that further manual tests would have been a waste of time (Tr. 11 l), though
he was aware they were required by the standard (Tr. 123). At the hearing Little maintained that he felt
no vibration from traffic passing the worksite (Tr. 93). Little also testified that the excavations remained

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open 35-40 days after the OSHA inspection without any sloughing or other signs of deterioration (Tr. 94).
Michael Gilbreth, ICG’s owner, admitted, however, that %ny trench is a potential cave-in” (Tr. 200).
Alleged Violation of @1926.651(k)(l)

   Citation 1, item 2 alleges:

29 CFR 1926.65 1(k)( 1): An inspection of the excavations, the + adjacent areas, and protective systems was
not conducted by the competent + person prior to the start of work and as needed throughout the shift:

   a) At Chambers and Mississippi, Aurora, CO; Employees working in excavations boring holes
   under the roadway were exposed to possible cave-ins due to no inspections of the soil by a
   competent person.

   The cited standard provides:

   (k) Inspections. (1) Daily inspections of excavations, the adjacent areas, and protective systems
   shall be made by a competent person for evidence of a situation that could result in possible
   cave-ins, indications of failure of protective systems, hazardous atmospheres, or other hazardous
   conditions. An inspection shall be conducted by the competent person prior to the start of work and
   as needed throughout the shift. Inspections shall also be made after every rainstorm or other hazard
   increasing occurrence. These inspections are only required when employee exposure can be
   reasonably anticipated.

   Appendix A to subpart P further provides:

   0c . . .Each soil and rock deposit shall be classified by a competent person . . .. (2) Basis of
   classification. The classification of the deposits shall be made based on the results of at least one
   visual and at least one manual analysis. Such analyses shall be conducted by a competent person
   using tests described in paragraph (d) below, or in other recognized methods of soil classification
   and testing such as those adopted by the American Society for Testing Materials, or the U.S.
   Department of Agriculture textural classification system.

   Paragraph (d) describes acceptable manual tests and the soil characteristics that tests, in order to

be acceptable, must be designed to determine. Those characteristics include plasticity, dry strength,
unconfined compressive strength.
Discussion
ICG admits none of the manual tests described in Appendix A were performed on the day of the
OSHA inspection. Rather it suggests that it was justified in substituting the opinion of its foreman, Little,
for the required manual tests, because such tests would have provided no additional information. It further
suggests that Little’s operation of the backhoe constituted a “manual” examination.
 ICG’s arguments are rejected. The standards prescribe specific methods for the classification of
soils, and include a mandatory manual examination. The standard is performance based only to the extent
that an employer may substitute other “recognized methods of classification and testing” which provide
them with the required information. ICG failed to conduct any of the listed manual examinations, and
failed to establish that operating a backhoe is a “recognized method of classification and testing.” The
Complainant has established the violation.
ICG contests the proposed $4,000.00 penalty.
According to 5 17k of the Act, a violation is considered serious if the violative condition or practice
gives rise to a “substantial probability’+ of death or serious physical harm. The substantial probability of
death or serious physical harm required by the Act does not refer to the probability that an accident will,
in fact, result, but only that if the accident were to occur, there would be a substantial probability that death
or serious physical harm would result. Whiting-Turner Contracting Co., 13 BNA OSHC 2155, 1987-90
CCH OSHD 728,501 (No. 87-1238, 1989). CO Kelly testified that cave-in of the inadequately protected
excavations could have resulted in crushing injuries, internal injuries, broken bones, wrenched joints,
and/or possible death (Tr. 53). Kurt Schlegel, the Aurora firefighter who filed the OSHA complaint,
testified that he had been involved in rescue operations involving cave-ins in shallow excavations, and that
serious injuries were involved (Tr. 84). The violation was properly classified as serious.
In determinin g the penalty the Commission is required to give due consideration to the size of the
employer, the gravity of the violation and the employer’s good faith and history of previous violations.
The gravity of the offense is the principle factor to be considered. Nacirema Operating Co., 1 BNA OSHC
1001,1972 CCH OSHD ~15,032 (No. 4,1972).
ICG employs approximately 125 workers (Stipulation of Facts #4). The gravity of the violation
is moderate. Two employees were exposed to a risk of serious harm during boring operations on the 16th
and attempting to make the PVC connection on the 17th (Tr. 29,39-40). The probability of an accident
occurring may have been somewhat overstated, in that the excavations cited remained open for some time
following the OSHA inspection without signs of deterioration. Respondent has received five separate
OSHA citations during the last three years, which Raymond K. Nellor, assistant area director for the
OSHA, Englewood area office, deemed “very high” for the industry (Tr. 230). ICG’s demonstrated
attitude towards OSHA regulation shows an absence of good faith.
ICG failed to install trench protection in their excavations even though they were contacted by the
Aurora fire department and told a complaint would be filed with OSHA on the day preceding the

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inspection (Tr. 102, 114,233-2X)’ Moreover, Mike Gilbreth’s testimony establishes that ICG made little
effort to enforce OSHA regulations. Gilbreth testified that ICG had effectively scrapped a safety plan it
had drafted by a consultant two to three years ago as part of a settlement agreement with OSHA (Tr. 210).
Gilbreth stated that ICG could not fire employees for breaking rules in the safety manual if he wanted to
keep any employees at all (Tr. 207-208).
The undersigned finds that the demonstrated bad faith of the Respondent outweighs any
overstatement of the probability of an accident occurring, and that the post-facto longevity of the trench
cannot be used to justify KG’s failure to perform soil testing at the time the trench was excavated. The
proposed penalty is deemed appropriate and will be assessed.
Alleged Violation of 61926.652(a)(l)

    Citation 2, item 1 alleges:

29 CFR 1926.652(a)( 1): Each employee in an excavation was not protected from cave-ins by an adequate
protective system designed in accordance with 29 CFR 9126.652(c). The employer had not complied +
with the provisions of 29 CFR 1926.652(b)(l)(i) in that the excavation was sloped at an angle steeper that
one and one-half horizontal to one vertical (34 degrees measured from the horizontal):

    a) At Chambers and Mississippi, Aurora, CO; Employees working in excavations boring holes
    under the roadway were exposed to possible cave-ins.

1.C.G Electric was previously cited for a violation of this Occupational Safety and Health standard or its
equivalent standard 1926.652(a)( 1) which was contained in OSHA inspection number 109547976, citation
number 01, item number 02, issued on 07/10/92. I.C.G. was also cited for the same violation in OSHA
inspection number 109548487, citation number 02, item number 01, issued on 01/l 5/93.

    The cited standard states:

    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 (1.52 m) in depth and
    examination of the ground by a competent person provides no indication of a potential cave-in.

Discussion
The relevant facts, discussed above, are undisputed. Respondent’s only defense to this item is its
contention that the cited trenches posed no hazard to ICG employees. ICG maintains that, in the industry,

         ’ The undersigned finds that the testimony of Larry Modak of Trench Shoring Services was credible, in

that it was rendered by a disinterested party and supported by business records. Modak stated that ICG did not call
for trench boxes until 9:20 a.m. August 17, 1994, after the OSHA CO was on site.

                                                        5

“field tolerances” render a 5’4”trench the equivalent of a 5 foot trench. ICG argues that because the cited
excavations were the equivalent of five feet, any violation of the standard was de minimis, i.e., ICG’s
departure from the terms of the standard bore a negligible relationship to its employee’s safety or health,
The cited standard states that “[elach employee in an excavation shall be protected from cave-ins
by an adequate protective system. . .except when. . . [elxcavations are less than 5 feet in depth. . .. Five
feet is the depth certain, at which time protective systems must be installed. It is well settled that when
a standard prescribes specific means of enhancing employee safety, a hazard is presumed to exist if the
terms ofthe standard are violated. ClzjbrdB. Hannay & Son, Inc., 6 BNA OSHC 1335 (No. 15983,1978).
The cited standard presumes a hazard when an excavation reaches 5 feet in depth. Field tolerances are not
provided for. ICG may not substitute its judgment for the judgment of the drafters. The Complainant has
established the violation.
“Reseated” Characterization

    ICG stipulates that it was twice previously cited for violations of 0 1926.652(a)(l), in July 1992,

and January 1993. The first citation was not contested and became a final order of the Commission in July
1992. The second was cited as a (‘repeat” violation and was settled in June 1993 after OSHA amended the
citation to “serious.” (Stipulations of Fact, #s 12-13; Exh. C-15, C-16). Kenneth “Red” Majo& was the
superintendent in charge of both the previously cited work sites, and of the worksite involved in this action
(Stipulations of Fact #14).
ICG does not dispute the repeated name of the violations. The violation will be affirmed, and the
proposed penalty of $8,000.00 assessed.

1. Serious citation 1, item 2, alleging violation of 51926.651(k)(l) is AFFIRMED and a penalty
   of $4,000.00 is ASSESSED.

2. Repeat citation 2, item 1, alleging violation of $1926.652(a)(l) is AFFWUED and a penalty of
   $S,OOO.OO is ASSESSED.

Dated: March 22, 1996

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