A.M.C.C. Corporation, Inc.

Plain-English summary

A.M.C.C. employees worked in a detention-tank excavation with an inadequately sloped wall and a large spoil pile at the edge. Project representatives repeatedly warned the superintendent, issued a stop-work order, and contacted company management, but employees resumed work before adequate corrections were made. The judge found that the Type B soil required a 45-degree slope, while OSHA measured the west wall at 53 degrees and found a nearly vertical section where employees worked. The willful classification was supported by the company's prior sloping decision, repeated warnings, and the superintendent's statement that further sloping would require a permit and delay the job. The cave-in-protection item was affirmed as willful with a $44,000 penalty. The spoil-pile item was affirmed as serious with a $3,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.651(j)(2); 29 C.F.R. § 1926.652(a)(1)
• Outcome: Both excavation citations were affirmed, with total penalties of $47,000.
• Key point: Continuing excavation work after repeated hazard warnings and a stop-work order supported a finding of intentional disregard and plain indifference.

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

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 96-0080
:
A.M.C.C. CORPORATION, INC., :
:
Respondent. :

APPEARANCES:

   Esther Curtwright, Esquire                     Ronald G. Dunn, Esquire
   New York, New York                             Albany, New York
   For the Complainant.                           For the Respondent.

Before: Chief Judge Irving Sommer

                                DECISION AND ORDER

   This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”) inspected
an excavation that was part of a construction project in Brooklyn, New York, on July 21, 1995, after
a complaint the excavation was inadequately sloped; as a result, Respondent A.M.C.C. (“AMCC”)
was issued a serious citation alleging a violation of 29 C.F.R. 1926.651(j)(2) and a willful citation
alleging a violation of 29 C.F.R. 1926.652(a)(1). AMCC contested the citations, and the hearing in
this matter was held on October 29-30, 1996. Both parties have filed post-hearing briefs.
Background
The subject project was an addition to a school building. The New York City School
Construction Authority (“SCA”) awarded the primary contract to AMCC, and the project, called PS
244, was begun in November 1994. SCA had a project officer and a trailer on the premises, and URS
Consultants (“URS”), which also had an office on the premises, provided construction management
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services at the site. Before starting the job, AMCC employed a structural engineer to examine the
contract documents and facilitate the securing of the necessary permit from the City of New York
Department of Buildings; the engineer determined that “one-to-one” or 45-degree sloping was
appropriate for the project’s excavations based on soil borings taken from the site, and AMCC, SCA
and URS representatives agreed with this determination at a December 1994 meeting.
On July 21, 1995, AMCC was working in an excavation in which a detention tank was to be
installed. Rafique Rahman, the acting project manager for URS that day, observed two AMCC
employees working in front of the west wall of the pit shortly after 8:00 a.m.; the wall appeared to
him to be nearly vertical, and the excavation, based on his measurement, was about 11 feet deep.
Rahman advised Robert Rusy, AMCC’s project superintendent, that the pit was a hazard and needed
to be corrected. The situation was the same when Rahman returned about twenty minutes later, and
he gave Rusy written notice that if it was not corrected work would be stopped; Rusy gave the notice
to Chad Hershman, AMCC’s quality control officer, who was also present. The condition remained
unchanged, and at 10:15 a.m. Rahman gave Hershman a “stop work order” pursuant to the
instruction of Ted Chandler, SCA’s on-site project officer, who also discussed the excavation with
Rusy. Rusy removed the employees and phoned Charles Marino, AMCC’s president, after which the
employees resumed working in the pit. Chandler phoned SCA and then tried to call Marino himself,
and, after being unable to reach him, spoke with AMCC office manager Everett and asked him to tell
Marino to remove the employees immediately because the excavation was unsafe; Chandler also
spoke with Stan Petrow, SCA’s chief project officer, who in turn called Marino, and Chandler, on
the instruction of Jay Moneta, SCA’s safety engineer, called OSHA.
OSHA compliance officer (“CO”) Robert Stewart arrived about 2:00 p.m., by which time
some adjustments had been made to the sloping. The CO saw two employees working in the
southwest corner of the pit in view of Rusy, and the employees exited the pit on the CO’s request,
after which Rusy, and later Hershman, approached; the CO knew both of these individuals due to his
prior visit to the site in February 1995. The CO told Rusy why he was there, and Rusy responded
that the walls were adequately sloped; however, when the CO asked about the west wall, Rusy
indicated it could not be sloped further due to the sidewalk and fencing next to the wall. The CO also
asked Rusy if he knew what type of soil was at the site and Rusy replied he did not. CO Stewart then
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measured the pit, which was approximately 45 feet long by 40 feet wide and 10.5 feet deep, and the
west wall slope, which he found to be 53 degrees; he also noted that in the corner where the
employees had been the wall was almost vertical for the first 7 feet, that the spoil piles on either side
of the west wall were both about 12 feet high, and that the one above the area where the employees
had been was on the edge of the excavation. The CO tested the soil from the other pile, which Rusy
told him was from the excavation, using a penotrometer and a torvane and determined it was Type
C; however, he also took samples from the pile and sent them to the OSHA lab in Salt Lake City for
analysis, and based on C-19, the results, the soil was actually Type B. C-1-5 are photos of the pit
Rahman took that morning, C-6 is a photo he took after the CO’s arrival, and C-11-15 are photos
of the pit taken by the trainee accompanying CO Stewart. C-7-8 are Rahman’s notices to Rusy.
Willful Citation 2
This citation alleges a violation of 29 C.F.R. 1926.652(a)(1), which requires employees in
excavations over 5 feet deep to be protected from cave-ins by appropriate sloping or other means.
Table B-1 in Appendix B to Subpart P, OSHA’s excavations standard, sets out the following
maximum allowable slopes for the various soil types:
Stable Rock Vertical (90 degrees)
Type A 3/4:1 (53 degrees)
Type B 1:1 (45 degrees)
Type C 1 1/2:1 (34 degrees)
The parties have stipulated that the OSHA lab results show that the soil taken from the site
was Type B, and CO Stewart testified Robert Rusy told him that the spoil pile from which he took
his samples came from the subject excavation. (Tr. 138-39; 154; 171-73). Further, as noted above,
Dr. Farid Noorai, the structural engineer AMCC employed before beginning the job, determined one-
to-one or 45-degree sloping was appropriate, and AMCC, SCA and URS agreed with this
determination at a December 1994 meeting. (Tr. 98-102; 161-62; 184-94; 296-301). AMCC should
consequently have been using 45-degree sloping in the subject excavation. However, CO Stewart
testified that when he measured the west wall slope it was 53 degrees. (Tr. 145-47). Rusy testified
he believed the west wall was sloped one to one. (Tr. 256-57; 263-64; 270). Regardless, the only
evidence of measurement of the west wall slope, which AMCC did not rebut, was that of the CO.
I find, therefore, that the west wall was in fact sloped at 53 degrees at the time of the inspection.
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    AMCC contends the west wall was adequately sloped based on the testimony of Dr. Noorai.

Dr. Noorai testified his initial determination was based on soil borings taken from the site and soil
reference books; he also visited the job monthly up to the time of the inspection, which confirmed his
determination. Dr. Noorai further testified he took soil from the upper part of the west wall in
December 1995, after the pit was partly filled in, and washed it through a sieve, which indicated the
soil was silt with very little sand and more cohesive than the borings had revealed; he applied this
determination to an accepted formula and concluded the sloping at the site was safe. Dr. Noorai said
his methods did not indicate what type the soil was, that he was unaware OSHA defined cohesive soil
as soil containing clay, and that he did no tests to determine clay content; however, he noted that the
soil held together when washed through the sieve, indicating it was greasy, and that the remainder,
which he kept in plastic bags, also held together. (Tr. 184-248; 350-53; R-4).
Dr. Alan Peck, OSHA’s senior soil scientist and the individual who analyzed the samples in
this case, testified that Dr. Noorai’s conclusion assumed the soil was cohesive and that he should have
performed a plasticity test to determine its cohesiveness, which is done by taking a piece of soil and
attempting to roll it into a stable 1/8-inch thread. Dr. Peck further testified that silt is ultra-fine sand
with apparent but no true cohesiveness, meaning it can stick together temporarily but cannot be relied
on, and that the OSHA regulations define cohesive soils as those containing clay. He said his analysis
of the soil revealed it to be cohesionless silty sand, although it was Type B; he also said that while
the evidence indicated the pit had two distinct layers, a sandy bottom layer and a silty top layer, and
he had no way of knowing which area the CO’s sampling had come from, other witnesses had
described the soil at the site as sandy and containing no clay. (Tr. 321-49; C-19).
I conclude AMCC has not shown that the west wall slope at the time of the inspection was
adequate. Dr. Noorai’s analysis of the upper part of the wall, which he found to be silt, included no
testing for cohesiveness, and Dr. Peck’s testimony, which was based on the OSHA standard, was that
cohesive soil by definition contains clay and that silt is a cohesionless soil. See Appendix A to
Subpart P. That the soil lacked cohesion is supported by the testimony of Rafique Rahman, the acting
project manager for URS that day, and Jose Aranda, a senior consultant with AIG, SCA’s insurance
carrier, who was at the site that day between noon and 2 p.m. after being contacted by SCA.
Rahman, who has an architecture degree and some experience in soil classification, testified the soil
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was sandy with some silt and that it was easily crushed and not plastic; he also testified he saw soil
sliding down the slopes as the excavator moved along. (Tr. 7-9; 28-29; 42-47). Jose Aranda, a civil
engineer familiar with OSHA soil types, testified the soil appeared to be a loose, Type C material with
no clay. (Tr. 105-08; 112-13; 122-24). Robert Rusy, who has many years of construction experience
but no training in soil types, testified the soil at the site was hard and stable, noting the west wall
stood up without cracking during excavation and that the excavator left teeth marks in it. (Tr. 250-
51; 262-69; 273-75; 280; 284; 287). However, Dr. Peck testified that these are not reliable indicators
of a wall’s stability, and, as a soil expert, his opinion clearly carries more weight than that of Rusy.
(Tr. 328; 342). His opinion also carries more weight than that of Dr. Noorai, whose after-the-fact
conclusion that the wall was safe is unpersuasive in light of his own previous determination that 45-
degree sloping was the appropriate protection for excavations at the site. Moreover, the standard
unequivocally requires 45-degree sloping for Type B soil, and an employer choosing sloping as the
protective method to be used must conform to the standard. Conie Constr., Inc., 16 BNA OSHC
1870 (No. 92-0264, 1994), aff’d sub nom. Conie Constr., Inc. v. Reich, No. 94-1592 (D.C. Cir.,
October 30, 1995). AMCC was therefore in violation of the standard.
The Secretary has characterized this citation as serious/willful. The serious nature of the
violation is apparent. In regard to the willful characterization, a violation is properly classified as
willful if it was committed “with intentional, knowing, or voluntary disregard for the Act’s
requirements, or with plain indifference to employee safety.” Williams Enter., Inc., 13 BNA OSHC
1249, 1256-57 (No. 85-355, 1987). The Secretary contends the violation was willful based on
AMCC’s knowledge of the standard’s requirements and the circumstances at the subject site.
AMCC, on the other hand, contends the violation was not willful.
Ted Chandler, SCA’s on-site project officer, has been in the construction business for sixteen
years and is familiar with soil types and sloping requirements; he testified that C-9, SCA’s safety
manual, is provided to all contractors of SCA, that he provided it to AMCC, and that C-9 requires
compliance with the OSHA excavations standard. (Tr. 68-70; 80-81). Charles Marino, AMCC’s
president, testified that his contract with SCA required his company to follow the OSHA excavation
requirements and that he was familiar with those requirements due to AMCC’s ten previous projects
with SCA and his eighteen years in the construction business. (Tr. 319-20). Marino also testified
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about AMCC’s determination that 45-degree sloping was the appropriate protection to use at the site,
based on the conclusions of Dr. Noorai, and both he and Chandler discussed the December 1994
meeting in which AMCC, SCA and URS agreed with this determination. (Tr. 98-102; 296-301).
It is clear from the above that AMCC was aware of the OSHA excavation requirements and
that it made a determination that 45-degree sloping was appropriate for the site. However, it is not
clear whether Robert Rusy, the project superintendent, was ever provided this information. Marino
testified he could not specifically remember doing so, although he thought he had, and he noted that
while AMCC’s general superintendent, Sol Kessler, had been at the December 1994 meeting and that
it would have been Kessler’s job to inform Rusy of the sloping decision he himself had no actual
knowledge this had occurred. (Tr. 300-01; 318-19). Further, Rusy never testified he was told of the
decision, stating only that he concluded 45-degree sloping was appropriate due to the nature of the
soil and that this was the sloping he used at the site. (Tr. 253-57; 263-64; 270-71). Regardless, it
is apparent from the record that Rusy did not follow the 45-degree sloping requirement at the site.
CO Stewart testified that an excavation he saw in another area of the site in February 1995
was gently sloped on one side but very steeply sloped on the other side, with an angle greater than
45 degrees, and that Rusy told him he did not know what type the soil was; the CO advised Rusy the
soil should have been treated as Type C and the excavation sloped accordingly, since Rusy did not
know the soil type and that area typically had Type C soil, but no citation was issued because there
were no employees in the excavation. The CO further testified Rusy told him again on July 21 that
he did not know what the soil type was but that he thought the walls were sloped properly; however,
when the CO asked about the west wall, Rusy responded that to slope the wall any further he would
have to take the fence down and cut into the sidewalk, which would require a few days’ delay as he
would have to get a permit, whereas otherwise he could be out of the pit by the end of the day. (Tr.
133-36; 152-53; 159-60; 167-68; 176-77). Rusy did not remember discussing soil type or sloping
with the CO in February 1995, but his recall as to what he said about sloping the west wall further
on July 21 was not materially different from the CO’s testimony. (Tr. 255-56; 270-71; 274).
The background portion of this decision describing the circumstances leading up to the July
21 inspection is based on the testimony of Rafique Rahman, the acting project manager of URS that
day, and Ted Chandler, SCA’s project officer; it is apparent from their testimony that they advised
 7

Rusy of their concerns about the west wall, which both described as almost vertical at that time, that
they considered the condition sufficiently hazardous to stop the work, and that when the employees
resumed working in the excavation after Rusy phoned Marino Chandler called OSHA after first
contacting SCA and AMCC. (Tr. 13-16; 26-41; 57-61; 70-79; 85-87; 91-96). In addition, Chandler
testified that no changes were made to the sloping until after he called OSHA, and Jose Aranda, the
AIG consultant who was at the site between noon and 2:00 p.m. after being contacted by SCA,
testified the west wall was nearly vertical when he saw it and that he considered the pit a hazard. (Tr.
95-96; 103-04; 107-08; 115-17). Rusy, however, indicated he believed the west wall was “safe” from
the outset and that it was sloped one to one at the time of the inspection. He also indicated that
adjustments were made to the wall right after the “stop work order” was issued and that he did not
know OSHA was contacted, but he then conceded that the employees resumed working in the
excavation before any changes were made to the sloping. (Tr. 258-64; 270-71; 278-88).
Charles Marino testified he first became aware of the situation at the site when Rusy called
to tell him Rahman had concerns about the excavation; he asked Rusy if he felt the excavation was
safe, Rusy said he did, and Marino told Rusy he wanted him to do what was “obviously safe.” A few
minutes later Marino learned that Chandler had tried to call him, and he then received a phone call
from Stan Petrow, SCA’s chief project officer, who wanted to know what the problem was; Marino
advised him there were complaints about the sloping but that Rusy had told him the slopes were safe,
after which Petrow asked Marino to tell Rusy to work on the slopes and get back to work, and
Marino did so. Marino said he was unaware of the “stop work order” then, that he did not know
about the OSHA visit until Hershman called him and told him the CO was there, and that he had no
information the sloping was unsafe and gave no instructions to resume work in an unsafe excavation;
he also said he did not go to the site himself as he had confidence in Rusy’s ability and safety based
on the many years he had worked with him and that he believed Rusy’s statements over those of the
on-site SCA and URS personnel due to previous problems he had had with them. (Tr. 302-20).
Based on the record, the violation was willful. Despite AMCC’s determination 45-degree
sloping was appropriate for the site, it would appear that Rusy was never told of this determination,
or, if he was, that he chose not to follow it, in light of the sloping in both the earlier and the subject
excavation. Rusy, and apparently Hershman, also chose to do nothing about the west wall after an
 8

oral and then a written notice from Rahman, and Rusy did not even contact Marino until receipt of
the “stop work order” countersigned by Chandler. According to Marino, Rusy told him only that
Rahman had “some concerns” about the excavation and did not say that work had been stopped;
however, this is contrary to Rusy’s testimony that he advised Marino of the order. (Tr. 283; 302-05).
Marino therefore directed Rusy to resume work in the excavation knowing its safety was
questionable, in spite of his testimony indicating he did not, and even after the subsequent calls from
Chandler and Petrow, Marino’s only action, based on his testimony, was to tell Rusy to “work the
banks some more” and “resume work.” (Tr. 304-07; 318). Moreover, while Rusy and Marino
testified they did not know OSHA had been called, Chandler indicated that both were aware of the
call; Chandler also specifically testified that no changes were made to the west wall until after he
contacted OSHA, and his testimony is supported by that of Aranda that the wall was nearly vertical
when he was at the site between noon and 2:00 p.m. (Tr. 79; 96; 103-04; 107-08; 115).
A conclusion that the violation was willful is also supported by one of Rusy’s statements to
the CO. As noted above, Rusy initially told the CO he thought the excavation was sloped properly;
however, when asked about the west wall, his response was that to slope the wall any further he
would have to take the fence down and cut into the sidewalk, which would require a few days’ delay
as he would have to get a permit, whereas otherwise he could be out of the excavation by the end of
the day. (Tr. 135-36; 153; 176-77; 270-71). This statement shows the reason for AMCC’s failure
to properly slope the west wall. It also undermines Rusy’s testimony as to his belief that the wall was
“safe” and, as adjusted, sloped one to one, which was not credible in any case in view of the contrary
testimony of the CO, Aranda, Chandler and Rahman. I find that AMCC’s actions in regard to the
excavation at the site exhibit both intentional disregard of the Act and plain indifference to employee
safety, and the citation is affirmed as a willful violation. I also find the proposed penalty appropriate
based on the CO’s testimony about the gravity of the violation and the company’s size, history and
good faith. (Tr. 143-44; 149-53; 173-77). A penalty of $44,000 is accordingly assessed.

                                      Serious Citation 1
    This citation alleges a violation of 29 C.F.R. 1926.651(j)(2), which requires excavated or

other material or equipment that could pose a hazard by falling or rolling into excavations to be kept
 9

at least 2 feet from the edge, retained by a retaining device, or both. The testimony of CO Stewart
and photos C-11-15 establish that the spoil pile above the area where the employees were working
was on the edge of the excavation and was not retained in any way; the CO also testified the pile
showed signs of material beginning to slough off into the excavation and that a cubic foot of soil
falling on a worker could cause serious injury or death. (Tr. 140-44). AMCC concedes the spoil pile
was within 2 feet of the edge of the excavation but contends there is no proof that employees were
exposed to material falling from the pile. I disagree, based on the CO’s testimony and the photos,
which clearly demonstrate the violative condition and employee exposure. This citation is therefore
affirmed as a serious violation, and the proposed penalty of $3,000.00 is appropriate in view of the
CO’s testimony with respect to the gravity of the condition and AMCC’s size, history and good faith.
(Tr. 143-44; 173-74). The proposed penalty of $3,000.00 is accordingly assessed.
Conclusions of Law
1. Respondent AMCC is engaged in a business affecting commerce and has employees within
the meaning of section 3(5) of the Act. The Commission has jurisdiction of the parties and of the
subject matter of the proceeding.
2. Respondent AMCC was in serious violation of 29 C.F.R. 1926.651(j)(2) and willful
violation of 29 C.F.R. 1926.652(a)(1).
Order
Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:
1. Citation 1 is AFFIRMED as a serious violation, and a penalty of $3,000.00 is assessed.
2. Citation 2 is AFFIRMED as a willful violation, and a penalty of $44,000.00 is assessed.

                                                   Irving Sommer
                                                   Chief Judge

Date: