Scafar Contracting, Inc.

Plain-English summary

Scafar Contracting replaced an underground sewer line through a series of excavations in Newark, New Jersey. Judge Michael H. Schoenfeld found that employees building a manhole worked beside an inadequately protected excavation wall and that another trench used timber shoring that did not meet the applicable specifications or have advance engineering approval. Those two serious items were affirmed with penalties of $1,500 and $100. Three alleged willful instances were vacated because two trench sections had already been backfilled before inspection and the Secretary lacked reliable measurements for the remaining section. The total penalty was $1,600.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.652(a)(1) and 1926.652(c)(1)
• Outcome: Two serious trench-protection items affirmed and three willful items vacated; total penalty: $1,600.
• Key point: Specific trench-depth and sloping allegations require reliable measurements, while engineering approval obtained after employees enter a trench does not validate the protection used.

Full text (OSHRC public release)

                    UNITED STATES OF AMERICA
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

            Complainant,
                   v.                                         OSHRC Docket No. 97-0960

SCAFAR CONTRACTING, INC.,

             Respondent.

APPEARANCES: Steven D. Riskin, Esq.
Office of the Solicitor of Labor
New York, NY
For Complainant

                  Joseph P. Paranac, Esq.
                  Jasinski & Paranac
                  Newark, NJ
                          For Respondent

BEFORE: MICHAEL H. SCHOENFELD,
Administrative Law Judge

                            DECISION AND ORDER

Background and Procedural History

   This case arises under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §

651 - 678 (1970) ("the Act").
Having had its worksite inspected by a Compliance Officer of the Occupational Safety and
Health Administration, Scafar Contracting, Inc., ("Respondent") was issued two citations alleging
willful and serious violations of the Act. Penalties totaling $103,000.00 were proposed by the
Secretary. Respondent timely contested. Following the filing of a complaint and answer and
pursuant to a notice of hearing, the case came on to be heard in New York City. No affected
employees sought to assert party status. Both parties have filed post-hearing briefs.

Jurisdiction

       Complainant alleges and Respondent does not deny that it is an employer engaged in

construction work and related activities. It is undisputed that at the time of this inspection
Respondent was engaged in trenching operations and replacement of an underground sewer line.
Respondent does not deny that it uses tools, equipment and supplies which have moved in interstate
commerce. I find that Respondent is engaged in a business affecting interstate commerce.
Based on the above finding, I conclude that Respondent is an employer within the meaning
of § 3(5) of the Act.1 Accordingly, the Commission has jurisdiction over the subject matter and the
parties.

Discussion

       Respondent was participating in the Brick Sewer Rehabilitation Program for the City of

Newark, New Jersey. It was removing an old clay tile sewer line eight inches in diameter and, in its
place, installing a new 24" diameter, pvc (plastic) sewer. The portion of the contract which is the
subject of this case was known as Replacement of 10thWard Ditch. It called for the sewer line
replacement along E. Kinney Street in an easterly direction from Railroad Avenue to the existing 10th
Ward Ditch, a distance of approximately 393 feet. (Tr. 72-73, Ex. R-1)
Because the new plastic sewer pipe was manufactured in specific lengths, the job was done
essentially by creating a series of trenches, end to end, one after the other.2 The general procedure

1
Title 29 U.S.C. § 652(5).
2
Each of the separate trenches which are parts of the overall trenching project are referred to as
(continued...)

                                              -2-

Respondent used was to remove a length of the old sewer line by cutting through the asphalt and
concrete street surface, digging a section and taking out the old clay pipe sewer line with a backhoe.
Each trench section was approximately 15' to 20' in length, long enough to accommodate a piece of
new sewer pipe with sufficient room at either end to work on the joints between the newly installed
pipe and the preceding and following lengths of pipe. Once a section was opened, a trench box would
be lowered into the resulting excavation which would then be dug out by the back hoe to the proper
depth. A crushed stone base, approximately 6" in depth to provide a solid base for the new sewer
pipe was placed into the section. The crushed stone base was then leveled off to the appropriate
elevation and grade by an employee entering the trench and completing the leveling using a shovel.
The level was checked with a laser. (Tr. 20-22, 64, 280-81) Then the length of new pvc pipe was
lowered into place, connected to the previously installed pipe and the alignment checked with a laser.
(Tr. 405-06). The section was then backfilled.
The eight inch clay sewer Respondent was removing had been installed in about 1886. (Tr.
364-66) Thus, it had been in place for over 100 years at the time of the inspection. At some time
much more recently, two utility lines (water and electric) had been added, one on either side of the
sewer line. The two utility lines left about eight feet of space between them. (Tr. 16-19) The two
utility lines were originally thought to be parallel for the length of E. Kinney Street, which would have
allowed Respondent a consistent width of eight feet to do the removal and replacement of the sewer
line. On November 12, 1997, the day before the inspection, however, it was realized that the two
utility lines actually converged towards one another. In order to avoid hitting one or another of the
utility lines, the sewer line had to be re-aligned (Tr. 19). To accomplish such realignment
Respondent, in a change in the planned work, had to construct a manhole about 222' east of Railroad
Avenue (about one-half way between Railroad Avenue and the 10th Street Ditch), in order to allow
a change in the direction of the new sewer line. (Tr. 20, 323, 357-58). The manhole itself ,
constructed out of masonry, was approximately a 4' diameter circle. It was built in an excavation
about 12' square.

2
(...continued)
“sections” for the purposes of this decision. In order to place the alleged violations in
perspective, a visual presentation of the location of each alleged violation would be of assistance.
(See Appendix 1.)

                                              -3-

Respondent continued the trenching operation east of the manhole (between the manhole and
the 10th Ward Ditch) in a somewhat different manner than that used to the west of the manhole
(between Railroad Avenue and the manhole.) East of the manhole Respondent decided that there was
not enough clearance between the two utility lines to use a trench box as it had done West of the
manhole, so it determined to use wood timber shoring as each section of the trench was dug and the
old sewer removed and new sewer installed.
On November 13, 1996, an OSHA Compliance Officer Richard Torree, happened on to the
construction scene while driving to another destination. He saw trenching activity “halfway down
the block” (Tr. 137), which he believed was in violation of OSHA Standards. He sought and obtained
the OSHA Area Director’s telephone permission to inspect the worksite (Tr. 137). Due to the
Compliance Officer’s illness and surgery, a closing conference was not held until April 1998. (Tr.
170). Based upon his inspection and interviews with employees, two citations were issued on or
about April 30, 1997. The Secretary’s Complaint amended the citations.
Respondent is now charged with two instances of serious violation of the standard at 29
C.F.R. § 1926.652(a)(1)3 in that it allegedly failed to use adequate protection from cave-in at two
locations (the manhole excavation and section “G.” See Appendix 1). (Citation I, Items 1a and 1b4,
as amended.) In addition, it is alleged that Respondent was in willful violation of the same standard
at three other sections in that employees worked in the trenches without any cave-in protection at all.
(Citation II, Items 1a, 1b and 1c)(Sections “F,” “D” and “E,” respectively. See Appendix 1)

3
The standard cited, 20 C.F.R. § 1925.652(a)(1), provides:
(a)(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:
(a)(1)(I) Excavations are made entirely in stable rock; or
(a)(1)(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.
4
Alternatively, Citation I, Item 1(b) charges Respondent with using timber shoring which failed
to meet the requirements of 29 C.F.R. § 1926.652(c)(1) because the design for the timber shoring
did not meet the minimum specifications contained in Appendices A and C of the standard.

                                             -4-

Citation I, Item 1a.
29 C.F.R. § 1926.652(a)(1)

    Citation I, Item 1a, alleges that at “Station 2 + 15 to 2 + 23," there was a completely

unprotected wall (north side) of an excavation measuring 12' long by 11'4" wide by 7'6" deep, in
which Respondent’s employees were building a manhole. (Complaint, ¶ V.A).
The Compliance Officer described measuring the manhole excavation as 7' deep, 11'4" wide
and 12' in length. (Tr. 154.) He noted that there was a gap of 18" between the north wall of the
excavation, which was completely vertical, and the north edge of the manhole “ring.” The manhole
“ring” was 5' from outside to outside (Id.) The Compliance Officer testified that a foreman, Mr.
Fereria, helped him take the measurements at that location. (Tr. 158) and went on to note that the
west and south sides of the excavation were protected but that the north side should have also been
protected. (Tr. 159). He maintained that when the lack of appropriate sloping of the north wall of
the excavation was brought to Mr. Fereira’s attention, Respondent claimed that the north wall could
not be sloped at that location because there was a utility line close to the wall. (Tr. 159-60). The
Compliance Officer opined that a trench box which was on the site “a few blocks away” would have
fit into the manhole excavation and should have been used. (Tr. 161-62).
Mr. Carlos Farihnas, one of the owners of Respondent (Tr. 320), testified they had
constructed the manhole on November 13th in an excavation which was dug to a depth of 5'10" with
sloped walls on the west and south sides. (Tr. 328-29). The north side, according to Mr. Farihnas,
consisted of “hard clay” topped off by the roadbed which consisted of 4" of black top, 8" of “Belgian
block” and an additional 4" of concrete. (Tr. 330-31). He considered it to be “class A” type soil,
having taken a “grab test.” (Tr. 331-32). He stated that the width of the manhole was 4' and its depth
was 5‘10". (Tr. 334, 340). Apparently referring to the trench box identified by the Compliance
Officer, this witness stated that they could not use the trench box because the power company
(owner of the high-voltage utility line) told him that “they don’t want any metal at all close to the pipe
of the electrical line.” (Tr. 345-46).
Mr. Mario Valihnas testified (through a translator) that he had been the backhoe operator at
the site and that he dug the excavation for the manhole. He knew the excavation was “a little bit less
than six feet” because he was there when the foreman (Mr. Ferreira) measured it. (Tr. 389).

                                               -5-

The man who actually built the manhole, Mr. Jose Fonesca, also testified (through a
translator) that the manhole depth was 5'10" having been measured by placing a piece of lumber
across the opening then measuring from the bottom of the piece of lumber to the bottom of the
excavation. It was also measured by the foreman. (Tr. 394). This witness described the north wall
of the excavation as “strong clay” which was unlikely to cave-in. (Tr. 394-95). He maintained that
he had seen the Compliance Officer at the excavation at the time of the inspection and that the
Compliance Officer did not take any measurements. (Tr. 397).
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
of the 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, 1981); Dun-Par
Engineered Form Co., 12 BNA OSHC 1949 (No. 79-2553), rev'd & remanded on other grounds,
843 F.2d 1135 (8th Cir. 1988), decision on remand 13 BNA OSHC 2147 (1989).
The cited standard applies to all excavations with specified exceptions. In pertinent part, it
requires that “[e]ach employee in an excavation shall be protected...except when....the excavation is
made entirely in solid rock or the excavation is less than 5' deep and... there is no indication...of a
cave-in.”
A review of the evidence regarding the depth of the excavation at and around the area of the
manhole installation demonstrates that it was greater than 5 feet.
All witnesses, even those who identified the area as being the most shallow, are in agreement
that the depth of the excavation, when measured from the upper most surface (the surface of the
street), exceeded 5'. Mr. Farihnas, Mr. Valihnas and Mr. Fonesca all describe an excavation being dug
to a depth of a little less than 6' while the Compliance Officer and Mr. Fisher, the resident observer
for the general contractor, describe a deeper excavation. Respondent, however, would measure the
depth from the deepest point of the excavation only up to the under surface of the roadbed. The
roadbed added 16" (4" of black top, 8" of “Belgian block” and an additional 4" of concrete) to the
overall depth. Thus, Respondent’s measurement of the “depth” is 16" less than that of the Secretary.
Respondent’s argument is rejected. First, it has shown no regulatory or logical rationale supporting

                                             -6-

its method of calculation. Second, the only witness to consider the question, Complainant’s expert
witness, Dr. Peck, opined that depth is determined by measuring the distance from the surface of the
ground, not starting below the pavement layer. (Tr. 461. See, Ex. C-3). Third, the Secretary is
entitled to deference in her interpretation of the meaning of a standard where, as here, the
interpretation she proffers is not unreasonable. Secretary of Labor v. OSHRC (C.F. & I. Steel), 499
U.S. 144 (1991). I thus find that the excavation was over 5' in depth.
Excavations of this size must be protected by sloping or by some other protective system.
In this case, in the absence of any protective system having been installed, the question becomes
whether the sides of the excavation were sloped in accordance with the requirements of §
1926.652(b). To determine what sloping configuration was required, the classification of the soil
must first be reached. Appendix A to Subpart P - Soil Classification (“Appendix A”) and Appendix
B to Subpart P - Sloping and Benching. (“Appendix B”). In descending order of strength, soils are
classified under Appendix A as “A”, “B” or “C.” A soil cannot be classified as type “A” if “it has
been previously disturbed.” Appendix A, (Tr. 454.)
Complainant maintains that “previously disturbed” means precisely that, without any
modification. Respondent points out that the sewer line which it was replacing was installed in
approximately 1886 and had thus been in the ground for over 100 years. (Tr. 444-68). Respondent’s
expert, Mr. Busicchia, agreed that OSHA had taken the position that soil, once excavated, must
forever more be classified as “previously disturbed” but argues that OSHA’s position is incorrect
because soil which was opened many years ago (over 100 years in this case) could recompress to its
original stability and if originally a type “A” soil, could regain that stability and strength. (Tr. 497).
The issue is one of regulatory interpretation not choosing between two, opposing scientific theories.
The test of whether the Secretary’s interpretation warrants deference is whether the wording adopted
by OSHA, in Appendix A, “...no soil is Type A if ... the soil has been previously disturbed,” is
unambiguous and clear. The test to be applied has been described as follows;
[whether] the Secretary’s construction...is [un]ambiguous and the
Secretary’s interpretation of it is reasonable....However, [deference is
not warranted] to the Secretary’s interpretation where an “alternative
reading is compelled by the regulation’s plain language or by other
indications of the Secretary’s intent at the time of the regulation’s
promulgation.

                                               -7-

Secretary v. General Motors Corporation, Delco Chassis Division, 89 F. 3d 313, ___ (6th Cir.
1996)(Citations Omitted). In this case, Respondent has not shown, nor does the record as a whole
demonstrate, that the Secretary’s interpretation is inconsistent with the plain language of the
regulation or that it is unreasonable or is inconsistent with the Secretary’s intent at the time the
regulation was promulgated. Accordingly, for the purposes of this case, the soil in question is
“previously disturbed” by virtue of the undisputed fact that a sewer line was placed in that location
in approximately 1886. Thus, the soil cannot be classified at Type “A” regardless of whether it meets
all other testing criteria for type “A” soils. Thus, because it was soil less stable than type “A,” the
excavation Respondent made for the installation of the manhole was required to have walls sloped
at at least 45E (1 foot of slope for every 1 foot of depth).5 Complainant’s concern was the North wall
which she claims was vertical (without sloping at all.) This claim is consistent with the Compliance
Officer’s measurements and with the somewhat unclear photographic evidence (Ex. C-3). Even if the
testimony were considered in the light most favorable to Respondent, that is - - that the excavation
at the north wall was 11' wide at the top and 6' wide at the bottom (Tr. 333) - the slope produced by
those dimensions would be insufficient.6 Accordingly, the excavation prepared for the installation of
the manhole failed to comply with the cited standard.
Employees working in a trench which is improperly sloped run the risk of serious injury or
death in the event of a cave-in. Accordingly, classification of the violation as “serious” is
appropriate.7

5
The maximum allowable slopes for excavations less than 20 feet deep is 45Efor Type B soil and
34E for Type C soil. Table B-1 of Part 1926, Subpart P, Appendix B.
6
An excavation 6' deep would have to have at least 12' of width to attain a slope of 45E for each
of its opposing walls.
7
Under section 17(k) of the Act, 29 U.S.C. § 666(j), a violation is serious where there is a
substantial probability that death or serious physical harm could result from the violative
condition. It is the likelihood of serious physical harm or death arising from an accident rather
than the likelihood of the accident occurring which is considered in determining whether a
violation is serious. Dravo Corp., 7 BNA OSHC 2095, 2101, (No. 16317, 1980), pet. for review
denied, 639 F.2d 772 (3d Cir. 1980). It is not necessary for the occurrence of the accident itself
to be probable. It is sufficient if the accident is possible, and its probable result would be serious
(continued...)

                                              -8-

The Commission has often held that in determining appropriate penalties for violations “due
consideration” must be given to the four criteria under §17(j) of the Act, 29 U.S.C. § 666(j). Those
factors include the size of the employer’s business, gravity of the violation, good faith and prior
history. While the Commission has noted that the gravity of the violation is generally “the primary
element in the penalty assessment,” it also recognizes that the factors “are not necessarily accorded
equal weight.” An administrative law judge is required “to state an adequate factual basis for his
assessment of a penalty....” J.A. Jones Construction CO., 15 BNA OSHC 2201, 2214 (No. 87-2059,
1993). While the OSHA official responsible for calculating the proposed penalties testified as to how
those amounts were reached (Tr. 111-120), once the issue is before the Commission the amount of
penalty to be assessed is within the sole discretion of the Commission. Nacirema Operating Co., Inc.,
1 BNA OSHC 1001 (No. 4, 1972); Hern Iron Works, Inc., 16 BNA OSHC 1619, 1621-23 (No. 88-
1962, 1994).
The danger of trench collapse is significant and cannot be taken lightly, but under the facts
of this case, it is ameriolated by the evidence that the excavation was open only for a short time, that
the masonry manhole being constructed within the excavation would have slowed or reduced the
impact of the unsloped north wall collapsing and that only one employee was exposed at any one
time. On these factors, I find the gravity to be moderate. Respondent is a small company, with about
30 employees. Respondent’s history is highly significant in that it includes prior trenching/excavation
violations. With the emphasis on the known danger of open, unsloped excavations, I find that a
penalty of $1,500 is appropriate.

7
(...continued)
injury or death. Brown & Root, Inc., Power Plant Div., 8 BNA OSHC 1055, 1060 (No. 76-3942,
1980).

                                              -9-

Citation I, Item 1b.8
29 C.F.R. § 1926.652(a)(1) or, alternatively, 1926.652(c)(1)

   Citation I, Item 1b, as amended, alleges that employees, on November 13, 1996, entered into

a trench 13 to 15 feet long by 6 feet wide by 6 feet deep at Station 2 + 77 that was equipped with
wooden timber shoring cave-in protection which was inadequate. (See, Appendix 1, Section “G”.)
Complainant maintains that the shoring in the trench consisting of 3 inch by 8 inch timber walers and
cross braces and 4 foot by 8 foot sheets of 3/4 inch thick plywood in place of uprights, failed to meet
the specifications required by Appendices A and C of subpart P of § 1926.
Respondent argues that the shoring in use met the requirements of the standard. In the
alternative, Respondent claims that the shoring system, having been designed by a registered
professional engineer, met the requirements of Option (4) of 1926.652(b)(4).9 Since the plywood
sheeting did not meet the specifications contained in the appropriate appendix and because the
shoring system had been designed by a registered professional engineer for another trenching job,
Respondent’s arguments are rejected.
The Compliance Officer never saw the section of the trench (Appendix 1, Section “G”) which
is the subject of this alleged violation. After the Compliance Officer left the site on November 13,
1996, Respondent used wood timbers and plywood sheeting to shore the trench. The observer for
the general contractor, Mr. Fisher, could only “guess” at the dimensions of the timbers and plywood
used. (Tr. 48-9).10 The Compliance Officer relied on his recollection of a December 24, 1996
conversation with Mr. Ferreira and Mr. Farihnas during which the Compliance Officer claims he was
told the dimensions of the lumber used (Tr. 168-169). Respondent relies on an invoice for lumber

8
Originally cited as Citation II, Item 2. Amended by Complainant to be grouped under Citation
I, Item1 and now identified as Citation I, Item 1(b).
9
Subsection (b)(4) provides; “Option (4) - Design by a registered professional engineer.
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.”

10
Mr. Fisher’s self-described “guess” is found to be so unreliable that it is not considered to have
any evidentiary weight at all.

                                             -10-

it purchased and which was received on June 16, 1996 (R-14). The invoice describes sheeting lumber
measuring 3 inches by 10 inches (with tongue and groove edges) as well as 12 inch by 12 inch
timbers. The backhoe operator who moved the timber from the storage area to the location where
it was put into the trench described the lumber used as “[t]hree by 10's” and the plywood as “quarter
of an inch four feet wide by eight feet long.” (Tr. 376).
Complainant maintains that the three by eight timber and 3/4 inch plywood sheeting was
insufficient for the trench under Appendix C to Subpart P - Timber Shoring for Trenches.
Complainant is correct. The Appendix C listings do not allow the use of 3/4" thick plywood
sheeting. Respondent’s reliance on the invoice is misplaced in that even if such lumber were, in fact,
on the site, the backhoe operator’s testimony is specific to the effect that it was plywood sheeting
which was brought to the men in the area of the trench and which was, in fact, used. (Tr. 375-76).
I thus find that to the degree that wooden shoring was used, such shoring included, at least in part,
plywood sheeting.
There is no dispute that the shoring system relied upon by Respondent as adequate for this
project was, in fact, designed by the professional engineer for use on another, earlier project. It was
only after the inspection in this case that the engineer determined that the system would be adequate
for the site inspected. (Tr 418-420). Such post hoc engineering approval is the very antithesis of the
intent of the regulation. Putting employees in a trench which is shored according to specifications
developed for a previous job in no way constitutes engineering approval for the protection afforded
those employees in their present situation. The purpose of allowing employers to rely on professional
engineering design would be defeated if such retroactive application of the requirement were found
to be acceptable. At the time the employees were in the trench, Respondent took the risk of using
a shoring system designed for other conditions which might or might not be present.
Accordingly, I conclude that Respondent’s employees worked in a trench while protected
from cave-ins by wooden shoring which did not meet the applicable requirements. Respondent was
thus in violation of an applicable standard.
While a serious violation exists where, as here, employees work in an inadequately protected
trench, there is little or no evidence pointed to by Complainant as to the degree of employee exposure
either in terms of the number of employees exposed or their time of exposure. Similarly, the record

                                             -11-

is devoid of evidence as to the likelihood of trench collapse under the circumstances encountered at
the inspected site. On this basis, only a minimal monetary penalty is appropriate. Accordingly, I find
that $100 is appropriate for this violation.

Citation II, Items 1a,1b and 1c
29 C.F.R. § 1926.651(a)(1)

   It is alleged in Citation II, Item 1a, that Respondent’s employees were in an unprotected

trench described as located at Station 2 + 53 to 2 + 77 and being 24' long, 6' wide and 6' deep.
(Complaint, ¶ V.C.a)(See Appendix 1, Section “F”)
Citation II, Item 1b, cites employees at Station 2 + 23 to 2 + 38 in an unprotected trench 13'
to 15' long by 6' wide by 6' 3" deep “with vertical side walls for most of its length, without a
protective system. (Complaint, ¶ V.C.b.)(See Appendix 1, Section “D”).
Citation II, Item 1c, identifies the location at Station 2 + 38 to 2 + 53 as having employees
working in an unprotected trench measuring 13' to 15' long by 6' wide by 6' 3". (Complaint, ¶ V.C.c.)
(See Appendix 1, Section “E”).
When the Compliance Officer arrived at the site, Respondent had already completed the
installation of the new sewer pipe and had back filled the two sections immediately east of the
manhole excavation (Appendix 1, Sections “D” and “E”.) The next section of the trench, some 40'
east of the manhole excavation, (Appendix 1, Section “F”) was open. (Tr. 154.)
At the outset, since the Compliance Officer never saw the trench sections cited in Items 1b
and 1c (Appendix 1, Sections “D” and “E”) he had no measurements whatsoever of the depth, width
or sloping that existed when they were open and employees worked in them. Nor is there any reliable
record of any other source of data as to those measurements. Even if other evidence could supply a
reasonable basis for inferring the depth of those sections, there is no indication as to their sloping.
Accordingly, the Secretary cannot show the alleged violation as to Items 1b and 1c of Citation
II. These Items are VACATED.
There is somewhat more evidence to consider in regard to Item 1a of Citation II. The
Compliance Officer testified that he saw an employee of Respondent, Francisco Mendes, in the open
trench section aligning the length of new pvc sewer pipe which had just been installed. The

                                             -12-

Compliance Officer stated that he measured this section of trench as 6 feet deep (north wall only, Tr.
148), and 6 feet wide with vertical sides. (Tr.145, 146-47; Exhs. C-2 and R-2). He noted that Mr.
Ferreira assisted him in measuring the depth. He also explained that a photograph (Ex. C-2) did not
accurately depict the scene in that “sun hitting the top portion of the trench ...may give the
appearance that it’s sloped, but it wasn’t.” (Tr. 148) Mr. Fisher recalled that the sections of the
trench east of the manhole had to be less than 7' wide because they could not use a trench box in that
location inasmuch as the box itself was 7' wide (Tr. 32). He also opined that these sections of trench
(Appendix 1, Sections “D,” “E” and “F” were “more than five feet deep” (Tr. 39) and that all of the
trench sections east of the manhole were between 6' and 5'8" or 5'9" (Tr. 46.) He was less than clear
as to whether there was sloping in that area, testifying equivocally, “I seem to feel that one side was
vertical and the other side had a slope to it.” (Tr. 45. See also, Tr. 48).
Respondent maintains that east of the manhole the depth of the trench was never greater than
5'. Respondent’s owner claimed that the cited sections of trench were 4½' deep, 6' wide at the top
and 4' wide at the bottom. (Tr. 325, 339. See also, Tr. 338-39) and that they had planned to use a
small trench box in 4' wide sections east of the manhole (Tr. 325-26.) He said the trench box was
not used because the power utility representative told him that they did not want any metal at all near
the power line in the vicinity. (Tr.344-46.) The backhoe operator and one other employee described
sections of trench as anywhere from 4½’to 3½’deep. (Tr. 389, 390, 402).
Respondent challenges the efficacy of the Compliance Officer’s testimony on several grounds.
It points out that although he took a videotape of the inspection, the Secretary did not seek to enter
the tape into evidence (even though the Compliance Officer testified that he relied on the tape to
“revise” measurements he recorded in his field notes); that the Compliance Officer’s measurements
were taken with a flexible tape (implying that the lack of rigidity would render the results less
persuasive); and that the Compliance Officer’s field notes where he supposedly initially recorded his
measurements were not available. In addition, Respondent takes exception to the Compliance
Officer’s assertion that he used an “angle indicator” to measure the slope of the trench wall, arguing
that he could not recall what such a tool looked like and that in earlier testimony he failed to state that
he had one with him. Respondent also finds it “curious” that the Secretary did not introduce soil
samples into evidence even though they were taken by the Compliance Officer who admitted that he

                                               -13-

made a mistake in recording the date the samples were taken. Respondent also notes that there is
testimony that the top road surface had been removed at this location which, in essence, reduced the
depth of the trench.
The Secretary, on the other hand, argues that the testimony of Respondent’s part-owner and
employees should not be accorded much weight because of their “interests in the outcome of the
case.” Merely claiming that the testimony of an employer is less reliable than that of a Compliance
Officer because of the employer’s interest in the outcome, without a specific showing that such
testimony is exaggerated, misleading or false in any way, is an insufficient basis upon which to reject
such testimony. The same may be said of employee testimony even where, as here, it is given in the
presence of the employer. The Secretary’s reliance on the “disinterested witness,” Mr. Fisher, is not
well placed when viewed against the specific language used by Mr. Fisher which is far less than
conclusive or precise. The Secretary also argues that the cited sections could not possibly have been
4½’deep because the trenches west of the manhole were admittedly 6' deep and the grade (angle of
decline) of the sewer line was only one inch per 100 linear feet. (Sec. Brief, p. 18). The Secretary’s
analysis is incorrect. The grade of the pipe being installed by Respondent refers to the downslope of
the sewer pipe as compared to a perfectly level horizontal line. The “flat” referred to by Mr. Fisher
and relied upon by the Secretary (Tr. 24-25) refers to the angle of the sewer pipe, not to the grade
or slope of the street level. Due to the pitch or downslope, the surface of E. Kinney Street from
Railroad Avenue to the 10th Ward Ditch , actually dropped about 5½' (Tr. 71-73). Thus, even if the
sewer pipe were placed in an excavation the bottom of which was perfectly level, the pipe would be
5½’closer to the surface of the road at the 10th Ward Ditch than it was at Railroad Avenue.
In sum, the cited standard requires that reliable measurements be made, preserved and made
part of the Secretary’s case in chief. Fulfilling the Secretary’s obligation to prove the existence of
a violative condition by a preponderance of reliable evidence of record requires more than
assumptions and inferences where the violation alleged is that of a standard with specific distances
as an integral part of its requirements. The Secretary has not fulfilled that burden on this record.
Accordingly, Item 1a of Citation II is VACATED.

                                   FINDINGS OF FACT


                                             -14-

All findings of fact necessary for a determination of all relevant 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

§ 3(5) of the Occupational Safety and Health Act of 1970, 29 U. S. C. § § 651 - 678 (1970).
2. The Occupational Safety and Health Review Commission has jurisdiction over the parties
and the subject matter.
3. Respondent was in violation of § 5(a)(2) of the Act as alleged in Citation I, Items 1a and
1b.
4. The violations of Items 1a and 1b of Citation I are serious.
5. Respondent was not in violation of § 5(a)(2) of the Act as alleged in Citation II, Items 1a,
1b and 1c.
6. Civil penalties of $1,500 and $100 are appropriate for the serious violations under Items
1a and 1b, of Citation I, respectively.

                                           ORDER


     1. Citation I, Items 1a and 1b are affirmed.
     2. Citation II, Items 1a, 1b and 1c are VACATED.
     3. A civil penalty of $ 1,600 is assessed.




                                                     Michael H. Schoenfeld
                                                     Judge, OSHRC

Dated:

     Washington, D.C.



                                              -15-

SECRETARY OF LABOR V. SCARFAR CONTRACTING, INC.
OSHRC Docket No. 97-0960
Decision and Order - Appendix 1

                                                                       ^
                                                                      North


                                                                 -----------------
     A                    B                     C              |                  |          D                     E                    F                    G
                                                               | Manhole |

-------------------- ------------------- ------------------- | Excavation | ------------------ ------------------ ------------------- -----------------
--
| |
| |
------------------

                                                                  Citation I              Citation II        Citation II          Citation II Citation I
                                                                   Item 1a                  Item 1b             Item 1c                Item 1a              Item 1b




             1. In the representation above, which is not to scale, each section of trench is represented by a letter. Numerous sections,
    including A, B and C were dug sequentially, starting at Railroad Avenue, from West to East until reaching the point where the
    manhole excavation was made. Sections D, E, F & G were dug sequentially from the manhole East.
             2. There is no dispute that a trench box was used in the sections to the West of the manhole excavation, including A, B and C.
             3. Citation I, Item 1a refers to the manhole excavation while Citation I, Item 1b refers to Section G.
             4. Citation II, Item 1a refers to Section F; Citation II, Items 1b and 1c refer to Sections D and E, respectively.