Bilran Excavating Company

Plain-English summary

Bilran Excavating installed a water line in a trench about 8.5 feet deep with no shoring and walls sloped at 58 degrees. Its competent persons had not performed the required visual and manual soil analysis before the foreman entered the trench. Judge Covette Rooney held that without a valid soil classification, Bilran had to use the Type C maximum slope of 34 degrees. The trench also failed the slope requirements for Type A or B soil, and heavy road traffic created vibrations that ruled out a Type A classification. The serious cave-in protection violation was affirmed with a $2,500 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1)
• Outcome: Serious trench-protection violation affirmed; $2,500 penalty assessed.
• Key point: An employer that does not classify soil as required must slope the excavation to the Type C specification.

Full text (OSHRC public release)

                    UNITED STATES OF AMERICA
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v. DOCKET NO. 98-0141
BILRAN EXCAVATING COMPANY,
Respondent.

Appearances: For Complainant: Troy E, Leitzel, Esq. and Matthew J. Rieder, Esq., Office of the Solicitor,
U. S. Department of Labor, Philadelphia, PA.; For Respondent: Michael A. Moore, Esq., Barley, Snyder,
Senft & Cohen, Lancaster, PA.
Before: Judge Covette Rooney

                               DECISION AND ORDER
     This proceeding is before the Occupational Safety and Health Review Commission

pursuant to Section 10(c) the Occupational Safety and Health Act of 1979 (29 U.S.C. §651, et
seq.)(“the Act”). Respondent, Bilran Excavating Company, at all times relevant to this action
maintained at a job site at Welsh Road, North Wales, Pennsylvania where it was engaged in
excavation work. Respondent admits that it is an employer engaged in a business affecting
commerce withing the meaning of Section 3(5) of the Act, 29 U.S.C. §652(a). Accordingly,
Respondent is subject to the requirements of the Act.
On November 19, 1997, Respondent had created a trench for the purpose of the
installation of a water line (Tr. 13, 80-81).1 At approximately 10:45 a.m., Compliance Safety and
Health Officer (“CO”) Mark Stelmack was driving on Welsh Road and observed an individual
coming up out of the trench (Tr. 9). In light of the fact that OSHA had initiated a National
Emphasis Program with respect to trenches and excavations, he stopped to inspect the protective
system employed in the trench (Tr. 11). As a result of this inspection, on December 9, 1997,
Respondent was issued one citation alleging a serious violation with a proposed total penalty in
the amount of $2,500.00. By timely Notice of Contest Respondent brought this proceeding
before the Review Commission. A hearing was held before the undersigned on May 12, 1998.
Counsel for the parties have submitted Post-Hearing Briefs and Reply Briefs, and this matter is
ready for disposition.
SECRETARY’S BURDEN OF PROOF
The Secretary has the burden of proving his case by a preponderance of the evidence.

    1
    “Tr” refers to the official trial transcript. “Ex.” refers to exhibits introduced into

evidence..

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In order to establish a violation of an occupational safety or health standard, the
Secretary has the burden of proving: (a) the applicability of the cited standard, (b)
the employer’s noncompliance with the standard’s terms, (c) employee access to
the violative conditions, and (d) the employer’s actual or constructive knowledge
of the violation (the employer either knew or with the exercise of reasonable
diligence could have known, of the violative conditions).
Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
CITATION 1, ITEM 1
29 CFR §1926.652(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: (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.
a) Waterline Installation Project, Welsh Road - Employees
installing a waterline worked in a trench approximately 8.5 feet
deep. No shoring nor other adequate protective system was used
while employees were in the trench.
There is no dispute that the standard is applicable. The record contains unrebutted
evidence that the cited trench was more than 5 feet in depth (Tr. 86). Section 1926.652(a)(1)
requires the use of a protective system for excavations 5 feet or more in depth, and permits
several alternatives to designing and installing various systems, described in §1926.652(b)[sloping
and benching systems] and (c)[ support systems, shield systems, and other protective systems]. It
is Complainant’s position that Respondent violated the cited standard because there was no
protective system in the excavation made on November 17, 1997, that complied with the
requirements of §1926.652 (b) or (c), and there were employees in the excavation
CO Stelmack testified that upon his arrival, he learned that the individual he had observed
exiting the trench was the foreman of the job site, Clete Faus. He testified that Mr. Faus informed
him that he was the competent person on site who would determine the soil type. However, he
informed him that he had not done so at this trench (Tr. 10-11, 47-48). He also met the field
supervisor of the job site, Kenneth Hertzog. Mr. Hertzog expressed to him that the slope of the
trench appeared fine to him because the soil was tight (Tr. 14). CO Stelmack took measurements
of the trench. The trench measurements were approximately 20 feet long, 8 1/2 feet deep, 2 1/2
feet wide at the bottom, and 7 1/2 feet wide at the top. The slope did not begin until 4 1/2 feet
from the bottom of the trench and the upper portion of the trench was sloped to 58 degrees from
horizontal (Tr. 14-17; Exs. G-1 and 2). CO Stelmack further testified that the trench was
approximately 15 to 20 feet from Welsh Road where traffic was very heavy (Tr. 9. 19).
At the time of the inspection, Respondent was in the process of connecting the water line
which they had just installed to the existing water line. They had come to the end of the water
line where the trench was to cross under the road and were installing a pipe from the valve to the
plug end of the line which was comprised of two pieces of pipe connected together with a cap on
one end of the line. The two pieces of pipe had been connected together and then lowered into
the trench at the valve site by a mechanical means (Tr. 22, 84-85). CO Stelmack testified that he
had observed Mr. Faus exit the trench from the west end of the trench where the “T” and valves

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were located (Tr. 21). CO Stelmack took a soil sample from spoil pile from the trench. He put
the sample into a plastic bag and eventually forwarded it to the OSHA lab in Salt lake City for
analysis (Tr. 22-23). The results of the sample indicated that the soil was Type B (Tr. 25). The
maximum allowable slope of Type B soil is 45 degrees, 29 C.F. R. Pt. 1926, Subpt. P., App. B,
Table B-1. In order for the trench to have met the requirements for Type B, the width across the
top of the trench should have been 19 1/2 feet, instead of the 7 1/2 feet measured (Tr. 27).
The Secretary’s expert in soil classifications, Dr. Alan Peck, analyzed the soil sample and
determined the soil as Type B. He found the sample indicative of a cohesive or clay type with
fissures present (Tr. 59- 65, Exs. G-5 to 7). He also opined that the traffic in the roadway
depicted in the videotape (Ex. G-3) would cause vibrations in the trench which would weaken the
strength of Type A soil, and thus, Type A soil would be downgraded to Type B (Tr. 67-68, 71).
In light of the fact that CO Stelmack learned that no sampling of the soil had been
conducted prior to the entering the trench, he determined that Respondent should have sloped the
walls of the trench in accordance with specifications for Type C soil - no steeper than 1 and 1/2
horizontal or 34 degrees measured from the horizontal. Id. at Table B-1; 29 C.F.R.
§1926.652(b)(1)(ii). The walls of the cited trench were 58 degrees. The width across the top of
the trench should have been 27 feet (Tr. 27). Furthermore, for either Type B or C soil, there is no
allowance for any vertical sides prior to the beginning of the slope (except for cohesive soil), and
thus, the slope should have began at the very bottom of the excavation.
Respondent presented the testimony of Kenneth Hertzog. He testified that both he and
Mr. Faus were competent persons at the job site on the day of the inspection (Tr. 81). He
testified that the trench varied in depth. It was 8 1/2 feet at the end of the pipe, and 6 1/2 feet at
the valve area. He performed no calculations of the slope (Tr. 86). He stated that on the day a
visual observation of the soil indicated that it was tight and cohesive. The Respondent had been
on this job site 2 to 3 months prior to the instant inspection. He testified that he had initially
determined that the soil was Type A or “a very high” Type B. He then made a daily visual
classification as they were going along the project and would occasionally roll it in a ball to be
sure it was cohesive. He also relied upon the competent person on site (Tr. 87, 90-91). He
testified that Mr. Faus would have determined the configuration of the trench as it was dug on the
day of the inspection (Tr. 88). On the morning of the inspection he had been at the job site,
however, they had not dug the trench by the time he left (Tr. 89). He acknowledged that the
traffic on Welsh Road was “fairly heavy” (Tr. 90). The Respondent also presented the testimony
of Timothy Hess, field operations manager for Respondent. He visited the worksite in late
October 1997, and based upon his visual observation, classified the soil as Type A (Tr. 100-01).
He also visited the worksite about a week after the subject inspection. The trench had been
backfilled. He conducted a manual review of the soil with a pocket pentrometer in the area
immediately surrounding the pipe valve and determined that the soil was Type A. He testified
that he did not believe the traffic from Welsh Road would affect the stability of the trench because
rubber tires were against the road which was layered with asphalt which was on top of a layer of
concrete (Tr. 111).
The record establishes that no shoring materials were present at the trench (Tr. 29). When
an employer elects to protect employees by sloping several options are available. Section
1926.652(b)(1), Option 1 requires the sloping of the sides of a trench at an angle not steeper than

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1 1/2 horizontal to 1 vertical (34 degrees measured from the horizontal), unless the employer
uses another option described in the standards. Section 1926.652(b)(2) permits sloping or
benching in accordance with Appendices A and B in Subpart P. When the employer elects to use
sloping Option 2, soil classification per the requirements of Appendix A, is mandatory. Appendix
B contains the specifications for sloping and benching where an employer designs a protective
system under §1926.652(b)(2). The undersigned finds that the Secretary presented unrebutted
evidence that on the day of the inspection, a visual and manual analysis of the soil had not been
performed by Mr. Faus nor Mr. Hertzog. Thus, the requirements at Option 2 were not available
to Respondent. Where an employer fails to conform a trench in accordance with the Appendices
A and B, which mandate soil classification, the slope of the trench must conform to the
requirements for a trench in Type C. See 29 C.F.R. §1926.652(b)(ii). The undersigned finds that
the slope of the cited trench did not met the requirements for Type C soil. Again the slope
measured 58 degrees as opposed to 34 degrees. The undersigned also notes that the slope did not
meet the requirements for Type A or B soil. Additionally, the undersigned finds that the record
reveals that the subject trench was subject to vibrations from traffic, and thus, a Type A soil
classification was not appropriate.2
The undisputed presence of the foreman, Mr. Faus in the trench establishes employee
exposure. The depth of the trench at both ends was greater than 5 feet. Mr Faus acknowledged
to CO Stelmack that he was aware of the OSHA standards (Tr. 12). His admitted knowledge of
the standards governing trenching standards establish actual knowledge of the violative condition.
His knowledge is imputed to the Respondent in view of his supervisory capacity.3 Accordingly,
the Secretary has established a prima facie violation of the cited standard by a preponderance of
evidence.
SERIOUS CLASSIFICATION
Section 17(k) of the Act, 29 U.S.C.. §666(k) of the Act, provides that a violation is
“serious” if there is “ a substantial probability that death of serious physical harm could result”
from the violation. In order to establish that a violation should be characterized as serious, the
Secretary need not establish that an accident is likely to occur, but must show that an accident is
possible and it is probable that death or serious physical harm could occur. Flintco Inc., 16 BNA
OSHA 1404, 1405 (No 92-1396, 1993).
CO Stelmack testified that serious physical harm death would result from the hazard of a
trench failure (Tr. 29). The Review Commission has recognized that “[i]f a cave-in occurred in an
8-foot deep trench, it is clear that there is a substantial probability that the likely result would be
death or serious physical harm.” DiGioia Brothers Excavating Inc., 17 BNA OSHC 1181, 1183
(No. 92-3024, 1995), citing Trumid Construction Co., 14 BNA OSHC 1784, 1789 (No. 86-1139,
1990). The undersigned finds that the serious nature of the aforementioned citation has been

   2
      The undersigned finds Mr. Hess’s reasoning with regard to this issue unpersuasive in

light of the heavy flow of traffic on Welsh Road.
3
Review Commission precedent has established that actual or constructive knowledge of
the employer’s foreman or supervisor can be imputed to the employer. Jersey Steel Erectors, 16
BNA OSHC 1162 (No. 90-1307, 1993).

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established by the Secretary.
PENALTY
Once a contested case is before the Review Commission, the amount of the penalty
proposed by the Complainant in the Citation and Notification of Proposed Penalties is merely a
proposal. What constitutes an appropriate penalty is a determination which the Review
Commission as the final arbiter of penalties must make. In determining appropriate penalties “due
consideration” must be give to the four criteria under Section 17(j) of the Act, 29 U.S.C., §666(j).
These “penalty factors” are: the size of the employer’s business, the gravity of the violation, the
employer’s good faith, and its prior history. J.A. Jones Construction Co., 15 BNA OSHC 2201,
2213-14 (No. 87-2059, 1993). These factors are not necessarily accorded equal weight.
Generally speaking, the gravity of a violation is the primary element in the penalty assessment.
Trinity Indus., Inc., 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992). The gravity of a particular
violation depends upon such matters as the number of employees exposed, the duration of the
exposure, the precautions taken against injury, and the likelihood that any injury would result. J.A.
Jones, supra.
CO Stelmack testified that the gravity of the violation was high. He testified that he
determined that the severity of the expected injury was fatal. He determined that the probability of
an injury occurring was greater because of the heavy traffic flow from Welsh Road which
presented potential vibration in the excavation which had not been properly sloped (TR. 30).
These factors resulted in a$5,000.00 gravity-based penalty. This penalty was adjusted to reflect
the small size of the Respondent and for a lack of any serious violations in the past 3 years. In
light of the high gravity, no adjustment was given for good faith. The undersigned finds that the
record supports the aforementioned findings, and that the proposed penalty in the amount of
$2,500.00 is appropriate.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).

                                            ORDER
    Based upon the foregoing, it is hereby ORDERED that:

Citation 1, Item 1, alleging a violation of 29 C.F.R. §1926.652(a)(1) is Affirmed as a serious
violation with a penalty of $2,500.00.

                                                  Covette Rooney
                                                  Judge, OSHRC

Dated: Washington, D.C.

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