Complete General Construction Co.

Plain-English summary

Complete General Construction was relocating water lines while widening a state highway in Waverly, Ohio. OSHA cited the company because a two-foot-high spoil pile sat directly at the edge of an excavation where two employees were working nearby. The judge held that § 1926.651(j)(2) requires spoil material to be kept at least two feet from the edge or restrained, and that merely sloping the pile is not an allowed substitute. He affirmed that serious item and assessed a $3,000 penalty. The judge vacated a willful cave-in-protection item because the Secretary had formally admitted that the trench was less than five feet deep except for a separate sump hole, and there was no evidence employees stood in that hole. With a competent person finding no indication of a cave-in, the shallow-excavation exception applied.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.651(j)(2) and 29 C.F.R. § 1926.652(a)(1)
• Outcome: The serious spoil-pile item was affirmed with a $3,000 penalty, while the willful cave-in-protection item was vacated.
• Key point: A spoil pile must be set back or restrained even if it is sloped, while a binding admission about trench depth can determine whether the shallow-excavation exception applies.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,
OSHRC Docket No. 99-1557
v.

Complete General Construction Co.,
Respondent.

APPEARANCES

             Elizabeth R. Ashley, Esq.                     Michael S. Holman, Esq.
             Office of the Solicitor                       Bricker & Eckler, L.L.P.
             U. S. Department of Labor                     Columbus, Ohio
             Columbus, Ohio                                        For Respondent
                      For Complainant

Before: Administrative Law Judge Ken S. Welsch

                                  DECISION AND ORDER
    Complete General Construction Co. (CGC) is a large highway construction contractor

whose headquarters is in Columbus, Ohio. On June 11, 1999, Occupational Safety and Health
Administration (OSHA) compliance officers James Denton and Charles Shelton inspected an
excavation dug by CGC at a worksite in Waverly, Ohio. As a result of their inspection, the
Secretary issued two citations to CGC on August 20, 1999.
Citation no. 1 alleges a serious violation of 29 C.F.R. § 1926.651(j)(2) for failing to locate
a spoil pile at least 2 feet away from the excavation. Citation no. 2 alleges a willful violation of 29
C.F.R. § 1926.652(a)(1) for failing to protect employees in an excavation with an adequate
protective system.
CGC denies the Secretary’s allegations. A hearing was held in this case on April 27 and
28, 2000, in Columbus, Ohio. The parties stipulate jurisdiction and coverage (Tr. 4). The parties
have filed post-hearing briefs.

                                         Background


                                              1

CGC is a highway construction contractor that employs approximately 500 people. In
June 1999 CGC was engaged in widening State Route 23 from four to five lanes, pursuant to a
contract with the City of Waverly, Ohio. In order to widen the highway, CGC had to relocate
underground water and sewer lines (Tr. 14-15).
On June 11, 1999, CGC was in the process of relocating water lines at the intersection of
State Route 23 and Victory Drive (Tr. 275). CGC had dug an excavation that ran approximately
25 to 30 feet north to south along State Route 23 (Tr. 111-112). The south end of the trench
terminated at Victory Drive (Tr. 59). CGC’s crew consisted of crew leader Gilbert Stevens and
laborers Joe Monteith, John Weeks, and a backhoe operator (Tr. 216-217).
OSHA compliance officers James Denton and Charles Shelton arrived at CGC’s Waverly
worksite at approximately 10:00 a.m. OSHA’s Columbus area office had received a telephone
call the previous day reporting that employees were exposed to unsafe conditions while working
in the trench (Tr. 113, 157). Shelton videotaped the site (Tr. 68). Denton held an opening
conference with crew leader Stevens (Tr. 163-164). Shelton took various measurements with an
engineering rod (Tr. 73-74).
Shortly after the compliance officers began their inspection, CGC superintendent John
Davis arrived. Davis asked Denton and Shelton to stop their inspection until Al Tambini, CGC’s
safety director, arrived at the site. The compliance officers agreed, and waited approximately 2
hours until Tambini arrived (Tr. 114-115). While they were waiting, Denton and Shelton
observed CGC’s crew backfill the south end of the trench and move a spoil pile away from the
edge of the east wall of the south end of the trench (Tr. 59, 199).
Larry Chitwood, the distribution supervisor for the City of Waverly Water Department,
was at the worksite the day of OSHA’s inspection. He had videotaped the employees in the
excavation prior to the arrival of the compliance officers. Chitwood gave a copy of the videotape
to Denton (Exh. C-1; Tr. 16, 34).

                                      Citation No. 1
   The Secretary has the burden of proving her case by a preponderance of the evidence.




                                              2

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 (i.e., 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).

            Item 1: Alleged Serious Violation of 29 C.F.R. § 1926.651(j)(2)
   The Secretary alleges that CGC committed a serious violation of 29 C.F.R. §

1926.651(j)(2), which provides:
Employees shall be protected from excavated or other materials or equipment that
could pose a hazard by falling or rolling into excavations. Protection shall be
provided by placing and keeping such materials or equipment at least 2 feet (.61
m) from the edge of excavations, or by the use of retaining devices that are
sufficient to prevent materials or equipment from falling or rolling into
excavations, or by a combination of both if necessary.

   It is undisputed that the cited standard applies and that the spoil pile was located directly

at the edge of the east wall of the excavation. The spoil pile was approximately 2 feet high (Exh.
C-2; Tr. 86, 95). It was composed of soil and small stones. Two employees were working inside
the excavation within 2 or 3 feet of the east wall where the spoil pile was located. The spoil pile
was in plain sight of anyone at the worksite. Crew leader Stevens was present during the
employees’ exposure in the excavation (Tr. 119, 121).
CGC argues that 29 C.F.R. § 1926.651(j)(2) does not require employers to place all spoil
piles at least 2 feet from the edge of excavations, but only those spoil piles “that could pose a
hazard by falling or rolling into excavations.” CGC claims that the spoil pile was sloped and “the
soil was very stable and there was no sloughing off back into the trench” (CGC’s brief, p. 12).
CGC’s argument is rejected. The soil in a spoil pile is, by definition, previously disturbed.
It is inherently unstable. The court disagrees with CGC’s interpretation of the cited standard,
whereby the employer first determines whether materials from the spoil pile could fall or roll into
the excavation, and then places the spoil pile according to this determination. The court

                                              3

interprets the standard to require all spoil piles to be placed at least 2 feet from the edge of the
excavation.
Sloping the spoil pile does not bring CGC into compliance with 29 C.F.R. §
1926.651(j)(2). The standard requires that the spoil pile either be placed at least 2 feet from the
edge of the excavation or that a retaining device be used, or that a combination of both be used.
Sloping is not an option under the standard.
The Secretary has established a violation of 29 C.F.R. § 1926.651(j)(2). The Secretary
alleges that the violation is serious. In order to establish that a violation is serious under §17(k) of
the Act, the Secretary must establish that there is a substantial probability of death or serious
physical harm that could result from the cited condition. In determining substantial probability,
the Secretary must show that an accident is possible and the result of the accident would likely be
death or serious physical harm. The likelihood of the accident is not an issue. Spancrete
Northeast, Inc., 15 BNA OSHC 1020, 1024 (No. 86-521, 1991).
Compliance officer Denton testified that the hazard created by CGC’s noncompliance “is
that the loose material could fall in the excavation and strike an employee that’s working within
the excavation and cause injury” (Tr. 120). The violation is properly classified as serious.

                                   Penalty Determination
    The Commission is the final arbiter of penalties in all contested cases. Under § 17(j) of the

Act, in determining the appropriate penalty, the Commission is required to find and give “due
consideration” to (1) the size of the employer’s business, (2) the gravity of the violation, (3) the
good faith of the employer, and (4) the history of previous violations. The gravity of the violation
is the principal factor to be considered.
CGC employs approximately 500 employees. The Secretary adduced no evidence of bad
faith. CGC has a written safety and health program, and provides safety training to its employees.
The Secretary proposed a penalty of $3,500.00 for this item. Denton testified that he gave no
credit for history because the Secretary had cited CGC in 1998. Subsequently, Denton discovered
that the 1998 citation had been vacated. The Secretary concedes that CGC is entitled to a
reduction in penalty based on its history (Tr. 201-203).

                                               4

The gravity of the violation is moderately high. The presence of the spoil pile directly at
the edge of the excavation creates the hazard of soil and rocks falling into the excavation. The
excavation was located in an area of heavy vehicular traffic, resulting in vibrations that could
increase the likelihood that the spoil pile material would fall into the trench. The hazard is
moderated by the fact that CGC sloped back the 2-foot high pile. It is determined that a penalty
of $3,000.00 is appropriate.

                                       Citation No. 2
            Item 1: Alleged Willful Violation of 29 C.F.R. § 1926.652(a)(1)
   The Secretary alleges that CGC committed a willful violation of 29 C.F.R. §

1926.652(a)(1), which provides:
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.

   Paragraph (b) describes the design of sloping and benching systems. CGC did not slope

the trench, but the northern part of the trench was benched. The south end of the trench, where
CGC employees were observed working, was not benched (Tr. 124-125). The trench walls were
vertical (Exhs. C-1, C-2; Tr. 41, 134). Paragraph (c) describes the use of support systems. CGC
did not use a protective system in the excavation, although it did have trench boxes available for
use on the site (Tr. 141-142).
The excavation does not meet the exception provided for in subsection (i) of the cited
standard. It was not made entirely in stable rock. The excavation was dug in previously disturbed
soil. Denton described the soil as crumbly, loose, and granular (Tr. 132). He classified the soil as
Type B (Tr. 133). John Davis, CGC’s superintendent, agreed with this classification (Tr. 306).
The issue is whether the excavation meets the exception provided in subsection (ii) of the
standard, i.e., whether the excavation was less than 5 feet in depth. CGC claims that the
excavation was not deeper than 4 feet, 9 inches at any point, except for the sump hole, where

                                              5

CGC contends its employees did not work. CGC concedes that the sump hole was deeper than 5
feet.
The Secretary argues that its compliance officers took three separate depth measurements
with an engineering rod in the south end of the trench. The first measurement, taken from the top
of the new 6-inch water line installed by CGC, was approximately 6 feet (Tr. 76-78). The second
measurement, taken along the south wall of the south end of the trench, was approximately 6 ½
feet deep (Tr. 78). The third measurement, taken at the south end’s east wall, was 7 feet deep
(Tr. 94). Chitwood observed two employees working in the south end of the trench (Tr. 26).
CGC contends that Tambini and Davis both took measurements at multiple locations in
the excavation that ranged from 4 feet, 3 inches to 4 feet, 11 inches (Tr. 278, 387). The company
argues that the Secretary’s measurements that were over 5 feet were taken in the sump hole.
CGC dug a sump hole in the trench to collect the water draining from the water line when
it was disconnected. The sump hole was approximately 2 feet long, 2 feet wide, and 2 feet deep.
It was located in the southeast corner of the excavation and was filled with water (Tr. 225-226,
228). There is no evidence that any employee ever stood in the sump hole (Tr. 146, 284-285).
To do so would result in being “stuck in mud up to your knees,” according to CGC laborer
Monteith (Tr. 340).
Regardless of where the compliance officers took the depth measurements, the Secretary
is estopped from proving that the excavation exceeded 5 feet anywhere but the sump hole. Rule
36(b) of the Federal Rules of Civil Procedure provides:
Any matter admitted under this rule is conclusively established unless the court on
motion permits withdrawal or amendment of the admission.

    The Secretary admitted in her answer to CGC’s request for admission that “the trench

referred to in the Citation was less than five feet in depth, except for the sump hole” (Exhs. R-1A,
R-1B, request and answer number 5).
Although this admission plainly refers to the 2 foot by 2 foot hole dug to collect the
draining water, the Secretary attempts to expand the boundaries of her admission to include areas
of the trench where employees were working. At the hearing, Denton stated that he considered

                                              6

the sump hole to be the entire south end of the trench (Tr. 169). In her post-hearing brief, the
Secretary refers to the south end of the trench as the “sump area” (Secretary’s brief, p. 9).
The Secretary is bound by her original admission. The admission addresses “the sump
hole.” The sump hole was identified at the hearing as a specific hole dug by a 2 foot by 2 foot
bucket in the trench floor (Tr. 225-227). The dimensions of the hole are demarcated in the record
and do not include the entire south end of the trench. It is determined, in accordance with the
Secretary’s admission, that the depth of the trench exceeded 5 feet only when measured in the 2
foot by 2 foot sump hole.
Exception (ii) under 29 C.F.R. § 1926.652(a)(1) provides that no protective system is
required in excavations that are less than 5 feet in depth and where “examination of the ground by
a competent person provides no indication of a potential cave-in.” Tambini, who is certified as a
competent person, inspected the excavation and determined that there was no indication of a
potential cave-in (Exhs. R-12, R-13; Tr. 369, 380-381).
Exception (ii) applies to excavations less than 5 feet in depth. According to the
Secretary’s admission, the trench walls as measured from the trench floor were less than 5 feet.
Even though the depth exceeded 5 feet when measured from the sump hole, the trench walls did
not exceed 5 feet. The trench was 6½ feet wide at the south end (Tr. 87). The sump hole took
up approximately of the width of the trench floor. It is the court’s determination that the
presence of the sump hole in the trench floor did not remove the trench from the category of
excavations less than 5 feet in depth. There was no showing that the hole was immediately
adjacent to one of the trench walls. The stability of the trench walls was not compromised by a
hole in the trench floor in the way it would be if one side of the hole was coterminous with one of
the walls. There is no evidence that employees stood or had reason to stand in the sump hole.
The excavation was less than 5 feet in depth. No protective system was required. Item 1
of citation no. 2 is vacated.

                  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).

                                              7

ORDER
Based upon the foregoing decision, it is hereby ORDERED that:
1. Item 1 of citation no. 1, alleging a serious violation of 29 C.F.R. § 1926.651(j)(2),
is affirmed and a penalty of $3,000.00 is assessed; and

    2.     Item 1 of citation no. 2, alleging a willful violation of 29 C.F.R. § 1926.651(a)(1),

is vacated and no penalty is assessed.

                                          KEN S. WELSCH
                                          Judge

Date: October 12, 2000

                                             8