The cited regulation provides:

29 CFR 1926.102(a)(2): Eye and face protection equipment required by this Part shall meet the requirements specified in American National Standards Institute, Z87.1-1968, Practice for Occupational and Educational Eye and Face Protection.

            Respondent’s employee, Matthew Bohm, was cutting a water main pipe with a portable hand-held saw. The cited standard requires ANSI compliant eye protection “when machines or operations present potential eye or face injury from physical, chemical, or radiation agents.” 29 C.F.R. §1926.102(a)(1). Particles entering the eye as a result of cutting pipe with a hand-held saw could have result in substantial and permanently debilitating injuries. The standard clearly applies to the cited condition. Foreman Schupp acknowledged that in this instance, Mr. Bohm was wearing his personal prescription glasses rather than qualifying safety glasses. The standard was violated. Obviously, Mr. Bohm was the employee exposed to the violative condition. Fabricated Metal Prods., 18 BNA OSHC 1072, 1995-1997 CCH OSHD &31,463 (No. 93-1853, 1997). Foreman Schupp was the crew supervisor and designated competent person. (Tr. 77-78, 127-128). Knowledge of Mr. Bohm’s failure to wear qualifying eye protection is imputed to Respondent through Foreman Schupp’s presence and direct observation of Mr. Bohm while he was cutting the pipe. Globe Contractors, Inc. v. Herman, 132 F.3d 367 (7th Cir. 1997). The citation was properly characterized as a serious violation. Whiting-Turner Contracting Co., 13 BNA OSHC 2155, 1989 CCH OSHD ¶28,501 (No. 87-1238, 1989). Complainant established the prima facie elements necessary to affirm Citation 1 Item 1(b).

Citation 2 Item 1

            Complainant alleges that Respondent willfully violated the cited regulation as follows:

29 CFR 1926.652(a)(1): Each employee in an excavation was not protected from cave-ins by an adequate protective system designed in accordance with paragraph (b) sloping and benching systems, or paragraph (c) support systems, shield systems, and other protective systems: Each employee in an excavation is not protected from cave-ins by an adequate protective system. The employer does not protect each employee in its trenches by properly sloping the trenches or using appropriate protective systems. This violation was observed at 3708 North Prospect Road, Peoria, Illinois. To abate this violation, the employer must ensure that its trenches are properly sloped or equipped with appropriate protective systems, and that no employees enter trenches until this protection is provided.

[with additional language regarding abatement verification requirements and reference to previous citations alleging violations of the same standard in 2006 (two), 1989, and 1986]

            The cited regulation provides:

29 CFR 1926.652(a)(1): Protection of employees in excavations. (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 (1.52m) in depth and examination of that ground by a competent person provides no indication of a potential cave-in.

            The citation alleges a failure to provide adequate excavation protection for Respondent’s employees. The cited standard addresses various acceptable methods of excavation protection. The standard clearly applies. The parties agreed that the soil in this eight-foot-deep excavation was “Type B.” Therefore, the slope of the excavation walls could not exceed 45 degrees (one horizontal to one vertical). 29 C.F.R. §1926.652, Appendix B, Table B-1.2. The record establishes that three walls of the excavation exceeded the maximum allowable slope, with no other form of protection having been implemented. The terms of the cited standard were violated. Mr. Bohm’s presence in the bottom of the excavation while it was in this condition establishes employee exposure to the violative condition. As with Citation 1 Item 1(b) above, Foreman Schupp’s direct knowledge of Mr. Bohm working in this excavation, in this condition, is imputed to Respondent.

The court concludes that Complainant failed to establish the willfulness of this violation. Respondent had developed and implemented, as conceded by Complainant, a well-documented excavation safety program with adequate rules and employee training. (Tr. 520-521). The existence of this program, and the acknowledgement of OSHA as to its comprehensiveness, does not demonstrate the Respondent’s state of mind was “such that, if informed of the duty to act, it would not have cared.” Diamond Installations, supra. In addition, the record demonstrates a reasonable effort by the Respondent to slope the excavation as opposed to not taking any steps at all to slope the walls. Foreman Schupp admitted that he was in a hurry and neglected to measure the angle of the excavation walls on the morning of the inspection. (Tr. 574, 594-595). He also testified that he did not know whether or not the sloping was in compliance with the requirements. (Tr. 675). His actions are distinguishable from a supervisor who measured the angle of the excavation walls, determined they were non-compliant, and then proceeded with no regard for employee safety. While there is no excusing Foreman Schupp’s omission, or the exposure of Mr. Bohm to this unsafe condition, the court is not convinced that the evidence in this case rises to the level of “intentional, knowing or voluntary disregard for the requirements of the Act or with plain indifference to employee safety.” On the contrary, Foreman Schupp testified that he “usually get[s] into trouble because [he] take[s] too much time making sure that ditches are correct .” (Tr. 594). Inaction due to negligence is not generally equated to willfulness. See McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988). Considering these facts, in combination with the finding (below) that Respondent established three of the four elements necessary to prove an employee misconduct defense, the court concludes that Complainant failed to establish willfulness. Since a wall collapse in this improperly sloped excavation could have resulted in serious injury or death, the court concludes that Complainant established the prima facie elements necessary to affirm Citation 2 Item 1 as a serious violation of the Act.

Citation 3 Item 1

            Complainant alleges that Respondent repeatedly violated the cited regulation as follows:

29 CFR 1926.651(j)(2): Employees were not protected from excavated or other materials or equipment that could pose a hazard by falling or rolling into excavations: Each employee in an excavation is not protected from struck-by hazards and the spoil pile and materials are stored within two feet of the excavation. The employer does not protect each employee in its trenches by setting spoil piles and materials at least two feet from trenches. This violation was observed at 3708 North Prospect Road, Peoria, Illinois. To abate this violation, the employer must ensure that spoil and materials are set back from the edge of the excavation at least two feet and that no employees enter trenches until this protection is provided.

[with additional language regarding abatement verification requirements and reference to a previous citation alleging a violation of the same standard in 2006]

            The cited regulation provides:

29 CFR 1926.651(j)(2): 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 (.61m) 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.

            The citation is for improper placement of spoils extracted from an excavation. The cited standard establishes the minimum distance for proximity of spoils piles to an excavation. The standard clearly applies to the cited condition. The standard prohibits placement or storage of “excavated or other materials or equipment that could pose a hazard by falling or rolling into excavations” within two feet of the excavation edge. CSHO Armstrong testified that the spoil pile at the south end of the excavation came down to the edge of the excavation. (Tr. 53). Investigative photographs also establish that the spoils pile nearest to the backhoe bucket, as well as one of the backhoe outrigger bases were within two feet of the excavation edge. (Ex. C-12, C-15, C-19, C-21). The terms of the standard were violated. Mr. Bohm was exposed to this violative condition while he was working inside the excavation. If dirt from the spoils pile collapsed back into the excavation, or the backhoe’s outrigger base slipped off the edge, Mr. Bohm could have been seriously injured or killed. Therefore, employee exposure was established. As with the first two alleged violations, Foreman Schupp was present and his knowledge of these jobsite conditions is imputed to Respondent.

            It was undisputed that Respondent received a Citation and Notification of Penalty in 2006 which included a violation of 29 C.F.R. §1926.651(j)(2). (Ex. C-41, C-42). By presenting evidence of a previous violation of the same cited standard, Complainant has met its burden of establishing the substantial similarity of the hazards. Respondent failed to present evidence to rebut that prima facie showing. Accordingly, Complainant established the prima facie elements necessary to affirm Citation 3 Item 1 as a repeat violation of the Act.

Affirmative Defense

            Respondent asserted the defense of unpreventable employee misconduct to these violations. The record establishes that Respondent had written rules concerning excavation protection requirements, spoils pile placement during the excavation process, and effective eye protection. (Ex. R-7). Respondent also established that those rules were adequately communicated to employees and supervisors through training and distribution of written materials. In fact, Complainant stipulated to these elements of the defense. (Tr. 520-521). Respondent also established that it monitored for compliance with these rules, at least through the actions of its Safety Director, Wayne Clayton, by reviewing daily foreman reports and conducting on-site safety audits. (Tr. 799-805). However, the court is not persuaded that Respondent effectively enforced its own rules and policies when violations were discovered.

            Foreman Schupp acknowledged that Respondent’s policy for safety violations mandates the issuance of “safety tickets” with progressive disciplinary consequences. (Tr. 542-543). According to company policy, the first violation should result in the issuance of a ticket accompanied by a written warning. (Ex. R-2). A second violation should result in a ticket accompanied by a one-day suspension without pay. A third violation should result in a ticket accompanied by a three-day suspension without pay. Respondent’s policy mandated that a fourth violation resulted in termination. (Tr. 543; Ex. R-2). The court notes that the Respondent’s policy does not allow “verbal” warnings to be issued in lieu of the written safety tickets. Safety Director Clayton testified that in 2006, after the safety violation policy was implemented, he provided training on the policy to all area managers, superintendents and foremen (collectively referred to as “supervisors”), and provided copies of the policy to each of those individuals along with a “safety ticket” book. (Tr. 798-799, 852-853). Despite this policy, training and Foreman Schupp’s observation of safety violations by various employees, he testified that he has never issued any tickets to anyone. (Tr. 543). Foreman Schupp testified that he has verbally corrected employees in the past for improper placement of spoils piles and failure to wear proper safety glasses. (Tr. 523-525). In fact, the only method of correction he has ever used for employee safety violations were both verbal and undocumented. (Tr. 602-603). The deficiency in the practice of verbal warnings lies in the fact that this practice undermines Respondent’s safety rule enforcement scheme in that there was no method to determine how many times a particular employee had received verbal corrections for safety violations, especially when working for different foremen.

            Foreman Schupp was not the only supervisor who had observed safety violations on Respondent’s jobsites yet failed to follow its discipline program. Rod Martin, one of Respondent’s Superintendents, testified that he verbally corrects employees for safety deficiencies but has never issued any “safety tickets.” (Tr. 633-634). In fact, none of Respondent’s supervisors, with the exception of Safety Director Clayton, have issued any “safety tickets” to any employee since August of 2006 - the same year the program was implemented. (Tr. 947-948). For the safety program to truly be effective and properly implemented, supervisors need to follow Respondent’s own policy and issue safety citations. In conclusion, the court rejects Safety Director Clayton’s theory that supervisors did not issue “safety tickets” to employees in 2007 and 2008 because the company established a better track record of complying with safety regulations. (Tr. 883-887). Superintendent Martin and Foreman Schupp contradicted his theory through testimony that after 2006, they issued only verbal warnings for observed safety violations.

            In addition to supervisors not following Respondent’s program for enforcing its safety rules, the court is also troubled by Superintendent Martin’s testimony that supervisors gave each other advance warning when Safety Director Clayton was in their area conducting safety audits. (Tr. 637). Superintendent Martin testified that supervisors on different projects communicated by radio to let each other know when Safety Director Clayton was patrolling the area. (Tr. 637). This apparent cooperation among Respondent’s supervisors to undermine the “surprise” element of internal safety audits exposes a flaw in the effectiveness of Respondent’s safety enforcement program.

             Foreman Schupp’s statement that he “gets into trouble” when he “takes too much time making sure that ditches are correct” is also troubling. (Tr. 594). This reveals an unsavory conundrum for Respondent’s supervisors - risking trouble for taking the time to properly implement safety measures, or, risking trouble for not taking the time to properly implement safety measures. This is a dilemma that would not be present in a workplace in which safety was a priority and failure to follow safety rules was effectively enforced.

            Finally, incorporating the findings below concerning OSHRC Docket No. 09-0005, the fact that similar excavation safety deficiencies were observed at two different jobsites, supervised by different individuals, involving different employees, only a few weeks apart, belies the notion that the violative conduct was isolated or unforeseeable. Falcon Steel Co., 16 BNA OSHC 1179, 1193 (Nos. 89-2883 & 3444, 1993); Brennan v. Butler Lime and Cement Co., 520 F.2d 1011 (7th Cir. 1975).

            These facts convince the court that: (1) Respondent’s safety program has deficiencies that need to be addressed, and (2) Respondent’s rules were not effectively enforced when violations were discovered. Rawson Contractors, Inc., 20 BNA OSHC 1078, 2002 CCH OSHD ¶32,657 (No. 99-0018, 2003). Accordingly, Respondent failed to establish the affirmative defense of unpreventable employee misconduct with regard to the violations alleged in OSHRC Docket No. 09-0004.

OSHRC Docket No. 09-0005 (OSHA Inspection No. 310802095) (Champaign site)

            On July 22, 2008, OSHA Compliance Safety and Health Officer (“CSHO”) Jeff Strain, with the Peoria, Illinois Area OSHA Office, conducted an inspection of Respondent’s jobsite at Springfield and Third, in Champaign, Illinois. (Tr. 261). A general contractor representative walked him over to an excavation CSHO Strain had observed when he entered the jobsite, and introduced him to Respondent’s Superintendent, Rod Martin. (Tr. 263). Superintendent Martin was the designated competent person for the excavation. (Tr. 313-314). Respondent’s crew, under the supervision of Martin, was installing underground sewer lines near a newly constructed store. (Tr. 642).              

            Superintendent Martin told CSHO Strain that he had tested the soil with a penetrometer that morning, as well as the day before, both of which indicated a compressive strength of 1.49 tons per square foot (“tsf”). (Tr. 663). A slightly higher result of 1.5 tsf would have been an indication of “Type A” soil. (Tr. 663). Consequently, Superintendent Martin categorized the soil as “Type B.” (Tr. 663). Based on CSHO Strain’s observations of the soil, a thumb-penetration test, the existence of two previously installed utility lines, and observed fissures, he also concluded that the soil was “Type B.” (Tr. 288). To be sure, CSHO Strain took two soil samples and mailed them to OSHA’s Salt Lake City Laboratory for analysis. (Tr. 289; Ex. C-38). At trial, Complainant maintained its position that the soil in the excavation was “Type B”, while Respondent argued that soil in the area in which employees were working was actually “short-term Type A” which would allow slopes as steep as 63 degrees (1/2 horizontal to 1 vertical). (Tr. 342-343).

            On the morning of the OSHA inspection, but before CSHO Strain’s arrival, Superintendent Martin’s crew had been using a trench-box for excavation protection. (Tr. 658). However, Superintendent Martin left the site for a one-hour meeting, and when he returned, his crew was no longer using the trench box because it would not fit into the area between the water main and the frost wall (a type of foundational wall). (Tr. 665-666, 739-740; Ex. C-35, C-36). The protection method at that point was simple sloping - no benching, shielding, or other type of excavation protection was being attempted. (Tr. 389-391). No additional soil testing had been conducted when the crew decided to change from trench-box protection to sloping protection. (Tr. 702). Based only on his previous penetrometer test and what Superintendent Martin described as “much harder” soil, he changed his previous conclusion and determined that the soil in the new working area must have changed to “Type A.” (Tr. 667, 674). On that basis, he allowed his crew to continue working without using the trench box. (Tr. 667).

            When CSHO Strain arrived “a few minutes later”, Superintendent Martin was observed and photographed working with his crew at the excavation. (Tr. 659, 669; Ex. C-36). Superintendent Martin conceded that one of Respondent’s employees, A.J. Kerber, had been working in the excavation for about an hour when CSHO Strain arrived at the jobsite. (Tr. 276, 666, 735).

            During the OSHA inspection, Superintendent Martin and Safety Director Clayton conducted two additional penetrometer tests which resulted in compressive strength readings of 3.5 tsf and over 4.0 tsf. (Tr. 672, 736, 912). Clint Merrell, a Laboratory Analyst in OSHA’s Salt Lake City Technical Laboratory, who has performed more than 2,600 soil analyses during his thirty year tenure with OSHA, testified as an expert witness on soil-typing. (Tr. 217; Ex. C-25). He described in detail how he applied OSHA’s method of analyzing the two soil samples he received from CSHO Strain. (Tr. 213, 440-471, 480; Ex. C-27, C-38). His own compressive strength testing resulted in readings similar to those obtained by Superintendent Martin and Safety Director Clayton during the inspection: 4.0 tsf and 4.1 tsf. (Tr. 441-449). Despite Mr. Merrell’s compressive strength test results, which he acknowledged were indicators of “Type A” soil, he ultimately concluded that the samples were “sandy clay cohesive Type B” soil, primarily based on small clumps that had broken off of the samples. (Tr. 444). He testified that this was an indication of fissuring in the soil. (Tr. 441-442, 448-453). Mr. Merrell explained that compressive strength tests were only one indicator of soil-type. “Type B” soil can also have a high compressive strength. (Tr. 454). Respondent did not call an expert witness to address Mr. Merrell’s contentions. CSHO Strain’s testimony and investigative photographs also revealed that the excavation contained previously disturbed soil, as two existing utility lines were uncovered and continued to cross through the middle of Respondent’s excavation. (Tr. 265, 668; Ex. C-32). The soil would have also been previously disturbed during the construction of the frost wall on the south end of the excavation. (Tr. 691-700; Ex. C-33, C-34, C-35).

              The excavation was more than six feet deep and the angles of three of the trench walls measured (vertically) 85 degrees , 75 degrees, and 65 degrees. (Tr. 280, 286-287, 384, 958; Ex. C-32, C-35, C-36). Safety Director Clayton confirmed that he also observed walls in the excavation which were greater than 45 degrees, which he agreed would not be compliant for “Type B” soil. (Tr. 909, 954). CSHO Strain testified that none of the three excavation wall angles he measured would be compliant in either “Type B” or “Type A” soil. (Tr. 434).

            With regard to the alleged spoils pile violation, CSHO Strain did not actually measure the distance of the spoils pile to the edge of the excavation wall. (Tr. 349). He assumed that any loose material on the top edge of the excavation wall consisted of spoils material. (Tr. 350). However, the white rock gravel prevalent in the photographs and near the edge of the excavation did not come out of the excavation. (Ex. C-33, C-34). A layer of white gravel had been intentionally placed on the surface edge to serve as a buffer between work materials and mud (Tr. 679, 681, 683, 686, 723) and to build a ramp (Tr. 679-680). Thus, the white gravel is not part of the spoil pile. An examination of the photograph taken by CSHO Strain clearly shows the placement of the white gravel. (Ex. C-36). With the exception of a few clumps of soil, the white gravel is readily visible until the area north of the preexisting utility line. (Ex. C-33). Superintendent Martin testified that he specifically checked the spoils pile above the area where Mr. Kerber had been working and no part of that spoils pile, except for a few small clumps of dirt, were within two feet of the excavation edge. (Tr. 687). Superintendent Martin explained that the only spoils pile material within two feet of the edge was in the portion of the excavation being backfilled - behind the pre-existing water pipe (running perpendicularly through the excavation about halfway up). (Ex. C-30, C-31, C-33 and C-36). He also testified that employees were not working in that area. (Tr. 724, 731-732). Since CSHO Strain did not personally observe employees working in the excavation where the spoil piles actually were within two feet of the excavation wall (i.e., north of the preexisting water pipe), or measure any distances from the spoils pile to the excavation edge, the court accepts Superintendent Martin’s description of the employee’s location in relation to the spoils piles. The court also gives weight to the photographic evidence which shows the white gravel laid down as a buffer from the mud at grade level. (Ex. C-33 through C-36).

Citation 1 Item 1

            Complainant alleges that Respondent willfully violated the cited regulation as follows:

29 CFR 1926.651(j)(2): Employees were not protected from excavated or other materials or equipment that could pose a hazard by falling or rolling into excavations: Each employee in an excavation is not protected from struck-by hazards and the spoil pile is stored within two feet of the excavation. The employer does not protect each employee in its trenches by setting spoil piles at least two feet from trenches. This violation was observed at Springfield and Third, Champaign, Illinois. To abate this violation, the employer must ensure that spoil piles are set back from the edge of the excavation at least two feet and that no employees enter trenches until this protection is provided.

[with additional language regarding abatement verification requirements and reference to a previous citation alleging a violation of the same standard in 2006]