ADVANCE PIPELINE, INC.
OSHRC Docket No. 12352
Occupational Safety and Health Review Commission
November 8, 1977
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Before: CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Bobbye D. Spears, Reg. Sol., USDOL
John J. Tarleton, for the employer
OPINION:
DECISION
BY THE COMMISSION: A decision of Review Commission Judge John S. Patton, dated December 8, 1975, is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision affirmed Citation No. 3 for a repeated serious violation of 29 C.F.R. § 1926.652(b) and assessed a penalty of $600 for that violation. It also affirmed items 1 and 2 of Citation No. 2 for repeated nonserious violations of 29 C.F.R. § § 1926. 651(i)(1) and 1926.652(h) and assessed penalties of $240 for each of these items. On review the respondent takes exception to the affirmance of the § 1926.652(b) violation and the appropriateness of the Judge's penalty assessments. n1
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n1 The Judge also affirmed items 1 and 2 of Citation No. 1 for two non-serious violations of 29 C.F.R. § 1926.251(c) on the basis that the respondent had admitted those violations in its answer to the complaint. The complainant had proposed no penalties for these violations and the Judge assessed none. The Judge's disposition of the citation will not be reviewed in this decision as no party has taken exception to it. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976).
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The respondent makes the following contentions in its brief to the Commission:
(1) The Judge applied the requirements of 29 C.F.R. § 1926.652(b) n2 rigidly and unreasonably in concluding:
"Even if the evidence establishes that Mr. Beck [an employee of the respondent] never worked in a trench over five feet, but worked in a trench five feet in depth, the standard would have been violated."
(2) The evidence did not prove a § 1926.652(b) violation and the testimony of Mr. Brownell, the county inspector, should be given no weight because the evidence showed he was prejudiced against the respondent.
(3) The $240 penalty is excessive for the § 1926.651(i)(1) violation because of extenuating circumstances.
(4) The respondent's good faith warrants lesser penalties for all violations.
For the reasons that follow, these contentions are rejected, and the Judge's decision is affirmed.
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n2 The standard provides in pertinent part that:
Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them.
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29 C.F.R. § 1926.652(b) Violation
The respondent was engaged in the process of installing a 16-inch pipe for a water main. It was stipulated that the trench which the respondent was digging for the water main was in soft and unstable soil. Uncontroverted evidence establishes that its sides were not shored, sloped, sheeted, braced, or otherwise supported. The installation work had stopped before the inspector arrived at the site for the inspection, and no employee was in the trench during his inspection.
The complainant contended that an employee of the respondent, Johnny Beck, had previously worked in the trench where the walls were at least 5 feet high. At the hearing, Beck testified that at no time had he entered the trench when its depth was over 5 feet. He later qualified that testimony by stating that, while the trench usually measured around 5 feet, on occasion it was "just a little over 5 feet." At such times, he would retreat to a more shallow portion of the trench and summon the machine operator to lessen the depth of the trench. He was under instructions from the respondent to work [*4] only at a 5-foot depth and no lower "unless it's absolutely necessary."
Other evidence showed, however, that Beck had in fact been working in a part of the trench deeper than 5 feet. Beck testified that he had worked in the bell end of the trench, a section of the trench where it was necessary to go under an existing storm drain. He estimated this portion of the trench to be about 5 feet in depth. However, the compliance officer measured the depth in that part of the trench as approximately 7 feet deep, and his measurement was corroborated by the testimony of Wayne Smith, the foreman on the site, and Ronnie Priest, one of the respondent's backhoe operators. Smith testified that the trench was about 7 feet deep at that point. Priest testified that it was over 7 feet deep. n3
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n3 The respondent contended that it used a procedure for laying pipe that did not require an employee to enter a trench over 5 feet in depth. However, Beck's testimony showed that the procedure was not used on the day of the inspection.
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Moreover, Robert Brownell, the county inspector for water lines and the engineer responsible for the water main project, testified that on the morning of the inspection he observed one of the respondent's employees in a part of the trench that was clearly and "substantially above" his head. The respondent sought to impugn Brownell's credibility by eliciting testimony that the witness had repeatedly argued with the respondent concerning its refusal to dig the trench as deep as Brownell felt necessary to adequately cover the pipe. The inspector had allegedly made certain hostile remarks against the respondent, including one that he hoped the respondent would lose money. Brownell testified that he did have heated arguments with the respondent, but that he bore no grudge against the respondent.
The Judge found that evidence showing that Beck worked in the trench when it was 5 feet deep established a violation of the standard. The Commission concludes that this is consistent with the unambiguous wording of the standard which requires that "trenches in unstable or soft material, 5 feet or more in depth, shall be shored." (Emphasis added.)
Also, the Judge's affirmance of the violation [*6] does not rest solely on the fact that the trench was only 5 feet deep. He correctly found that it was deeper than 5 feet. Beck admitted to being in a part of the trench at a point where three other witnesses testified that the trench was about 7 feet deep. This evidence is sufficient to establish that the violation occurred in a trench significantly deeper than 5 feet even if the testimony of Brownell is disregarded. That testimony need not be disregarded, however, since the Judge found Brownell's testimony to be credible and the Commission sees no reason to evaluate that testimony differently. n4
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n4 See CTM, Inc., 77 OSAHRC 136/C12, 5 BNA OSHC 1578, 1977-78 CCH OSHD para. 21,957 (No. 13008, 1977).
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Penalties
The respondent contends that the penalty for the 29 C.F.R. § 1926.651(i)(1) n5 violation should be reduced because of extenuating circumstances. It also contends that all penalties should be reduced because of the respondent's good faith.
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n5 Section 1926.541(i) provides as follows:
(1) In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.
(2) As an alternative to the clearance prescribed in subparagraph (1) of this paragraph, the employer may use effective barriers or other effective retaining devices in lieu thereof in order to prevent excavated or other materials from falling into the excavation.
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With regard to the § 1926.651(i)(1) violation, it is uncontroverted that a spoil pile was placed at the edge of the west side of the trench. It was 4 to 5 feet high and extended halfway into the adjacent road surface. A shoulder about 6 to 7 feet wide was located on the east side of the trench. The shoulder was bordered by a 3-foot or more drop which thereafter leveled off. Smith stated that the spoil was not piled on the east side of the trench because the slope of the enbankment would have made it too difficult to backfill the trench. According to the inspector's testimony, while [*8] it is customary to put a spoil pile on the road side of a trench, it can be split on both sides of the trench. He felt that in this instance the pile could have been placed on the east side of the trench, although it would have required additional work and equipment to refill the trench.
The respondent contends that the deviation from the requirement of the standard that a spoil pile be at least 2 feet from the edge of a trench was due to extenuating circumstances. It contends that moving the pile 2 feet further would have interfered with the one unobstructed lane of the adjacent roadway and that piling the dirt on the other side would have hampered backfilling operations from the drainage ditch on that side of the trench. Although the respondent contends that the additional effort for backfilling would have been prohibitively expensive and argues that the Judge overlooked "the economic realities with which respondent and others in his type of business must contend in these trying economic times," it did not submit any evidence on the actual additional expenses that would have resulted from the relocation of the spoil pile.
On this record, the Commission accepts the Judge's conclusion [*9] that the spoil pile could have been split on both sides of the trench. n6 Moreover, the Commission notes that the respondent had the alternative option of using barriers and retaining devices, as allowed by 29 C.F.R. § 1926.651(i)(2).
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n6 On the matter of the additional expense and difficulty in splitting the spoil pile, Chairman Cleary would also call attention to Arkansas - Best Freight Systems, Inc. v. OSHRC 529 F.2d 649, 652-654 (8th Cir. 1976); General Steel Fabricators, Inc., 77 OSAHRC 166/E14, 5 BNA OSHC 1768, 1977-78 CCH OSHD para. 22,104 (No. 13646, 1977); and Lee Way Motor Freight, 74 OSAHRC 22/D12, 1 BNA OSHC 1689, 1973-74 CCH OSHD para. 17,693 (No. 1105, 1974), aff'd, 511 F.2d 864 (10th Cir. 1975).
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The respondent also argues that all penalties should be reduced because of its good faith in complying with safety and health regulations. In this connection, it makes the following contentions in its brief to the Commission:
After the [prior citations], new employment regulations were established by the [*10] respondent including the mandatory requirement of wearing hard hats on the job, new methods of handling pipe, obtaining of first aid kits for each crew, requiring the foreman to know the location of the closest hospital . . . and investment in sheeting, cross braces, stringers, and shoring. . . . Also, a special method of laying pipe without requiring an employee to enter a trench of excessive depth was instituted . . . and repeated warnings were given to crew members about trench depths. . . .
Additionally, the respondent argues:
In spite of these precautions, Mr. Feldman, the respondent's president, could not be present on the job at all times to enforce the regulations. In fact, he did not have any personal knowledge of the alleged violations on January 10, 1975, which resulted in the charges in this case. . . . Respondent submits that its small size -- i.e., only two crews . . . -- the safety programs instituted after the first violations, and its general good faith in attempting to enforce safety standards should act as a substantial mitigation of any fines proposed by the complainant in this case.
With respect to the 29 C.F.R. § 1926.652(b) violation, the Judge noted that [*11] Beck had "frequently worked at a level of five feet and on occasion, worked at level greater than five feet." Nevertheless, he found that a $600 penalty, rather than the $1,600 penalty proposed by the complainant, was appropriate because:
The efforts made by top management do, however, constitute some mitigation; and it would appear that said violation is not as flagrant as would be true had the respondent not gone to such length to avoid the situation occurring, which did happen.
He affirmed the proposed penalty of $240 for the 29 C.F.R. § 1926.651(i)(1) violation because "a collapse of the spoil pile could result in smothering or injury to the employees."
The violation of 29 C.F.R. § 1926.652(h) involved the failure to have a ladder in the trench. The respondent normally used a ladder but one was not being used since it was broken on the morning of the inspection. Although there was a slope available as an exit at the end of the trench, the employee was 35 feet from it, and it did not provide firm footing because of the softness of the soil. The Judge affirmed the proposed penalty of $240 because serious injury or death could result from the lack of a "rapid exit."
The Commission [*12] concludes that the Judge's penalty assessments are reasonable in light of the statutory criteria in 29 U.S.C. § 666(i) and approves his action. Therefore, the Commission affirms the Judge's penalty assessments totaling $1,080.
Accordingly, the Judge's decision is affirmed.