GERARD LEONE & SONS
OSHRC Docket No. 14157
Occupational Safety and Health Review Commission
March 29, 1978
[*1]
Before CLEARY, Chairman, and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Albert H. Ross, Reg. Sol., USDOL
John D. O'Reilly, III, for the employer
OPINION:
DECISION
BY THE COMMISSION:
The issue in this case is whether Administrative Law Judge Foster Furcolo erred in vacating a citation alleging that respondent (Leone) violated 29 C.F.R. § 1926.651(i)(1) n1 in that excavated material was located at the edge of a trench in which its employees were working. We reverse the Judge's decision and affirm the citation. n2
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n1 The standard provides:
"In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least two feet or more from the edge of the excavation."
n2 The Judge also vacated a citation alleging a violation of 29 C.F.R. 1903.2 and affirmed a citation for violation of 29 C.F.R. 1910.652(c). Neither party has taken exception to the Judge's disposition of these items, and they are therefore not before us on review.
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Leone, a general contractor, was performing trenching operations at a worksite in Natick, Massachusetts. Materials excavated from the trench were placed on trucks and dumped alongside a previously excavated part of the trench for subsequent use as backfill. Leone's work plan was to only dump such backfill material along any portion of the trench when the employees who were working in the trench had moved thirty feet down the trench. At the time the worksite was inspected by an OSHA compliance officer, however, a spoil pile was located at the very edge of the trench above the heads of Leone's employees. The record does not establish the length of time this material had remained at the edge of the trench prior to the inspection.
Judge Furcolo found that the excavated materials were "briefly and temporarily" placed at the edge of the trench. He interpreted the words "stored and retained" within the cited standard to mean that the Secretary must prove more than very brief and temporary placement of the excavated materials within less than two feet of the edge of the trench. He therefore found no violation and vacated the citation.
The Secretary argues that the Judge's interpretation [*3] of the cited standard is contrary to the purpose of the Act. He contends that a more reasonable interpretation would require an employer to place excavated materials at least two feet from the edge of any trench which employees may enter, and to take measures to insure that the material stays two feet or more from the edge.
Leone's primary contention is that the term "stored" in the standard "refers to a more permanent or lengthy placement for safekeeping than the temporary and transient situation involved in this case." Leone thus contends that its work plan, in which material was only briefly placed near the edge of the trench before being used as backfill, complied with the standard.
We reject Leone's suggested interpretation of the standard. We believe that a more reasonable interpretation is one which connotes "stored" with the words "held" or "placed," without reference to the length of time the material is at the trench edge. We note that the danger to employees is the same regardless of whether the material is at the edge for a short or long time since the material could fall into the trench at any moment, thereby injuring exposed employees. Therefore, it would be unreasonable [*4] if we were to read the standard as imposing arbitrary distinctions based upon time constraints. Additionally, the standard is directed at a situation which, by its nature, generally will only exist for a limited period of time, and therefore must contemplate that the word "stored" refers to a temporary, as well as a lengthy or permanent, situation.
Furthermore, the Commission has previously held that the word "stored" used in a standard contemplates temporary as well as permanent storage. Whitcomb Logging Co., 74 OSAHRC 89/F7, 2 BNA OSHC 1419, 1974-75 CCH OSHD para. 19,128 (No. 1323, 1974) In Whitcomb, an alleged violation of 29 C.F.R. 1910.109(c)(1)(ii) n3 was in issue. Blasting caps and powder had been placed together in a field magazine, and left there for three to four hours while other work was done. The Commission noted that the placement together of the caps and powder for that period of time unnecessarily exposed employees to the hazard against which the standard was directed, and therefore concluded that the materials were "stored" in violation of the standard.
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n3 This standard provides:
Blasting caps, electric blasting caps, detonating primers, and primed cartridges shall not be stored in the same magazine with other explosives. (Emphasis added.)
[*5]
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Similarly, we conclude that Leone violated the standard at 29 C.F.R. § 1926.651(i)(1). By its own work plan, Leone did not intend to place the spoil pile in the area where the employees were working. Leone could have performed its work without exposing employees to the hazard of a spoil pile which was too close to the edge of the section of trench where they were working. The placement of excavated materials at the edge of the trench was unnecessary to the work being performed, and we conclude that the materials were therefore "stored" within the meaning of the standard.
We also conclude that the $35 penalty proposed by the Secretary is appropriate under the circumstances of this case.
Accordingly, we affirm the citation for violation of 29 C.F.R. 1926.651(i)(1) and assess a $35 penalty.