By: Thomas H. Welby Thomas H. Welby Published: October 2005

Safety Policy: Lessons From OSHA Cases Concerning Excavation Hazards (Part 2 of 2)

Following up last month’s article, let’s survey some OSHA cases for lessons about particular issues relating to excavations, and some practice pointers as well.

In Secretary of Labor v. McLeod Land Services, Inc. the inspector found two employers in a trench, as sections of pipe for a drainage line were being installed. A 154,000-pound excavator was hanging over the end of the trench. The vertical wall that supported the excavator was not shored, braced or supported. When the compliance officer ordered work to stop, the excavator had just been used to place an 8-foot section of 24” concrete pipe. The excavator bucket was hanging above that pipe, and one employee in the trench stood directly below the bucket and the excavator arm.

The employer was cited for failing to protect its employees from equipment that could pose a hazard by falling or rolling into excavations, in violation of 29 C.F.R. § 1926.651(j)(2). The employer was also found to have violated OSHA standards that require daily inspections of excavations by a “competent person,” and that the employer instruct its employees in the recognition and avoidance of unsafe conditions, and the regulations applicable to his work environment.

A thread common to each of the OSHA violations in McLeod Land Services is that employers cannot rely upon the experience of its employees. “An employer has a duty to provide adequate training even if employees are experienced.” In McLeod, foremen and management employees received comprehensive materials on excavation and trenching, but “rank and file” employees received only a “mini” version of that manual. The company relied on foremen to relay information from monthly safety meetings to rank and file employees, but there were no regularly-scheduled toolbox talks, and attendance was optional at meetings for non-supervisory personnel. The employer did nothing to ascertain that the workers actually read and understood the abbreviated safety manual they were given. The Commission found this to be insufficient.

In Secretary v. Lakeland Enterprises of Rhinelander, Inc., a co-owner of the employer was excavating an 18-foot deep trench, as an employee in the trench dug by hand around a sewer pipe, so that the backhoe would not rupture the line. There was a ladder lying alongside the trench, but no ladder in the trench, to provide a means of egress for the employee. We note this case for three points. First, a safety program that looks good on paper, but is not sufficiently communicated to employees (and enforced) is useless as a defense. Second, in Lakeland, the backhoe operator did not order the endangered employee out of the trench, but continued to dig out the nearly vertical trench wall close by, actually increasing the danger. Third, it can negate an “unavoidable employee misconduct” defense, and support a finding that a violation was willful, that an owner or other supervisor ignored the violation, and the safety of the employee.

A similar lack of common sense was displayed by the employer in Secretary of Labor v. B&B Plumbing, Inc. In that case, the principal of a sanitation plumbing contractor, engaged in building a school, found that, due to a pipe not shown on the plans, a 75-foot long, unshored trench, that was to have been a maximum of 4’ deep, was 8’ deep in places, with vertical sides and no ladders. The contractor “knew shoring was necessary in an 8 foot deep trench, but he did not have the equipment.” Employees were allowed to work in the trench, and one died in a cave-in in the 8’ depth area. “Where the competent person finds evidence of a situation that could result in a possible cave-in” or other dangers, “exposed employees shall be removed from the hazardous area until the necessary precautions have been taken to ensure their safety.” 29 C.F.R. § 1926.651(k)(2). This employer was cited also for violating the “no-brainer” OSHA standard that employees working in trenches should wear hard hats. 29 C.F.R. § 1926.28(a).

Similarly, in Secretary v. RMS Construction, Inc., in addition to allowing employees to work in an unshored, unsloped trench as deep as 11’ and not equipped with ladders or other exits, the workers were engaged in form work, and tying rebar that was not capped. Although, strictly speaking, 29 C.F.R. § 1926.701(b) speaks of guarding “protruding reinforcing steel . . . to eliminate the hazard of impalement,” the Commission upheld a “serious” violation, as employees could have sustained deep cuts or wounds had they tripped and fallen against the rebar.

Long experience in trenching does not necessarily make one a “competent person,” as OSHA requires to be on-site, and to perform at least daily inspections. In McLeod, a foreman, Jenkins, told the compliance officer that he was the “competent person” having dug trenches for 25 years. However, Jenkins, when asked about his knowledge of soil mechanics and whether he had done any field tests to classify the soil, admitted that he guessed he must not be the “competent person.” The definition of “competent person” in 29 C.F.R. § 1926.650 is as follows:

Competent person means one who is capable of identifying existing and predictable hazards in the surroundings, or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them.

The employer in McLeod Land Services failed also to establish its fallback position, that one Brenton, a utility superintendent who kept a logbook to record daily conditions, comments and jobsite conditions, was the “competent person.” However, as Brenton’s logbook excerpts did not show that he had kept the logbook in the capacity of a “competent person,” there was not even a suggestion that Brenton had ever actually inspected the trench in question, and the employer’s general superintendent (and the boss of both Brenton and Jenkins) had identified Jenkins, not Brenton, to the OSHA compliance officer as the “competent person,” this proffer was likewise rejected.

In P. Gioioso & Sons, Inc. v. OSHRC, the employer was laying water lines on a project in Massachusetts. OSHA compliance officers chanced upon an 18-foot deep trench at the site. What they saw was alarming:

[T]he trench’s walls were unsloped and unsupported, the two workmen standing in the trench were visible only from the shoulders up, and a ten-foot section of cast metal pipe was suspended aloft from the bucket of a piece of heavy construction equipment located at one end of the trench.

As an aside, employers cited for excavation violations sometimes try, usually without success, to assert a defense based on Fourth Amendment protections against warrantless searches. As illustrated by Secretary v. Arapahoe Utilities and Infrastructure Inc. (involving a trench dug on a public golf course) the employer has no reasonable expectation of privacy where its activities are conducted out of doors, and open to public view. Whatever the public can see, an OSHA inspector is entitled to look at without a warrant.

The employer in Gioioso filed a timely notice of contest, but the ALJ found that the violations had occurred, and imposed monetary penalties. In its PDR (Petition for Discretionary Review), the employer contested the ALJ’s finding of fact, whether the employees were exposed to trench-related hazards without an adequate protection system, and the ALJ’s rejection of its “unpreventable employee misconduct” defense.

On appeal to the U.S. Court of Appeals, the employer sought to raise three issues in addition to those raised in its PDR. Too late, the employer found it had committed a common procedural misstep. The doctrine requiring the exhaustion of administrative remedies bars consideration of unpreserved defenses. While providing for review by a court of appeals, Congress directed that “no objection that has not been urged before the Commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” The employer’s argument that urging an objection before the ALJ was the functional and legal equivalent of urging it before the Commission was rejected. The court of appeals stated:

[A]n aggrieved party desiring to preserve an issue for judicial review must raise it before the ALJ, articulate it clearly in its PDR, and offer a modicum of developed argumentation in support of it.

Failing that, the court of appeals concluded, “we lack jurisdiction to hear those [unpreserved] issues.” Thus, all available issues must be raised both before the ALJ at the hearing, and in the PDR.

In Secretary of Labor v. Complete General Construction Co., the employer, cited for its failure to locate a spoil pile at least 2 feet away from the excavation, argued that language in the first sentence of 29 C.F.R. § 1926.651(j)(2), (viz. that “[e]mployees shall be protected from excavated or other materials or equipment that could pose a hazard by falling or rolling into excavations”) renders less than absolute the prescription, in the next following sentence, that “[p]rotection shall be provided by placing and keeping such materials or equipment at least two feet . . . from the edge of excavations” or by using retaining devices. The employer claimed its spoil pile, although within 2 feet of the excavation, was sloped and “very stable,” and thus posed no hazard.

In contrast, in Secretary of Labor v. Black Construction Corp., the employer had not provided trench shields to protect employees from loose rock or soil that could pose a hazard by falling or rolling from an excavation face. The Commission vacated this citation item, finding that the Secretary had not met her burden to show that shoring or sloping of the trench walls was necessary to avoid exposing employees in the trench to a substantial likelihood of serious injury or death. This was so “notwithstanding the fact that automobile and truck traffic traveled in close proximity to the trench wall.”

Black Construction Corp. is hard to reconcile with Secretary of Labor v. A. P. O’Horo Co., Inc. That case involved a fatal cave-in in a 10-foot deep trench dug parallel to a highway trafficked by vehicles “ranging from automobiles to tractor trailers.” 29 C.F.R. § 1926.652 requires “additional precautions by way of shoring and bracing” where “excavations are subjected to vibrations from railroad or highway traffic” or other sources. The trench in Black Construction Corp. was centered about 9 feet from the edge of the roadway. Following an older case, the Commission concluded that the proximity of the roadway established that the trench was subjected to vibrations, and there was no requirement to show “that the vibrations created an additional danger of collapse, for the standard already makes the judgment that vibrations have that effect.”

In Black Construction Corp., the Commission explained that:

Most [OSHA] standards include requirements or prohibitions which, by their terms, must be observed whenever specified conditions, practices or procedures are encountered. These standards are predicated on the existence of a hazard when their terms are not met. Therefore, the Secretary is not required to prove that noncompliance with these standards creates a hazard in order to establish a violation. Certain standards, however, contain requirements or prohibitions which, by their terms, need only be observed when employees are exposed to a hazard described generally in the standard.

The upshot of the apparent inconsistency between Black Construction Corp. and Complete General Construction Co. is that language such as “. . . that could pose a hazard” is not a reliable indicator that the Board will categorize a particular OSHA standard as one requiring proof of an actual hazard, as opposed to one in which danger will be presumed from a technical breach. The cases must be researched, to see whether the Commission has consigned the standard in question to one category or the other.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements. 

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