Adequate Protective Systems Must Be Present During Excavations at All Times

The Decision in Secretary of Labor v. Petrongolo Contractor’s Inc. is an instructive case for contractors especially those involved in excavation and highlights multiple issues regarding the Occupational Safety and Health Review Commission (the “OSH Commission”) process, the burden of proof and severity of penalties and the considerations made by the Administrative Law Judges who hear these matters.

Petrongolo Contractor’s Inc. (“Petrongolo”) is a public utility contractor primarily engaged in excavation work. On January 27, 2020 it was excavating a trench in a city street in Philadelphia to access a sewer line owned by the Philadelphia Water Department (“PWD”). Petrongolo had to remove the existing manhole and replace it with a larger precast manhole for its subcontractors to be able to access the sewer for relining. Petrongolo removed the existing manhole and dug a trench which was about 10 feet deep from street level to the top of the sewer pipe and the footprint of the trench was 10 x 6 feet. The gas utility, Philadelphia Gas Works (“PGW”) had its own gas main running parallel to the sewer line, and it became concerned that Petrongolo’s excavation would compromise the integrity of its gas main, and its employee caused Petrongolo to stop work, in the early evening on January 27, 2020. PGW’s employees took pictures of the trench in the evening of January 27 and the morning of January 28 and contacted OSHA to report a hazardous excavation. OSHA sent one of its Compliance Safety and Health Officers to the site on January 28, 2020 which led to the issuance of two citations under Safety and Health Regulations for Construction’s Requirements for Protective Systems under 29 C.F.R. § 1926.652(a)(1) and (c)(1).

Citation # 1 alleged a serious violation of Design Support Systems utilizing published appendices for the design of timber shoring in trenches with a proposed penalty of $3,393. Citation # 2 alleged a repeat violation “for failing to ensure that each employee working inside an excavation of approximately twelve (12) feet deep were protected by cave-in protection” and proposed a penalty of $29,687. To establish a violation of such standard, the Secretary (of Labor) must prove by a preponderance of the evidence (the legal standard where a party is able to convince a fact finder that there is a greater than 50% chance that their claim is true) the following: (1) the cited standard applies; (2) there was non-compliance with its terms; (3) employees had access to the violative condition; and (4) the cited employer had actual or constructive knowledge of the violative condition.

The matter was brought before the Commission with remote hearings and submissions before the Administrative Law Judge (“ALJ”) who decided that the Secretary failed to prove by a preponderance of the evidence (a legal standard where a party is able to convince a fact finder that there is a greater than 50% chance that their claim is true) that Petrongolo failed to obtain the soil type in determining the proper configuration of timber shoring that was installed on January 28, 2020. Consequently, Citation # 1 was vacated.

However, the ALJ found that the Secretary proved (by a preponderance of the evidence) that Petrongolo employees were working in a trench that lacked an adequate protective system and that Petrongolo had knowledge of it. Further, Petrongolo failed to rebut the Secretary’s showing that this violation was similar to Petrongolo’s prior violations of the same standard and thus constituted a repeat violation warranting a $22,000 penalty.

Citation # 1 alleged that Petrongolo failed to obtain the soil type to determine the proper configuration when using timber shoring in accordance with the conditions and requirements set for in appendices A and C of § 1926.652(c)(2). Appendix A requires a “competent person” to perform at least one visual and one manual test on the soil to determine soil type and it sets for a series of acceptable visual and manual tests. Petrongolo’s president who was a registered professional engineer with years of experience in testing soil and performing excavations in the local area was deemed a “competent person” and his manual and visual test of the soil were in conformance with the requirements. Even if Petrongolo’s president had failed to conduct the visual and manual tests, the determination that the soil type was “Type C” (the least stable soil type as per the classifications under Appendix A), pursuant to the OSHA’s own interpretations, made “soil testing … superfluous and not required” if the protective system is adequate to protect against cave-ins in Type C soil.

Citation # 2 alleged that Petrongolo failed to provide adequate safety devices for cave-in protection to workers inside an excavation of approximately twelve (12) feet deep. The trench was over five feet deep and constituted as hazard for as long as it was open and lacked an adequate protective system from the time the steel plates covering it were removed up until the time Petrongolo’s crew completed installation of the timber shoring. The photographs taken by PGW’s workers showed workers inside the trench and the fact no other contractor or subcontractor had been working in the trench area provided sufficient circumstantial evidence that Petrongolo’s own employees were working in that area. Moreover, the ALJ found that since Petrongolo’s foreman was present at the site, and gave directions to the employees, he would have had actual knowledge of the of violative condition, or at minimum, based on the weight of the evidence, he could have discovered or prevented the employees’ violative conduct so as to impute constructive knowledge on Petrongolo.

Petrongolo had been previously cited for violations arising from failures to provide adequate protective systems for which it had entered into settlement agreements. Here, the ALJ found that the Petrongolo employees had been exposed to substantially similar, although not identical [cave-in] hazards that led to those two prior violations.

In assessing penalties, consideration is given to four criteria 1) The gravity of the violation; 2) The size of the employer’s business; 3) The employer’s good faith; and 4) the prior history of violations. Gravity (of risk) is the primary consideration and determined by factors such as the number of employees exposed, duration of the exposure, precautions taken against injury and likelihood that an injury would result. Here, the gravity of the violation was considered high, and coupled with two similar prior violations for the same standard within two years clearly constituted a prior history and lack of good faith. However, the business’ small size was also considered. In light of all these circumstances, a $22,000 penalty was assessed.

This matter shows that adequate protective systems must be in place during excavation work when it is contemplated that workers will be present within a trench, as it is an open hazard, even during the interim. In this case, the timber shoring protective system that was ultimately installed was proper but adequate protective systems had not been installed throughout the entire time that employees actually worked in the trench as documented by photographs taken by PGW’s employees, creating a cave-in hazard and leading to the citations. Moreover, a contractor’s prior violation history for substantially similar violations will be considered during the assessments any penalties.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445