BEFORE THE WORKERS' COMPENSATION BOARD OF
THE STATE OF OREGON
HEARINGS DIVISION
Oregon Occupational Safety &
Health Division ) Docket No SH-93195
)
Plaintiff, )
vs. ) Citation No: T4194-010-93
CITY OF SISTERS )
Defendant. ) OPINION AND ORDER
Pursuant to notice a hearing was held August 3, 1994 in Bend,
Oregon before Referee Howell. Plaintiff, Oregon Occupational
Safety & Health Division (OR-OSHA), was represented by Norman
Kelly of the Department of Justice. Defendant, City of Sisters,
was represented by Gary Frazee, Public Works Superintendent.
The hearing was recorded by Business Support Services. Exhibits
1-9 were received into evidence at hearing.
ISSUES:
A) Whether defendant violated 29 CFR 1926.651(k)(1) by failing
to have a "competent person" inspect an "excavation" for risks
to which defendant's employees were exposed. (A May 13, 1993
citation issued to defendant by plaintiff alleged such a
violation in Item No. 1-1.)
B) Whether defendant violated 29 CFR 1926.652(a)(1) by failing
to provide exposed employees with approved protection from
cave-ins in an excavation. (The May 13, 1993 citation cited
defendant for such violation at Item No. 1-2.)
NOTE: The classification of the violation cited and the amount
of the penalty imposed were not at issue.
FINDINGS OF FACT:
On April 15, 1993 employees of the defendant dug a trench in
order to install water pipe within the City of Sisters. The
trench was dug by a backhoe. However, one or more employees
worked in the trench doing hand work such as leveling the trench
and connecting sections of pipe.
The soil in which defendant dug the trench was in significant
part type C soil. See 29 CFR 1926.652 Appendix A. Defendant
did not slope or bench the sides of the trench it dug.
Defendant did not use a support system, shield system or other
means of protecting employees in the trench from cave-in
(Exhibits 4 & 8).
Gary Frazee supervised the work done to install the water pipe
on April 15, 1993. Frazee had prior experience in water and
sewer pipe installation. However, he was unfamiliar with safety
rules and regulations regarding excavations.
F. David Thompson, a senior compliance officer with OR-OSHA,
inspected the site where defendant was installing water pipe on
April 15, 1993. Thompson determined that Frazee was in charge.
He questioned Frazee concerning the type of soil in which the
trench was dug. Frazee did not know the soil type. He was not
familiar with the soil classification system at 29 CFR 1926.652,
Appendix A (Exhibits 2-5).
Thompson, with Frazee observing, measured the depth of the
trench in various locations. Those measurements indicated a
trench depth ranging from five feet to five and one-half feet.
Thompson also photographed that portion of the trench which was
uncovered at the time of the inspection (Exhibits 4, 5 & 8).
On May 13, 1993 plaintiff cited defendant for violating 29 CFR
1926.651(k)(1) and 29 CFR 1926.652(a)(1) (Exhibit 1).
ULTIMATE FACTS:
On April 15, 1993 employees of defendant were exposed to the
risk of cave-in working in an excavation in the City of Sisters.
No "competent person" was present to make required inspections
at defendant's excavation on April 15, 1993.
Defendant did not protect employees working in the excavation
on April 15, 1993 from cave-ins by any protective system.
CONCLUSION:
A) Item 1-1 of the May 13, 1993 citation cited defendant for
violating 29 CFR 1926.651(k)(1). That provision is a Federal
Regulation which has been adopted by Oregon (the Department of
Consumer and Business Services- Department) by administrative
rule. OAR 437-03-001(16)(b).
29 CFR 1926.651(k)(1) provides:
"Daily inspections of excavations, the
adjacent areas, and protective systems shall be made by a
competent person for evidence of a situation that could result
in possible cave-ins, indications of failure of protective
systems, hazardous atmospheres or other hazardous conditions.
An inspection shall be conducted by the competent person prior
to the start of work and as needed throughout the shift.
Inspections shall also be made after every rainstorm or other
hazard increasing occurrence. These inspections are only
required when employee exposure can be reasonably anticipated."
(emphasis added)
29 CFR 1926.650(b) defines "excavation" as ". . . any man-made
cut, cavity, trench, or depression in an earth surface, formed
by earth removal." The trench defendant dug on April 15, 1993
was an "excavation" for purposes of 29 CFR 1926.651(k)(1).
The evidence indicates by a preponderance that employees of
defendant worked in the excavation made on April 15, 1993. Hand
tools used by employees in the trench and footprints on the just
uncovered soil at the bottom of the trench were observed by the
OR-OSHA inspector. Defendant does not deny that employees
worked in the excavation prior to inspection on April 15, 1993.
Defendant's employees were exposed to the risk of cave-ins in
the excavation made on April 15, 1993. Defendant concedes that
employee exposure was normal during such work activity.
Defendant was, therefore, required to have the excavation
inspected daily, prior to the start of work and as needed during
work by a "competent person."
29 CFR 1926.650(b) states:
"Competent person means one who is
capable of identifying existing and predictable hazards in the
surrounding or working conditions which are usually hazardous or
dangerous to employees, and who has authorization to take prompt
corrective measures to eliminate them." (emphasis in
original)
Frazee was in charge of supervising and inspecting the work on
defendant's April 15, 1993 excavation. He had the authority to
take prompt corrective action as needed. However, Frazee was
unfamiliar with safety rules and regulations applicable to
defendant's excavation. In particular, Frazee did not know
when, or what, protective measures were required for work in
excavations and he was unfamiliar with the means of testing and
classifying soil types. Frazee did not know the type of soil in
which defendant was excavating.
A preponderance of the evidence indicates that Frazee was not a
"competent person" to inspect defendant's excavation. See
Secretary of Labor v. Ray Sumlin Construction Co., 16 OSHC 1356
(1993); Secretary of Labor v. Super Excavators, Inc., 14 OHSC
2003 (1991); and Secretary of Labor v. Super-Mason Enterprises,
Inc., 14 OSHC 1446 (1993). No other individual was asserted to
have made inspection of the excavation nor to have had authority
to take corrective action.
Because no "competent person" was available, it is clear that
the inspections required by 29 CFR 1926.651(k)(1) could not have
been performed. Defendant violated that regulation.
B) Item 1-2 of the May 13, 1993 citation cites defendant for
violation of 29 CFR 1926.652(a)(1). That regulation has been
adopted by the Department at OAR 437-003-001(16)(c).
29 CFR 1926.652(a)(1) provides:
"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 the ground by a competent
person provides no indication of a potential
cave-in."
Defendant's employees were in an excavation on April 15, 1993.
It is undisputed that defendant provided no protection for those
employees from cave-ins by means described in 29 CFR 1926.652(b)
or (c). It is also undisputed that the excavation in question
was not made entirely in stable rock.
Defendant argues that the excavation in which its employees
worked on April 15, 1993 was less than 5 feet in depth and,
therefore, exempt from the requirements for protection from
cave-ins.
First, defendant's argument is based upon a photograph, Exhibit
8, the length of a shovel similar to the one shown in the
photograph, an estimate of the width of the trench and the
Pythagorean theorem. I find the more persuasive evidence to be
the actual measurements made the OR-OSHA inspector, under
Frazee's direct observation. Those measurements indicated that
the ditch was 5 feet or more in depth.
Second, even if the excavation had been less than 5 feet in
depth, 29 CFR 1926.652(a)(1)(ii) is phrased in the conjunctive.
In other words, to be excepted from the protection requirements
an excavation must be less than 5 feet in depth and it must be
examined by a competent person. As noted above, no competent
person was available to examine the excavation.
Defendant violated 29 CFR 1926.652(a)(1).
ORDER:
IT IS THEREFORE ORDERED that Item 1-1 of Citation T4194-010-93
is affirmed.
IT IS FURTHER ORDERED that Item 1-2 of Citation T4194-010-93
is affirmed.
Notice to all parties: You are entitled to judicial
review of this Order. Proceedings for review are to be
instituted by filing a petition in the Court of Appeals, Supreme
Court Building, Salem, Oregon 97310, within 60 days following
the date this Order is entered and served as shown hereon. The
procedure for such judicial review is prescribed by ORS 183.480
and ORS 183.482.
Entered at Salem, Oregon, August 24, 1994
Workers' Compensation Board
John M. Howell
Referee