6-1901-15314-2 MN OAH DIVISION DOCKET NO. 7359 OSHI ID NO. P6669 036-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA DEPARTMENT OF LABOR AND INDUSTRY

 

Scott Brener, Commissioner, Department of Labor and Industry, State of Minnesota, Complainant, v.   Danner, Inc., Respondent.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

         

The above-entitled matter came on for hearing before Administrative Law Judge Allan W. Klein on June 25, 2003, at the Office of Administrative Hearings in Minneapolis, Minnesota.  The record closed on June 25, 2003, at the conclusion of the hearing.

Julie A. Leppink, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103-2106, appeared on behalf of the Commissioner of the Department of Labor and Industry (“Complainant”).  Marley Danner, Vice President, Danner, Inc., 843 Hardman Ave., South St. Paul, MN 55075, appeared on behalf of Danner, Inc. (“Respondent”) without benefit of counsel.

NOTICE

          Notice is hereby given that under Minn. Stat. § 182.664, subd. 3 (2002), this decision may be appealed to the Minnesota Occupational Safety and Health Review Board by the employer, employee, their authorized representatives, or any party, within 30 days following the service by mail of this decision.  The procedures for appeal are set out at Minn. Rule Ch. 5215.

 

 

STATEMENT OF ISSUE

          The issue in this contested case is whether the Respondent was in violation of an OSH rule requiring a stairway, ladder, ramp or other safe means of egress in trenches greater than four feet in depth so as to require no more than 25 feet of lateral travel for employees in the trench.  In addition, was Respondent in violation of an OSH rule requiring excavated or other materials or equipment be at least two feet away from the edge of excavations.  Finally, if Respondent was in violation of one or both of these, what penalty is appropriate?

Based upon all of the proceedings herein, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1.                Lisa Perzichilli is a senior safety investigator for Minnesota Office of Safety and Health (MnOSHA).[1]  She has worked for MnOSHA since November 1983.  Ms. Perzichilli’s training includes classes on trench safety and penalty calculation.   Kevin Garland is also a senior safety investigator. 

2.                On October 3, 2002, Lisa Perzichilli and Kevin Garland were driving by the intersection of Ashland Avenue, Hastings Avenue, and East Seventh Street in St. Paul Park.  At this location, Ashland Avenue and East Seventh Street terminate.  Hastings Avenue carries away traffic from this intersection to the northwest and southeast.  Perzichilli observed a pile of earth, a backhoe, and other earth-moving equipment near a trench that had been excavated to provide access to a water main.  Perzichilli saw two men in the trench, and decided to investigate due to the possibility of an immediate hazard to the workers in the trench.

3.                The trench was approximately 60 feet long, 7 feet deep, 4 feet wide on the bottom and between 14 and 17 feet wide on the top.  The west side of the trench was irregularly stepped or “benched” to form tiers of increasing depth on that side.[2]  The length of the trench runs north and south along Ashland Avenue.  The trench was excavated through the asphalt of the street and extended out from the concrete curb and gutter.  The curb and gutter had been left undisturbed.  The north end of the trench extended a short distance into the intersection.  The north end was shallower than the trench as a whole and formed a wide “bowl.”  This bowl was twice as wide as the narrowest part of the trench.  The middle of the shallow bowl formed a ramp that provided the entrance to and exit from the trench.

4.                The loose dirt from the excavation was piled alongside the trench on the west side.  The loose dirt was situated atop the undisturbed asphalt of the street.  The piles of dirt were centered well back from the trench.[3]  The dirt was not steeply piled.[4]  There were no large rocks visible in the dirt piles.  The dirt piles extended north beyond the trench and west onto Seventh Avenue.[5]  The dirt and parked equipment on Seventh Avenue blocked off at least the lane of traffic nearest the excavation.[6]  Ashland Avenue was entirely blocked off from traffic by the trench and the piles of dirt.

5.                  There were two locations along the trench where the spill of loose dirt from the piles came within two feet of the street-side edge of the trench.  One location was near the backhoe that had been used to excavate the trench.  This location was very close to where employees had been working in the trench.[7]  The other location was at the bowl of the north end.[8]  At this location, the trench is approximately four feet deep.       

6.                On October 3, when Perzichilli and Garland walked to the site, Perzichilli asked to speak to the person in charge, and was introduced to Gary Chirhart, who identified himself as the site foreman.  At Perzichilli’s direction, Chirhart told the employees to leave the trench, which they did.  One employee walked to the far north end, and walked out along the sloping area near the dirt piles.  That employee traveled over thirty feet to reach the sloping end of the trench.  The other employee used his arms to lever himself up and climbed out of the center part of the trench.  Perzichilli then conducted an abbreviated opening conference with Chirhart while Garland took photographs of the worksite.

7.                Perzichilli noted that there were no ladders, stairways, or other artificial means of exciting the trench available.  She asked Chirhart whether the company had a ladder, and he indicated that the company did have ladders, but that none were at this work site.  Perzichilli conducted a walk around inspection of the worksite, accompanied by Chirhart.  After the walk around inspection, Perzichilli told Chirhart that there were two apparent violations, and perhaps a third.  Chirhart contacted his office and requested that a ladder and trench box be brought to the project site to complete the project, and those items were delivered to the worksite.

8.                The next day, October 4, Perzichilli contacted Jerry Bachman, a supervisor with Danner, Inc. and informed him of the inspection that had taken place the previous day.[9]  She also informed Bachman of her proposed violations and went through other requirements discussed in the closing conference checklist.  Later that day, Marlon Danner, President of the company, contacted her and she again went through the items in the closing conference checklist.[10]

9.                The Administrative Law Judge finds that the dimensions of the trench were roughly 60 feet in length (measuring from the top of the ramp on the north end to the end of the trench on the south end, and that employees were located more than 25 feet from the bottom of the ramp at the north end.  The north end ramp was the only stairway, ladder, ramp or other safe means of egress.  The trench was four feet or more in depth for its entire length, except for the ramp.

10.             During the inspection, Perzichilli pointed out that loose dirt from the excavation was being placed too close to the edge of the trench.  The trench was dug by a backhoe, and during the inspection, Chirhart indicated to Perzichilli that the backhoe operator was a new employee, and that this was his first day on the job.  Chirhart told Perzichilli that he was working with the backhoe operator to insure that the spoil pile was being placed at least two feet from the edge of the trench, but that the operator was not moving the spoil far enough away from the edge.[11]

11.             From her observations at the work site, Perzichilli was quite sure that there would be two violations, one relating to inadequate exit, and the other relating to spoil being too close to the edge of the trench.  She thought a third violation might have occurred, depending upon the class of soil in which the excavation was performed.  Soil samples from the work site were tested on October 7.[12]  Those results showed that the soil was Class B, and not Class C.  These results did not support a third violation.

12.             Perzichilli proceeded to prepare the penalty worksheet for the two violations.[13]  On October 18, 2002, the Commissioner issued the Citation and Notification of Penalty Orders on both.[14]

13.             In calculating penalties, a severity rating is assigned to each violation.  The severity rating is based upon a scale, ranging from A (violation unrelated to injury) to F (violation could result in death, permanent total disability. or 60% or greater permanent partial disability).[15]  The MnOSHA Citation Rating Guide identifies the range of severity to be assigned to a particular violation, depending on the conditions at the work site.  For trench egress, the minimum severity level is C where the slope meets the required level.  Levels D through F apply where there is an “unsafe trench, improper sloping, unshored, [or] spoil pile near the edge.

14.             With respect to the failure to have a stairway, ladder, ramp or other safe means of egress located within 25 feet of lateral travel for employees in the trench, the Department classified it as a repeat violation with a severity rating of “E.”  The Citation Rating Guide[16] provides that for violations of this rule[17] the investigator may use a rating between D and F.   Perzichilli relied upon dirt being piled near the ramp (which was the only approved means of egress from the trench) to support her conclusion that a collapse could cause injuries consistent with level E.[18]  However, Perzichilli did not take into account the shallowness of the ramp area and the width of this area in arriving at her conclusion.  Much of the bowl area at the northern end of the trench is too shallow and too wide to be regulated as a trench.  The width of the ramp area affords easy egress from the trench, even if the loose dirt were to be dislodged and enter the trench.  There is insufficient material piled at the north end to cause level E injuries, even if that material were to collapse into the ramp area.  Under these circumstances, the investigator’s severity rating is unreasonable.

15.             Dirt was piled within two feet of the edge of the trench, but that was primarily at the south end (not the egress ramp) and formed an independent violation.  There was no impact on the egress standard by the dirt piled at the north end.  The appropriate severity rating is level D and the work condition adjustment for the north end spoil is appropriately scored 0.  The remainder of the adjustments that Perzichilli made are correct.  The appropriate combined severity/probability is D6.  Using the penalty chart, an unadjusted fine of $3000 is appropriate.[19]  The final calculation of the fine is $3,000.00.[20]

16.               The second violation was classified as a serious violation with a severity rating of “F.”  The severity rating of F was arrived at by the perception that the spoil pile consisted an immediate hazard that could cause injury or death in the event of a collapse.  The likelihood of collapse was thought to be increased by the possibility of vibration from the road traffic “running adjacent to the trench” consisting of cars and trucks.[21]

17.             The MnOSHA Citation Rating Guide identifies the range of severity for material within two feet of a trench edge as D, for a general violation, to E or F where there is “equipment not retained by stop logs, or large rocks in spoil pile.”[22]  The equipment provision is inapplicable here.  The spoil piles contained no large rocks.  The spoil piles were situated on undisturbed asphalt.  The trench depth was between five and six feet at the sole location on the southern end that the spoil pile was plainly within two feet of the trench.  There was no opportunity for traffic to run adjacent to the trench.  The nearest traffic was at least fifty feet away and there is no evidence of vibration affecting the trench or the spoil piles.

18.             The conditions at the worksite showed this violation to be only a general violation, not one that is likely to result in serious injury or death.  The appropriate severity level for this violation is D.  The work condition adjustment for road vibration is  appropriately scored 0.  The remainder of the adjustments made by Perzichilli are correct.  The appropriate combined severity/probability is D6.  Using the penalty chart, an unadjusted fine of $3000 is appropriate.[23]  The final calculation of the fine is $1,500.00.[24]

Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

1.                The Commissioner of Labor and Industry and the Administrative Law Judge have jurisdiction in this matter pursuant to Minn. Stat. §§ 182.661, subd. 3, 182.664 and 14.50

2.                The Department gave proper notice of the hearing in this matter and has fulfilled all relevant substantive and procedural requirements of law or rule.

3.                The Respondent is an employer as defined by Minn. Stat. § 182.651, subd. 7.

4.                Minn. Stat. § 182.653, subd. 3, requires each employer to comply with Occupational Safety and Health Standards or Rules adopted pursuant to Ch. 182 of the statutes. 

5.                29 C.F.R. 1926.651(c)(2) requires that:

(2) Means of egress from trench excavations.  A stairway, ladder, ramp or

other safe means of egress shall be located in trench excavations that are 4 feet (1.22 m) or more in depth so as to require no more than 25 feet (7.62 m) of lateral travel for employees.

6.                29 C.F.R. 1926.651(j)(2) requires that:

(2) Employees shall be protected from excavated or other materials or equipment that could pose a hazard by falling or rolling into excavations. Protection shall be provided by placing and keeping such materials or equipment at least 2 feet (.61 m) from the edge of excavations, or by the use of retaining devices that are sufficient to prevent materials or equipment from falling or rolling into excavations, or by a combination of both if necessary.

7.                The Complainant has the burden of establishing an OSH violation by a preponderance of the evidence.

8.                The Department has established that Respondent’s employees were exposed to the cited hazards.

9.                The Department has proved a violation of 29 C.F.R. 1926.651(c)(2) and a violation of 29 C.F.R. 1926.651(j)(2).

10.             Under Minn. Stat. § 182.666, subd. 6, the Commissioner has authority to assess fines giving due consideration to the appropriateness of the fine with respect to the size of the business and the employer, the gravity of the violation, the good faith of the employer and the history of previous violations.

11.             The evidence in the record does not support the Department’s penalty calculation regarding severity and probability of harm of each violation.  Adjusting the penalty calculation to the appropriate severity and probability of harm results in penalties of $3,000.00 and $1,500.00 respectively.

13.             The foregoing Conclusions of Law are based on the reasons set out in the Memorandum which follows and which is incorporated into these Conclusions by reference.

Based upon the foregoing Conclusions of Law, the Administrative Law Judge makes the following:

ORDER

IT IS HEREBY ORDERED that:

1.               The citations are AFFIRMED.

2.               The Respondent shall forthwith pay to the Commissioner of Labor and Industry the sum of $4,500.

3.               If the penalty is not paid within 60 days after the fine becomes a final Order, it must be increased to 125 percent of the originally-assessed amount.  Furthermore, after 60 days, the unpaid fine shall accrue an additional penalty of 10 percent per month compounded monthly until the fine is paid in full as required by Minn. Stat. § 182.666, subd. 7.

 

 

Dated this

29th

Day of

July

2003.

 

                                                                

S/ Allan w. Klein

ALLAN W. KLEIN

Administrative Law Judge

 

Reported: Taped, two tapes, no transcript prepared.

 

MEMORANDUM

Respondent asserted that the trench was shorter than 25 feet from the furthest point that the employees were working to the base of the ramp at the northern end of the trench.  Respondent relies upon the water pipe being standard 20-foot segments to support this argument.  But the photographic evidence strongly suggests that there were two segments of new water pipe in the trench.[25]  The investigators measured the trench with a sixteen-foot tape measure.  The 60-foot measurement is from the southern end of the trench to the point where the ramp reaches grade.  The portion of the excavation that is deeper than four feet (and thereby regulated as a trench) is over forty feet in length.

 The distance of the trench is irrelevant to the egress citation, according to Respondent, since no employee worked that far down the trench.  The Department disputes that contention, asserting that the photographic evidence shows an employee in the trench farther than 25 feet from the egress ramp. 

Access to the hazard is the test, not actual employee exposure.[26]  The trench was open over its entire length to employee access.  The location of the employee in the trench supports the conclusion that the employees had both access and exposure to the hazard.  The Respondent could have avoided the citation by having a ladder present in the southern half of the trench.

Respondent maintains that the loose dirt was back from the edge of the trench.  The dirt at the northern end spilled down over shallow benching in the west side of the trench.  Between the benching and the presence of the ramp, there has been no demonstration that this dirt affects a portion of the excavation that is deeper than four feet.  That depth must be exceeded to apply the trench standards.[27]

The Department has demonstrated that loose dirt was piled within two feet of the edge in the southern end of the trench.  The Department concluded that this violation constituted the most severe degree of hazard.  But the MnOSHA Citation Rating Guide indicates that level E or F applies where there is “equipment not retained by stop logs, or large rocks in spoil pile.”[28]  No such aggrevating factors were present.  Other cited factors, such as vibration, were not present.  The likelihood of a cave-in was significantly reduced by the benching of the west side of the trench, the shallow sloping of the piled dirt, and the placement of the loose dirt on undisturbed asphalt.  The appropriate level of severity of the violation is D, for a general violation.  The penalty has been recalculated accordingly.

A.W.K.