OAH-16-1901-19993-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF LABOR AND INDUSTRY
|
Steve Sviggum, Commissioner of the Department of Labor and
Industry, Complainant, vs. Nova-Frost, Inc, Respondent. |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on for a hearing before
Administrative Law Judge Manuel J. Cervantes (ALJ), pursuant to a Notice of and
Order for Hearing filed on November 3, 2008.
The matter was heard on January 13, 2009, at the Office of
Administrative Hearings,
Julie A. Leppink, Assistant Attorney
General,
Michael
Frost, Vice-President, appeared on behalf of Nova-Frost, Inc. (Respondent).
1.
Was the excavation
trench which Respondent created, and which was inspected on June 25, 2008 by Minnesota
Occupational Safety and Health (MnOSHA) Investigators, in violation of 29
C.F.R. § 1926.652(a)(1)?
2.
If so, was the Citation
and Notice of Penalty, issued by the Commissioner pursuant to the Minnesota
Field Compliance Manual, Chap. VI, Penalties (Penalty Man.), appropriate?
The ALJ concludes
that the Commissioner has demonstrated by a preponderance of the evidence that
Respondent violated 29 C.F.R. § 1926.652(a)(1) by not taking the requisite
precautionary measures to ensure the safety of employees working at that time
and place. Respondent failed to properly
slope the excavation trench, or utilize an alternative protective system,
contrary to MnOSHA regulation. The amount
of penalty imposed by the Commissioner was appropriate under the circumstances
in light of the severity and probability of the risk, reduced by credits for
employer size, good faith, and violation history.
Based
on all the files, records, and proceedings herein, and for the reasons set
forth in the accompanying memorandum, the ALJ makes the following:
FINDINGS OF FACT
1.
On June 25,
2008, two MnOSHA investigators conducted an inspection of a trench at a
construction site where Respondent was installing a new storm sewer for a Shopko
parking lot in North Branch,
2.
Ryan Nosan is a
principal safety investigator for MnOSHA.
He has worked for MnOSHA for over seven (7) years. He obtained his B.S. degree in Community
Education and an M.S. degree in Environmental Health and Safety. He has been the principal investigator in over
eighty (80) investigations and has participated in approximately one hundred
and fifty (150) investigations overall. Nosan
serves as a mentor to new investigators.[3] Todd Busch
accompanied Nosan on this inspection.
Busch obtained a B.S. degree in Biology and a M.S. degree in
Environmental Safety and Health. At the
time of the inspection, Busch had been employed with MnOSHA for approximately
one (1) year.[4]
3.
The investigators
made contact with the project superintendent and Jason Lauritsen (Lauritsen), Respondent’s
project foreman and backhoe operator.
They were informed of the purpose of the inspection; specifically, to
review whether the job site was in compliance with Occupational Safety and
Health regulations. During the course of
the inspection, the investigators also interviewed Respondent’s employees and
took photographs of the site.[5]
4.
The two investigators,
the superintendent, and Lauritsen conducted a walk-around of the project. Nosan and Lauritsen took various measurements
of the trench.[6] They took measurements of the depth of the
trench and the width of the trench at the top or at ground level.[7] All measurements were agreed upon by Lauritsen
and the investigators.[8]
5.
Lauritsen and Nosan
agreed at the inspection site that the base of the trench was approximately eight
feet wide, or the same as two backhoe bucket widths.[9] At the hearing however, Lauritsen testified
that the trench he dug only needed to be the width of the manhole fixture, which
is four (4) feet wide.[10] The credible evidence, through the
Commissioner’s photographs, clearly shows the trench width to be at least one
foot wider on either side of the manhole fixture.[11] The photos also show that the trench was
partially backfilled because the 18 inch sewer pipe is completely covered with
soil.
6.
There was a
slight variation of the depth of the trench:
it was measured at six and one-half (6 ½) feet at one end of the trench
and seven feet (7) deep at the other.[12] The opening at the top of the trench varied
as well: at one end the width was
approximately sixteen (16) feet and at the other end, it was about eighteen
(18) feet.
7.
While Lauritsen
denied that he assisted with a measurement at the south end of the trench, he
did not deny Nosan’s testimony that Lauritsen was present when the measurements
were taken on June 25, that Nosan measured a seven (7) feet depth at the corner
of a vertical drop as seen in Exhibits 2(e), (g) and (h), nor did he deny Nosan’s
testimony that he was in agreement with those measurements on that date.[13]
8.
Excavations
deeper than five feet require appropriate sloping per MnOSHA regulation.[14]
9.
The investigators
also conducted a visual and plasticity test on the soil. The investigators determined, and Lauritsen
agreed, that the soil type was Class C, the least cohesive of soils.[17] Nosan attempted to compress soil into a ball
with his hands, but the soil would not bind. [18]
10.
When the soil type
is Class C, 29 C.F.R. § 1926.652 (a)(1) requires that sloping at the excavation
trench be at 34 degrees or less to avoid cave-ins.[19]
11.
In order to have
a 34 degree slope, the width at the top of the trench would have needed to be
26-29 feet wide. Additionally, the
trench did not have a support or shield system in place or adequate benching to
protect the employees.
12.
The existing slope
was not adequate enough to comply with regulations and, therefore, did not
adequately eliminate the serious risk to employees.
13.
Respondent was
issued a Citation and Notification of Penalty on July 3, 2008.[20]
14.
The Commissioner
based the penalty calculation on the Penalty Man.[21]
15.
In calculating
penalties, a severity rating is assigned to each violation. The severity rating is based upon a scale,
ranging from A (a violation unrelated to injury) to F (violation that could
result in death, permanent total disability, or 60 percent or greater permanent
partial disability).[22] Additionally, the probability that an injury
or illness will occur due to a violation is considered separately from the
severity of such injury or illness.[23] There are four (4) probability factors: employee exposure; proximity to a hazard;
duration of a hazard; and work conditions.
Each factor is rated from 0 to 2 and the numbers are added together to
determine the total probability rating for purposes of penalty calculation.[24]
16.
On the severity scale
from A to F, Nosan assigned an “F” because of an “expected” serious injury or
death due to a bank cave-in of a trench of six (6) feet or deeper.[25]
17.
On a probability
scale involving employee exposure to a hazard, Nosan assigned a factor of “2” because
he witnessed two (2) employees working in the trench when the investigators
arrived.[26]
18.
On a probability
scale involving employee proximity to a hazard, Nosan assigned a factor of “2”
because employees were required by job assignment to physically work in the
hazardous trench area as part of their normal work duties.[27]
19.
On a probability
scale involving the duration of hazard, Nosan assigned a factor of “1” because
he assessed an employee’s exposure to the hazard to be from 10-50 percent of
the normal work day.[28]
20.
On a probability
scale involving adverse work conditions, Nosan assigned a factor of “1” because
the investigators witnessed other construction in the immediate vicinity of
Respondent’s project. Vibration from
ongoing digging and construction of a gas station on an adjacent property could
have had an adverse effect on the storm sewer trench.[29]
21.
There is factual
support in the record for Nosan’s ratings and the ALJ adopts them as his
own.
22.
Taking the cumulative
Severity and Probability rating of F6, the scheduled gross penalty is $5000,
unadjusted for credits.[30]
23.
Respondent was given
a 55 percent credit against the scheduled fine because of its size, employing
25 employees or less.[31]
24.
Respondent was
given a 10 percent credit against the scheduled fine because of Respondent’s
good faith.[32]
25.
Respondent was
not entitled to a history credit because it had a previous willful OSHA
violation.[33]
26.
Taking a total deduction
of 65 percent against a scheduled $5,000 fine leaves a remaining balance of
$1,750.
27.
Respondent initiated
this contested case proceeding by timely filing a Notice of Contest.
CONCLUSIONS
1.
The ALJ and the
Commissioner of Labor and Industry have jurisdiction over this matter pursuant
to Minn. Stat. §§ 14.50, 182.661, subd. 3 and 182.664.
2.
The Notice and
Order for Hearing and Prehearing Conference was proper in all respects and the Commissioner
has complied with all procedural requirements of law and rule.
3.
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 Minn. Stat. ch. 182.
5.
The Commissioner
has the burden of establishing an OSHA violation by a preponderance of
evidence.
6.
29 C.F.R. § 1926.652(a)(1)
requires that:
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 of 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 potential cave-ins.
7.
29 C.F.R. § 1926.652
(b)(1)(i) requires that:
Excavations shall be
sloped at an angle not steeper than one and one-half horizontal to one vertical
(34 degrees measured from the horizontal), unless the employer uses one of the
other options ….”
8.
In order for the
trench at the Shopko parking lot to be compliant with 29 C.F.R. § 1926.652, the
formula for calculation is as follows:
the depth of the trench[34] times
soil type[35]
plus the width at the bottom of the trench[36] determines
what the minimal width at the top of the trench should be to comply with a 34
degree slope.[37]
9.
Applying this
formula to the trench in question, the width at the top should have been at
least 26-29 feet. Given that the widest
top dimension measured at the trench on June 25 was only 18 feet, the Commissioner
has established an OSHA violation by a preponderance of evidence and that
Respondent’s employees were exposed to the cited hazard.
10.
Under
11.
The record supports
the Commissioner’s penalty calculation regarding the severity and probability
of harm. Adjusting the scheduled penalty
in light of the statutory considerations contained in the immediate paragraph
above, the net penalty of $1,750 is reasonable.
12.
These
conclusions are reached for the reasons set forth in the memorandum below,
which is incorporated by reference into these conclusions.
13.
The Citation and
Notification of Penalty is proper in all respects.
Based
upon these conclusions, and for the reasons explained in the accompanying
memorandum, the ALJ makes the following:
ORDER
IT IS ORDERED THAT:
1.
Citation 01,
Item 001, issued for a violation of 29 C.F.R. § 1926.652(a)(1) on June 25, 2008
be, and is hereby, AFFIRMED.
2.
The Respondent
shall pay forthwith to the Commissioner the sum of $1750.00.
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, pursuant to Minn. Stat. § 182.666, subd. 7
(2003).
Dated: February 10, 2009
s/Manuel
J. Cervantes
|
MANUEL
J. CERVANTES Administrative
Law Judge |
Reported:
Digitally recorded; no transcript prepared.
NOTICE
This report shall be construed as a final decision of the
Commissioner. Notice is hereby given
that under Minn. Stat. § 182.664, subd. 3, 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 service by mail of this decision.
The procedures for this appeal are set out at Minn. Rules 5215.5000 to
5215.5210. Should anyone wish to appeal,
please contact Carrie Rohling, Secretary to the Occupational Safety and Health
Review Board,
MEMORANDUM
The
ALJ has carefully considered all the evidence in this case. The evidence included the documents and
photographs submitted by the parties as well as the testimony of witnesses and
their credibility. This was not a
complicated case and turns on which version of the facts to accept with respect
to the depth of the trench at the Shopko parking lot where Respondent was installing
a new storm sewer on June 25, 2008.
If the ALJ accepts
the Respondent’s position that the trench was less than five feet, the safety
precautions contained in 29 C.F.R. § 1926 do not apply, hence, there could be no
violation. If, on the other hand, the
ALJ accepts the Commissioner’s version as to the depth, Respondent did violate
the MnOSHA slope regulation, and the imposition of a penalty for doing so is
appropriate.
The ALJ finds that the Commissioner established by a preponderance of evidence that Respondent violated the applicable regulation because the trench was deeper than six feet. Preponderance of the evidence means that the evidence establishes that it was more probable that something occurred than it did not occur. An illustration used by the courts when instructing juries is that if the scales weighing the evidence were to tip one way or the other, preponderance has been established.
Both investigators Nosom
and Busch testified that Lauritsen, the project foreman and backhoe operator,
had accompanied Nasom on the walk-around of the site and that Lauritsen
assisted in some of the actual measurements.
In addition, Nasom testified that both he and Lauritsen had agreed upon
the measurements with respect to the width as well as the depth of the trench. At the hearing, Lauritsen objected to the
width he required for setting the manhole fixtures. He said that he could cut a precise four foot
trench in order to set a manhole fixture of four feet. While the ALJ finds Lauritsen’s expert
ability in operating the backhoe to be credible, the photographs tell a
different version of facts in this instance.
Photo Exhibits 2e, f, g and i clearly show a minimum of a foot on either
side of the manhole fixture, thereby creating at least a six (6) width in that
area. This casts doubt on Lauritsen’s
credibility and supports Nosan’s testimony when he said that there was agreement
that the bottom width of the trench was eight (8) feet or the width of two
backhoe buckets.
As for resolving the
depth of the trench issue, the most compelling reason for finding in favor of
the Commissioner’s witnesses is because Nasom testified that Lauritsen
accompanied him in the walk-around, assisted in the taking of measurements, and
they agreed as to the measurements themselves.
Lauritsen did not deny this at the hearing. This fact, coupled with the extensive
experience of nearly 150 investigations by Nasom, adds credibility to the
position of the Commissioner that Respondent violated MnOSHA regulation 29
C.F.R. 1926.652 (a)(1). The calculation
of the penalty, including credits, was appropriate.
M.J.C.
[1] Testimony (test.) of Ryan Nosan.
[2] Ex. 1 and test. of R. Nosan.
[3] Ex. 1 and testimony of R. Nosan.
[4] Test. of Todd Busch.
[5] Ex. 1; Busch took all Department photographs.
[6] Ex. 1 and test. of R. Nosan.
[7] Ex. 1 and test. of R. Nosan.
[8] Ex. 1.
[9] Ex. 1 and test. of R. Nosan.
[10] Test. of Jason Lauritsen.
[11] Ex. 2(d), (e), (f), (g), and (i).
[12] Ex. 1; test. of R. Nosan and T. Busch.
[13] Test. of R. Nosan, Ex. 2(e), (g) and (h).
[14] Test. of R. Nosan and 29C.F.R. 1926.652 (a)(1).
[15] 29 C.F.R. 1926.652 (a)(1), Ex. 3, 5; test. of R. Nosan, and T. Busch.
[16] Test. of R. Nosan and T. Busch.
[17] Test. of R. Nosan.
[18] Test. of R. Nosan.
[19] Test. of R. Nosan; Ex. 1 and 29 C.F.R. 1926.652 (a)(1).
[20] Ex. 3.
[21] Test. of R. Nosan, Busch, Ex. 3, and 4, the MnOSHA Field Compliance Manual, Chapter VI (Rev.8/05).
[22] Ex. 4, p. VI-2.
[23] Ex. 4, pp. VI-3 throughVI-7.
[24]
[25] Test. of R. Nosan and Ex. 4, p. VI-2.
[26] Test. of R. Nosan and Ex. 4, p. VI-4.
[27] Test. of R. Nosan and Ex. 4, p. VI-5.
[28] Test. of R. Nosan and Ex. 4, p. VI-6.
[29] Test. of R. Nosan and Ex. 4, p. VI-6.
[30] Test. of R. Nosan and Ex. 4, p. VI-24; a factor of 6 was arrived at by adding the factors found in paragraphs 16-19 above.
[31] Test. of R. Nosan and Ex. 4, p. VI-9.
[32] Test. of R. Nosan and Ex. 4, p. VI-8.
[33] Test. of R. Nosan.
[34] The ALJ found the depth of the trench varied from 6.5-7 feet.
[35] A factor of “3” is applied to Class C soil.
[36] The ALJ found the width at the bottom of the trench varied from 6-8 feet.
[37] Test. of R. Nosan and Ex. 1.