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Seventh Circuit Affirms OSHA Citation Based on Evidence that While Considered "Substantial" Was Neither Precise, Actual or Considerable

January 1, 2013

K.S. Energy Services, LLC v. SOLIS, 2012 U.S. App. Lexis 25442

On December 13, 2012, the United States Court of Appeals for the Seventh Circuit affirmed a repeat violation citation issued by OSHA to KS Energy Services, LLC in connection with its purported failure to comply with OSHA’s 1926 Subpart P: Excavations Requirements for Protective Systems.  The dispute stemmed from questions of fact concerning the proper classification of soil within an open trench, and based upon the soil classification, the appropriate sloping needed to provide an adequate protective system to workers.

KS Energy was installing a pipeline along a main thoroughfare in Madison, Wisconsin.  An OSHA compliance officer arrived on site and using an engineering rod, took three slope measurements in different locations along the trench to determine the angle of the trench wall opening.  She noted that the degree of slope was 46 degrees in two locations and 50 in the third.

The inspector also noted that being on a busy thoroughfare, there were vehicles traveling within 12 feet of the open trench and that there was an excavator along the edge of the trench.  The inspector also noted that in one location within the open trench, there were underground utilities traversing the trench perpendicular to it.  Finally, the inspector saw footprints at the base of the trench that appeared to have had water seeped into them.  The compliance officer made no comment concerning her observations at the time of the observation, but reported these findings to her supervisor.

The compliance officer returned the following day with a more experienced excavation inspector.  The more experienced inspector used a shovel and took some soil samples within reach of the edge of the opening of the trench but not at the bottom of the trench.  It was his opinion that the samples should be classified as Type B soil, which therefore mandated a maximum allowable slope of 45 degrees and repeat violator citation was issued.

The excavator contested the citation and proceeded to a trial before an administrative law judge.  They presented evidence of soil testing at the bottom of the trench by an expert who classified the soil as Type A, and therefore asserted that the maximum allowable slope was 53 degrees and that their sloping was in compliance.

The administrative law judge upheld the citation on the basis that the entire trench when taken as a whole was properly classified as Type B soil, and therefore found that the excavator was in violation of 1926.652 and imposed a penalty on the excavator.  The excavator petitioned for review.

The Appellate Court for the Seventh Circuit explained that where the Occupational Safety and Health Review Commission does not direct a review of an administrative law judge’s decision, that decision becomes the Commission’s decision subject to a “substantial evidence” standard of review. The court explained that “substantial” in the context of its role in reviewing the enforcement of the citation does not mean that there has to be a large or “considerable amount” of evidence in support of the citation but only enough as a reasonable mind might accept as adequate to support the conclusion of the compliance officer.

The court recognized that Type A soil can be downgraded to Type B soil if it is subject to vibration from “heavy traffic, pile driving, or similar effects,” and/or if the soil had been previously disturbed, and/or if the soil was subject to water seepage.  The court then went on to review the “substantial evidence” of each.

The OSHA compliance officers admitted that they did not “actually” feel or measure any vibration at or near the trench during their inspections. However the fact that there were two lanes of heavy vehicular traffic running parallel to the excavation within about 12 feet of the excavation, the Court concluded, was sufficient to presume that the excavation was “subject to vibration” and that the compliance officers did not have to prove that the trench was “actually” being vibrated by traffic.  The court stated “evidence of actual vibration is not necessary.”  Further, although KS Energy asserted that one cannot downgrade a soil type merely by the presence of heavy equipment, like the backhoe utilized to do the excavation itself, the court indicated that when combined with heavy traffic, there was sufficient evidence to believe that the excavation was “subject to vibration.” Because there was no operation that was performed with only a backhoe not in combination with heavy traffic, the court did not issue any ruling on whether heavy equipment, in and of itself, can be sufficient to cause vibration to downgrade soil types from A to B.

The court also noted that Type A soil could be downgraded to Type B if the earth in the trench had been “previously disturbed” citing 29 CFR 1926 Subpart P App A(b).  Again the compliance officers indicated that they had seen previously installed utility lines running perpendicular to the excavation in areas where the excavator’s employees had been working, however they conceded that they couldn’t determine the precise extent of the “previously disturbed soil,” nor where the disturbed soil occurred in relation to the excavation and the employees in the trench. Again the Court asserted that under the “substantial evidence” standard of review the inspectors did not have to know how much of the soil was previously disturbed.  The Court stated “the substantial evidence standard is not so exacting.”  The Court stated it did not need any more precise information concerning the prior work, but could conclude based solely upon the fact that the utility lines were present, that someone would have to have previously disturbed the soil to place them there.  Because the previously disturbed soil was within the bottom 52 to 70 inches of the trench, the court believed that the officers were justified in downgrading the soil type from A to B.

Finally, but of no use to the excavator at this point, the Appellate Court determined that the mere fact that there was water accumulating in footprints in the bottom of the trench was not enough to downgrade the soil from A to B.  However, the court astutely pointed out that it didn’t need that additional reason to downgrade the soil in order to uphold the administrative law judge’s opinion and impose the citation.  Because the Court believed that there was sufficient evidence to support a determination that the soil was at best Type B due to the proximity of heavy traffic within 12 feet of the open trench, and the previously installed utility lines, the trench excavation exceeded the maximum allowable slope by one to four inches, and hence, the court believed there was an appropriate basis for the citation and denied the excavator’s appeal.

The citation issued to the excavator in the KS Energy Services, LLC case was a “repeat violation” citation.  Despite factual evidence to the contrary, and despite sloping that would have been in compliance based upon the categorization of the soil as Type A, the fact that there was some evidence to substantiate an assertion that the soil was Type B resulted in affirmation of that citation based upon slopes that were one inch in excess of the allowable slope in two locations and four inches in excess of the allowable slope in the third location.

It is suggested, based upon this opinion, that when in doubt about the subjective interpretation of the application of rule, one err to the side of caution and where feasible, follow the more stringent standards.  Certainly any time work is going to be performed in a roadway and within 12 feet of a heavy traffic area excavators may wish to maintain vibration readings to show a trench is free from vibration to a visiting compliance officer, or assume that a compliance officer may downgrade the soil in that excavation and slope the excavation to comply with that downgrade.

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