BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

RANGER PIPELINE, INC.

BAY PACIFIC PIPELINE, INC.

P.O. Box 1162

Novato, CA 94948

                              Employer

 

 

Docket No.

97-R1D5-1031

 

DECISION AFTER

RECONSIDERATION


The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petition for reconsideration filed in the above entitled matter by the Division of Occupational Safety and Health (the Division), makes the following decision after reconsideration.

JURISDICTION

On April 1, 1997, the Division, through compliance officer Jimmie Jones, conducted an inspection at a place of employment maintained by Ranger Pipeline, Inc./Bay Pacific Pipeline, Inc., a joint venture (Employer) at the 600 Block of Wheeler Road, Santa Rosa, California. On April 1, 1997, the Division issued to Employer a citation alleging a serious violation of section1 1541.1(a)(1) [no protective shoring in trench more than five feet deep], with a proposed civil penalty of $5,250.

Employer filed a timely appeal. After a hearing before an administrative law judge of the Board (ALJ), a decision was issued on February 27, 1998, finding that no violation of section 1541.1(a)(1) had been established, and granting Employer’s appeal.

On April 3, 1998 the Division filed a petition for reconsideration and a request for leave to file a supplemental petition. Employer filed an answer on May 3, 1998. The Appeals Board granted the Division’s petition and request to file a supplemental petition on May 19, 1998. No supplemental petition was filed.


EVIDENCE

In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case, including the tape recordings of the hearing. The Board has taken no new evidence. The Board adopts and incorporates by this reference the summary of evidence set forth on pages two through four of the decision of the ALJ.

The ALJ found that the evidence established that the trench had originally been excavated to a depth slightly greater than five feet. Gravel had been dumped into the trench, and an employee entered the trench to spread the gravel. When the compliance officer observed the employee in the trench, the gravel surface in the bottom of the trench that the employee was standing on was less than five feet below the ground level at the edge of the trench.

ISSUE

Did the Division prove a violation of section 1541.1(a)(1)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Section 1541.1(a)(1) provides:

Each employee in an excavation shall be protected from cave-ins by an adequate protective system designed in accordance with Section 1541.1(b) or (c) except when:

* * *
(B) Excavations are less than 5 feet in depth and examination of the ground by a competent person provides no indication of a potential cave-in.

The ALJ found that the evidence failed to establish that the gravel the employee was standing on was five feet or more below the ground level at the edge of the excavation. The ALJ therefore found the Division had failed to establish a violation of section 1541.1(a)(1).

The Division’s petition concedes that the excavation was less than five feet deep when measured from the gravel surface in the bottom of the trench to the ground level. The Division states that the sole issue raised in its petition is whether the placement of the gravel relieved Employer of any obligation under section 1541.1(a)(1) to provide shoring, benching, sloping or other protection from cave-in.

The Division argues that the placement of the gravel does not relieve Employer from the obligation to provide shoring. The Division cites the Board’s decision in A.A. Portanova & Sons, Inc.2 In Portanova, the Board found a violation of section 1541.1(a)(1) even though the employee in the trench was not standing at a depth of five feet below ground because he was standing on the top of a pipe that had been placed in the trench. The bottom of the trench was more than five feet below surface level. The Division states that in A.A. Portanova, the Board made it clear that the critical issue in determining if there had been a violation of section 1541.1(a)(1) is the distance from the bottom of the excavation to the surrounding ground’s surface. The Division argues that Portanova establishes that once an excavation has reached a depth of five feet, anything placed in the trench, whether it is a pipe or drain gravel does not alter the obligation to provide cave-in protection.

The Board finds that Portanova did not establish that protection is required before an employee enters an excavation that is less than five feet in depth, even if it was deeper than five feet before being partially filled in. Portanova therefore does not support a finding that the employee in this case was exposed to an excavation greater than five feet in depth.

Portanova can readily be distinguished from this case. In both Portanova and the case it cited and followed, Channel Constructors, Inc.,3 employees were standing on the top of a pipe that had been laid in a trench. The open, exposed bottom of the trench below and beside the pipe was still more than five feet below surface level. An employee standing on a pipe in an excavation whose bottom is more than five feet deep is still exposed to a five-foot deep excavation. If a cave-in occurred, an employee standing on top of the pipe could be swept off the pipe into the bottom of an excavation greater than five feet in depth.

The Board therefore agrees with Employer’s argument that where the bottom of a five-foot trench has been completely covered with gravel or other material so that its depth is less than two and a half feet, the absence of protection does not violate section 1541.1(a)(1).

The Division argues that there is no functional difference in the danger to employees when four or five inches of gravel is placed to cover the bottom of the excavation so that it is no longer over five feet deep. The difference in cave-in risk between an excavation when it is five feet, three inches deep before gravel is added, and when it is four feet, eleven inches after gravel is added may be insignificant. The Occupational Safety and Health Standards Board, however, determined that beginning at five feet, protection had to be provided. The Appeals Board has no authority to alter the terms of section 1541.1(a)(1) to require shoring when no employee is exposed to an open excavation five feet or greater in depth.

The Division also argues that there is no exception to section 1541.1(a)(1) that excuses the need for cave-in protection when the bottom of an excavation has been filled with gravel. There is no need for an exception when section 1541.1(a)(1) does not apply because the excavation is less than five feet in depth.

In this case, the unprotected excavation was not shown to be greater than five feet in depth at any time when employees were exposed to it. Therefore, no violation of section 1541.1(a)(1) was established.

DECISION AFTER RECONSIDERATION

The Decision of the ALJ is affirmed. Employer’s appeal is granted. The citation alleging a violation of section 1541.1(a)(1) is set aside.

BILL DUPLISSEA, Member
MARCY V. SAUNDERS, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - February 28, 2001

1Unless otherwise specified, all references are to sections of Title 8, California Code of Regulations.
2 OSHAB 83-891, DAR (Mar. 19, 1986).
3 OSHAB 81-1015, DAR (Dec. 7, 1984).