BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

GOLDEN STATE BORING & PIPEJACKING, INC.
9119 Schaeffer Avenue
Ontario, CA 91761

 

                              Employer

 

 

Docket No.

99-R5D2-036

 

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 Golden State Boring & Pipejacking, Inc., [Employer], makes the following decision after reconsideration.

JURISDICTION

From August 27, 1998 through December 8, 1998, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident investigation at a place of employment maintained by Employer at Huntington Drive and Alhambra Road, Alhambra, California (the site). On December 24, 1998, the Division issued a citation to Employer alleging a serious violation of section1 3942(a) [failure to secure guard door in place], with a proposed civil penalty of $4,375.

Employer filed a timely appeal contesting the existence and classification of the alleged violation, the abatement requirements, and the reasonableness of the proposed civil penalty.

A hearing was held before Jack L. Hesson, Administrative Law Judge (ALJ), of the Board in West Covina, California. Robert D. Peterson, Attorney at Law, represented Employer. Alan Coie, Staff Counsel, represented the Division. On June 5, 2000, the ALJ issued a decision denying Employer's appeal.

On July 10, 2000, Employer filed a petition for reconsideration. The Division filed an answer. The Board granted Employer’s petition on August 18, 2000.

BACKGROUND

Employer operated a horizontal earth-boring machine located in a ten-foot deep excavation. Employer’s employee suffered a leg amputation when his foot entered the soil ejector opening while the machine was running and the soil ejector vanes (or paddles) were turning. The door on the machine that was designed to cover the ejector opening was not closed throughout Employer’s operation at the site. The Division cited Employer for a serious violation alleging that Employer failed to secure the door guard covering the spoil ejector opening in violation of section 3942(a).

ISSUE

Was Employer in serious violation of section 3942(a)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Board has reviewed Employer’s petition for reconsideration, the ALJ’s decision, and the record of the proceeding. We find that that the ALJ did not exceed his authority and that the evidence supports the findings of fact. We further find that the ALJ fully and fairly considered the evidence and arguments presented by the parties in deciding the issues. Accordingly, except as modified herein, we affirm and adopt the ALJ’s decision, attached here as Exhibit A, including the summary of evidence, rulings, findings, conclusions and reasons for deciding to deny Employer’s appeal.

We also make the following findings:

Employer was cited for a violation of section 3942(a) which provides:

All guards shall be appropriate for the hazards involved, secured in place, constructed of substantial material as Listed in Table G-1; and have surfaces free of hazardous projections.

The Division’s citation addressed Employer’s failure “to secure in place a closure type guard which covers the spoil ejector opening on the … boring machine.” The ALJ found that the door fastened to the boring machine was in the open position at the time of the accident, and further determined that Employer’s failure to ‘secure” a guard in place under the circumstances was a violation of section 3942(a).

In addition to the ALJ’s determination of a violation of section 3942(a), we further find that the door in the open position also constituted a violation of the regulation’s requirement that the guard “be appropriate for the hazard involved.”

In spite of Employer’s prohibition against employees working in the location near the ejector opening, we find that Soto was in fact working near the ejector opening in order to guide the clam bucket’s descent into the excavation and away from landing on the rail supporting the boring machine. We credit Soto’s testimony that he was assigned that function which could only be performed at the location of the boring machine at the ejector opening. The need to have a worker perform that function is supported by pictorial evidence of the excavation which showed the clam bucket’s hoisting chain in contact with the whaler that supported the shoring. The clam bucket at this time was on the floor of the excavation. The chain was angled away from the location of the machine and toward the wall of the excavation. Had the hoisting chain been vertical the clam bucket would have come down to rest on the rail of the boring machine and not in the ejected spoil adjacent to the ejector opening.

An employee working near the soil ejector with exposed moving parts (ejector vanes, paddles) required that Employer provide a guard appropriate to the hazard to which Soto was exposed. Since the ejector opening was completely uncovered and its door was in the open position, such condition was not appropriate for the hazard involved. Thus, based upon our independent review of the evidence,2 additional grounds for a violation of section 3942(a) were established.

We express no determination that the door in the closed position complies with section 3942(a) since that condition was not present in the instant case.

DECISION AFTER RECONSIDERATION

Employer’s appeal is denied. A serious violation of section 3942(a) is found to exist and a civil penalty of $4,375 is assessed.

MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: July 17, 2002

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 Employer actually litigated the issue of the appropriateness of the door as a guard for the hazard involved, in addition to whether it was secured in place.