Arrow Plumbing, LLC provided plumbing work for municipalities in Missouri. Arrow had been previously cited by OSHA on two separate occasions (and had settled). In the first occasion, in December 2016, they were cited for improper trenching as the trench walls were not benched or sloped, no trench box was used, and spoil piles were adjacent to the edge of the trench and not held back. During excavations in that instance, a sewer main was struck, causing a rupture. As the excavator operator entered the trench, the wall collapsed from the weight of the spoil piles and tragically killed him.

On the second occasion, in January 2017, OSHA inspected another site and cited Arrow for again failing to provide cave-in protection, having utilities unsupported, and failing to keep spoil piles at least two feet from the edge of the excavation. Given this history, Arrow was on the Severe Violator Enforcement Program, a publicly available list maintained by OSHA of employers issued a willful violation directly related to a fatality and on OSHA’s radar.

On Aug. 20, 2020, Arrow was replacing a sewer line and conducting excavation operations pursuant to a contract with the City of Grain Valley, MO when it was cited by OSHA. Arrow was excavating the front yard of a residential property when an OSHA officer appeared upon receiving a complaint about an unsafe worksite. The OSHA officer observed the Arrow’s owner, Rick Smith, and its site supervisor, Joshua Brackenberry, working inside an excavation without wearing a hardhat. No trench box was used for the excavation.

The OSHA officer took measurements of the excavation, which ran from an east-west direction and recorded the width at its opening to be 12’10,” the depth to be 9’3” and the length to be more than 22’2.”

Mr. Smith later testified that after the OSHA officer left, he took his own measurements of the width of the excavation’s opening, and recorded it as 14’6” and the excavation floor was 2 ½ or 3 feet wide. The OSHA officer observed spoil piles along the south wall and to east of the worksite, and although she took soil samples, she did not measure the spoil piles or their distance from the edge of the excavation.

She also observed utility lines in the excavation, including a white pipe fitted with a coupling as well as an electrical line and a gas line.

Prior to beginning work, Mr. Brackenberry, as the competent person, held a safety meeting with Mr. Smith to discuss dangerous situations that could be encountered at the site as well as the challenges of excavating in the front yard of a residential property in close proximity to a neighbor’s property line.

On Aug. 19, 2020, Mr. Brackenberry had excavated at the site and bore a hole under the road so that a four-inch pipe could run underground and tie into the home. He also located the electrical and gas lines, and he excavated around them with a shovel and had observed that the coupling had separated from the conduit on the electrical line. He also piled the excavated soil outside the excavation while another employee moved it to the road for removal by the city.

The following day Mr. Brackenberry was not using a trench box because he believed that the excavation was properly sloped to prevent a cave-in. Even Mr. Smith who observed that the southern wall of the excavation was nearly vertical, did not have safety concerns and proceeded to enter the excavation with Mr. Brackenberry.

Mr. Smith also believed the utility lines were safely secured by the walls of the excavation and not at risk of breaking.

At the time, the two men had installed 10 feet to 12 feet of pipe when the OSHA officer arrived; there was conflicting testimony about how close they were standing near the utility lines while working in the excavation. Mr. Brackenberry indicated they were 10 feet away while Mr. Smith indicating they were 15 feet to 20 feet away; the OSHA officer testified they were three feet to four feet away.

Arrow was cited by OSHA for:

• Failure to have its employees wear helmets while working in the excavation;

• Failure to support or protect utility lines;

• Repeat offenses for failure to keep excavated materials at least two feet from the edge of the excavation;

• Failure to protect employees from cave-ins.

Significant monetary penalties were imposed. After a hearing and review of all the evidence, the Administrative Law Judge found that the Secretary of Labor had met its burden against Arrow for most of the citation items.

The relevant safety standard provides that employees working in areas with possible dangers of head injuries from falling or flying objects be protected by proper helmets. Here, neither Mr. Smith or Mr. Brackenberry were wearing hard hats—which they saw as a nuisance—limiting their field of vision. Mr. Brackenbury was working alongside excavation walls that exceeded his height and there were tools and spoil piles near the edge of the excavation. It was reasonably foreseeable that they could fall or get kicked into the excavation, striking an employee and causing serious head injuries.

The ALJ agreed with the Secretary that Arrow also violated the safety standard providing that when an excavation is “open, underground installations shall be protected, supported, or removed as necessary” to protect employees. Here, neither the gas lines or electrical lines were properly supported and expert testimony noted that industry standards require some type of structural support, such as lumber supports, which were not present herein.

Mr. Smith’s testimony that “live” lines were light and sufficiently supported by the walls of the excavation was unavailing. Furthermore, the OSHA officer testified that she did not observe anything supporting or protecting these lines during her inspections.

Lastly, the ALJ affirmed the citation against Arrow for failure to provide an adequate protective system such as the trench box, which actually was present at another location at the site but not used. Arrow’s explanation that such protection was unnecessary since the trench was wider than it was deep was insufficient and actually wrong based on either set of measurements. Furthermore, the almost vertical wall on its southern side should have required some protective system and even if there was an issue with the neighboring property line, a trench box could have been used, but was not.

In light of its repeat offenses, Arrow was assessed monetary penalties in the amount of $163,058 so as to inflict “pocket-book deterrence.”

About the author: Costas Cyprus, Esq., practices construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 or [email protected]. Articles in this series do not constitute legal advice and are intended for general guidance only.