Magazine article Occupational Hazards

Conflicting Testimony

Magazine article Occupational Hazards

Conflicting Testimony

Article excerpt


Administrative Law Judge Richard Gordon had to weigh conflicting testimony in the case of Secretary of Labor vs. Lane Construction Corp.

When an OSHA compliance officer inspected the worksite in Susffield, Conn., where Lane Construction Corp. was excavating in preparing to install a manhole and adjoining pipes, he observed what he regarded as soft, unstable soil.

As a result of this inspection, Lane was issued a citation for an alleged serious violation of OSHA standard 29 CFR 1926.652(b) for failure to shore, slope, sheet, or otherwise support a trench more than 5 ft deep dug in soft or unstable soil. Proposed penalty $2000.

The company contested the case. At a hearing, the OSHA compliance officer who conducted the inspection admitted that he was not an expert in construction safety, neither possessing an engineering degree nor having experience in soil testing. He conceded further that before coming to OSHA, he had had no previous trenching or excavation experience. However, he stated that the soil was soft and unstable near the manhole excavation. He based this assessment on the following observations: water was running down one side of the trench, although he didn't see any seeping through the trench's walls; and heavy equipment nearby was wearing tire chains, which he regarded as indicative of the softness of the soil.

Evidence at the hearing brought out that the compliance officer hadn't conducted any soil tests. He hadn't entered the trench nor touched its walls. When he took measurements, he stood outside the trench and lowered a steel tape to the trench floor. Based on his measurements, the compliance officer concluded that the trench should have been sloped to a ratio of 1 1/2 to 1.

Lane's key witness was its corporate safety manager, who holds a bachelor of science degree and has completed courses in soils engineering and soils mechanics. He testified that on the day of the OSHA inspection, he conducted a manual test to determine the cohesiveness of the soil, and found it to be hard, stable, dense clay.

Lane produced two other witnesses, with extensive excavating experience, who also said they took measurements after the inspection. …

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