United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OSHRC Docket No. 21-0244 Complainant, 

v. 

ARROW PLUMBING, LLC, 

Respondent. 

Appearances: 

Megan McGinnis, Laura O’Reilly, Jeffrey Mendoza, Department of Labor, Office of Solicitor, 

Kansas City, Missouri, 

For Complainant 

Anthony L. Gosserand, Van Osdol PC, Kansas City, Missouri, 

For Respondent 

Before: Judge Christopher D. Helms – U. S. Administrative Law Judge 

DECISION AND ORDER 

This matter is before the United States Occupational Safety and Health Review 

Commission (Commission) pursuant to section 10(c) of the Occupational Safety and Health Act 

of 1970, 29 U.S.C. § 651 et seq.) (the Act). On August 20 and 21, 2020, a Compliance Safety and 

Health Officer (CSHO) inspected a worksite after receiving a complaint that an excavation 

appeared unsafe. As a result, the Occupational Safety and Health Administration (OSHA) issued 

a Citation and Notification of Penalty to Respondent Arrow Plumbing, LLC (Arrow Plumbing). 

The Citation alleges two serious violations and two repeat-serious violations, with total proposed 

penalties of $299,590.00. Arrow Plumbing timely contested the Citation. 
 

 

 

 

 

 

 

 

 

The Chief Administrative Law Judge designated this matter for conventional proceedings, 

and a trial was held on July 19-21, 2022, in Kansas City, Missouri. The following individuals 

testified: (1) Compliance Safety and Health Officer (CSHO) Christina Gibbs; (2) Michael Hayslip, 

an expert witness for the Secretary; (3) Karena Lorek, Area Director of the Kansas City Area 

OSHA office; (4) Rick Smith, Owner of Arrow Plumbing; and (5) Joshua Brackenbury, Project 

Supervisor. 

After the trial concluded, both parties timely filed post-trial briefs, which were considered 

by the Court in reaching its decision. Pursuant to Commission Rule 90, after hearing and carefully 

considering all the evidence and the arguments of counsel, the Court issues this Decision and Order 

as its findings of fact and conclusions of law. 

For the reasons discussed, Citation 2, Item 1 is vacated. The remaining citation items are 

affirmed. 

II. Stipulations & Jurisdiction 

The parties stipulated to several matters, including the jurisdiction of this Court over this 

proceeding and the parties before it. See Joint Stipulation Statement (J. Stip.) 1. The parties 

submitted the Joint Stipulation Statement to the Court prior to trial and entered the stipulations 

into the record. (Tr. 11). The Court incorporates by reference the Joint Stipulations and refers to 

them as necessary in this decision. 

III. Background 

a. The Inspection 

This case arises out of a project to replace a sewer line that had been installed incorrectly. 

(Tr. 75). In 2020, the City of Grain Valley, Missouri, hired Arrow Plumbing, which is owned by 

Rick Smith, to complete the job. (J. Stip. 10; Tr. 509). Work on the project began on August 19, 

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2020, at which time an excavation was dug in the front yard of a residential property located at 

643 Gateway Court, Grain Valley, Missouri (“site” or “worksite”). (Tr. 34-35, 621) 

On August 20, 2020, OSHA received a complaint about the worksite because the 

excavation allegedly looked unsafe. (Tr. 34-35). CSHO Gibbs drove to the site and arrived at 4:45 

P.M. to conduct an investigation. (Tr. 34-35, 48). As she approached the site from the south, she 

did not see anyone in the excavation, but she did observe an individual—later identified as Jaron 

Brown—standing on the edge of the excavation looking down. (Tr. 35-37). She also observed a 

trailer with a trench box at the south end of the neighborhood. (Tr. 36). 

As CSHO Gibbs approached the worksite, she observed Mr. Smith and Mr. Brackenbury 

working inside the excavation. (Tr. 43-44). Neither was wearing head protection such as a hard 

hat, and there was no trench box in the excavation. (Tr. 49; J. Stip. 17, 20-21). Mr. Brackenbury 

was the supervisor and competent person on site, and Mr. Brown was in training. (Tr. 528, 596). 

The CSHO discussed the project with Mr. Smith and Mr. Brackenbury, and proceeded to 

take measurements and photographs. (Tr. 68-69, 532, 535). Mr. Smith was in the excavation and 

assisted with measuring. (Tr. 74). The excavation ran in an east-west direction and was located on 

the south side of a driveway. (Tr. 48). The residential home was on the east end of the excavation, 

and a sidewalk was on the west end. (Tr. 48). The CHSO recorded the width of the excavation at 

its opening to be 12’10”, the depth to be 9’3”, and the length to be more than 22’2”. (Tr. 71-72). 

Mr. Smith testified that after the CSHO left, he measured the width of the excavation’s opening to 

be 14’6”. (Tr. 554). He did not take any other measurements. (Tr. 554). The CSHO did not measure 

the width of the excavation’s floor, but Mr. Smith testified it was 2 1⁄2 or 3 feet wide. (Tr. 531). 

During her inspection, the CSHO observed spoil piles along the south wall and to the east 

of the worksite. (Tr. 49). She took samples from the spoil piles, but she did not measure them or 

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their distance from the edge of the excavation. (Tr. 187, 224, 226). The CSHO also observed a 

mini-excavator and some tools on the ground on the northeast part of the excavation near the edge. 

(Tr. 49, 54). She observed spoil piles along the south wall and to the east of the worksite. (Tr. 49). 

A white pipe had been placed in the trench, and one end was fitted with a coupling with purple 

glue. (Tr. 52, 553). On the east end of the excavation, a white electrical line and a yellow gas line 

ran across the excavation from the south wall to the north wall. (Tr. 49). 

Mr. Brackenbury was the site supervisor assigned to the worksite. (Tr. 520; J. Stip. 14, 15). 

At trial, Mr. Smith described Mr. Brackenbury as Arrow Plumbing’s most competent employee. 

(Tr. 520). Before work began on the project, Mr. Smith and Mr. Brackenbury had a safety meeting 

to discuss dangerous situations that might be encountered at the worksite. (Tr. 519, 522, 620). 

They also discussed challenges presented by the fact that the excavation would be dug in the front 

yard of a home close to the neighbor’s property line. (Tr. 514-15, 623). 

On August 19, Mr. Brackenbury arrived at the worksite, dug the excavation with a 

mini-excavator, and bore a hole under the road so that a 4-inch pipe could run underground and tie 

into the home. (Tr. 622). He also located the marked electric and gas lines and excavated the lines 

with a shovel. (Tr. 625). He noticed that the coupling had separated from the conduit on the 

electrical line. (Tr. 626). The next day, August 20, Mr. Brackenbury continued the excavation with 

the mini-excavator. (Tr. 633). Mr. Brackenbury piled the excavated soil outside the excavation 

while another Arrow Plumbing employee (Coy Smith) moved it to the road for removal by the 

City of Grain Valley. (Tr. 634-35). On August 20, Mr. Brackenbury did not use a trench box during 

the installation because he believed he had properly sloped the walls of the excavation to prevent 

a cave-in. (Tr. 641). 

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Mr. Smith arrived at the worksite around 3:00 P.M. to resolve an issue with the sewer’s 

fall line.1 (Tr. 526-27). He noticed that the southern wall of the excavation was nearly vertical, but 

he did not have any safety concerns and proceeded to enter the excavation with Mr. Brackenbury. 

(Tr. 530). Mr. Smith was also aware of the exposed utility lines and noted that the rubber casing 

of the electrical line was damaged. (Tr. 537). He believed the utility lines were safely secured by 

the walls of the excavation and not at risk of rupturing due to lack of support. (Tr. 538-39). 

Moreover, he explained that some slack in the lines allowed them to be moved out of the way 

while work was completed around them. (Tr. 539). 

When Mr. Smith and Mr. Brackenbury were working in the excavation, they focused their 

efforts on the portion of the sewer pipe that was fitted with the coupling. (Tr. 657). Mr. 

Brackenbury was standing along the vertical south wall assisting Mr. Smith, who was positioned 

alongside the coupling. (Tr. 577-78). The two men had installed 10 to 12 feet of pipe by the time 

the CSHO arrived. (Tr. 648). Notably, the testimony regarding the distance between where the 

men were working and the utility lines varies: the CSHO testified they were 3 to 4 feet away, while 

Mr. Brackenbury recalls working 10 feet away, and Mr. Smith believed they were 15 to 20 feet 

away. (Tr. 141, 540, 654-55). 

Work continued the next day, and the CSHO returned to conduct another inspection of the 

site. (Tr.141). OSHA cited Arrow Plumbing for violations observed on August 21, but the 

Secretary later amended the citation to exclude them. (Tr. 262-64). 

1 The fall line refers to the degree of decline to ensure the sewer line drains properly. (Tr. 527). 

The sewer line in this case relied on gravity to flush the contents of the sewer to the main line. 

(Tr. 629). 

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b. Prior OSHA Violations 

OSHA has previously cited Arrow Plumbing for violations similar to those present in this 

case. In December 2016, Arrow Plumbing was completing a job in Belton, Missouri, which 

involved digging a trench and connecting a sewer line stub for a residential property. (Tr. 598; Ex. 

C-23 at 2). The trench was 9 feet deep, approximately 2 feet wide, and 20 feet long. (Ex. C-23 at 

2). The walls of the trench were not benched or sloped, and there was no trench box in use. (Id. at 

5). Spoil piles were located adjacent to the edge of the trench and were not held back by any 

retaining device. (Id. at 2). While digging, the excavator hit a sewer main and caused a break. (Id.). 

The operator entered the trench and, while he was in the trench, the wall collapsed under the weight 

of the spoil piles, resulting in the death of the operator. (Id. at 5; Tr. 441). OSHA cited Arrow 

Plumbing with four serious violations and three willful violations. (Ex. C-22 at 5-12). Relevant to 

this case, Arrow Plumbing was cited with a serious violation of 29 C.F.R. § 1926.651(j)(2) (failure 

to keep excavated materials at least 2 feet from the edge of the excavation) and a willful violation 

of 29 C.F.R. § 1926.652(a)(1) (failure to protect employees from cave-ins). (Ex. C-22 at 6, 12). 

The proposed penalties totaled $294,059. (Ex. C-22 at 13). 

A month after the fatality at the Belton worksite, OSHA conducted an inspection of a 

worksite in Kansas City. (Ex. C-26 at 2; Tr. 446). Arrow Plumbing was hired to connect a sanitary 

sewer line from a residence to a main line. (Ex. C-26 at 2). OSHA noted that there was an 

excavation ranging in depth from 8 to 13 feet, and spoil piles were adjacent to the edge of the 

excavation. (Id.). No form of cave-in protection was in place, and utilities were unsupported. (Id.). 

OSHA cited Arrow Plumbing with four serious violations and three willful violations. (Ex. C-25 

at 6-12). Relevant to this case, OSHA cited Arrow Plumbing with a willful violation of 29 C.F.R. 

§ 1926.651(j)(2) (failure to keep excavated materials at least 2 feet from the edge of the excavation) 

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and a willful violation of 29 C.F.R. § 1926.652(a)(1) (failure to protect employees from cave-ins). 

(Ex. C-25 at 10, 12). 

The Belton and Kansas City citations were resolved by a single formal settlement 

agreement, which became a final order on September 28, 2018. (Tr. 454; Ex. C-28). Arrow 

Plumbing agreed to a number of abatement measures, including enhanced safety abatement, hiring 

a third-party safety and health consultant who would make unannounced visits to worksites and 

develop a trenching and excavation program, and sending employees and supervisors to trainings. 

(Tr. 464-68; Ex. C-28 at 4-7). As of August 20, 2020, Arrow Plumbing had not complied with 

those provisions or paid the penalty in full. (Tr. 464-68). In addition, Arrow Plumbing remained 

on the Severe Violator Enforcement Program (SVEP)2 at the time of OSHA’s August 20, 2020, 

inspection. (Tr. 469). 

c. The Instant OSHA Citation and Penalty 

The CSHO ultimately concluded that Arrow Plumbing committed two serious violations 

and two repeat-serious violations. Ms. Lorek reviewed the file and approved the issuance of these 

citations. (Tr. 435). Citation 1, Item 1 alleges a violation of 29 C.F.R. § 1926.100(a) (failure to 

wear protective helmets while working in the excavation). (Ex. C-17 at 6). Citation 1, Item 2 

alleges a violation of 29 C.F.R. § 1926.651(b)(4) (failure to support, protect, or remove 

underground utilities). (Ex. C-17 at 7). Citation 2, Item 1 alleges a repeat-serious violation of 29 

C.F.R. § 1926.651(j)(2) (failure to keep excavated materials at least 2 feet from the edge of the 

excavation). (Id. at 8) Citation 2, Item 2 alleges a repeat-serious violation of 29 C.F.R. 

§ 1926.652(a)(1) (failure to protect employees from cave-ins). (Ex. C-17. at 9). 

2 SVEP is OSHA’s publicly available list of employers that were issued a willful violation 

directly related to a fatality. (Tr. 469). 

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OSHA assessed the maximum penalty for the two repeat violations and one of the serious 

violations. (Tr. 458). OSHA considered mitigating factors when deciding the appropriate penalty, 

but ultimately concluded that none applied. (Tr. 471). For instance, Arrow Plumbing’s overall 

safety and health program—which consisted solely of a printed copy of the OSHA excavation 

standard that was not provided to new employees and never enforced—was not an adequate 

mitigating factor. (Tr. 470). 

OSHA also concluded the penalties for the serious citation items should not be reduced on 

the basis of gravity of the violation, good faith, history, or size. (Tr. 471-73). It determined that 

gravity did not reduce the penalties because although only one employee was exposed, and that 

exposure was seemingly of short duration, the risk and probability of injury or serious harm for 

several of the violations was high. (Tr. 112, 118, 125, 493). It also determined good faith and 

history did not reduce the penalty amount because Arrow Plumbing had a history of OSHA 

violations. (Tr. 460-61). Further, OSHA did not give Arrow Plumbing a reduction for size because 

it wanted the penalty amount to create a deterrent effect, which it claimed is permissible under the 

Field Operations Manual. (Tr. 471-72). In short, OSHA did not give Arrow Plumbing any 

reductions for mitigating factors because it wanted to create a deterrent effect. (Tr. 488). 

IV. Discussion 

To establish the violation of a safety standard under the Act, the Secretary must prove: 

(1) the cited standard applies; (2) the employer failed to comply with the terms of that standard; 

(3) employees had access to the hazardous condition covered by the standard; and (4) the employer 

knew, or with the exercise of reasonable diligence could have known, of the violative condition. 

Atl. Battery Co., No. 90-1747, 1994 WL 682922, at * 6 (OSHRC, Dec. 5, 1994). The Secretary 

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has the burden of establishing each element by a preponderance of the evidence. The Hartford 

Roofing Co., No. 92-3855, 1995 WL 555498, at *3 (OSHRC, Sept. 15, 1995). 

A. Citation 1, Item 1 

1. Violation of the Cited Standard 

The CSHO cited Arrow Plumbing because its employees failed to wear protective headgear 

while working in the excavation. Citation 1, Item 1 alleged a serious violation of 29 C.F.R. 

§ 1926.100(a), which provides: 

Employees working in areas where there is a possible danger of head injury from 

impact, or from falling or flying objects, or from electrical shock and burns, shall be 

protected by protective helmets. 

The Secretary described the serious violation3 as follows: 

The employer is failing to protect employees from overhead struck-by hazards 

associated with trench4 work. Instance of exposure include and not limited to: 

a) This was most recently documented on August 20, 2020, at the residential 

construction site located at 643 Gateway Court, Grain Valley, Missouri. 

Employees were not wearing protective helmets while working in a trench 

measured at 9’3” deep. Employees were exposed to struck-by hazards from 

tools, materials, and spoil piles. 

* * * 

Citation at 6. Arrow Plumbing argues that the standard did not apply, there was no exposure to a 

hazard, and it had no knowledge of the violation. 

After careful consideration, the Court concludes that the standard applied. Mr. 

Brackenbury was working alongside excavation walls that exceeded his height while working on 

3 The Citation originally cited Arrow Plumbing for events occurring on August 20 and 21, 2020. 

At trial, the Secretary amended the Citation to include only events occurring on August 20, 2020. 

(Tr. 262-63). Thus, the Court has only included those portions of the Citation relating to August 20, 

2020. 

4 During trial, the Secretary requested—and the Court granted—leave to amend the Citation to 

replace the word “trench” with “excavation.” (Tr. 678-81). 

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connecting the pipe. Tools and spoil piles were located overhead near the edge of the excavation, 

so they posed a potential threat of head injury from falling or kicked objects. 

Next, there is no dispute that the standard was violated. The record establishes—and Arrow 

Plumbing concedes—that neither Mr. Smith nor Mr. Brackenbury were wearing hard hats at the 

worksite on the day of the inspection. The fact that hard hats were seen as a nuisance and limited 

the wearer’s field of vision does not negate a finding by this Court that the standard was violated. 

(Tr. 100, 543); see Houran USA, Constr., No. 18-1261, 2020 WL 1316905, at *3 (OSHRC, Feb. 

7, 2020) (employees disliking hard hats because they made them sweat was no defense). 

The Secretary also established exposure. Mr. Brackenbury was working next to a nearvertical wall below spoil piles and tools left along the edge. The record demonstrates that Mr. 

Brown was walking along and standing at the edge of the excavation above Mr. Brackenbury. It 

is reasonably foreseeable that an object from the surface would fall or get kicked into the 

excavation and strike Mr. Brackenbury. See, e.g., Rawlings Constr., Inc., No. 9980, 1975 WL 

4845, at *3 (OSHRCALJ, May 5, 1975) (finding that two workers without hard hats in a trench 

were exposed to the hazard of falling objects where excavated soil was stored on the banks of the 

excavation and activity was taking place at the surface level). Although Arrow Plumbing argues 

the possibility of being struck is remote, exposure can nevertheless be established. See Altor, Inc., 

No. 99-0958, 2011 WL 1682629, at *7 (OSHRC, Apr. 26, 2011) (“[e]xposure can be shown even 

where ‘the hazard of being struck . . . was remote and [where] hardhats may not have offered much 

protection.’”) (citation omitted). 

Lastly, the Court concludes employer knowledge is established. Mr. Brackenbury admitted 

he did not wear a hard hat, and Mr. Smith observed Mr. Brackenbury in the excavation without a 

hard hat on, despite both men having access to hard hats in their vehicles. See CMC Elec., Inc., 

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No. 96-169, 1999 WL 261189, at *5 (OSHRC, Apr. 26, 1999) (affirmed in pertinent part) (finding 

employer knowledge established where all three employees, who were also supervisors, failed to 

wear their hard hats on site). Accordingly, the Secretary met her burden on Citation 1, Item 1. 

2. Classification as Serious 

A violation of this section is “serious” when “there is a possibility of an accident and a 

substantial probability that death or serious physical injury would result.” Brennan v. OSHRC 

(Interstate Glass), 487 F.2d 438, 439 (8th Cir. 1973) (citing 29 U.S.C. § 666(j)). The CSHO 

testified that based on her experience, tools or chunks of dirt could have caused a brain injury if 

they fell on Mr. Brackenbury’s head. (Tr. 103). Mr. Hayslip testified that wearing hard hats was a 

common practice at excavation sites given the risk of dirt or tools falling into them. (Tr. 339). The 

testimony regarding the serious nature of this violation is unrebutted. Accordingly, the Secretary 

has met her burden of proving that the violation alleged in Citation 1, Item 1 is properly classified 

as serious. 

B. Citation 1, Item 2 

The CSHO also cited Arrow Plumbing for a serious violation of 29 C.F.R. 

§ 1926.651(b)(4), which provides: “While the excavation is open, underground installations shall 

be protected, supported or removed as necessary to safeguard employees.” The Secretary described 

the violation as follows: 

The employer is failing to protect employees from electrical and asphyxiation hazards 

associated with trench work. This was most recently documented on August 20, 2020, at 

the residential construction site located at 643 Gateway Court, Grain Valley, Missouri. 

Employees working in a trench with active unsupported and unprotected utilities lines 

running across the trench. The employer did not support the gas line nor the electrical 

power lines located in the trench. 

Citation at 7. 

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Arrow Plumbing does not dispute the excavation had exposed utility lines running through 

it, so the standard applies. Instead, Arrow Plumbing contends it did not violate the standard. 

As noted by the Secretary, the OSHA technical manual provides guidance for means of 

compliance, such as underpinning, shoring, or bracing, to support underground installations. 

(Sec’y. Br. 14; Tr. 110-11). Mr. Smith testified that the utility lines were light and sufficiently 

supported by the walls of the excavation. (Tr. 540). Mr. Brackenbury also testified the lines were 

supported by the walls of the excavation, and the middle of the gas line was “sitting on dirt.” (Tr. 

684). However, the CSHO testified that she did not observe anything supporting or protecting the 

lines. Mr. Hayslip’s expert report noted that accepted industry practice is to “support the utilities 

with lumber or other structural supports and post warnings.” (Ex. C-21 at 15). Photographs of the 

excavation do not assist the Court’s analysis because they do not conclusively show whether the 

utility lines were or were not supported by a pile of dirt. 

Based on the testimony of the CSHO and Mr. Smith, as well as the expert report that the 

industry standard requires structural supports, the Court concludes the utility lines were either 

unsupported or insufficiently supported, resulting in a violation of the cited standard. 

Next, the Court considers whether the Secretary established exposure. Arrow Plumbing 

argues there was no exposure because Mr. Brackenbury was working far away from the lines. 

Testimony at trial places the men between 5 and 20 feet away from the utility lines at the time of 

the inspection. This distance, by itself, does not negate exposure. See Phoenix Roofing, Inc., No. 

90-1995, 1995 WL 82313, at *3 (OSHRC, Feb. 24, 1995) (holding it was reasonably predictable 

that a worker would go into an unprotected area when retrieving materials located 12 feet away) 

aff’d, 79 F.3d 1146 (5th Cir. 1996). Although Mr. Smith testified Mr. Brackenbury did not go near 

the lines, Mr. Brackenbury himself admitted he exposed the lines by digging around them with a 

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shovel and he anticipated digging around the lines again as work progressed. (Tr. 683). It is 

undisputed that the utility lines were live, and the CSHO testified that if one of the lines were 

nicked or cut, it would create an electrocution or asphyxiation hazard. (Tr. 108-09). Thus, the Court 

concludes that it is reasonably foreseeable that a pipe, shovel, or other equipment would snag or 

nick the lines and, because those lines were live, could result in a serious injuries or death. Thus, 

based on this record, the Court concludes exposure was established. See D.R.B. Boring & Drilling 

Co., No. 05-0693, 2006 WL 305303, at *5 (OSHRC, Jan. 30, 2006) (operating a boring machine 

close to the gas line and a foot from the water line supports a finding the lines could have been 

ruptured or broken, resulting in serious injuries). 

Lastly, the Court considers whether the Secretary established knowledge. See Phoenix 

Roofing, Inc., 1995 WL 82313, at *3 (“Employer knowledge is established by a showing of 

employer awareness of the physical conditions constituting the violation.”). To prove this element, 

the Secretary must show Arrow Plumbing knew or, with the exercise of reasonable diligence, could 

have known of the violation. Dun-Par Engineered Form Co., No. 82-928, 1986 WL 53522, at *4 

(OSHRC, July 30, 1986). It is undisputed that Mr. Smith and Mr. Brackenbury were aware of the 

exposed lines, knew the lines were “live,” and knew or could have known that the lines were 

unsupported or insufficiently supported. Mr. Brackenbury testified that he did not take additional 

steps to support the lines but instead left them on the dirt from which they had been excavated. 

(Tr. 675). There was no attempt to ensure a support structure was in place, although Mr. 

Brackenbury could have known dirt provided insufficient support. Accordingly, the Secretary 

established knowledge. Moreover, as noted previously, it is apparent that if either line had been 

hit, serious injuries or death could have resulted. Interstate Glass, 487 F.2d at 439. This item is 

affirmed as a serious citation. 

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C. Citation 2, Item 1 

The CSHO next cited Arrow Plumbing for a repeat-serious violation of 29 C.F.R. 

§ 1926.651(j)(2), which provides: 

Employees shall be protected from excavated or other materials or equipment that 

could pose a hazard by falling or rolling into excavations. Protection shall be 

provided by placing and keeping such materials or equipment at least 2 feet 

(.61 m) from the edge of excavations, or by the use of retaining devices that are 

sufficient to prevent materials or equipment from falling or rolling into 

excavations, or by a combination of both if necessary. 

Citation at 8. The Secretary described the violation as follows: 

The employer is failing to protect employees from struck-by and collapse hazards 

associated with trench work. This was most recently documented on 

August 20, 2020, at the residential construction site located at 643 Gateway Court, 

Grain Valley, Missouri: Where the employer has employees working in a 9’3” 

deep trench with the spoil pile placed within two feet of the edge of the excavation. 

Id. The Secretary then set forth the basis for the repeat citation, identifying two other instances in 

which Arrow Plumbing was cited for the same violation: 

Arrow Plumbing was previously cited for a violation of this occupational safety 

and health standard or its equivalent standard 29 CFR 1926.651(j)(2), which was 

contained in OSHA inspection number 1197640, citation number 1, item number 

1, and was affirmed as a final order on September 28, 2018, with respect to a 

workplace located at 507 Coleman Road Belton, Missouri. 

Arrow Plumbing was previously cited for a violation of this occupational safety 

and health standard or its equivalent standard 29 CFR 1926.651(j)(2), which was 

contained in OSHA inspection number 1204399, citation number 2, item number 

1, and was affirmed as a final order on September 28, 2018, with respect to a 

workplace located at Lot 27 N Baltimore Ave, Kansas City, Missouri. 

Id. Arrow Plumbing argues the spoil piles were at least 2 feet away from the edge of the excavation, 

so the Secretary failed to prove a violation of the cited standard or exposure to a hazard. 

The Court concludes the Secretary has established three of four elements. First, it is 

undisputed that spoil piles were present at the worksite, so the standard applied. And, it is wellestablished that spoil piles located fewer than 2 feet away from the edge of an excavation expose 

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workers in the excavation to a serious hazard. See Fla. Gas Contractors, Inc., No. 14-0948, 2019 

WL 995716, at *5 (OSHRC, Feb. 21, 2019) (quoting Occupational Safety and Health StandardsExcavations, 54 Fed. Reg. 45,894, 45,925 (Oct. 31, 1989) (to be codified at 29 C.F.R. Part 1926) 

(“[M]aterials such as excavated soil . . . also place a superimposed load on the edge of the 

excavation. Such loads can be the cause of cave-ins and must be considered when determining 

what protection is necessary to safeguard employees.”). In addition, there is evidence in the record 

that one cubic foot of soil may weigh up to 100 pounds which, if a cave-in were to occur, would 

move at a speed of 30 to 35 miles per hour and cause serious injury. (Tr. 407-08). Lastly, the Court 

concludes Arrow Plumbing had knowledge of the condition, which is established by the testimony 

of Mr. Brackenbury and Mr. Smith. See Phoenix Roofing, Inc., 1995 WL 82313, at *3. (“Employer 

knowledge is established by a showing of employer awareness of the physical conditions 

constituting the violation.”). 

However, the Secretary has failed to establish noncompliance with the standard. Arrow 

Plumbing argues the largest spoil piles were set back at least 2 feet from the edge of the excavation 

and, in any event, the CSHO failed to measure the distance. Mr. Smith testified there were “some 

small spoil piles” around the excavation. (Tr. 542). He could not recall exactly how far back those 

spoil piles were located, but he could not see the spoil piles from his location in the excavation. 

(Tr. 553). Mr. Brackenbury was adamant that he placed the spoil piles at least 2 feet away from 

the excavation, i.e., the width of the mini-excavator’s bucket. (Tr. 676). In contrast, the CSHO 

recalled that the spoil piles were located right at the edge of the excavation, and she pointed the 

Court to photographs purporting to show those spoil piles at the edge. However, she admitted she 

did not measure the dimensions of the spoil piles or their distance from the edge of the excavation. 

And, there is nothing in the record that provides a precise measurement of the spoil piles. 

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After review, the Court concludes that there is insufficient evidence of a violation of the 

citation. Although photographs depict this condition at the worksite, they are unable to resolve the 

conflicting credible testimony given at trial. Ultimately, the CSHO never measured the distance 

between the edge of the excavation and the spoil piles, and photographs only show some amount 

of distance between the piles and the edge. The Court is hesitant to substitute concrete 

measurements with its own estimation of distance. In addition, although Mr. Smith admitted in his 

statement to OSHA that there were spoil piles on the edge of the excavation, he noted it was a 

“pretty small pile.” (Ex. C-1b at 6). This raises a serious question of whether that small pile actually 

posed a hazard. Without a measurement, the Court cannot resolve the inconsistencies. Thus, after 

careful consideration, the Court concludes the Secretary has not met her burden to establish a 

violation of the standard. See Caterpillar Tractor Co., No. 80-4061, 1986 WL 53446, at *3 

(OSHRC, Apr. 16, 1986) (“Normally, where the record in a case lacks sufficient evidence on a 

disputed issue, we would resolve that issue against the party having the burden of proof.”). The 

Court vacates Citation 2, Item 1. 

Assuming for purposes of this section that the Secretary had established a violation, the 

Court concludes the Secretary’s classification as repeat-serious was proper. The CSHO testified 

that a spoil pile at the edge of an excavation adds weight to the walls of the excavation and can 

push the walls in, creating an engulfment or cave-in hazard. (Tr. 116, 161). The severity of 

potential injury ranged from bruising to death. (Tr. 117). The Commission has recognized that a 

cave-in is a serious hazard. See Mosser Constr., Inc., No. 08-0631, 2010 WL 711322, at *3 

(OSHRC, Feb. 23, 2010) (finding cave-in includes “potentially serious or deadly consequences”). 

Thus, the serious characterization is supported. 

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Similarly, the CSHO properly identified the violation as repeated. “A violation is repeated 

under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a 

Commission final order against the same employer for a substantially similar violation.” Potlatch 

Corp., No. 16183, 1979 WL 61360, at *3 (OSHRC, Jan. 22, 1979). Arrow Plumbing was 

previously cited for violating 29 C.F.R. § 1926.651(j)(2) at the Belton and Kansas City worksites 

because it failed to remove spoil piles from the edge of those excavations. The spoil piles presented 

the same engulfment and cave-in hazards that were present in this case, and the Belton and Kansas 

City citations became a final order of the Commission. See Potlach, 1979 WL 61360, at *4 

(holding a prior violation must present a similar hazard and be a final order of the Commission). 

Accordingly, assuming for purposes of this section that the Secretary established a violation of the 

standard, that violation was properly characterized as repeat-serious. However, as the Secretary 

has not met her burden of establishing noncompliance with the cited standard, Citation 2, Item 1 

is vacated. 

D. Citation 2, Item 2 

In the final citation item, OSHA alleged Arrow Plumbing committed a repeat-serious 

violation of 29 CFR § 1926.652(a)(1), which requires—as relevant to this case—that employees 

in an excavation be protected from cave-ins by an adequate protective system. These systems 

include sloping or benching designs or a support system or shield, like a trench box. § 1926.652(b) 

and (c). The Secretary described the violation as follows: 

The employer failing to protect employees from struck-by and collapse hazards 

associated with trench work. This was most recently documented on August 20, 

2020, at the residential construction site located at 643 Gateway Court, Grain 

Valley, Missouri: The employer has employees working in a 9’3” deep trench 

without providing adequate shoring, sloping or benching as means of protection 

against the trench collapse. 

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Citation at 9. The Secretary then set forth the basis for the repeat citation, identifying two other 

instances in which Arrow Plumbing was cited for the same violation: 

Arrow Plumbing was previously cited for a violation of this occupational safety 

and health standard or its equivalent standard 29 CFR 1926.652(a)(1), which was 

contained in OSHA inspection number 1197640, citation number 2, item number 

3, and was affirmed as a final order on September 28, 2018, with respect to a 

workplace located at 507 Coleman Road Belton, Missouri. 

Arrow Plumbing was previously cited for a violation of this occupational safety 

and health standard or its equivalent standard 29 CFR 1926.652(a)(1), which was 

contained in OSHA inspection number 1204399, citation number 2, item number 

3, and was affirmed as a final order on September 28, 2018, with respect to a 

workplace located at Lot 27 N Baltimore Ave, Kansas City, Missouri. 

Id. 

Arrow Plumbing argues there was no exposure because Mr. Brackenbury was not working 

near the southern sheer wall. Arrow Plumbing also asserts the affirmative defense of infeasibility 

for this citation item. The Secretary maintains that Mr. Brackenbury was exposed to a hazard while 

working within the zone of danger of the sheer wall. The Secretary further argues that Arrow 

Plumbing failed to show infeasibility. 

1. Violation of the Cited Standard 

The Court first concludes the standard applies. Section 1926.650 defines “excavation” to 

mean “any man-made cut, cavity, trench, or depression in an earth surface, formed by earth 

removal.” Despite some testimony presented at trial that this was a “hole” and not an excavation, 

Arrow Plumbing has used the term “excavation” in its post-trial briefs when discussing the project 

at issue and has not raised arguments that this was not an excavation. (See generally Resp. Br.). 

Next, the record establishes that Arrow Plumbing violated the standard. Arrow Plumbing 

argued that “Smith and Brackenbury informed [the CSHO] that because the excavation was wider 

than it was deep,” workers in the excavation were protected from a potential cave-in. (Resp. Br. 

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37). However, Arrow Plumbing does not present any evidence or cite to any authority that an 

excavation wider than it is deep protects workers, nor does the cited standard contain such an 

exception. And, the evidence establishes the excavation was not properly sloped. Mr. Hayslip 

testified that even using Arrow Plumbing’s measurements of the excavation, i.e., measurements 

more favorable to it, the slope was well outside of the requirements of the standard. See Lakeland 

Enters. of Rhinelander, Inc. v. Chao, 402 F.3d 739, 747 (7th Cir. 2005) (holding the trench “fell 

short” of the standards requirements using either party’s purported measurements). Further, the 

testimony at trial demonstrates that the southern wall appeared to be almost vertical. See Garney 

Constr., Inc., No. 02-2134, 2003 WL 21693001, at *5 (OSHRC ALJ, July 18, 2003) (observing 

that “all faces of an excavation” must be properly sloped or benched). Moreover, it is undisputed 

that no trench box or other support was used at the time when the CSHO arrived on site to conduct 

her inspection. In short, no cave-in protection system was in place. Accordingly, the Secretary 

established noncompliance with the standard. 

The Secretary also established exposure. The Secretary can establish employee exposure 

to a violative condition by showing either “actual exposure or that access to the hazard was 

reasonably predictable.” Gate Precast Co., No. 15-1347, 2020 WL 2141954, at *2 (OSHRC, 

Apr. 28, 2020) (citations omitted). “In determining whether the Secretary has proven access to the 

hazard, the ‘inquiry is not simply into whether exposure is theoretically possible,’ but whether it 

is reasonably predictable ‘either by operational necessity or otherwise (including inadvertence), 

that employees have been, are, or will be in the zone of danger.’” Nuprecon Lp Dba Nuprecon 

Acquisition Lp, No. 08-1037, 2012 WL 525154, at *2 (OSHRC, Feb. 7, 2012) (quoting Fabricated 

Metal Prods., Inc., No.93-1853, 1997 WL 694096, at *2 (OSHRC, Nov. 7, 1997)). 

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Here, Mr. Brackenbury and Mr. Smith were working on the pipe near the sheer south wall, 

and the men were “running some more pipe.” (Tr. 529). Mr. Smith had arrived at the worksite 

around 3 P.M., and the CSHO arrived at 4:45 P.M., which means the men were working in the 

excavation for a significant portion of that time. And, both men had unfettered access to all portions 

of the excavation. Thus, the Court concludes Mr. Brackenbury was exposed to a serious cave-in 

hazard while he was working in the excavation. 

Lastly, the Secretary established knowledge. To prove knowledge, the Secretary must show 

that the employer either actually knew of the noncomplying condition, or constructively knew of 

it—that is, the employer could have known with the exercise of reasonable diligence.” Par Elec. 

Contractors, Inc., No. 99-1520, 2004 WL 334488, at *3 (OSHRC, Feb. 19, 2004). Here, both Mr. 

Smith and Mr. Brackenbury were working in the excavation and were aware of its physical 

condition. They both testified that one of the walls of the excavation was almost vertical, and they 

admitted that they believed that no cave-in protection system was necessary due to the dimensions 

of the excavation (wider than it was deep). There was no attempt to shore the excavation’s walls, 

and Mr. Smith and Mr. Brackenbury testified they were unable to slope or bench the excavation 

because of a nearby property line. They also admitted they did not use a trench box, even though 

a trench box was on site. In short, the Court agrees with the Secretary’s expert witness: a 

reasonably prudent contractor would have shored this excavation or used the trench box given the 

limitations of space. (Tr. 417). Thus, the record establishes knowledge. Citation 2, Item 2 is 

affirmed. 

2. Characterization as Repeat-Serious 

The Court affirms this citation item’s characterization as repeat-serious. Cave-ins pose a 

substantial probability of death or physical harm, and Arrow Plumbing’s failure to comply with 

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the standard posed this risk to Mr. Brackenbury. See 29 C.F.R. § 1926.650(b) (defining cave-in to 

mean “separation of a mass of rock or soil material . . . either by falling or sliding, in sufficient 

quantity so that it could entrap, bury, or otherwise injure and immobilize a person”). And, the 

violation is repeated. Arrow Plumbing failed to use cave-in protection at the Belton and Kansas 

City worksites, substantially similar violations to the instant violation, which resulted in a fatality 

at the Belton worksite. This item is affirmed as a repeat-serious violation. 

3. Infeasibility Defense5 

“When a standard states a specific method of complying, an employer seeking to be 

excused from liability for its failure to comply with the standard has the burden of demonstrating 

that the action required by the standard is infeasible under the circumstances cited.” State Sheet 

Metal Co., No. 90-1620, 1993 WL 132972, at *7 (OSHRC, Apr. 27, 1993) (consolidated). “In 

order to carry this burden, an employer who raises the affirmative defense of infeasibility must 

prove that (1) literal compliance with the requirements of the standard was infeasible under the 

circumstances and (2) either an alternative method of protection was used or no alternative means 

of protection was feasible.” Id.; see also Dun-Par, 843 F.2d at 1136 (same). 

Here, Arrow Plumbing seems to argue that a combination of factors at the worksite made 

compliance with the standard infeasible. Arrow Plumbing explains that the old sewer line was in 

disturbed soil near the house, and the location of that disturbed soil made placement of a trench 

box by the excavator impossible. (Tr. 604). Arrow Plumbing also argues that sloping and benching 

were not options because the neighboring property line was too close to the excavation. (Tr. 603). 

5 Arrow Plumbing did not raise the greater hazard defense in its Answer or argue it in its posttrial brief. Accordingly, it has been waived. 

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The Court finds Arrow Plumbing’s arguments to be without merit. First, Arrow Plumbing’s 

position that the excavation did not require protection because it was wider than it was deep 

directly contradicts its affirmative defense of infeasibility. And, in any event, Mr. Hayslip testified 

that the width of an excavation does not negate the need for proper sloping or benching of the 

walls, (Tr. 311), and the Court agrees. 

Mr. Smith and Mr. Brackenbury testified they did not slope or bench the excavation 

because they were restricted by the neighboring property line. However, Arrow Plumbing does not 

identify any case law or other authority allowing an employer to assert the infeasibility defense 

under these circumstances. Lastly, Arrow Plumbing has not satisfied its burden to show that an 

alternative means of protection was used or there was no feasible alternative means of protection. 

It did not explain why it did not excavate in such a way that the excavation could be shored, and 

it did not present sufficient evidence to support its argument that an excavator was physically 

unable to place the trench box due to disturbed soil. Accordingly, Arrow Plumbing’s infeasibility 

defense fails because it did not satisfy its evidentiary burden. See Pitt-Des Moines, Inc., No. 90-

1349, 1993 WL 393505, at *5 (OSHRC, Sept. 30, 2009) (employer’s burden to show infeasibility 

as an affirmative defense, not the Secretary’s burden to show feasibility). 

E. Penalty 

“Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that in assessing penalties for 

violations, the Commission must give “due consideration” to four criteria: “the size of the 

employer’s business, gravity of the violation, good faith, and prior history of violations.” J. A. 

Jones Constr. Co., No. 87-2059, 1993 WL 61950, at *15 (OSHRC, Feb. 19, 1993). “These factors 

are not necessarily accorded equal weight; generally speaking, the gravity of a violation is the 

primary element in the penalty assessment.” Id. (citations omitted). “The gravity of a particular 

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violation, moreover, depends upon such matters as the number of employees exposed, the duration 

of the exposure, the precautions taken against injury, and the likelihood that any injury would 

result.” Id. (citation omitted). Although the Commission takes gravity, good faith, and prior history 

into consideration for repeated violations, under OHSA’s policy, the penalty for repeated 

violations may only be reduced for the employer’s size. Field Operations Manual (FOM) Ch. 

6-V-B-1-b. Moreover, the penalty for a repeated violation may be multiplied by 10 if necessary to 

achieve a deterrent effect. FOM Ch. 6-V-B-1. Here, the Court vacated Citation 2, Item 1, so it will 

only consider the assessment of penalties for the two serious citation items (Citation 1, Item 1 and 

Citation 1, Item 2) and the remaining repeat-serious citation item (Citation 2, Item 2). 

The Court agrees with OSHA’s assessment of gravity. Mr. Brackenbury had been working 

in the excavation throughout the day on August 20. He had lowered the pipe into the excavation 

and was working on connecting the line. No safety precautions, like a hard hat, trench box, or 

proper sloping, were used or implemented, and the likelihood of injury was high. (Tr. 124-25). 

Thus, a reduction for gravity is not appropriate. 

Similarly, OSHA properly concluded Arrow Plumbing did not demonstrate good faith and 

was not eligible for a reduction based on prior history. Arrow Plumbing is a repeat offender that 

continues to put its employees’ lives at risk. See Quality Stamping Prods Co., No. 91-414, 1994 

WL 382494, at *3 (OSHRC, July 21, 1994) (prior history may include violations of a different 

degree or nature that could not support a repeat characterization). It has not implemented the 

enhanced abatement measures set forth in the Belton and Kansas City settlement. (Tr. 464-65). It 

remains on the severe violator enforcement program, and it has failed to pay the penalties for prior 

citations. (Tr. 470). Thus, Arrow Plumbing is not eligible for reduction in the penalty for the 

serious citation items for good faith or prior history. 

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Lastly, the Court turns to whether Arrow Plumbing should receive a reduction of up to 70% 

for size for all three citation items, which total $163,058. The Commission has viewed the size 

factor as “an attempt to avoid destructive penalties” that would unjustly ruin a small business. A-1 

Sewer and Water Contractors, Inc., No. 21-0562, 2022 WL 2102909, at *12 (OSHRC, June 1, 

2022). However, this concern for small businesses must be tempered with the need to achieve 

compliance with applicable safety standards. Atlas Roofing Co. v. OSHRC, 518 F. 2d 990, 1001 

(5th Cir. 1975) (OSHA penalties are meant to “inflict pocket-book deterrence”). 

In 2020, Arrow Plumbing had 11 employees (J. Stip. 4), which could weigh in favor of 

reducing the penalty amount. However, Arrow Plumbing has offered no evidence to support a 

reduction of penalty for size based on something like financial hardship. See, e.g., J.C. Stucco and 

Stone, Inc., No. 14-1558, 2016 WL 7363932, at *8 (OSHRC ALJ, Nov. 7, 2016) (consolidated) 

(holding that “before the Court can decide whether an employer’s poor financial condition can 

properly weigh towards a penalty reduction, [the employer] must actually prove its precarious 

financial condition and establish that it deserves to have its poor finances affect the penalty.”). 

Likewise, Arrow Plumbing has not demonstrated that the penalty would somehow be destructive. 

C.f. Secretary of Labor v. Colonial Craft Reproductions, Inc., No. 881, 1972 WL 4135, at *2 

(OSHRC, Oct. 27, 1972) (holding “[a]djustment of the penalty for the employer’s size is primarily 

an attempt to avoid destructive penalties” and finding non-assessment of penalties appropriate for 

employer presenting evidence that it was operating on a deficit with only 10 part-time employees). 

Moreover, size cannot be considered by this Court in a vacuum. Arrow Plumbing’s lack of 

safety procedures, history of related OSHA violations, and failure to comply with OSHA 

settlements suggests that no reduction in the penalty amount is appropriate. See Dakota 

Underground, Inc. v. Secretary of Labor, 200 F.3d 564, 569 (8th Cir. 2000) (reduction in amount 

24 
 

 

 

 

for employer’s size (25 employees) was not warranted in light of the company’s history with 

OSHA citations and failure to pay prior penalties); see also J.C. Stucco and Stone, Inc., 2016 WL 

7363932, at *8 (holding the employer had not acted in good faith, has a detrimental history, and 

does not deserve to have its financial condition used to justify a penalty reduction). Accordingly, 

the Court will impose the recommended penalty amounts for each of the remaining citation items, 

totaling $163,058. 

ORDER 

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing 

Findings of Fact and Conclusions of Law, it is ORDERED that: 

1. Citation 1, Item 1, alleging a serious violation of 29 C.F.R. § 1926.100(a) is AFFIRMED, 

and a penalty of $12,873.00 is ASSESSED. 

2. Citation 1, Item 2, alleging a serious violation of 29 C.F.R. § 1926.651(b)(4), is 

AFFIRMED, and a penalty of $13,653.00 is ASSESSED. 

3. Citation 2, Item 1, alleging a repeat-serious violation of 29 C.F.R. § 1926.651(j)(2) is 

VACATED. 

4. Citation 2, Item 2, alleging a repeat-serious violation of 29 CFR § 1926.652(a)(1) is 

AFFIRMED, and a penalty of $136,532.00 is ASSESSED. 

SO ORDERED. 

/s/ Christopher D. Helms 

Dated: August 21, 2023 Christopher D. Helms 

Denver, Colorado Judge, OSHRC 

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