United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

 

OSHRC Docket No. 20-1217

 

Appearances:

Gregory W. Tronson, Esq., Department of Labor, Office of the Solicitor, Denver, Colorado

For Complainant

Jason Finley, Owner, Finley, LLC, Bailey, CO

For Respondent

Before: Judge Peggy S. Ball – U. S. Administrative Law Judge

DECISION AND ORDER

In response to an anonymous complaint about the trenches located at 1570 Grove Street, 

Complainant sent Compliance Safety and Health Officer Kirk Lake to perform an inspection of 

the worksite. During his inspection, CSHO Lake saw five workers exiting a trench that had water 

along 90 percent of its length. Upon closer observation, the CSHO determined sections of the 

trench were benched or improperly sloped for trenches that are “submerged” according to 

Appendix A of Subpart P. See 29 C.F.R. § 1926 Subpart P, Appx. A. The parties do not dispute 

many of the salient facts required to establish a violation, including those related to the 

applicability of the standard, employees’ exposure to the condition, and Respondent’s knowledge 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

FINLEY, LLC, and its successors,

 

 Respondent.
2

of the condition. Instead, the parties dispute the source of the water and the extent of the hazard, if 

any, imposed by it; thus, calling into question whether the terms of the standards were violated.

Based on its review of the record evidence and the parties’ respective arguments, the Court 

finds Respondent failed to respond to the water in the trench in violation of 29 C.F.R. § 

1926.651(h)(1) but also finds Complainant failed to prove Respondent was required to 

automatically slope the trench to Type C soil specifications. Section 1926.651(h)(1) is a 

performance standard, at least in part, which means Complainant cannot specify how Respondent 

should abate the hazard by citing him according to an additional section of the Act requiring 

specific performance. See, e.g., American Phoenix, Inc., 24 BNA OSHC 2228, 2014 WL 2058099 

at *6 (No. 11-2969, 2014) (ALJ Augustine) (discussing performance standards). Doing so, as 

Complainant has done here, is akin to citing Respondent twice for failing to do the same thing, 

which the Commission characterizes as duplicative. See North Eastern Precast LLC, 26 BNA 

OSHC 2275, 2018 WL 1309480 at *5 (No. 13-1169 et. al., 2018). As for the other trench citation 

item, the Court finds Respondent failed to perform adequate inspections of the trench, as evidenced

by his conversations with CSHO Lake during the inspection. However, the Court also finds 

Complainant failed to provide sufficient evidence of exposure as to the chemicals identified in 

Citation 1, Items 3a & 3b, and failed to show the purported PPE violation in Citation 2, Item 1 was 

anything more than a misunderstanding. The Court’s findings of fact and conclusions of law in 

support of those conclusions are found below.

I. PROCEDURAL HISTORY

In late March 2020, Complainant received an anonymous complaint that employees were 

working in unsafe trenches at the worksite located at 1570 Grove Street. (Tr. 20-21; Ex. C-1). In 

response, Complainant sent CSHO Lake to conduct an inspection. At the conclusion of his 
3

inspection, CSHO Lake recommended, and Complainant issued, a Citation and Notification of 

Penalty alleging five serious and one other-than-serious violations of the Occupational Safety and 

Health Act. Complainant has proposed a total penalty of $7,519. Respondent timely filed a Notice 

of Contest. 

The Chief Judge designated this matter for Simplified Proceedings on September 28, 2020. 

Accordingly, this matter is governed by Subpart M of the Commission Rules of Procedure. Trial 

in this matter was held over Zoom Video Conferencing on May 18-19, 2021. Only two witnesses 

testified: CSHO Kirk Allen Lake and Jason Finley, owner of Respondent. A transcript from the 

deposition of John Severance, who is employed by Respondent as a Supervisor, was admitted as 

Exhibit C-4. Both parties submitted post-trial briefs for the Court’s consideration. Based on the 

evidence presented at trial and the briefs submitted in support, the Court issues the following 

Decision and Order. 

II. JURISDICTION

The Court finds the Commission has jurisdiction over this matter under section 10(c) of 

the Act. See 29 U.S.C. § 659(c). According to section 10(c), the Commission obtained jurisdiction

upon Respondent’s timely filing of a notice of contest. Id. The Court also finds Respondent was 

an employer engaged in a business and industry affecting interstate commerce within the meaning 

of sections 3(3) and 3(5) of the Act. See 29 U.S.C. §§ 652(3), (5); see also Clarence M. Jones 

d/b/a C. Jones Co., 11 BNA OSHC 1529 (No. 77-3676, 1983) (finding statutory jurisdiction exists 

“so long as the business is in a class of activity that as a whole affects commerce” (quoting Usery 

v. Franklin R. Lacy, 628 F.2d 1226 (9th Cir. 1980))). Respondent, like the employer in Clarence 

M. Jones, is construction contractor whose activities have an impact on interstate commerce when 

viewed in the aggregate with similarly situated employers. Respondent does not dispute any of the 
4

facts supporting these conclusions. Thus, the Court finds Respondent is subject to the jurisdiction 

of the Act. 

III. FACTUAL BACKGROUND

A. Respondent’s Business

Respondent is an earthmoving and excavating contractor based in Bailey, Colorado. It is 

a small outfit, with roughly 5 full-time employees, including Mr. Finley, John Severance, and some 

laborers. (Ex. C-4 at 13). Both Mr. Finley and Mr. Severance have worked in earthmoving, 

excavations, and heavy equipment operating for a combined total of 50 years. (Tr. 230; Ex. C-4 at 

10-12). Respondent was hired by Katerra Construction, the general contractor for the construction 

of an apartment complex located at 1570 Grove Street in Denver, Colorado (“worksite”). At the 

time of the inspection, Respondent had been at the worksite for approximately nine weeks. (Tr. 

157-58). 

B. The Grove Street Worksite Inspection

According to Severance, Respondent had dug multiple trenches at the worksite in 

performance of its time and materials contract with Katerra. (Ex. C-4, R-28). The trench at issue 

in this case was referred to as the plumbing excavation because it was going to be used to house 

the lines that supply plumbing to the apartment building. (Tr. 32). John Severance testified at his 

deposition that he dug the plumbing excavation during the two days before CSHO Lake’s 

inspection on March 25, 2020. (Ex. C-4). 

When CSHO Lake arrived on March 25, 2020, he observed five employees working in the 

trench, including Mr. Finley. (Tr. 34; Ex C-1 at 38). At CSHO Lake’s request, Mr. Finley and three 

of his employees exited the trench and approached CSHO Lake, while one employee (later 

discovered to be employed by Katerra), exited at the opposite end and left the area. (Tr. 34-36). 
5

CSHO Lake asked the group that came out of the end of the trench closest to him whether there 

was a manager or foreman present. (Tr. 35). Mr. Finley, who had not yet identified himself, told 

CSHO Lake there were no managers or foremen present and directed him to Katerra’s trailer. (Tr. 

36). After meeting with Katerra’s superintendent, McClaine Whalen, and discussing his concerns 

about the trench, CSHO Lake was introduced to Mr. Finley as the owner/manager for Respondent, 

as well as the competent person for the plumbing excavation. (Tr. 36).

During his conversation with Mr. Finley, CSHO Lake became convinced Mr. Finley did 

not possess the requisite knowledge to be a competent person. (Tr. 39). Specifically, CSHO Lake 

asked questions about how Finley performed inspections of the soil and how he had characterized 

the soil type. CSHO Lake testified Finley did not appear to know how to perform a manual (as 

opposed to a visual) test of the soil to determine its type, nor did it appear he had performed any 

testing other than looking at the excavation. (Tr. 38-39). Though Finley testified he had received 

a little formal training in excavation safety, much of his training and knowledge came from 20-

plus years of on-the-job experience. (Tr. 230). 

At trial, conversely to CSHO Lake’s testimony, Mr. Finley testified he knew quite well 

what the soil types were and how to perform a manual test of the soil. (Tr. 251-53). He claims at 

the time of the inspection he simply misunderstood what CSHO Lake was asking when he inquired 

about the “manual” test and soil typing and that, upon further clarification from Lake, he explained 

he had been performing the tests described. (Tr. 251). Although at the time of trial, Mr. Finley 

appeared to have a firm grasp on the terminology and methodology of the excavation standard, the 

foregoing is one of many instances where it appears Mr. Finley relies on a purported 

misunderstanding about something he, as a self-professed, long-tenured member of the profession 

and competent person, should be intimately familiar with. The nature and number of these 
6

purported “misunderstandings”,1 many of which are conveniently targeted at key elements of 

Complainant’s case, call into question the consistency and credibility of Mr. Finley’s testimony 

when compared to CSHO Lake’s, which was consistent with his contemporaneously taken notes

and held up in response to cross-examination. Accordingly, in this instance (and many others), the 

Court credits CSHO Lake’s testimony over Mr. Finley’s. 

C. The Trench Dimensions and Measurements

According to CSHO Lake, the trench was approximately 160 feet long, 18 feet across, and 

ranged in depth from a little over six feet to roughly ten feet. (Tr. 84-88). CSHO Lake observed 

water in the bottom of the trench that extended across 90% of its length, starting on the south end 

and extending north. (Tr. 34, 76, 86). In the southern end of the trench, where he observed Mr. 

Finley and his employees working, the walls were set in a bench configuration on the east and west 

sides. (Tr. 86; Ex. C-1 at 38). While many portions of the wall were sloped at a 33- to 34-degree 

angle, at least one portion on the northern end of the trench was sloped at a 45-degree angle. (Tr. 

79-80, 90-91; Ex. C-2). Subsequent testing revealed the soil CSHO Lake retrieved from the spoil 

pile was Type B, which was consistent with the geotechnical report generated prior to work 

beginning at the worksite and with Respondent’s visual assessment. (Tr. 115, 252; Ex. C-3 at 40). 

D. The Source of the Water

The principal disagreement between the parties revolves around the source of the water 

CSHO Lake observed in the trench when he arrived to conduct the inspection. CSHO Lake 

interviewed Mr. Severance; Mr. Finley; a couple of Respondent’s employees; Phil Pollock, a 

Katerra Superintendent; Andrew Mesches, a Katerra superintendent; McClain Whalen, a Katerra 

superintendent; Rob Turner, Katerra’s project manager; and Steve Silvestre, Katerra’s safety and 

1. Including, as previously mentioned, Mr. Finley’s attempt to obscure his own identity from the CSHO when asked 

about the on-site manager or foreman, which would have been him at the time. 
7

health manager. (Tr. 48-53, 111). According to CSHO Lake, as well as his contemporaneously 

recorded notes, Respondent’s employees, Severance, Pollock, and Mesches all told CSHO Lake 

the water was coming from the trench itself, including seepage from the walls of the excavation.

2

(Tr. 108, 111-112). Pollock specifically told him roughly 80% of the excavations at the site had 

groundwater issues, which was consistent with the geotechnical report indicating the possibility of 

fluctuating groundwater levels. (Tr. 172; Ex. C-3 at 40). CSHO Lake testified Severance told him

he encountered water almost immediately and that it seemed to increase as he moved south along 

the plumbing excavation. (Tr. 108). Supporting this conclusion is CSHO Lake’s observation that 

the water level did not change during the entirety of his inspection. (Tr. 81). 

Finley, on the other hand, testified the water came from a pipe, which he had cut open right 

before CSHO Lake arrived at the worksite. (Tr. 255). According to Finley, the water had not 

dissipated because it was resting on top of squeegee, which is an aggregate similar to pea gravel

used to level the pipe. (Tr. 236). Finley also testified his version of what happened was supported 

by the deposition testimony of Severance, as well as the interview statements given by Whalen, 

Turner, and Silvestre. All of them stated the source of the water was the pipe, which Respondent 

had cut to remove and replace. (Tr. 306).

There are a couple of problems with Finley’s explanation of the source of the water. First, 

the statements Finley relies on are, at times, inconsistent or are otherwise dependent on knowledge 

he provided. In the case of Mr. Severance, CSHO Lake testified and documented Mr. Severance 

stating the water had come from the excavation, which he was responsible for digging during the 

two days prior to the inspection. (Tr. 125; Ex. C-1). Mr. Severance later testified at deposition the 

water came from the pipe after the plumbers cut it. (Ex. C-4 at 44). Mr. Finley, on the other hand, 

2. Subsequently CSHO Lake testified he could not be sure whether Mesches told him he observed the walls seeping, 

but he reiterated that Phil Pollock “definitely” told him that. (Tr. 203). 
8

testified he had cut the pipe after Severance told him the plumbers installed it incorrectly. Finley 

argues this is when the water was released from the pipe, though Finley could not say where it had 

come from in the plumbing system. (Tr. 238). 

Second, according to CSHO Lake’s discussions with Pollock, it was impossible for water 

to have been released from a pipe hooked to a sand and water interceptor as alleged by Finley 

because Pollock was the only person onsite who knew how to hook the pipe to a source of water

through the sand and water interceptor, which was located in the trench under discussion. (Ex. C1 at 0018). This is consistent with both CSHO Lake’s narrative of the events, as well as Finley’s 

discussion of what was occurring at the point in time that he cut the pipe. Finley proclaimed he is 

not a plumber and thus could not opine on the source of the water, but he did testify the pipe had 

recently been set by Katerra Plumbing employees and speculated they could have been testing the 

seal by filling it with water. (Tr. 238). Even though the pipe had been set recently, no one testified 

seeing the pipe being filled with water. 

In response to some of the foregoing inconsistencies, Respondent argues it does not matter 

if Severance incorrectly identified who cut the pipe; rather, it only matters whether he agrees the 

pipe was the source of the water. The Court disagrees. Severance’s deposition testimony is 

inconsistent with his statement to CSHO Lake. (Compare Tr. 125 with Ex. C-4). According to 

Finley, Severance’s deposition testimony regarding the source of the water should be credited over 

his statement to CSHO Lake because it was given under oath. But, he argues, Severance’s 

deposition should not be credited over Finley’s testimony as to who was responsible for cutting 

the pipe, even though both were physically present for the act itself. This explanation, like others 

discussed throughout this opinion, relies on inconsistent versions of the same event in an attempt 

to weave a consistent narrative. CSHO Lake, however, recounted statements both favorable and 
9

unfavorable to the government’s case and was nonetheless capable of showing why Respondent’s 

version of events was unlikely given what he had learned from the general contractor during his 

inspection of the entire worksite and subsequent review of relevant documents, including the 

geotechnical report. 

The Court understands it is crediting, in part, the hearsay statements of Pollock, Mesches, 

and Respondent’s employees over the trial testimony of Mr. Finley. The Court’s decision to do so

is premised on a couple of grounds.

3 First, Simplified Proceedings are not governed by the rules 

of evidence as standard cases before the Commission—the amount of discovery is limited, and the 

breadth of permissible evidence is expanded. See 29 C.F.R. § 2200.200 et seq. Second, none of 

the statements attributable to the out-of-court declarants, other than Mr. Severance, were refuted; 

indeed, most of Mr. Finley’s statements to CSHO Lake were consistent with those he gave at trial. 

Third, of the statements submitted in support of Mr. Finley’s version of the events, which were 

recorded by CSHO Lake himself, three of them were premised on Finley’s own first-hand account. 

Fourth, the remaining statement supporting Mr. Finley’s explanation of the water’s source, Mr. 

Severance’s sworn testimony, was inconsistent with the statement Severance gave CSHO Lake 

3. In R.P Carbone, the Sixth Circuit also evaluated a CSHO’s hearsay testimony on the topic of duration using a multifactor analysis outlined by the Supreme Court. See R.P. Carbone Constr. Co., 166 F.3d at 818-19 (citing Richardson 

v. Perales, 402 U.S. 389, 402–06, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). The Sixth Circuit stated that, in certain 

circumstances, hearsay testimony can constitute substantial evidence depending on consideration of the following 

factors:

(1) the independence or possible bias of the declarant, (2) the type of hearsay material submitted, (3) 

whether the statements are signed and sworn to as opposed to anonymous, oral, or unsworn, (4) 

whether the statements are contradicted by direct testimony, (5) whether the declarant is available to 

testify and, if so, (6) whether the party objecting to the hearsay statements subpoenas the declarant, 

or whether the declarant is unavailable and no other evidence is available, (7) the credibility of the 

declarant if a witness, or of the witness testifying to the hearsay, and finally, (8) whether the hearsay 

is corroborated. 

See id. (citations omitted). In Carbone, the Sixth Circuit found the hearsay presented to the ALJ was properly relied 

upon as substantial evidence because: (1) the statements of the employees corroborated each other and were 

corroborated by their manager who said the employees did not know they needed fall protection while performing 

certain activities; and (2) those statements were also corroborated by an anonymous complaint filed with OSHA that 

the employees had been in violation of fall protection requirements for a significant period of time. Id.
10

during the inspection and inconsistent with Mr. Finley’s as to the person responsible for cutting 

the pipe. Finally, the testimony of CSHO Lake, which recounted statements from Respondent’s 

employees and members of Katerra’s management team, squared with the facts surrounding the 

specific excavation at issue in this case, including the work being performed by Katerra’s plumbers 

prior to the pipe being cut and the geotechnical report indicating groundwater potential at the 

worksite. 

While the Court ultimately credits Complainant’s version of the events surrounding the 

source of the water, subsequent analysis shows it does not always matter where the water came 

from so much as what type of hazard it presents and whether an employer appropriately responds. 

E. Respondent’s Safety and Health Programs 

During CSHO Lake’s inspection, he requested various documents from Respondent, 

including Respondent’s safety and health programs related to trenching and excavations, hazard 

communications, soil testing records, training and certifications, safety audits, and records of 

discipline. (Tr. 59-60). At the time of the request, Respondent only provided Complainant with a 

copy of an undated safety and health manual, which did not have provisions for trenching and 

excavations or for hazard communications. (Ex. C-3). The former was of concern considering 

Respondent’s principal business is trenching and excavations, whereas the latter was concerning 

because CSHO Lake had determined Respondent’s employees were assisting the plumbers in the 

sealing and gluing of pipe at the bottom of the trench and were thus exposed to materials 

warranting training in hazard communications. Respondent ultimately provided Complainant with 

a copy of its hazard communications program as an exhibit at trial. (Ex. R-27). 

With respect to the hazard communications program, Respondent points out its employees 

received basic training from Katerra as to the chemicals they might encounter at the worksite, but 
11

that it did not provide specific training to its employees because they were not expected to be 

exposed to any hazardous chemicals. This is consistent with Mr. Finley’s testimony, as well as 

CSHO Lake’s, that his employees may have been in the trench at times when the plumbers were 

working on the pipe, but they were not authorized nor trained how to install plumbing. The only 

testimony indicating Respondent’s employees worked on the pipe itself is Mr. Finley testifying he 

cut the improperly installed pipe. Otherwise, Finley testified his employees only install drainage 

pipe, which is a perforated pipe laid around the exterior of a building and does not require 

adhesives to connect. (Tr. 254).

IV. LEGAL ANALYSIS

To establish a prima facie violation of a specific standard promulgated under section 

5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651, et seq. (“Act”), the 

Secretary must prove by a preponderance of the evidence that: (1) the standard applies to the cited 

condition; (2) the terms of the standard were violated; (3) one or more of the employer’s employees 

had access to the cited conditions; and (4) the employer knew, or with the exercise of reasonable 

diligence could have known, of the violative conditions. Ormet Corporation, 14 BNA OSHC 2134 

(No. 85-0531, 1991).

The Secretary must establish his prima facie case by preponderance of the evidence. See 

Hartford Roofing Co., 17 BNA OSHC 1361 (No. 92-3855, 1995).

“Preponderance of the evidence” has been defined as:

The greater weight of the evidence, not necessarily established by the greater 

number of witnesses testifying to a fact but by evidence that has the most 

convincing force; superior evidentiary weight that, though not sufficient to free 

the mind wholly from all reasonable doubt, is still sufficient to incline a fair and 

impartial mind to one side of the issue rather than the other. 

Black’s Law Dictionary, “Preponderance of the Evidence” (10th ed. 2014).
12

A. Citation 1, Item 1a

Complainant alleged a serious violation of the Act in Citation 1, Item 1a as follows: 

29 CFR 1926.651(h)(1): Employees were working in excavations in which there 

was accumulated water, or excavations in which water was accumulating, and 

adequate precautions had not been taken to protect employees against the hazards 

posed by water accumulation.

a) Finley, LLC at 1570 Grove Street, Denver, CO: On and around March 25, 2020, 

the exposing, creating, and correcting employer did not ensure that each 

employee working inside an excavation that was approximately 18 feet wide 

and varied from 6.4 to 9.8 feet in depth was protected from cave-in due to water 

accumulation, in that ground water was accumulating in the bottom of the 

excavation. This condition exposed employees and contractor employees to 

crushing hazards by excavation wall cave-in.

See Citation and Notification of Penalty at 6.

1. The Standard Applied and its Terms Were Violated

According to 29 C.F.R. § 1926.650(a), “[T]his subpart applies to all open excavations made 

in the earth’s surface. Excavations are defined to include trenches.” There is no dispute the 

plumbing excavation qualifies as an “excavation”, which is defined as “any man-made cut, cavity, 

trench, or depression in an earth surface, formed by earth removal.” Id. § 1926.650(b). 

Accordingly, the standard applies. 

The real dispute in this case is whether the standard was violated, which the parties have 

boiled down to a question about the source of the water CSHO Lake identified in the trench when 

he began his inspection on March 25, 2020, in response to an anonymous complaint about trenches 

with water and inadequate protection. Complainant contends the water in the excavation came 

from groundwater at the bottom and sides of the excavation, which is based on CSHO Lake’s 

interviews with Respondent’s employees, members of Katerra’s management team, and the 

geotechnical report provided by Respondent. This, in turn, Complainant argues presented a cavein hazard because standing water at the base of an excavation weakens the integrity of its walls. 
13

Conversely, Respondent contends a limited amount of water came from a pipe which was cut 

shortly before the inspection did not pose a cave-in hazard because it was temporary and merely 

resting on top of squeegee, which is not designed to absorb water. The Court finds Complainant 

established a violation of the standard.

First, the Court previously credited CSHO Lake’s testimony that the source of the water 

was the ground itself. As noted above, Finley’s testimony and version of the events of that day and 

the two days prior was inconsistent with every person CSHO Lake interviewed, except for the 

people whom Finley told the water was from the pipe. (Tr. 306). During the inspection, Severance 

told CSHO Lake he encountered water in the plumbing excavation when he started digging and 

throughout the two days it took to sufficiently prepare it for the Katerra plumbers. It was not until 

his deposition, taken over a year later, that he recalled the water coming from the pipe the Katerra 

plumbers cut, even though Finley is adamant he alone cut the pipe. (Ex. C-4). However, it is 

important to note even Severance testified the source of the water was irrelevant. (Ex. C-4 at 61). 

Instead, he stated the presence of water in an excavation automatically converts the soil to type C, 

because he recognized the potential for groundwater to “soak up the bank, the bottom of the ditch 

and make – it can make it collapse.” (Ex. C-4 at 46, 61). Regardless of the source, and by 

Respondent’s own admission at trial, neither Finley nor Severance performed an inspection of the 

soil once the water had entered the excavation, even though both explicitly recognized the 

increased hazard associated with the presence of water in the excavation. (Tr. 295; Ex. C-4 at 46, 

61). 

Second, in addition to the Court crediting the testimony of CSHO Lake and the statements 

he gathered over that of Mr. Finley, the Court also finds other facts support a violation of the 

standard. Finley himself admitted he is not a plumber and could not speculate as to the source of 
14

the water, but then went on to say plumbers often fill pipes with water to leak test them, which 

would explain why there was water in the pipe. According to statements taken by CSHO Lake, 

Finley’s explanation does not hold water because Phil Pollock, one of Katerra’s superintendents, 

told CSHO Lake he was the only person qualified to tie the new pipes into the sand/water 

interceptor. (C-1 at 0018). Further, there was no testimony or statement indicating water had been

pumped into the excavation for such testing. Instead, we have two Katerra managers and three of 

Respondent’s employees telling the CSHO the water was coming from the ground and that it had 

done so in nearly 80% of the excavations at the worksite, which itself is consistent with a 

geotechnical report finding groundwater at various locations around the worksite. (Ex. C-1 at 18, 

C-3 at 38). 

It is true, as Respondent argues, the geotechnical report indicates the core samples did not 

run into water until 18 feet below grade. (Ex. C-3 at 38). The report also mentions, however, that 

groundwater levels may fluctuate depending on conditions. (Ex. C-3). One thing the report notes 

that neither party mentioned, however, is the caveat provided at the very beginning of the report’s 

discussion of the subsurface exploration. (Ex. C-3 at 0042). The report states, “Because of the 

significant elevation differentials across the site, in GROUND’s opinion, the test hole locations 

and elevations should be determined more precisely by surveying. More precisely determined 

elevations may require modification of some parameters in this report.” (Id.) (emphasis in 

original). A closer look at the starting elevations of the core samples illustrates this very issue: the 

core samples taken have different starting elevations that vary by as little as one foot and as much 

as 14 feet. (Ex. C-3 at 0067). Although Respondent’s trench, by CSHO Lake’s very rough 

measurements,4only measured roughly 10-feet deep at its deepest, the site’s elevation variations, 

4. Though the Court is without any accurate way to measure, the photographs of CSHO Lake’s attempts to measure 
15

as well as the potential for fluctuations in the groundwater, certainly provide a reasonable 

explanation for the existence of groundwater and support the statements provided to CSHO Lake 

by Respondent’s employees and by those managers of Katerra who had independent, first-hand 

knowledge of the condition of the trench. 

The standard itself prohibits working in an excavation with accumulated water unless 

proper precautions are being taken to protect against the hazards of accumulation. 29 C.F.R. § 

1926.651(h)(1); see also Excavations, 54 Fed. Reg. 45894 (October 31, 1989) (noting importance 

of change was to permit working in excavations with water so long as precautions are taken). 

Subsequently, it notes the precautions will vary with each situation. Id. In this situation, there is 

no indication Respondent took any precautions whatsoever in response to the water in the trench, 

nor is it clear adequate inspections were conducted in light of the geotechnical report, which both 

identified groundwater on a land plot with large variations in elevation and recommended sloping 

at 1.5 : 1 (horizontal : vertical), which is a type C slope. Both Finley and Severance gave sworn 

testimony that water in an excavation warrants re-inspection, reclassification, and appropriate 

precautions. There is no evidence any of these occurred. Instead, Finley contends the water was 

merely resting at the bottom of the trench due to his crew installing squeegee, which is not designed 

to absorb water. (Tr. 247; Ex. C-3 at 0057). As CSHO Lake explained, however, the level of the 

water, which had purportedly only just been introduced in the hour prior to his arrival, never abated 

during his time at the worksite, which he estimated to be around two hours. Given how recently 

the spill purportedly occurred, CSHO Lake wondered why the water was not more quickly 

absorbed into the surrounding soil. 

the depth of the trench illustrate how much the trench rod flexes downward when he is attempting to hang a plumb 

bob to the floor of the trench. (Ex. C-1). While this alone may not account for a full extension to 15 feet below grade,

the variances between the various locations at which water was found suggests its location below grade around the 

site was hardly uniform. 
16

While the source of the water has implications for the type of hazard presented by the 

excavation and the appropriate response, all parties agree any water in an excavation requires a 

response of some sort in light of the hazards associated with the condition, including slips and 

falls, or, as alleged in this case, a cave-in hazard. See 54 Fed. Reg. at 45922. Although there was 

no testimony as to the depth of the water, all agreed the water extended from the south end towards 

the north along roughly 90% of the bottom, which CSHO Lake estimated to be roughly 160 feet 

long. 

Commission ALJs have upheld violations of the cited standard for water as shallow as fourto five-inches when adequate precautions have not been taken. See, e.g., B&B Underground 

Contractors, 23 BNA OSHC 1909, 2011 WL 3851820 at *9 (No. 11-0466, 2011) (ALJ Calhoun). 

While some areas of the trench were sloped at approximately 34 degrees by CSHO Lake’s 

measurements, other portions of the trench were sloped at 45 degrees or were benched, which, 

according to both the Appendix and Mr. Severance himself, is improper for submerged soil or 

excavations walls that are seeping. See 29 C.F.R. § 1926, Subpart P, Appx. A & B. As previously 

noted, Respondent failed to perform a follow-up inspection after water was found in the trench, let 

alone implement any discernible response to its presence. This represents a violation of the 

standard according to its very terms: Respondent had employees in the trench with accumulated 

water and failed to take any precautions to address the hazards associated with the presence of 

water. Accordingly, the Court finds Respondent violated the hazard.

2. Respondent’s Employees Were Exposed to the Hazard

To prove a prima facie violation of the Act, Complainant must show “employees . . . will 

be, have been, or are in a zone of danger.” See Fabricated Metal Prods., Inc., 18 BNA OSHC 1072 

(No. 93-1853, 1997). In this case, the question of exposure is not complicated. CSHO Lake 

observed Finley and three of his own employees working inside the trench in a location where the 
17

excavation was improperly benched and had water at the bottom. (Ex. C-1 at 38). As testified to 

by CSHO Lake, Severance, and Finley, the presence of water has the potential to cause cave-ins 

by soaking up the bank and causing it to collapse. (Ex. C-4 at 46). While Respondent may contest 

the source of the water and attempt to explain away why it stayed in the trench, the water remained 

in the trench for the entirety of CSHO Lake’s inspection without abating and Respondent did 

nothing to remove it or abate the hazard imposed by its presence. 

Respondent attempts to question CSHO Lake’s credibility and his exposure findings by 

noting his inspection narrative for Citation 1, Item 1a identifies multiple Katerra employees as 

being exposed to the hazard and as providing information. Finley contends this clouds CSHO 

Lake’s assessment, because it is unclear whether those employees were referring to the correct 

excavation or whether they were actually Katerra’s employees. The Court finds this is a problem 

in search of a solution. CSHO Lake adequately explained to the Court why he listed the people he 

did as employees in his narrative and how he ensured the people he was speaking to were 

employees of Respondent and were speaking specifically about the trench at issue in this case. 

There is nothing in the record or in Finley’s testimony to suggest otherwise other than a bare 

insinuation that CSHO Lake might have gotten it wrong. The Court declines Respondent’s 

invitation to so speculate. 

Based on the foregoing, the Court finds Complainant established Respondent’s employees, 

including Finley himself, were exposed to the hazard posed by the standing water in the 

excavation. 

3. Respondent Knew or Could Have Known of the Hazardous Condition 

To prove this element, Complainant must show Respondent knew or, with the exercise of 

reasonable diligence, could have known of the violation. Dun-Par Engineered Form Co., 12 BNA 
18

OSHC 1962, 1965 (No. 82-928, 1986). The key is whether Respondent was aware of the 

conditions constituting a violation, not whether it understood the conditions violated the Act. 

Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079–80 (No. 90-2148, 1995). Complainant can 

prove knowledge of an employer through the knowledge, actual or constructive, of its supervisory 

employees. Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993). 

The question of whether Respondent knew or could have known of the hazardous condition 

is not complicated. When CSHO Lake arrived, he observed a person later identified as Jason Finley 

in the excavation working alongside his employees. Finley is not merely a supervisor, but is the 

owner and operator of Respondent (Finley, LLC). Not only did Finley observe the conditions as 

they existed on the date of the inspection, but he was in the area of the hazard identified by CSHO 

Lake. Regardless of whether Finley or Severance perceived those conditions as hazardous is 

immaterial; the Act only requires Respondent be aware of the condition constituting the hazard. 

See Phoenix Roofing, Inc., supra. Accordingly, the Court finds Respondent was aware of the 

hazard. 

4. The Violation Was Serious

A violation is classified as serious under the Act if “there is substantial probability that 

death or serious physical harm could result.” 29 U.S.C. § 666(k). Complainant need not show 

there was a substantial probability an accident would occur, only that if an accident did occur, 

serious physical harm could result. Mosser Constr., Inc., 23 BNA OSHC 1044, 1046 (No. 08-

0631, 2010). CSHO Lake testified, without dispute, the presence of water in an improperly 

protected trench presents a cave-in hazard. Trench cave-ins are dangerous, and sometimes fatal, 

events. (Tr. 120). The Court finds Citation 1, Item 1a is properly characterized as serious. 
19

Accordingly, the Court finds Complainant proved Respondent committed a serious 

violation of 29 C.F.R. § 1926.651(h)(1). 

B. Citation 1, Item 1b

Complainant alleged a serious violation of the Act in Citation 1, Item 1b as follows: 

29 CFR 1926.652(b)(2): Maximum allowable slopes, and allowable configurations 

for sloping and benching systems, were not determined in accordance with the 

conditions and requirements set forth in Appendices A and B to this subpart:

(a) Finley, LLC at 1570 Grove St., Denver, CO: On and around March 25, 2020, 

the exposing creating, and correcting employer did not ensure that each 

employee working inside an excavation, where ground water had accumulated,

that was approximately 18 feet wide and varied from 6.4 to 9.8 feet in depth 

was protected from gave-in, in that the excavation was sloped at an angle 

greater than the 34 degree maximum allowable slope for type C soil and that 

the excavation was benched, which is prohibited for type C soil. This condition 

exposed employees and contractor employees to crushing hazards by 

excavation wall cave-in.

See Citation and Notification of Penalty at 7.

1. The Standard Applied

For the same reasons listed above with respect to Citation 1, Item 1a, the Court finds 29 

C.F.R. § 1926.652(b)(2) applies to the condition cited by Complainant. 

2. The Citation Item is Duplicative

Complainant seeks to hold Respondent liable for two violations of essentially the same 

condition. First, Complainant alleged Respondent violated 1926.651(h)(1) because there was 

water in the trench in which Respondent’s employees were working, and not all the walls were 

sloped appropriately for type C soil. Next, Complainant alleged Respondent violated 

1926.652(b)(2) because it did not slope all of the excavation walls appropriately for submerged 

soil, which, according to Appendix A and B, should be characterized as type C. See 29 C.F.R. § 

1926, Subpart P, Appx. A. Not only was proper sloping the only abatement method discussed with 
20

respect to either violation, but it would appear Complainant, by citing Respondent in this manner, 

is attempting to mandate the method of abatement for a performance standard. 

Citations are duplicative if “the abatement of one violation necessarily results in the 

abatement of the other.” North Eastern Precast LLC, 26 BNA OSHC 2275, 2018 WL 1309480 at 

*5 (No. 13-1169 et. al., 2018). In fact, the Commission has found violations duplicative under 

three basic sets of facts: where they require the same abatement conduct; where they involve 

substantially the same violative conduct; or where they involve the same abatement. See id.

(internal citations omitted). According to the Commission, however, violations are not duplicative 

“where they involve standards directed at fundamentally different conduct . . . or where the 

conditions giving rise to the violation are separate and distinct.” Id. (citations omitted).

Here, the Court finds Citation Item 1, 1b is duplicative of Item 1, 1a. In both cases, the 

identified hazard is the presence of water in the excavation. In both cases, Complainant alleges 

Respondent failed to treat the soil as type C, as is required when soil is submerged under water. 

Now, Complainant did not explicitly require abatement of Citation Item 1, 1a by way of sloping 

to type C specifications; however, the slope of the excavation walls was the only abatement 

discussed and the only condition noted as violative. In other words, not only would the same 

conduct abate the identified hazard in both citation items, but it appears Complainant is using 

Citation Item 1, 1b as a specific method of abatement for the violation identified in Citation 1, 1a. 

Thus, not only has Complainant cited Respondent under two separate standards for the same 

conduct, but Complainant seeks the same abatement method for both violations. Accordingly, the 

Court finds Citation 1, Item 1b is duplicative and shall be VACATED.5

5. That Complainant did not propose a penalty for this citation item does not make it any less duplicative. There are 

consequences, both professionally and legally, for having a prior, serious violation of a standard on your record, 

regardless of whether the violation resulted in a fine.
21

C. Citation 1, Item 2

Complainant alleged a serious violation of the Act in Citation 1, Item 2 as follows: 

29 CFR 1926.651(k)(1): Daily inspections of excavations, the adjacent areas, and 

protective systems were not made by a competent person for evidence of a situation 

that could have resulted in possible cave-ins, indications failure of protective 

systems: 

(a) Finley, LLC at 1570 Grove St., Denver, CO: On and around March 25, 2020, 

the exposing creating, and correcting employer did not ensure that daily 

inspections of an excavation that was approximately 18 feet wide and varied 

from 6.4 to 9.8 feet in depth were made by a competent person for evidence 

of a situation that could have resulted in a hazardous condition, in hat the 

competent person did not identify that submerged soil must be classified as 

type C soil and in that the competent person was not conducting manual soil 

analysis during excavation inspections or when conditions affecting the soils 

classification changed such as soil submerged with water. This condition 

exposed employees and contractor employees to crushing hazards by 

excavation wall cave-in.

See Citation and Notification of Penalty at 8.

1. The Standard Applied and its Terms Were Violated

Like the previous two citation items discussed above, the Court finds the standard applies. 

Also, like the previous two items, the key issue before the Court is whether Respondent violated 

the terms of the standard. During his inspection, CSHO Lake asked Severance and Finley a series 

of questions about how they assessed the soil in order to make the appropriate soil type designation 

and implement the appropriate protection. According to CSHO Lake, both Severance and Finley 

appeared confused by the questions he asked about soil typing and manual testing of the soil. (Tr. 

38, 39, 45, 131; Ex. C-1 at 1). At the time of the inspection, both Finley and Severance told CSHO 

Lake they had not performed anything other than a visual examination of the trench and that they 

had relied on the geotechnical report to ascertain the appropriate soil type. (Tr. 45, 133-134). There 
22

is virtually no documentation of Respondent performing inspections of this or any other trench 

(though none is legally required) it worked on in the seven weeks it was at the worksite. As regards 

the trench at issue, Finley testified he did not perform a new examination of the soil or reclassify 

it in response to the presence of water. (Tr. 295). Because of these facts, CSHO Lake determined 

neither Finley nor Severance was a competent person and that Respondent failed to perform 

competent person inspections according to the terms of the standard. 

In response, Finley contends both he and Severance simply misunderstood CSHO Lake’s 

questions regarding manual testing of the soil and that CSHO Lake is simply mistaken as to 

whether additional testing was performed on the excavation once water was discovered in the 

bottom. Further, Finley argues he and Severance are clearly competent people based on their 

extensive experience in the field of earthmoving and excavation. In other words, the Court is yet 

again faced with conflicting reports over a key fact in this case. As with the previous disputes, the 

Court again finds CSHO Lake’s testimony to be more credible. 

Notwithstanding Finley and Severance’s extensive experience, they were apparently 

incapable of understanding CSHO Lake’s question about whether they had performed a manual 

test of the soil. Finley claims he misunderstood what CSHO Lake meant by a “manual” test, as if 

he were referring to some unidentified manual, when he was actually referring to the test 

recommended by the excavation and trenching standard. This represents yet another excuse by 

Respondent that does not square with the facts. The Court would expect someone with 

Respondent’s extensive experience would understand what someone was asking if they inquired 

whether he had performed additional, manual tests to go along with the visual tests he told CSHO 

Lake about. Instead, at the time of the inspection, Finley exhibited ignorance of the requirements 

and then, when it came time for trial, illustrated an encyclopedic knowledge of those same 
23

requirements. CSHO Lake’s testimony, however, was consistent with his contemporaneously 

taken notes and withstood cross-examination by Respondent. 

A competent person is, according to the Act, “one who is capable of identifying existing 

or predictable hazards in the surroundings, or working conditions which are unsanitary, hazardous, 

or dangerous to employees, and who has authorization to take prompt corrective measures to 

eliminate them.” 29 C.F.R. § 1926.650(b). Generally, this requires training and knowledge in the 

areas of soil analysis, protective systems, and the standard’s requirements. See Excavations, 54 

Fed. Reg. 45894, 45909. See also Superior Masonry Builders, 20 BNA OSHC 1182 (No. 96-1043, 

2003) (holding a person illustrates competence by performing a competent and reasonable 

inspection and that experience alone does not qualify a designee as a “competent person”). 

In the face of the foregoing, the Court is presented with two likely scenarios: (1) Finley, 

with his copious amounts of experience, is a competent person under the terms of the standard, 

albeit one who failed to perform adequate inspections of his worksite and appropriately assess the 

soil of the excavations he and his employees were working in; or (2) Finley, with his copious 

amounts of experience, failed to gain the necessary knowledge during his tenure in order to 

perform compliant inspections and respond appropriately to changes in trench conditions. In either 

case, the Court finds Respondent violated the standard, because it means either Respondent did 

not understand enough to be a competent person or simply did not perform the inspections as 

required by the terms of the standard. By Respondent’s own admission to CSHO Lake, he did not 

perform an updated inspection or assessment of the trench after water had been introduced. By his 

own admission he primarily performed visual inspections of the trench, but there is no evidence 

of this or any other examination of the trench or soil occurring. To the extent Respondent’s visual 
24

examinations were, in fact, occurring, the Court finds they were inadequate in the face of the 

condition of this excavation specifically, and the worksite generally. 

Given the condition of the trench and Respondent’s statements to CSHO Lake at the time 

of the inspection, the Court finds Respondent violated the terms of 29 C.F.R. § 1926.651(k)(1). 

2. Respondent’s Employees Were Exposed to a Hazard

For the same reasons expressed above with respect to Citation 1, Item 1a, the Court finds 

Respondent’s employees were exposed to the hazard posed by Respondent’s failure to conduct 

competent person inspections.

3. Respondent Knew or Could Have Known of the Hazardous Condition

Complainant can show constructive knowledge through a lack of any policy or procedure 

designed to uncover hazards. “[A]n employer has a general obligation to inspect its workplace for 

hazards.” Hamilton Fixture, 16 BNA OSHC 1073, 1993 WL 127949 at *16 (No. 88-1720, 1993) 

(citing Automatic Sprinkler Corp. of America, 8 BNA OSHC 1384, 1387 (No. 76-5089, 1980)). 

The scope of that obligation “requires a careful and critical examination and is not satisfied by a 

mere opportunity to view equipment.” Austin Comm. v. OSHRC, 610 F.2d 200, 202 (5th Cir. 1979) 

(emphasis added). Some factors to assess whether an employer has exercised reasonable diligence 

include an employer’s “obligation to inspect the work area, to anticipate hazards to which 

employees may be exposed, and to take measures to prevent the occurrence.” Frank Swidzinski 

Co., 9 BNA OSHC 1230, 1233 (No. 76-4627, 1981).

It is notable Respondent does not have a section of its safety and health program dedicated 

to trenching or excavations. In fact, after reviewing Respondent’s safety and health program in its 

entirety, the Court cannot find a single mention of trenches or excavations at all, which is unusual
25

for a company whose primary business is trenches.6In light of this utter lack of any safety and 

health policies related to trenching and excavations, it is hardly surprising Respondent failed to 

perform regular or adequate inspections of its excavations. As the owner of Respondent, it was 

Finley’s responsibility to ensure his program accounted for the hazards his employees could 

reasonably be expected to be exposed to and implement an inspection regime designed to identify 

and mitigate those hazards. Not only did Respondent lack a program or policy discussing the 

hazards of trenches and excavations, but there is nothing within the policy itself discussing 

worksite inspections of any sort. In light of the generic nature of Respondent’s safety and health 

policy, Finley’s initial inability to understand CSHO Lake’s inquiries during the inspection and 

the unstructured and informal nature of his inspection regime makes much more sense given his 

fairly extensive experience in the arena of excavations. 

In light of the foregoing, the Court finds Respondent, through its owner, knew it was not 

complying with the requirement to perform daily inspections sufficient to uncover hazardous 

conditions. While Finley and Severance are clearly experienced, the lack of any safety and health 

policy regarding trenches and excavations inhibited their ability to perform timely and adequate 

inspections. 

4. The Violation Was Serious

The Court finds Citation 1, Item 2 is properly characterized as serious for the same reasons 

it did with respect to Citation 1, Item 1a. An improperly monitored excavation, particularly one 

that has exhibited groundwater problems, can lead to serious injuries up to and including death.

6. It is also notable Respondent’s safety and health program has a footer on every page entitled, “Small Company 

Health and Safety Program Manual”, suggesting it is a generic program not specific to Respondent’s operations. (Ex. 

C-3 at 0005 to 0038). 
26

Accordingly, the Court finds Complainant proved Respondent committed a serious violation of 29 

C.F.R. § 1926.651(k)(1).

D. Citation 1, Item 3a

Complainant alleged a serious violation of the Act in Citation 1, Item 3a as follows: 

29 CFR 1910.1200(e)(1): Employer had not developed or implemented a hazard 

communication program included [sic] the requirements outlined in 29 CFR 

1910.1200(e)(1)(i) and (e)(1)(ii): 

(a) Finley, LLC at 1570 Grove St., Denver, CO: On and around March 25, 

2020, the employer did not develop, implement, and maintain at the 

workplace a site-specific written hazard communication program. 

Employees were potentially exposed to hazardous chemical, including but 

not limited to the following; 

1) Christy’s Red Hot Blue Glue Low VOC PVC Plastic Pipe Cement

2) MAINLINE Purple Low VOC Primer for PVC and CPVC

See Citation and Notification of Penalty at 9.

E. Citation 1, Item 3b

Complainant alleged a serious violation of the Act in Citation 1, Item 3b as follows: 

29 CFR 1910.1200(h)(1): Employees were not provided effective information and 

training on hazardous chemicals in their work area at the time of their initial 

assignment and whenever a new hazard that the employees had not previously 

trained about was introduced into their work area: 

(a) Finley, LLC at 1570 Grove St., Denver, CO: On and around March 25, 

2020, the employer did not provide employees with effective information 

and training on the location and availability of the written hazard 

communication program, the format of safety data sheets, and the format 

and availability of Globally Harmonized System labels for chemical 

containers. This condition potentially exposed employees to chemical 

hazards.

See Citation and Notification of Penalty at 10.

1. Complainant Failed to Establish Exposure in Citation 1, Items 3a & 3b

Respondent did not have a copy of its hazard communication program at the worksite as 

required by 1910.1200(e)(1), nor did it provide chemical- or site-specific training as required by 
27

1910.1200(h)(1). Notwithstanding these failures, the Court finds Complainant’s evidence 

regarding exposure to the identified chemicals is insufficient to establish his prima facie case. 

According to CSHO Lake, Finley told him he did not know what a hazard communication program 

was, and it was not until trial that Finley provided a copy of a generic hazard communications 

program.

7

(Tr. 55, 59, 63-67; Ex. R-26). Further, Respondent readily admitted he did not provide 

hazard communications training to his employees, relying instead on the basic primer provided by 

Katerra prior to starting work at the Grove Street site. (Tr. 282). Notwithstanding these failures, 

the Court finds Complainant did not prove Respondent’s employees were exposed to the chemicals 

identified, nor does it find a violation of the standard can be substantiated by Respondent’s failure 

to have an SDS sheet for the gasoline it puts in its vehicles or the battery acid present in those 

vehicles’ batteries.

Complainant asserts it is undisputed Respondent’s employees were exposed to the two 

chemicals specified in the citation narrative and cites to three separate portions of the transcript, 

none of which identify testimony from Respondent indicating agreement. (Tr. 48, 147, 154). In 

fact, Respondent explicitly denied his employees helped the plumbers connect the pipe at the 

bottom of the trench. (Tr. 254). While Finley admitted his employees may have worked in the 

trench while the plumbers were connecting and sealing pipe with the chemicals in question, he 

took great pains to point out his employees do not do plumbing work. (Tr. 254). This jibes with 

other testimony given by Finley, where he testified his company only installs drainage pipe, which 

does not require adhesive, or where he admitted not knowing how water entered the pipe the 

plumbers had installed in the excavation. Further, in this case, as opposed to the other instances 

7. The generic nature of Respondent’s hazard communication program bore striking similarities to Respondent’s 

“Small Company Health and Safety Program Manual”, neither of which mentioned anything specific about 

Respondent’s primary business of excavation and earthmoving. (Compare C-3 at 0003 with R-26). 
28

where the Court credited CSHO Lake’s testimony over Finley’s, the Court finds CSHO Lake’s 

testimony on this topic vague when it came to identifying who, exactly, was connecting pipes and 

applying the identified adhesives. Based on Finley’s testimony, the Court finds it just as likely 

there was a misunderstanding about who was merely in the trench and who was installing the pipe 

and, thus, exposed to the chemicals identified above. 

The Court is not convinced Complainant has established the level of training and

information Respondent provided to its employees was insufficient. As noted previously, when 

Respondent installs “plumbing”, it is drainage pipe that does not require adhesives. As such, there 

was no reason to provide independent training on hazards that were not reasonably anticipated. 

Further, given that expectation, the Court finds the training and information provided to 

Respondent’s employees through Katerra appears appropriate for the hazard presented by working 

adjacent to other employees who are required to use such chemicals. Finally, the Court finds 

Complainant’s attempt to include gasoline and battery acid as potential exposures is a bridge too 

far. First, the alleged exposures in the Citation and Notification of penalty explicitly list the 

adhesives applied to the pipe. Attempting to squeeze in gasoline for equipment and battery acid as 

additional hazards fails the basic test for an amendment because neither chemical is related to the 

exposure originally alleged and thus represents a new allegation requiring Complainant to plead 

additional facts. See Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 

2013) (“[A] new pleading cannot relate back if the effect of the new pleading ‘is to fault [the 

defendants] for conduct different from that identified in the original complaint,’ even if the new 

pleading ‘shares some elements and some facts in common with the original claim.”’) (internal 

citations omitted). Second, the Court finds making such an allegation trivializes legitimate threats 

to safety and health and highlights the weakness of Complainant’s original allegation. The Court 
29

refuses to accept an invitation to uphold a violation based on Respondent’s employees’ exposure 

to gasoline, which represents no greater hazard to a trench digger than a stay-at-home dad filling 

up for soccer practice, or to battery acid, for which there was absolutely no evidence of exposure. 

The Court finds Complainant failed to establish its prima facie case. Accordingly, Citation 

1, Items 3a and 3b shall be VACATED.

F. Citation 2, Item 1

Complainant alleged a serious violation of the Act in Citation 2, Item 1 as follows: 

29 CFR 1926.95(d)(1):The protective equipment, including personal protective 

equipment (PPE), used to comply with this part, was not provided by the employer 

at no cost to the employees: 

(a) Finley, LLC at 1570 Grove St., Denver, CO: On and around March 25, 

2020, PPE was not provided by the employer at no cost to the employees 

in that the employer required employees to purchase their own chemically 

resistant and cut resistant gloves. This condition potentially exposed 

employees to chemical and physical hazards, while laying pipe in an 

excavation.

See Citation and Notification of Penalty at 11.

1. Complainant Failed to Prove a Violation of the Standard

Complainant’s failure to include any argument about who provides PPE is a testament to 

the strength of Complainant’s case as to this violation. Complainant did include a single, proposed 

finding of fact, which indicated Finley admitted his employees are required to pay for their own 

PPE. Specifically, CSHO Lake targeted the gloves Respondent’s employees were wearing in light 

of his determination those employees were exposed to chemical hazards while installing pipe. (Tr. 

162). As with the previous violation, the Court finds the proposed violation is the result of a 

misunderstanding and lack of follow-up. 

CSHO Lake testified Finley told him his employees were required to provide their own 

PPE but that he had extra equipment available if they need it. (Tr. 161). CSHO Lake 
30

acknowledged, however, he did not follow up with Respondent’s employees to determine whether 

their PPE was provided free of charge, because “it’s an other than serious, and usually this get 

thrown out anyway during informal conferences, so I don’t put a lot of trouble into documenting 

these things.” (Tr. 162). Finley, on the other hand, testified he was attempting to tell CSHO Lake 

that some of his employees choose to wear their own equipment, which they provide at their own 

expense; however, he also testified he provides the equipment necessary to address the hazards to 

which his employees are regularly exposed. (Tr. 254-55, 272-73). 

Given Complainant’s failure to seriously pursue this citation item, CSHO Lake’s 

nonchalance as to its importance, and Respondent’s reasonable explanation as to the 

misunderstanding, the Court finds Complainant failed to prove a violation of the standard. 

Accordingly, Citation 2, Item 1 is VACATED.

V. Penalty

Under the Act, the Secretary has the authority to propose a penalty according to Section 17 

of the Act. See 29 U.S.C. §§ 659(a), 666. The amount proposed, however, merely becomes

advisory when an employer timely contests the matter. Brennan v. OSHRC, 487 F.2d 438, 441–

42 (8th Cir. 1973); Revoli Constr. Co., 19 BNA OSHC 1682, 1686 n. 5 (No. 00-0315, 2001). 

Ultimately, it is the province of the Commission to “assess all civil penalties provided in [Section 

17]”, which it determines de novo. 29 U.S.C. § 666(j); see also Valdak Corp., 17 BNA OSHC 

1135 (No. 93-0239, 1995). 

“Regarding penalty, the Act requires that “due consideration” be given to the employer’s 

size, the gravity of the violation, the good faith of the employer, and any prior history of 

violations.” Briones Util. Co., 26 BNA OSHC 1218, 1222 (No. 10-1372, 2016) (citing 29 U.S.C. 

§ 666(j). These factors are not necessarily accorded equal weight. J.A. Jones Constr., 15 BNA 
31

OSHC 2201, 2216 (No. 87-2059, 1993) (citation omitted). Rather, the Commission assigns the 

weight that is reasonable under the circumstances. Eric K. Ho, 20 BNA OSHC 1361, 1379 (No. 

98-1645, 2003) (Consol.), aff'd sub nom., Chao v. OSHRC, 401 F.3d 355 (5th Cir. 2005). It is the 

Secretary’s burden to introduce evidence bearing on the factors and explain how he arrived at the 

penalty he proposed. Valdak Corp., 17 BNA OSHC at 1138. “The gravity of the violation is the 

‘principal factor in a penalty determination. Assessing gravity involves considering: (1) the number 

of employees exposed to the hazard; (2) the duration of exposure; (3) whether any precautions 

have been taken against injury; (4) the degree of probability that an accident would occur; and (5) 

the likelihood of injury. See, e.g., Capform, Inc., 19 BNA OSHC 1374, 1378 (No. 99-0322, 2001), 

aff’d, 34 F. Appx. 152 (5th Cir. 2002) (unpublished). 

With respect to Citation 1, Item 1a, Complainant proposed a penalty of $2892, which it 

based on a determination the severity of the violation was “high”, but its probability was “lesser”. 

(Tr. 126-27). CSHO Lake explained the severity was high due to the potential for serious injury 

and death, but low in terms of probability because of the duration of the exposure. This penalty 

was also premised on Citation 1, Item 1a being grouped with Item 1b. Complainant awarded a 

70% reduction for Respondent’s size, but did not award any additional reductions due to 

Respondent’s lack of a formal safety and health program. The Court finds the proposed penalty is 

too high for the following reasons: (1) the Court vacated Item 1b; and (2) while CSHO Lake 

identified water in the excavation, he did not show additional indications of the trench weakening, 

nor was there a precise measurement indicating the depth of the water at the bottom of the trench. 

In light of those facts, the Court finds a penalty of $1200 is appropriate. 

With respect to Citation 1, Item 2, Complainant proposed a penalty of $2892, which is 

identical to the grouped penalty proposed with respect to Citation 1, Item 1a. The assessment is 
32

identical because they targeted the same condition, at the same time, affecting the same people.

Again, the Court finds the penalty is high, albeit for slightly different reasons. The Court believes 

Respondent was conducting some level of review of the trench’s conditions; however, it was not 

nearly as robust or thorough as what is required by the standard. This, in turn, had an impact on 

Respondent’s ability to identify and rectify hazardous conditions that can occur while excavating. 

While a downward departure from Complainant’s proposal is appropriate, the Court will not 

reduce the penalty similar to Item 1a. The lack of an adequate inspection regime is a direct result 

of Respondent relying on a cookie cutter safety and health plan that bears little connection to the 

work Respondent performs. This, in turn, reflects a need for Respondent to take more seriously its 

duty as a steward of its employees’ safety and health. Accordingly, the Court finds a penalty of 

$2000 is appropriate. 
33

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 1a is AFFIRMED as serious, and penalty of $1200 is ASSESSED.

2. Citation 1, Item 1b is VACATED.

3. Citation 1, Item 2 is AFFIRMED as serious, and a penalty of $2000 is ASSESSED.

4. Citation 1, Items 3a & 3b are VACATED.

5. Citation 2, Item 1 is VACATED. 

SO ORDERED

/s/ Peggy S. Ball 

Peggy S. Ball

Judge, OSHRC

Date: November 5, 2021

Denver, Colorado