FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

R. WILLIAMS, Construction 

Company,

Petitioner, No. 04-74247

v. OSHC No.  03-0533 OCCUPATIONAL SAFETY & HEALTH

REVIEW COMMISSION; ELAINE CHAO, OPINION

Secretary of Labor,

Respondents. 

On Petition for Review of an Order of the

Occupational Safety & Health Review Comm

Argued and Submitted

September 11, 2006—San Francisco, California

Filed October 3, 2006

Before: Betty B. Fletcher and Marsha S. Berzon,

Circuit Judges, and David G. Trager,* District Judge.

Opinion by Judge B. Fletcher

*The Honorable David G. Trager, Senior District Court Judge for the

Eastern District of New York, sitting by designation. 

17259
COUNSEL

Robert D. Peterson, Rocklin, California, for the petitioner.

Joanna Hull (argued), Ann Rosenthal, Joseph M. Woodward,

and Howard M. Radzely, Washington, D.C., for the respondent. 

R. WILLIAMS v. OSHRC 17261
OPINION

B. FLETCHER, Circuit Judge: 

Petitioner R. Williams Construction Co. (“Williams” or

“the Company”) petitions for review of a final order of the

Federal Occupational Safety and Health Review Commission

(the “Commission”), affirming violations of the Occupational

Safety and Health Act (“OSHA”) in the wake of a trench collapse and death of an employee at a construction site in Santa

Ynez, California. We deny the petition for review. 

I

On September 19, 2002, a trench collapse at a sewerconstruction project at the Chumash Casino Project in Santa

Ynez, California, killed Adam Palomar, a Williams employee,

and seriously injured Jose Aguiniga, another Williams

employee. On the day of the collapse, the trench was ten to

twelve feet deep and between three and four feet wide at the

bottom. The trench was about thirteen feet wide at the top and

more than forty feet long. The sides of the trench rose vertically from the bottom for approximately five feet, after which

they sloped backwards at about a forty-five degree angle. An

earthen slope at the west end of the trench provided the workers’ only access to and egress from the bottom. Ground water

seeped into the soil continuously. 

Williams used a number of submersible pumps to remove

the ground water that seeped into the trench. Although the

pumps could be pulled up and cleaned from the top of the

trench, it was the practice to do so from inside the trench.

Adam Palomar and Jose Aguiniga, two Williams employees,

were generally responsible for cleaning the pumps and did so

as needed throughout any given workday without receiving

specific instructions. 

On the day before the accident, a hydraulic jack shoring

system, which supported the trench wall, had been removed.

17262 R. WILLIAMS v. OSHRC
On the day of the accident, Palomar and Aguiniga entered the

unshored trench to clean the pumps, remaining there for about

fifteen minutes. As the two were exiting the trench, the north

wall collapsed, burying Aguiniga completely and Palomar

almost completely. Aguiniga died, and Palomar was severely

injured. 

OSHA conducted an investigation and cited the Company

for safety violations. The first citation charged the Company

with failing to instruct its employees in the recognition and

avoidance of unsafe conditions and in the regulations applicable to their work environment, as required by 29 C.F.R.

§ 1926.21(b)(2). The second citation charged the Company

with failing to ensure that no worker would have to travel

more than 25 feet to reach a safe point of egress, as required

by 29 C.F.R. § 1926.651(c)(2). The third citation charged the

Company with failing to ensure that a “competent person” —

i.e., one with specific training in soil analysis and protective

systems and capable of identifying dangerous conditions —

performed daily inspections of excavations for evidence of

hazardous conditions, as required by 29 C.F.R.

§§ 1926.651(k)(1). The fourth violation charged the Company

with failing to ensure that the walls of the excavation be either

sloped or supported, as required by 29 C.F.R.

§ 1926.652(a)(1). 

The Secretary of Labor (the “Secretary”) designated the

first three violations “serious” in nature and proposed penalties of $7,000 for each violation. The Secretary designated the

fourth violation “willful” in nature and proposed a $70,000

penalty, for a total penalty of $91,000.1

1Williams does not seek review of a fifth citation, which the ALJ

affirmed without penalty, for an “other-than-serious” violation of 29

C.F.R. § 1926.651(j)(1) for failing to adequately protect employees from

loose rock or soil that could fall from the excavation face. 

R. WILLIAMS v. OSHRC 17263
II

The ALJ conducted a two-day hearing, during which several Williams employees provided testimony. Sergio Lopez

and Rick Dzamba stated that they did not know that Adam

Palomar and Jose Aguiniga were in the unshored trench when

the wall collapsed. However, both Lopez and Dzamba had

provided contrary statements to the general contractor immediately after the accident, which suggested they knew that the

two men were working in the unshored trench. Based on these

contradictions and their demeanor during the hearing, the ALJ

determined that Lopez and Dzamba were not credible. 

Joseph Goforth, an employee who started working for Williams four days before the trench collapse, testified that he

occasionally worked in the trench and received no training

when he started work. He was not told of any rules or shown

a safety manual. No one discussed safety the day of the trench

collapse. Goforth testified that he received instructions from

Dzamba. 

Palomar testified that he worked for Williams for approximately nine months prior to the accident and had never

received any training in trench safety. He testified that there

was no safety meeting at the beginning of the workday on

September 19, 2002. He was never told not to enter the trench

and did not know who his supervisor was. He received all of

his work instructions from Sergio Lopez, who acted as translator because Palomar speaks only Spanish. 

Lopez testified that Dzamba was his boss; Lopez knew not

to go into an unshored trench. Dzamba had read through the

OSHA manuals but had no formal training as a “competent

person.” He had no recollection of any particular conversation

warning employees not to enter the trench the day of the accident. Dzamba testified that John (J.P.) Williams was the

supervisor on the job site. 

17264 R. WILLIAMS v. OSHRC
John (J.P.) Williams testified that he was the supervisor at

the Santa Ynez worksite and was responsible for employee

safety at the site. He admitted that he never looked at the

company safety manual, which was located behind the seat of

his truck; he also had not been trained as an OSHA “competent person” or received any other safety training other than

on the job. He was unfamiliar with OSHA sloping and trenching requirements and did not conduct any physical tests on the

soil in the trench. 

J.P. Williams stated that the crew talked about safety “all

the time.” However, he could not say when and where any

specific rules — for instance, rules against entering the trench

when it was unshored — were discussed. Williams stated that

he and Dzamba were in charge of checking the trench the day

of the accident but could not remember what, if any, warnings

were provided to employees that day. 

Owner Rodney Williams testified that both he and J.P. Williams were “competent” by virtue of their ability to recognize

a dangerous situation, though neither was trained as an OSHA

“competent person.” Rodney testified that the competent person for a given day was “whoever is on the job site [and] paying attention to what’s going on.” 

Based on the testimony at the hearing, the ALJ affirmed the

citations. However, the ALJ downgraded the one “willful”

violation to “serious,” reducing the penalty for that particular

violation from $70,000 to $7,000. The ALJ reduced the penalties for each of the remaining violations from $7,000 to

$5,000, based on the fact that Williams is a small employer

with no history of prior injuries or OSHA violations. This

resulted in a total penalty of $22,000. The Commission denied

Williams’ request for discretionary review, and the Company

filed a timely petition for review.

III

We have jurisdiction under 29 U.S.C. § 660(a), and we

review the Commission’s findings for substantial evidence.

R. WILLIAMS v. OSHRC 17265
Chao v. Symms Fruit Ranch, Inc., 242 F.3d 894, 897 (9th Cir.

2001); see also 29 U.S.C. § 660(a). We “must uphold the factfinder’s determinations if the record contains such relevant

evidence as reasonable minds might accept as adequate to

support a conclusion, even if it is possible to draw different

conclusions from the evidence.” Loomis Cabinet Co. v.

OSHRC, 20 F.3d 938, 941 (9th Cir. 1994). The ALJ’s findings, based upon the witnesses’ testimony regarding Williams’ lack of attention to safety standards, is supported by

substantial evidence. 

[1] Williams violated 29 C.F.R. § 1926.21(b)(2) for failing

to instruct each employee in the recognition and avoidance of

unsafe conditions and for failing to eliminate other hazards:

Williams provided no training in trenching hazards to at least

the two employees working in the trench; moreover, no Williams supervisor was familiar with OSHA regulations. 

Williams argues that although Palomar testified that he did

not receive instructions regarding trench safety when he was

first employed by Williams, there was no evidence “that Mr.

Palomar had not received instructions on trench safety on

some [other] occasion during his employment with Petitioner

(nine months).” Williams seems to take the position that

unless the Secretary can prove the absence of a conversation

on trenching hazards, substantial evidence is lacking. But the

Secretary is not required to prove a negative; moreover, evidence of broad neglect of safety is sufficient to support the

ALJ decision.2

2

In its reply brief, Williams argues that the ALJ inappropriately considered Goforth’s lack of training as additional evidence supporting its finding that the Company failed to instruct its employees in the recognition

and avoidance of unsafe conditions. However, the citation was not limited

to Palomar and Aguiniga, but applied to all Williams employees. The

Company never objected to questions regarding Goforth’s safety training

on the ground of unfair surprise, nor did it seek a continuance to prepare

itself to defend against such a claim. 

17266 R. WILLIAMS v. OSHRC
[2] Williams also violated 29 C.F.R. § 1926.651(c)(2) by

providing only one safe means of egress at the east end of the

45-foot trench. Although it appears that at least one of the

pumps was located more than 25 feet away from the ramp, the

exact location of the pumps, or the precise location of Palomar and Aguiniga vis-à-vis the ramp at the moment of the

trench collapse, is immaterial. 

[3] An employee working less than 25 feet from an exit

may find it necessary to venture further from the egress point

to satisfactorily complete a job. It is reasonably predictable

that such an employee, already within a “zone of danger,” will

become exposed to the danger itself. Thus, we hold that this

regulation applies regardless of whether the employees were

exposed to the actual danger at the time of the collapse. A

violation is established so long as employees have access to

a dangerous area more than 25 feet from a means of egress.

See Donovan v. Adams Steel Erection, Inc., 766 F.2d 804, 812

(3d Cir. 1985); see also Am. Wrecking Corp. v. Sec. of Labor,

364 F.3d 321, 327 (D.C. Cir. 2004) (noting that the existence

of a hazard, apart from employees’ actual exposure to falling

roof debris, could violate 29 C.F.R. § 1926.859(g)). See also

Occupational Safety and Health Standards—Excavations, 54

Fed. Reg. 45894, 45895 (Oct. 31, 1989) (describing the 25-

foot requirement as “that ladders or equivalent means of

egress be provided every 25 feet horizontally”); id. at 45918

(responding to employer’s comment that its employees do not

cross trenches at 25-foot intervals with the conclusion that

“OSHA has determined that a safe means of egress every 25

feet is necessary in trench excavations. . . .”). 

[4] In addition, Williams violated 29 C.F.R.

§ 1926.651(k)(1) for failing to designate a “competent person” with sufficient training and knowledge to identify and

correct existing and predictable hazards. No supervisor at the

Company was familiar with the basic standards applicable to

the worksite or otherwise “capable . . . of identifying and correcting existing and predictable hazards in their surroundR. WILLIAMS v. OSHRC 17267
ings.” We disagree that the Company discharged its OSHA

duties merely by relying on the general work experience of

Dzamba and J.P. Williams or “common sense.” 

[5] The Company also violated 29 C.F.R. § 1926.652(a)(1)

for failing to protect employees from cave-ins: Williams had

reason to know that its employees would enter the trench on

the day of the cave-in and had actual knowledge that two of

its employees entered the trench prior to the cave-in. It is

unavailing for Williams to argue that employees must take

greater care to avoid placing themselves in harm’s way or that

management can “expect an employee . . . not [to] intentionally place himself in danger.” Such a claim misconstrues the

purpose of the OSHA safety standards.

IV

[6] Williams failed to instruct its employees in proper

safety measures and made no effort to ensure that employees

not enter the trench on the day of the collapse. The ALJ findings, and the reasonable inferences drawn from them, easily

satisfy the substantial-evidence standard. Consequently, the

ALJ’s decision affirming the citations is affirmed. 

PETITION FOR REVIEW DENIED.

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