Employer's witnesses acknowledge that the modifications made to the approved design were not and could not have been known to be safe until further on site calculations were done after the inspector's arrival. The fact that Mr. Mills thought that the original design notes would allow use of the shoring system for depths up to ten feet is immaterial, even if correct. The shoring design that was ultimately approved did not so provide, and no one other than a registered professional engineer was qualified to make that judgment or to approve any modifications. There is no doubt that the shoring system in use did not match the approved drawing and instructions, and this failure was a serious violation. To conclude otherwise would gut the preventative purpose of the regulations.
Employer argues, alternatively, that any violation was de minimis.
I do not agree. There is no proof that such is the case here, nor do I conclude it to be. Finally, I concur with the compliance officer's calculations of the penalty, based on her assessments of severity and probability and mitigating factors. I conclude the citation should be upheld. Item 1-2 of the citation is withdrawn.