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Division of Occupational Safety and Health of Industrial Commission of v. Chuck Westenburg Concrete Contractors Inc.12/24/1998
to work in an excavation.
Claude Baker (Baker), a professional engineer, testified that in March 1993, he was hired by ADOSH as a consultant on this accident. He stated that he was knowledgeable about OSHA regulations because he helped to develop the trench and excavation standard and the field operations manual. He also helped to create ADOSH and to train its safety compliance officers.
On March 18, 1993, Baker examined the jobsite with Norton. He stated that the efficacy of a soil nailing system such as that designed by Terracon depends on proper installation. Baker testified that the system failed on the west wall because of improper installation and improper design. He stated that there were indications of imminent failure that would have been easily apparent to a trained, competent person. These included sand runs on the face, pocketing on the face, minor cave-ins, and cracks along the top of the west wall parallel to an old excavation.
Baker testified that when sand began running out from under the soil retention fence on March 10, 1993, the west wall's failure became inevitable because it was losing its foundation. He stated that it was prudent to remove the employees from that area on March 10, 1993. But he noted that there was no safe area for the employees to return to on March 12, 1993, because at that point, the whole west wall was suspect. He testified that when the west wall failed, it fell from north to south until it reached a properly grouted rebar rod.
Baker testified that OSHA regulations require every employer to have a competent person on the jobsite. He stated that Robles, Sr. was competent for concrete work but not for excava- tions. Baker testified that no one he interviewed from Westenburg Contractors had any soil or excavation training. It was his opinion that Westenburg Contractors did not have a right to rely on others for the safety of its employees. He stated that Westenburg Contractors was ultimately responsible for the safety of its own employees and that responsibility could not be delegated. For that reason Westenburg Contractors was obliged to review the OSHA regulations and have its employees trained with regard to the excavation standard. Baker noted that pursuant to its contractor's license and the subcontract with Roof, Westenburg Contractors agreed to follow OSHA regulations.
ADOSH issued three citations to Westenburg Contractors for violation of OSHA regulations. These citations provide:
(1) 29 C.F.R. § 1926.651(k)(1): An inspection of the excavations, the adjacent areas, and protective systems was not conducted by the competent person prior to the start of work and as needed throughout the shift:
(a) Jobsite at 5301 E. Grant Rd., Tucson, AZ, Chuck Westenburg, Inc.: Employees were working in close proximity to a vertical wall 16' in height, protected by a tieback system, but the employer did not ensure a competent person conducted daily inspections of the excavation or the adjacent areas to identify potential hazards prior to the start or as needed throughout the shift.
(2) 29 C.F.R. § 1926.651(k)(2): Where the compe- tent person found evidence of a situation that could result in a possible cave-in, indications of failure of protective systems, hazardous atmospheres, or other hazardous conditions, exposed employees were not removed from the hazardous area until the necessary precautions had been taken to ensure their safety:
(a) 5301 E. Grant Rd., Tucson, AZ, west wall of excavation: Employees were working adjacent to the west wall of the excavation which was dug to a 12' depth then had footing and a shear dug an additional 4' making overall depth
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