An administrative law judge of the Occupational Safety and Health Review Commission has upheld a citation and penalty against an Alabama construction employer for a trenching hazard.

Two Occupational Safety and Health Administration employees were driving past a Vestavia, Alabama, worksite of Birmingham, Alabama-based T.E. Stevens Co. Inc. in April 2016. They stopped and started an investigation because they were concerned for the safety of workers who appeared to be in a several-foot-deep trench, according to commission documents.

The investigation led to a citation against the construction company for permitting employees to work in a trench lacking sufficient cave-in protection and a $5,390 penalty, which the company contested. A hearing was held in February 2017 and the administrative law judge overseeing it upheld the citation and proposed penalty.

“The trench at issue here was considerably steeper than the maximum allowable slope,” the administrative law judge wrote in her November ruling. “Employees working in trenches without appropriate protection face cave-in hazards. A cave-in can result in broken bones, crush injuries and death.”

OSHA has a national emphasis program on trenching and excavations because of the number of fatalities and accidents associated with this type of hazard, and the commission has previously characterized violations of the trenching standard as serious, the judge said. The company’s employee and expert who testified at the hearing did not provide adequate support for their opinion that the trench could not result in a serious injury, the judge ruled.

OSHA proposed a $5,390 fine despite the violation’s high gravity because Stevens is a small employer and a prior inspection within the last five years did not result in a violation.

“The court agrees the gravity of the violation is high – broken bones or death would be the likely resulting injuries in the event of a cave-in, and two employees were observed in the unprotected trench,” the judge said. “Stevens’ history reveals it was previously investigated, but not cited within the last five years. The company had a health and safety policy, and the secretary does not allege a failure to promptly abate. After weighing this evidence, with a particular emphasis on the gravity, the court finds $5,390 to be an appropriate penalty.”

The administrative law judge’s ruling became a final order of the commission Thursday.

An attorney for the company could not be immediately reached for comment.