“\ufeff\t\tDocument\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0; margin-bottom:0; font-family:Times New Roman; color:WindowText; font-size:10pt; font-size:10pt; } p { font-family:Times New Roman; font-size:12pt; } p.style_Normal { } span.style_DefaultParagraphFont { } table.style_TableNormal { } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:0px;margin-top:0px;margin-bottom:0px;margin-right:0px;} div.basic { width:21.59cm;height:27.94cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 7454\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWEST COAST CONSTRUCTION CO., INC.,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDecember 30, 1976\t\t\t\t\t\t\t\t\t\tDECISION\t\t\t\t\t\t\t\t\t\tBEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.\t\t\t\t\t\t\t\t\t\tBARNAKO, Chairman:\t\t\t\t\t\t\t\t\t\tAn April 3, 1975 decision of Judge Thomas J. Donegan is before this Commission for\t\t\t\t\t\t\t\t\t\treview pursuant to 29 U.S.C. \u00a7 661(i). Judge Donegan affirmed a citation alleging that\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tRespondent committed a serious violation of 29 C.F.R. \u00a7 1926.651(c) , and assessed a penalty of\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\t$600. For the reasons which follow, we affirm the Judge\u2019s decision.\t\t\t\t\t\t\t\t\t\tRespondent was engaged in the installation of a storm sewer in Juanita, Washington. The\t\t\t\t\t\t\t\t\t\twork involved the laying of several thousand feet of pipe. At a number of locations along the\t\t\t\t\t\t\t\t\t\tsewer line, catch basins were to be installed.\t\t\t\t\t\t\t\t\t\tIn order to lay the pipe, a trench was dug. Where the catch basins were to be located, the\t\t\t\t\t\t\t\t\t\ttrench was widened to facilitate their installation. At the time involved herein, three of\t\t\t\t\t\t\t\t\t\tRespondent\u2019s employees were in a widened area of the trench installing a catch basin. At that\t\t\t\t\t\t\t\t\t\tpoint, the ground opening was 7 and \u00bd feet deep, 17 feet wide at the top, and approximately 9\t\t\t\t\t\t\t\t\t\tfeet wide at the bottom. The west wall was sloped six feet horizontally over the 7 \u00bd foot depth.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\tThis standard provides:\t\t\t\t\t\t\t\t\t\tThe walls and faces of all excavations in which employees are exposed to danger\t\t\t\t\t\t\t\t\t\tfrom moving ground shall be guarded by a shoring system, sloping of the ground,\t\t\t\t\t\t\t\t\t\tor some other equivalent means.\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\tJudge Donegan also affirmed a nonserious citation for violation of 29 C.F.R. \u00a7 1926.651(i)(1),\t\t\t\t\t\t\t\t\t\tand assessed no penalty for that violation. His disposition of the nonserious citation is not before\t\t\t\t\t\t\t\t\t\tus on review.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\tThe horizontal component in the slope of the east wall was 27 inches. No shoring or other\t\t\t\t\t\t\t\t\t\tmeans of supporting the walls was employed.\t\t\t\t\t\t\t\t\t\tThe soil in which the opening was dug consisted primarily of sand. The compliance\t\t\t\t\t\t\t\t\t\tofficer described the material as loose, and stated that he observed material trickling off the walls\t\t\t\t\t\t\t\t\t\tinto the opening. He also observed that there was a heavily traveled roadway eight to ten feet\t\t\t\t\t\t\t\t\t\tfrom the west wall. Based on the nature of the soil and the fact that vibrations caused by the\t\t\t\t\t\t\t\t\t\ttraffic were present, the compliance officer thought that the walls could have collapsed, exposing\t\t\t\t\t\t\t\t\t\tthe three employees to death or serious injury.\t\t\t\t\t\t\t\t\t\tRespondent\u2019s foreman testified that shoring was used to support the walls of the trench\t\t\t\t\t\t\t\t\t\texcept in the locations in which the catch basins were installed. In those areas, the sides were\t\t\t\t\t\t\t\t\t\tsloped. Sloping was accomplished by placing the backhoe bucket on the top of each wall\t\t\t\t\t\t\t\t\t\tadjacent to the opening and pressing down on it. Any soil displaced as a result would be\t\t\t\t\t\t\t\t\t\tremoved. If the foreman thought that more soil should be removed in order to make the opening\t\t\t\t\t\t\t\t\t\tsafe, he would so inform the backhoe operator. In this instance, the foreman concluded that the\t\t\t\t\t\t\t\t\t\twalls were sufficiently sloped.\t\t\t\t\t\t\t\t\t\tRespondent contends that the ground opening was a trench, and that it was therefore\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t\t\t\t\timproperly cited under a standard applicable to excavations. It argues that the opening around\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\tThere was conflicting testimony regarding the amount of sloping of the east wall. The\t\t\t\t\t\t\t\t\t\tcompliance officer who inspected the worksite testified that he determined the 27 inch distance\t\t\t\t\t\t\t\t\t\tby placing a pole vertically into the trench such that the bottom of the pole rested at the base of\t\t\t\t\t\t\t\t\t\tthe wall, and measuring the horizontal distance between the pole and the top edge of the wall.\t\t\t\t\t\t\t\t\t\tRespondent\u2019s foreman testified that the horizontal component of the slope of the east wall was\t\t\t\t\t\t\t\t\t\tfour feet. He made no measurement, but reached his conclusion because the edge of the catch\t\t\t\t\t\t\t\t\t\tbasin was five feet horizontally from the top edge of the wall, and because Respondent\u2019s usual\t\t\t\t\t\t\t\t\t\tpractice was to dig the opening such that there was a one foot gap between each side of the catch\t\t\t\t\t\t\t\t\t\tbasin and its adjacent wall.\t\t\t\t\t\t\t\t\t\tThe Judge accepted the compliance officer\u2019s testimony and found that the horizontal\t\t\t\t\t\t\t\t\t\tsloping of the east wall was 27 inches. Respondent takes exception to this finding.\t\t\t\t\t\t\t\t\t\tThe Judge\u2019s finding is based on the credibility of the witnesses. We therefore adopt it.\t\t\t\t\t\t\t\t\t\tPaul L. Heath Contracting Co., 20 OSAHRC 297, BNA 3 OSHC 1550, CCH OSHD para.\t\t\t\t\t\t\t\t\t\t20,006(1975).\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\tSection 1926.653 contains the following definitions of \u2018excavation\u2019 and \u2018trench\u2019:\t\t\t\t\t\t\t\t\t\t(f) \u2018Excavation\u2019\u2014Any manmade cavity or depression in the earth\u2019s surface,\t\t\t\t\t\t\t\t\t\tincluding its sides, walls, or faces, formed by earth removal and producing\t\t\t\t\t\t\t\t\t\tunsupported earth conditions by reasons of the excavation. If installed forms or\t\t\t\t\t\t\t\t\t\tsimilar structures reduce the depth-to-width relationship, an excavation may\t\t\t\t\t\t\t\t\t\tbecome a trench.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tthe catch basin was simply a slightly widened part of the basic trench which was dug to lay pipe.\t\t\t\t\t\t\t\t\t\tJudge Donegan concluded that, since the width of the opening was greater than its depth, it was\t\t\t\t\t\t\t\t\t\tproperly classified as an excavation rather than a trench. He concluded that the employees in the\t\t\t\t\t\t\t\t\t\topening were exposed to danger from moving ground, and that the cited standard was therefore\t\t\t\t\t\t\t\t\t\tviolated.\t\t\t\t\t\t\t\t\t\tWe have held that, even though a ground opening is wider than it is deep, it may still be\t\t\t\t\t\t\t\t\t\tproperly classified as a trench.\t\t\t\t\t\tLeone Const. Co., Docket No. 4090, BNA 3 OSHC 1979, CCH\t\t\t\t\t\t\t\t\t\tOSHD para. 20,387 (Feb. 10, 1976);\t\t\t\t\t\tD. Federico Co., Docket No. 4395, BNA 3 OSHC 1970,\t\t\t\t\t\t\t\t\t\tCCH OSHD para. 20,422 (Feb. 10, 1976). Indeed, as Respondent points out, an opening dug for\t\t\t\t\t\t\t\t\t\tthe purpose of laying pipe is generally classified as a trench.\t\t\t\t\t\tLeone Const. Co., supra. We have\t\t\t\t\t\t\t\t\t\talso, however, noted that the cited excavation standard is functionally equivalent to the trench\t\t\t\t\t\t\t\t\t\t5\t\t\t\t\t\t\t\t\t\tstandard at 29 C.F.R. \u00a7 1926.652(b) under facts similar to those in this case. D. Federico Co.,\t\t\t\t\t\t\t\t\t\tsupra. The ultimate question under either standard is whether the degree of sloping or shoring is\t\t\t\t\t\t\t\t\t\tsufficient to protect the employees working within the opening.\t\t\t\t\t\tSee Adams & Mulberry Corp.,\t\t\t\t\t\t\t\t\t\t17 OSAHRC 410, BNA 3 OSHC 1077 (1975);\t\t\t\t\t\tHorne Plumbing & Heating Co. v. OSHRC, 528\t\t\t\t\t\t\t\t\t\tF.2d 564 (5th Cir. 1976). Since the issue to be resolved is the same under both standards,\t\t\t\t\t\t\t\t\t\twhether or not the more appropriate standard was cited is unimportant. If it should be determined\t\t\t\t\t\t\t\t\t\tthat the wrong standard was cited, the proper course is to amend the pleadings to allege the\t\t\t\t\t\t\t\t\t\tproper standard.\t\t\t\t\t\tD. Federico Co., supra. Since the ultimate issue is the same under both\t\t\t\t\t\t\t\t\t\tstandards, any possibility of prejudice from such an amendment is precluded.\t\t\t\t\t\t\t\t\t\tThe Judge found that the sides of the opening were insufficiently sloped to protect the\t\t\t\t\t\t\t\t\t\temployees working therein. In so doing, he fairly weighed the evidence, and properly used Table\t\t\t\t\t\t\t\t\t\tP\u20131 (see n. 5) as a guideline. His conclusion is supported by the preponderant evidence, and we\t\t\t\t\t\t\t\t\t\ttherefore accept it.\t\t\t\t\t\tOkland Const. Co., Docket No. 3395, BNA 3 OSHC 2023, CCH OSHD para.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(n) \u2018Trench\u2019\u2014A narrow excavation made below the surface of the ground. In\t\t\t\t\t\t\t\t\t\tgeneral, the depth is greater than the width, but the width of a trench is not greater\t\t\t\t\t\t\t\t\t\tthan 15 feet.\t\t\t\t\t\t\t\t\t\t5\t\t\t\t\t\tThis standard provides:\t\t\t\t\t\t\t\t\t\tSides of trenches in unstable or soft material, 6 feet or more in depth, shall be\t\t\t\t\t\t\t\t\t\tshored, sheeted, braced, sloped, or otherwise supported by means of sufficient\t\t\t\t\t\t\t\t\t\tstrength to protect the employees working within them. See Tables P\u20131, P\u20132\t\t\t\t\t\t\t\t\t\t(following paragraph (g) of this section).\t\t\t\t\t\t\t\t\t\tTable P\u20131 is entitled \u2018Approximate angle of repose for sloping of sides of excavations.\u2019 It\t\t\t\t\t\t\t\t\t\trecommends a slope of one-to-one for average soils, and flatter slopes for sandy soils.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t20,441 (Feb. 20, 1976). We also conclude that the penalty assessed by the Judge is appropriate\t\t\t\t\t\t\t\t\t\tfor the reasons he assigned.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAccordingly, the Judge\u2019s decision is affirmed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBY THE COMMISSION:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWILLIAM S. McLAUGHLIN\t\t\t\t\t\t\t\t\t\tEXECUTIVE SECRETARY\t\t\t\t\t\t\t\t\t\tDATE: DEC 30, 1976\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMORAN, Commissioner, Dissenting:\t\t\t\t\t\t\t\t\t\tThe evidence fails to establish that respondent\u2019s employees were \u2018exposed to danger from\t\t\t\t\t\t\t\t\t\t6\t\t\t\t\t\t\t\t\t\tmoving ground\u2019 as required by 29 C.F.R. \u00a7 1926.651(c). The serious citation should, therefore,\t\t\t\t\t\t\t\t\t\tbe vacated.\t\t\t\t\t\tSecretary v. D. Federico Company, Inc., OSAHRC Docket No. 4395, February 10,\t\t\t\t\t\t\t\t\t\t1976 (dissenting opinion); Secretary v. Copelan Plumbing Company, 9 OSAHRC 425 (1974)\t\t\t\t\t\t\t\t\t\t(dissenting opinion).\t\t\t\t\t\t\t\t\t\tThe only testimony offered to establish that the degree of sloping was inadequate for the\t\t\t\t\t\t\t\t\t\tconditions present was the opinion of the complainant\u2019s inspector. The record, however, is\t\t\t\t\t\t\t\t\t\tdevoid of any evidence which indicates that he was competent to make this determination. His\t\t\t\t\t\t\t\t\t\tsafety experience was never established. In fact, he may never have seen an excavation prior to\t\t\t\t\t\t\t\t\t\tthe inspection in this case.\t\t\t\t\t\t\t\t\t\tOn the other hand, respondent\u2019s witnesses had many years of experience with\t\t\t\t\t\t\t\t\t\texcavations and trenches. The familiarity of respondent\u2019s foreman with ground conditions was\t\t\t\t\t\t\t\t\t\tbased on 20 years of experience in construction work. Respondent\u2019s laborer had been doing\t\t\t\t\t\t\t\t\t\texcavation work for 26 years. Both of these witnesses expressed their opinion that the excavation\t\t\t\t\t\t\t\t\t\twas safe.\t\t\t\t\t\t\t\t\t\tThe inspector apparently concluded that the three employees observed in the excavation\t\t\t\t\t\t\t\t\t\twere exposed to the danger of moving ground because of a nearby roadway, sloughing of sand,\t\t\t\t\t\t\t\t\t\tand what he described as a small fissure on the east wall. Although the roadway was located 8 to\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t6\t\t\t\t\t\tFor the complete text of \u00a7 1926.651(c), see footnote 1,\t\t\t\t\t\tsupra.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t7\t\t\t\t\t\t\t\t\t\t10 feet from the west wall of the excavation, there was no testimony indicating that vibrations\t\t\t\t\t\t\t\t\t\ttherefrom could be felt at the excavation. The sides of the excavation had been compacted with\t\t\t\t\t\t\t\t\t\tthe shovel of a backhoe, and the foreman stated he had no problem with sloughing in this area.\t\t\t\t\t\t\t\t\t\tFurthermore, the inspector admitted that what appeared to be a small fissure line did not create a\t\t\t\t\t\t\t\t\t\thazard.\t\t\t\t\t\t\t\t\t\tConsidering the above, I cannot conclude either that there was a hazard of moving\t\t\t\t\t\t\t\t\t\tground or that the sides were inadequately sloped. Reliance on Table P\u20131 to find an excavating\t\t\t\t\t\t\t\t\t\tviolation is improper. As the complainant admitted in his brief below, the table, which is\t\t\t\t\t\t\t\t\t\tspecifically applicable to the \u00a7 1926.652 trenching standards, is not incorporated in the \u00a7\t\t\t\t\t\t\t\t\t\t1926.651 excavation standards. Thus, unless an inapplicable table is strictly applied, there is\t\t\t\t\t\t\t\t\t\t8\t\t\t\t\t\t\t\t\t\tnothing in the record to indicate what respondent should have done to comply.\t\t\t\t\t\t\t\t\t\tIf the Secretary of Labor had intended that Table P\u20131 apply to excavations as well as\t\t\t\t\t\t\t\t\t\ttrenches, he could easily have incorporated it into the \u00a7 1926.651 standards when they were\t\t\t\t\t\t\t\t\t\t9\t\t\t\t\t\t\t\t\t\tpromulgated. Since it was not, the judgment of respondent\u2019s experienced employees as to the\t\t\t\t\t\t\t\t\t\tmode and extent of protection required must control in this situation.\t\t\t\t\t\tSecretary v. Wes\t\t\t\t\t\t\t\t\t\tConstruction Corp., OSAHRC Docket No. 4106, August 12, 1976 (dissenting opinion).\t\t\t\t\t\t\t\t\t\tSimilarly, I take issue with my colleagues\u2019 assertions that the trenching and excavation\t\t\t\t\t\t\t\t\t\tstandards are interchangeable. For my views on this issue, see my separate opinions in\t\t\t\t\t\tSecretary\t\t\t\t\t\t\t\t\t\tv. Concrete Construction Co., OSAHRC Docket No. 5692 & 7329, November 9, 1976;\t\t\t\t\t\t\t\t\t\tSecretary v. Wes Construction Corp., supra;\t\t\t\t\t\tSecretary v. Lloyd C. Lockrem, Inc., OSAHRC\t\t\t\t\t\t\t\t\t\tDocket No. 4553, February 24, 1976; and\t\t\t\t\t\tSecretary v. D. Federico Company, Inc., supra. In\t\t\t\t\t\t\t\t\t\taddition, a citation to an inapplicable standard requires vacation of the affected charge because\t\t\t\t\t\t\t\t\t\tthe defect is not curable by amendment.\t\t\t\t\t\tSecretary v. Warnel Corporation, OSAHRC Docket No.\t\t\t\t\t\t\t\t\t\t4537, March 31, 1976 (dissenting opinion).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t7\t\t\t\t\t\tThis wall was sloped to a 6 foot horizontal distance over the 7 \u00bd foot depth. The east wall, the\t\t\t\t\t\t\t\t\t\tslope of which was the subject of disagreement between the witnesses, was another 17 feet away.\t\t\t\t\t\t\t\t\t\t8\t\t\t\t\t\tMy colleagues are merely engaging in a semantic exercise when they indicate that the table is\t\t\t\t\t\t\t\t\t\tbeing used only as a \u2018guideline.\u2019\t\t\t\t\t\t\t\t\t\t9\t\t\t\t\t\tThe fact that these specific requirements were not made part of the excavation standards set\t\t\t\t\t\t\t\t\t\tforth under \u00a7 1926.651 is readily explainable by the lessened hazard present in wider cavities.\t\t\t\t\t\t\t\t\t\tWhereas a sufficiently expansive width in an excavation may preclude danger to employees from\t\t\t\t\t\t\t\t\t\tmoving ground, the same is not true in a narrow trench.\t\t\t\t\t\tSecretary v. Staley & Lawrenz, Inc.,\t\t\t\t\t\t\t\t\t\tOSAHRC Docket No. 4145, October 7, 1976 (dissenting opinion).\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tSince this decision does not address all matters covered in Judge Donegan\u2019s decision, his\t\t\t\t\t\t\t\t\t\tdecision is attached hereto as Appendix A.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAPPENDIX A\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 7454\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWEST COAST CONSTRUCTION CO., INC.,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tApril 3, 1975\t\t\t\t\t\t\t\t\t\tDECISION AND ORDER\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAppearances:\t\t\t\t\t\t\t\t\t\tFor the Complainant: William W. Katos, Attorney Office of the Regional Solicitor U. S.\t\t\t\t\t\t\t\t\t\tDepartment of Labor 7009 Federal Office Building 909 First Avenue Seattle, Washington\t\t\t\t\t\t\t\t\t\t98174\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFor the Respondent: R. Charles Short Safety Director for Associated General Contractors\t\t\t\t\t\t\t\t\t\t1200 Westlake North Seattle, Washington 98109 Mr. Short is not an attorney.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDonegan, Judge, OSAHRC:\t\t\t\t\t\t\t\t\t\tThis is a proceeding pursuant to section 10(c) of the Occupational Safety and Health Act\t\t\t\t\t\t\t\t\t\tof 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act.)\t\t\t\t\t\t\t\t\t\tThe Respondent is engaged in the construction business and was maintaining a place of\t\t\t\t\t\t\t\t\t\temployment at a worksite located in the vicinity of 12940 98th N.E., Juanita, Washington for the\t\t\t\t\t\t\t\t\t\tpurpose of excavating and installing sewer pipe and catch basins.\t\t\t\t\t\t\t\t\t\tAs a result of an inspection of this worksite by an OSHA compliance officer (Inspector)\t\t\t\t\t\t\t\t\t\ton March 13, 1974, there were issued to the Respondent on March 21, 1974, a citation number\t\t\t\t\t\t\t\t\t\tone for an alleged non-serious violation of 29 C.F.R. 1926.651(i)(1), a citation number two for\t\t\t\t\t\t\t\t\t\tan alleged serious violation of 29 C.F.R. 1926.651(c), and a notification of proposed penalty.\t\t\t\t\t\t\t\t\t\tThe Respondent timely contested the alleged violations and the proposed penalty of $600\t\t\t\t\t\t\t\t\t\tfor the serious violation.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe alleged violations, abatement dates, proposed penalty and standards allegedly\t\t\t\t\t\t\t\t\t\tviolated are as follows:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCitation\t\t\t\t\t\tnumber\t\t\t\t\t\t1\t\t\t\t\t\t(non-\t\t\t\t\t\tStandard allegedly violated\t\t\t\t\t\tDescription alleged violation\t\t\t\t\t\t\t\t\t\tserious)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t29 C.F.R. 1926.651(i)(1)\t\t\t\t\t\tFailure to store or retain at\t\t\t\t\t\t\t\t\t\t\u00a7 1926.651 Specific\t\t\t\t\t\tleast two feet or more from the\t\t\t\t\t\t\t\t\t\tExcavation Requirements\t\t\t\t\t\tedge of the excavation, the 3\t\t\t\t\t\t\t\t\t\t(i)(1) In excavations which\t\t\t\t\t\tfoot high pile of excavated\t\t\t\t\t\t\t\t\t\temployees may be required to\t\t\t\t\t\tsand which was stored\t\t\t\t\t\t\t\t\t\tenter, excavated or other\t\t\t\t\t\timmediately adjacent to the\t\t\t\t\t\t\t\t\t\tmaterial shall be effectively\t\t\t\t\t\tWest edge of the excavation\t\t\t\t\t\t\t\t\t\tstored and retained at least 2\t\t\t\t\t\tfor a catch basin at 12940 98th\t\t\t\t\t\t\t\t\t\tfeet or more from the edge of\t\t\t\t\t\tN.E.\t\t\t\t\t\t\t\t\t\tthe excavation. Abatement\t\t\t\t\t\t\t\t\t\tDate Proposed Penalty\t\t\t\t\t\t\t\t\t\tImmediately upon receipt of\t\t\t\t\t\t\t\t\t\tthis citation None\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCitation number 2 (serious)\t\t\t\t\t\t29 C.F.R. 1926.651(c)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a7 1926.651 Specific\t\t\t\t\t\t\t\t\t\tExcavation Requirements\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(c) The walls and faces of a\t\t\t\t\t\t\t\t\t\texcavations in which\t\t\t\t\t\t\t\t\t\temployees are exposed to\t\t\t\t\t\t\t\t\t\tdanger from moving ground\t\t\t\t\t\t\t\t\t\tshall be guard by a shoring\t\t\t\t\t\t\t\t\t\tsystem, sloping of the ground,\t\t\t\t\t\t\t\t\t\tor some other equivalent\t\t\t\t\t\t\t\t\t\tmeans. Immediately upon\t\t\t\t\t\t\t\t\t\treceipt of this citation $600.00\t\t\t\t\t\t\t\t\t\tFailure to protect employees\t\t\t\t\t\t\t\t\t\texposed to the dangers of\t\t\t\t\t\t\t\t\t\tmoving ground by providing\t\t\t\t\t\t\t\t\t\tshoring, or adequate sloping,\t\t\t\t\t\t\t\t\t\tor some equivalent means to\t\t\t\t\t\t\t\t\t\tguard the walls and faces of\t\t\t\t\t\t\t\t\t\tthe 7 1\/2 foot deep, 31 foot\t\t\t\t\t\t\t\t\t\tlong, 17 foot wide excavation\t\t\t\t\t\t\t\t\t\tfor a catch basin located at\t\t\t\t\t\t\t\t\t\t12940 98th N.E. in Juanita,\t\t\t\t\t\t\t\t\t\tWashington.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe Respondent\u2019s answer to the complaint admits that it was a corporation engaged in\t\t\t\t\t\t\t\t\t\tconstruction work involving the excavation and installation of sewer pipe at the worksite\t\t\t\t\t\t\t\t\t\tdescribed in the citations and complaint when an inspection of this worksite was duly conducted\t\t\t\t\t\t\t\t\t\ton March 13, 1974. The Respondent\u2019s answer also admits the averments of the complaint\t\t\t\t\t\t\t\t\t\tconcerning jurisdiction (T. 5).\t\t\t\t\t\t\t\t\t\tNo affected employees or representatives of affected employees have intervened or have\t\t\t\t\t\t\t\t\t\telected to participate as a party in the proceeding (T. 3\u20134).\t\t\t\t\t\t\t\t\t\tThe parties have submitted post-trial briefs.\t\t\t\t\t\t\t\t\t\tISSUES AND FINDINGS\t\t\t\t\t\t\t\t\t\tThe parties are in agreement that the three issues to be resolved in this case involve the\t\t\t\t\t\t\t\t\t\talleged non-serious violation of 29 C.F.R. 1926.651(i)(1), the alleged serious violation of 29\t\t\t\t\t\t\t\t\t\tC.F.R. 1926.651(c), and the proposed penalty of $600 for the alleged serious violation (T. 4\u20135).\t\t\t\t\t\t\t\t\t\tThe Inspector testified that the excavation in the area of the alleged violation, where a\t\t\t\t\t\t\t\t\t\tcatch basin was being installed on the sewer line, was 17 feet wide at ground level, 7 1\/2 feet\t\t\t\t\t\t\t\t\t\tdeep and 14 feet long. He observed three of the Respondent\u2019s employees standing in the\t\t\t\t\t\t\t\t\t\texcavation adjacent to the catch basin. He stated that the sides of the excavation did not appear to\t\t\t\t\t\t\t\t\t\tbe adequately sloped and there was no shoring or other equivalent means to protect the three\t\t\t\t\t\t\t\t\t\temployees in the excavation (T. 7\u20138, 11\u201312; Exhibits C\u20131, C\u20132, C\u20133, C\u20134 and C\u20135).\t\t\t\t\t\t\t\t\t\tThe question to be resolved is whether the three employees working in the excavation, in\t\t\t\t\t\t\t\t\t\tthe vicinity of the catch basin, were protected from the danger of moving ground by adequate\t\t\t\t\t\t\t\t\t\tsloping of the east and west walls of the excavation.\t\t\t\t\t\t\t\t\t\tWhen cross-examining the Inspector, the Respondent contended that if there was any\t\t\t\t\t\t\t\t\t\tviolation in this case it was a trenching violation rather than an excavation violation as charged\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\t(T. 43\u201349, 64).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\tAn \u2018excavation\u2019 and \u2018trench\u2019 as defined in \u2018Subpart P\u2014Excavations, Trenching, and Shoring\t\t\t\t\t\t\t\t\t\tconstruction standards are defined as follows:\t\t\t\t\t\t\t\t\t\t29 CFR 1926.653(f) \u2018Excavation\u2019\u2014Any man-made cavity or depression in the\t\t\t\t\t\t\t\t\t\tearth\u2019s surface, including its sides, walls, or faces, formed by earth removal and\t\t\t\t\t\t\t\t\t\tproducing unsupported earth conditions by reasons of the excavation. If installed\t\t\t\t\t\t\t\t\t\tforms or similar structures reduce the depth-to-width relationship, an excavation\t\t\t\t\t\t\t\t\t\tmay become a trench.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe Inspector ascertained the dimensions of the excavation and the slopes of the east and\t\t\t\t\t\t\t\t\t\twest walls by making measurements in the presence of Mr. Don Sather, the Respondent\u2019s\t\t\t\t\t\t\t\t\t\tforeman, who accompanied him on the inspection. The sketch prepared by the Inspector (Exhibit\t\t\t\t\t\t\t\t\t\tC\u20131), although not drawn to scale, graphically and accurately depicts the measurements of the\t\t\t\t\t\t\t\t\t\texcavation as given in the testimony of the Inspector. He did not go into the excavation, but\t\t\t\t\t\t\t\t\t\testimated the bottom width of the excavation as approximately 9 feet from the results of his\t\t\t\t\t\t\t\t\t\tmeasurements with the grade stick (T. 12\u201314, 19\u201320, 49\u201352, 56, 59).\t\t\t\t\t\t\t\t\t\tIn comparing the photographs (Exhibits C\u20132, C\u20133, C\u20134, C\u20135) with the measurements in\t\t\t\t\t\t\t\t\t\tthe sketch prepared by the Inspector (Exhibit C\u20131), it is necessary to consider that, between the\t\t\t\t\t\t\t\t\t\ttime he took the photographs and the time he measured the excavation, soil had been filled in\t\t\t\t\t\t\t\t\t\taround the catch basin. He said that the excavation in the area of the catch basin was probably 8\t\t\t\t\t\t\t\t\t\t1\/2 to 9 feet in depth when he first took the photographs. The photographs marked Exhibits C\u20132\t\t\t\t\t\t\t\t\t\tand C\u20133 show the sewer pipe uncovered, while in the photographs marked Exhibits C\u20134 and C\u20135\t\t\t\t\t\t\t\t\t\tthe sewer pipe appears to be covered to a substantial degree with soil (T. 63, 70\u201371).\t\t\t\t\t\t\t\t\t\tThe Respondent\u2019s principal witness was the foreman, Don Sather. On direct examination\t\t\t\t\t\t\t\t\t\the testified that he drew the two sketches which are in evidence as Exhibits R\u20131 and R\u20132 (T. 98,\t\t\t\t\t\t\t\t\t\t103, 124). The evidentiary value of the measurements that appear on these sketches must be\t\t\t\t\t\t\t\t\t\tevaluated in the light of Mr. Sather\u2019s uncertainty concerning the preparation of these exhibits (T.\t\t\t\t\t\t\t\t\t\t95\u201398, 104, 124\u2013127). After some confusion in the questioning of Mr. Sather by the\t\t\t\t\t\t\t\t\t\tRespondent\u2019s representative, it was stipulated that the 17 feet marked on Respondent\u2019s Exhibit\t\t\t\t\t\t\t\t\t\tR\u20132 was the horizontal distance across the top of the excavation at ground level (T. 104\u2013109).\t\t\t\t\t\t\t\t\t\tMr. Sather stated there was no physical way to measure the slope on the east wall of the\t\t\t\t\t\t\t\t\t\texcavation\u2014it had to be eyeballed by the Inspector as it was open air in the area and there was\t\t\t\t\t\t\t\t\t\tno way to measure it (T. 88\u201389, 115, 120\u2013121; Exhibit C\u20133). He also testified that he considered\t\t\t\t\t\t\t\t\t\tthe pictures (Exhibits C\u20132, C\u20133, C\u20134, C\u20135 and C\u20136) pretty well distorted as far as the actual\t\t\t\t\t\t\t\t\t\tappearance of the site is concerned (T. 94, 130). On cross-examination Mr. Sather admitted that\t\t\t\t\t\t\t\t\t\the watched the Inspector measure from the end of the grade stick where the plumb line was\t\t\t\t\t\t\t\t\t\tattached to a mark on the stick. He said that he did not know whether the measurement was 27\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t29 CFR 1926.653(n) \u2018Trench\u2019\u2014A narrow excavation made below the surface of\t\t\t\t\t\t\t\t\t\tthe ground. In general, the depth is greater than the width, but the width of a\t\t\t\t\t\t\t\t\t\ttrench is not greater than 15 feet.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tinches although he admitted that he heard the Inspector say to him that it was 27 inches (T. 116,\t\t\t\t\t\t\t\t\t\t120\u2013121).\t\t\t\t\t\t\t\t\t\tIt was developed on recross-examination of Mr. Sather that he made the grade stick\t\t\t\t\t\t\t\t\t\twhich was used by the Inspector to make the measurements. His suggestion that an employee of\t\t\t\t\t\t\t\t\t\tthe Respondent may have cut a piece off the grade stick is not a persuasive explanation of his\t\t\t\t\t\t\t\t\t\tuncertainty as to the length of the vertical piece of the grade stick (T. 138\u2013141).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMr. Earl Carlson, employed by the Respondent as a laborer, was working in the\t\t\t\t\t\t\t\t\t\texcavation at the time of the inspection. He appears in the photographs (Exhibits C\u20132, C\u20133) and\t\t\t\t\t\t\t\t\t\tis identified as wearing what appears to be a gray hard hat: in exhibit C\u20132 he is bending over\t\t\t\t\t\t\t\t\t\twith his right hand appearing to touch a pail which is resting on top of the sewer pipe. He\t\t\t\t\t\t\t\t\t\ttestified that he told the Inspector that he didn\u2019t see where there was any danger right around the\t\t\t\t\t\t\t\t\t\tmanhole (T. 143\u2013144, 146). This witness could not furnish any information concerning the two\t\t\t\t\t\t\t\t\t\twooden handles resting against the east side of the excavation (Exhibits C\u20132, C\u20133) other than to\t\t\t\t\t\t\t\t\t\tsay he believed them to be shovel handles (T. 146\u2013149). He replied in the affirmative to a\t\t\t\t\t\t\t\t\t\tquestion as to whether the top of the \u2018trench\u2019 was above his head (T. 146). When questioned by\t\t\t\t\t\t\t\t\t\tthe Respondent concerning safety meetings and instructions, Mr. Carlson said that in comparison\t\t\t\t\t\t\t\t\t\twith other outfits the Respondent was very safety conscious and there had been safety meetings\t\t\t\t\t\t\t\t\t\tat times with crew members (T. 145).\t\t\t\t\t\t\t\t\t\tThe Inspector described the soil in the area of the excavation as being homogeneous. He\t\t\t\t\t\t\t\t\t\tsaid it was a loose sandy type of soil. During the inspection be noticed trickles of sand coming\t\t\t\t\t\t\t\t\t\tdown the sides of the excavation, particularly the east side (T. 15\u201318). He observed a continual\t\t\t\t\t\t\t\t\t\ttraffic flow on a two lane road (98th Avenue Northeast) which was approximately 8 to 10 feet\t\t\t\t\t\t\t\t\t\twest of the speil pile located on the top of the west bank of the excavation (T. 18; Exhibit C\u20136).\t\t\t\t\t\t\t\t\t\tHe said that although the weather was clear and sunny on the day of the inspection, there was\t\t\t\t\t\t\t\t\t\twater standing on top of the soil which was piled on the west bank (T. 15, 39; Exhibit C\u20136). Mr.\t\t\t\t\t\t\t\t\t\tSather testified that the Respondent had no water problems and that there was no collection of\t\t\t\t\t\t\t\t\t\twater at any location (T. 94).\t\t\t\t\t\t\t\t\t\tThe Inspector testified that he observed loosening of the soil on the east wall of the\t\t\t\t\t\t\t\t\t\texcavation in the form of a fissure, which was circled in red on exhibits C\u20132 and C\u20133. He said\t\t\t\t\t\t\t\t\t\tthe presence of the fissure indicated that the soil is cracking, splitting apart, or possibly drying\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tout (T. 34\u201335, 37). When questioned later concerning this fissure, the Inspector replied: \u2018That\t\t\t\t\t\t\t\t\t\tparticular fissure would not appear to be a great hazard to me. It might cause a person to be\t\t\t\t\t\t\t\t\t\tpinned while more soil came down.\u2019 (T. 65\u201366) While agreeing that exhibits C\u20132 and C\u20133 could\t\t\t\t\t\t\t\t\t\tbe marked with red circles, the Respondent denied that the black line within the red circle was a\t\t\t\t\t\t\t\t\t\tfissure in the soil (T. 36). Mr. Sather testified that he did not see the mark on the east wall of the\t\t\t\t\t\t\t\t\t\texcavation, which is circled in red on the photographs (T. 90\u201391, 136).\t\t\t\t\t\t\t\t\t\tThe Inspector\u2019s conclusion that the men in the excavation were exposed to moving\t\t\t\t\t\t\t\t\t\tground was based on the sloughing of the loose sandy soil and the traffic vibrations immediately\t\t\t\t\t\t\t\t\t\tadjacent to the excavation. He said that the three employees working in the excavation were\t\t\t\t\t\t\t\t\t\texposed to a serious injury or possibly death from the falling in of the soil from the sides of the\t\t\t\t\t\t\t\t\t\texcavation, particularly on the east wall (T. 62\u201367, 82).\t\t\t\t\t\t\t\t\t\tAlthough the record does not contain a soil analysis; there is no conflict in the evidence\t\t\t\t\t\t\t\t\t\tconcerning the constituent element of the soil of the excavation\u2014it was sand (T. 17\u201318). Mr.\t\t\t\t\t\t\t\t\t\tSather stated it was a sand area and that the King County regulations did not allow \u2018pea gravel\u2019\t\t\t\t\t\t\t\t\t\tto be used in sand. He said that sand was put on the pipe in the excavation and it was the material\t\t\t\t\t\t\t\t\t\twhich had been dug from the excavation (T. 87, 134).\t\t\t\t\t\t\t\t\t\tIn reply to questions on direct examination, Mr. Sather said that there were no problems\t\t\t\t\t\t\t\t\t\twith sloughing during the installation of the catch basin and it was safe to work in the area (T.\t\t\t\t\t\t\t\t\t\t91\u201392). On cross-examination he admitted that they had trouble with sloughing on the entire job,\t\t\t\t\t\t\t\t\t\tand stated, \u2018everytime you dig a hole you\u2019ve got dirt coming in.\u2019 (T. 135\u2013136)\t\t\t\t\t\t\t\t\t\tThe east wall of the excavation in the area of the catch basin was sloped back 27 inches\t\t\t\t\t\t\t\t\t\tfor the excavation depth of 7 1\/2 feet, and the west wall was sloped back 6 feet for the same\t\t\t\t\t\t\t\t\t\tdepth (T. 14; Exhibit C\u20131). The Inspector said that he could not determine whether the extent of\t\t\t\t\t\t\t\t\t\tthe sloping was due to the efforts of the Respondent or the natural sloughing of the soil so he had\t\t\t\t\t\t\t\t\t\tto ask the Respondent. Before he measured the east wall of the excavation he was told that it was\t\t\t\t\t\t\t\t\t\tvertical. In reply to a comment of the Inspector that the east wall did not appear to have much\t\t\t\t\t\t\t\t\t\tslope, Mr. Sather said that it was straight up and down (T. 49, 52). Mr. Sather told him he made\t\t\t\t\t\t\t\t\t\tno effort to slope as he considered the soil compacted. In answer to the Inspector\u2019s question as to\t\t\t\t\t\t\t\t\t\twhether he could have sloped, Mr. Sather replied that he couldn\u2019t have sloped any farther back\t\t\t\t\t\t\t\t\t\tbecause of the property line. It was after this conversation that the plywood, which appears in\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\texhibits C\u20134 and C\u20135, was placed against the cast wall and braced against the backhoe shovel (T.\t\t\t\t\t\t\t\t\t\t53\u201354).\t\t\t\t\t\t\t\t\t\tMr. Sather testified that they sloped the ground on both sides of the catch basin and he\t\t\t\t\t\t\t\t\t\tused the backhoe bucket to brush down the sides. He said he determined that the slope on the\t\t\t\t\t\t\t\t\t\teast side of the excavation was safe by having the backhoe operator place the bucket of the\t\t\t\t\t\t\t\t\t\tbackhoe on the ground, and then push down the bucket with sufficient force to break the ground\t\t\t\t\t\t\t\t\t\tdown to a slope. No measurements were made in determining the extent that it was necessary to\t\t\t\t\t\t\t\t\t\tslope (T. 85, 109\u2013110, 117\u2013118, 120\u2013122). Mr. Sather said he didn\u2019t have any problem with the\t\t\t\t\t\t\t\t\t\tproperty line on the east side of the excavation: he said as a guess, it was 6 or 7 feet from the\t\t\t\t\t\t\t\t\t\teastern edge of the excavation (T. 134\u2013135).\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tThe Respondent contends that Table P\u20131, entitled, \u2018Approximate Angle of Repose For\t\t\t\t\t\t\t\t\t\tSloping of Sides of Excavations\u2019, which is set forth under \u20181926.652 Specific Trenching\t\t\t\t\t\t\t\t\t\tRequirements\u2019, does not apply to the alleged excavation violation under \u20181926.651 Specific\t\t\t\t\t\t\t\t\t\tExcavation Requirements\u2019 (T. 73\u201376). The Respondent\u2019s contention is rejected. A trench is an\t\t\t\t\t\t\t\t\t\texcavation that conforms to specified measurements. It is necessary to indulge in sophistry in\t\t\t\t\t\t\t\t\t\torder to arrive at a finding that Table P\u20131 is excluded as a guideline for determining the\t\t\t\t\t\t\t\t\t\tapproximate angle of repose for sloping of sides of excavations; particularly, when the table\t\t\t\t\t\t\t\t\t\tspecifically refers to excavations.\t\t\t\t\t\t\t\t\t\tThe measurements made by the Inspector, when applied to the excavation and trench\t\t\t\t\t\t\t\t\t\tdefinitions in footnote 1 on page 4 of this decision, require a finding that the site of the alleged\t\t\t\t\t\t\t\t\t\tviolations was an excavation and not a trench.\t\t\t\t\t\t\t\t\t\tThe wells of the excavation consisted of loose sandy soil which was not compacted. This\t\t\t\t\t\t\t\t\t\tsoil was subject to traffic vibrations and a limited amount of sloughing of the sandy soil was\t\t\t\t\t\t\t\t\t\tobserved by the Inspector. The east and west walls of the excavation were not sloped according\t\t\t\t\t\t\t\t\t\tto the approximate angle of repose for loose sandy soil as set forth in \u2018Table P\u20131.\u2019 The east wall\t\t\t\t\t\t\t\t\t\tof the excavation sloped back horizontally 27 inches for the vertical depth of 7 1\/2 feet, while the\t\t\t\t\t\t\t\t\t\twest wall was sloped back horizontally 6 feet for the vertical depth of 7 1\/2 feet. The extent of\t\t\t\t\t\t\t\t\t\tthis sloping does not achieve the approximate angle of repose for loose sandy soil set forth as a\t\t\t\t\t\t\t\t\t\tguide in \u2018Table P\u20131.\u2019 There was no shoring or other equivalent means of guarding the three\t\t\t\t\t\t\t\t\t\temployees working in the excavation from the danger of moving ground. In the event the soil\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\t[See 29 C.F.R. 1926. 652 1975 for Table P-1]\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tfell off of the walls, particularly the east wall, a substantial probability existed that death or\t\t\t\t\t\t\t\t\t\tserious physical harm could result to any one or all of the three employees working in the\t\t\t\t\t\t\t\t\t\texcavation.\t\t\t\t\t\t\t\t\t\tAs a result of evaluating the credible and substantial evidence of record, it is determined\t\t\t\t\t\t\t\t\t\tthat the Respondent was in violation of 29 C.F.R. 1926.651(c) on March 13, 1974, as charged in\t\t\t\t\t\t\t\t\t\tcitation number two, and that this violation was of a serious nature within the meaning of section\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\t17(k) of the Act.\t\t\t\t\t\t\t\t\t\tAs to the alleged non-serious violation charged in citation number one, the Inspector\t\t\t\t\t\t\t\t\t\ttestified that he observed a pile of excavated soil on the west bank of the excavation which was\t\t\t\t\t\t\t\t\t\tstored immediately adjacent to the edge of the excavation. He measured the height of this spoil\t\t\t\t\t\t\t\t\t\tpile in the presence of Mr. Sather and Mr. Sather agreed the average height of the pile was 3 feet.\t\t\t\t\t\t\t\t\t\tHe also photographed the spoil pile (T. 15, 25, 31\u201332, 39; Exhibits C\u20131, C\u20136). The spoil pile was\t\t\t\t\t\t\t\t\t\tbetween 10 and 14 feet long, and was estimated to be 6 or 7 feet wide. The Inspector did not dig\t\t\t\t\t\t\t\t\t\ta hole in the spoil pile to see what it was resting on, but thought it was probably import gravel,\t\t\t\t\t\t\t\t\t\trock and sand (T. 57, 82\u201383).\t\t\t\t\t\t\t\t\t\tMr. Sather testified that he and the inspector measured the spoil pile and determined it\t\t\t\t\t\t\t\t\t\twas 3 x 3 x 3, or about one yard. He said that this would roughly weigh 2,800 pounds. Mr.\t\t\t\t\t\t\t\t\t\tSather described the location of the spoil pile to be partly on the cement street and partly on the\t\t\t\t\t\t\t\t\t\tshoulder of the excavation. In reply to a question as to how far the spoil pile was away from the\t\t\t\t\t\t\t\t\t\tditch, Mr. Sather replied that he did not measure it. He denied that they had any water problems\t\t\t\t\t\t\t\t\t\tin the area of the spoil pile (T. 92\u201394). On cross-examination Mr. Sather said the spoil pile was 6\t\t\t\t\t\t\t\t\t\tfeet wide at the bottom and probably 5 feet long on a north-south axis. He testified that he could\t\t\t\t\t\t\t\t\t\tnot remember if there was or was not a gap between the spoil pile and the edge of the excavation\t\t\t\t\t\t\t\t\t\t(T. 110\u2013113).\t\t\t\t\t\t\t\t\t\tAn evaluation of the credible and substantial evidence of record requires that a finding be\t\t\t\t\t\t\t\t\t\tmade that one side of the spoil pile was stored at the edge of the west bank of the excavation and\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\tSection 17(k) provides:\t\t\t\t\t\t\t\t\t\t\u2018For purpose of this section, a serious violation shall be deemed to exist in a place\t\t\t\t\t\t\t\t\t\tof employment if there is a substantial probability that death or serious physical\t\t\t\t\t\t\t\t\t\tharm could result from a condition which exists, or from one or more practices,\t\t\t\t\t\t\t\t\t\tmeans, methods, operations, or proposes which have been adopted or are in use,\t\t\t\t\t\t\t\t\t\tin such place of employment unless the employer did not, and could not with the\t\t\t\t\t\t\t\t\t\texercise of reasonable diligence, know of the presence of the violation.\u2019\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\twas not retained at least 2 feet or more from the edge of the excavation. Since this spoil pile was\t\t\t\t\t\t\t\t\t\tpartly on the road surface, and the west wall of the excavation was sloped back horizontally 6\t\t\t\t\t\t\t\t\t\tfeet for a vertical depth of 7 1\/2 feet; it is also found that there was not a substantial probability\t\t\t\t\t\t\t\t\t\tthat death or serious physical harm could result to the Respondent\u2019s three employees working in\t\t\t\t\t\t\t\t\t\tthe excavation from the condition created by this violation.\t\t\t\t\t\t\t\t\t\tTherefore it is concluded that on March 13, 1974 the Respondent was in violation of 29 C.F.R.\t\t\t\t\t\t\t\t\t\t1926.651(i)(1) as charged in citation number one, and that this violation was not of a serious\t\t\t\t\t\t\t\t\t\tnature within the meaning of section 17(k) of the Act.\t\t\t\t\t\t\t\t\t\tThe parties stipulated that the gross income of the Respondent\u2019s business is between 4\t\t\t\t\t\t\t\t\t\tand 5 million dollars for a fiscal year, and that it is a medium size company when compared with\t\t\t\t\t\t\t\t\t\tits competitors (T. 152).\t\t\t\t\t\t\t\t\t\tIn evaluating the credible evidence of record which relates to the other penalty criteria of\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t5\t\t\t\t\t\t\t\t\t\tsection 17(j) of the Act the following findings are made: the gravity of the serious violation\t\t\t\t\t\t\t\t\t\twas high, while that of the non-serious violation was low; the respondent had been previously\t\t\t\t\t\t\t\t\t\tcited by OSHA for an unidentified violation (T. 43); the Respondent had been given full credit\t\t\t\t\t\t\t\t\t\tfor good faith by the Inspector (T. 42).\t\t\t\t\t\t\t\t\t\tAccordingly, it is concluded that $600 is an appropriate penalty for the serious violation\t\t\t\t\t\t\t\t\t\tof citation number two, and that no penalty should be assessed for the non-serious violation of\t\t\t\t\t\t\t\t\t\tcitation number one.\t\t\t\t\t\t\t\t\t\tCONCLUSIONS OF LAW\t\t\t\t\t\t\t\t\t\t1. The Respondent, West Coast Construction Company, Inc., was at all times material to\t\t\t\t\t\t\t\t\t\tthis proceeding an employer engaged in business affecting interstate commerce within the\t\t\t\t\t\t\t\t\t\tmeaning of section 3 of the Act.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\tSection 17(j) provides:\t\t\t\t\t\t\t\t\t\t\u2018The Commission shall have authority to assess all civil penalties provided in this\t\t\t\t\t\t\t\t\t\tsection, giving due consideration to the appropriateness of the penalty with\t\t\t\t\t\t\t\t\t\trespect to the size of the business of the employer being charged, the gravity of\t\t\t\t\t\t\t\t\t\tthe violation, the good faith of the employer, and the history of previous\t\t\t\t\t\t\t\t\t\tviolations.\u2019\t\t\t\t\t\t\t\t\t\t5\t\t\t\t\t\tExamples of some of the factors that are considered in determining the degree of gravity of the\t\t\t\t\t\t\t\t\t\tviolation are; number of employees exposed to risk of injury; duration of employee exposure;\t\t\t\t\t\t\t\t\t\tprecautions taken against injury, if any; and, degree of probability of occurrence of an injury.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t2. The Occupational Safety and Health Review Commission has jurisdiction over the\t\t\t\t\t\t\t\t\t\tparties and the subject matter of this proceeding as provided in section 10 of the Act.\t\t\t\t\t\t\t\t\t\t3. The place of employment maintained by the Respondent at the worksite located in the\t\t\t\t\t\t\t\t\t\tvicinity of 12940 98th N.E., Juanita, Washington was inspected by an authorized employee of\t\t\t\t\t\t\t\t\t\tthe Secretary of Labor on March 13, 1974, in accordance with the requirements of section 8 of\t\t\t\t\t\t\t\t\t\tthe Act.\t\t\t\t\t\t\t\t\t\t4. The Respondent was in violation of section 5(a)(2) of the Act on March 13, 1974, as a\t\t\t\t\t\t\t\t\t\tresult of not being in compliance, at its excavation worksite at Juanita, Washington on that date,\t\t\t\t\t\t\t\t\t\twith 29 C.F.R. 1926.651(i)(1) and 29 C.F.R. 1926.651(c), which are regulations and standards\t\t\t\t\t\t\t\t\t\tpromulgated by the Secretary of Labor pursuant to the Act.\t\t\t\t\t\t\t\t\t\t5. The violation of 29 C.F.R. 1926.651(c) is found to be a serious violation pursuant to\t\t\t\t\t\t\t\t\t\tthe provisions of section 17(k) of the Act. The violation of 29 C.F.R. 1926.651(i)(1) was not a\t\t\t\t\t\t\t\t\t\tserious violation within the meaning of section 17(k) of the Act and is therefore of a non-serious\t\t\t\t\t\t\t\t\t\tnature.\t\t\t\t\t\t\t\t\t\t6. The assessment of a civil penalty of $600 for the serious violation of 29 C.F.R.\t\t\t\t\t\t\t\t\t\t1926.651(c) and the assessment of no penalty for the non-serious violation of 29 C.F.R.\t\t\t\t\t\t\t\t\t\t1926.651(i)(1) made in this decision and order, are made pursuant to section 17(j) of the Act.\t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\tBased on the foregoing findings of fact and conclusions of law, it is ORDERED:\t\t\t\t\t\t\t\t\t\t1. That citation number one for a non-serious violation of 29 C.F.R. 1926.651(i)(1),\t\t\t\t\t\t\t\t\t\tissued to the Respondent on March 21, 1974, be, and is hereby affirmed.\t\t\t\t\t\t\t\t\t\t2. That citation number two for a serious violation of 29 C.F.R. 1926.651(c), issued to the\t\t\t\t\t\t\t\t\t\tRespondent on March 21, 1974, be, and is hereby affirmed.\t\t\t\t\t\t\t\t\t\t3. That no civil penalty be, and none is hereby assessed for the non-serious violation of\t\t\t\t\t\t\t\t\t\tcitation number one.\t\t\t\t\t\t\t\t\t\t4. That a civil penalty of $600 be, and is hereby assessed for the serious violation of\t\t\t\t\t\t\t\t\t\tcitation number two.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDated: April 3, 1975\t\t\t\t\t\t\t\t\t\tSeattle, Washington\t\t\t\t\t\t\t\t\t\tTHOMAS J. DONEGAN\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tJudge, OSAHRC\t\t\t\t\t\t\t\t\t\t\t\t\t”