LISBON CONTRACTORS, INC.
OSHRC Docket No. 11097
Occupational Safety and Health Review Commission
August 18, 1977
[*1]
Before BARNAKO, Chairman; and CLEARY, Commissioner.
COUNSEL:
Baruch A. Fellner, Counsel for Regional Litigation, Office of the Solicitor, USDOL
Marshall H. Harris, Reg. Sol., USDOL
Otis W. Erisman, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Chairman:
A May 28, 1976 decision of Review Commission Judge Joseph Chodes is before this Commission for review pursuant to 29 U.S.C. § 661(i). Judge Chodes affirmed a serious citation alleging Respondent had violated the Act n1 by failing to comply with the standard published at 29 C.F.R. § 1926.652(c). n2 He assessed a $250 penalty. Respondent contends on review that it had complied with the standard. It also argues, however, that should we find otherwise, the violation was de minimis or nonserious at most. We conclude that the citation was properly affirmed, but that the violation was nonserious. We also modify the penalty assessment to $50.
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n1 29 U.S.C. § 651 et seq., The Occupational Safety and Health Act of 1970
n2 The standard reads:
Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot horizontal. When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion.
[*2]
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Respondent was digging trenches for the laying of sewer pipe in Exton, Pennsylvania. It was issued the citation after an inspection of its worksite by a compliance officer of the Secretary, who observed two of Respondent's employees working in an unsupported trench with partially sloped sides.
Testimony about the dimensions of the trench came primarily from the compliance officer and Respondent's field superintendent. The compliance officer testified that the trench was 160 feet long, 8 feet deep, 2 1/2 feet wide at the bottom, and 5 feet wide at the top. Respondent's field superintendent testified that after the inspection he took four measurements of the trench at different places and found its top width to be between 5 1/2 to 6 feet. He was unable to testify, however, that he had measured the trench top at the place where the compliance officer had measured it. Judge Chodes specifically accorded the compliance officer's testimony greater probative value than that of the field superintendent. We find that he was justified in doing so. See Okland Construction Company, 76 OSAHRC 30/F4, 3 [*3] BNA OSHC 2023, 1975-76 CCH OSHD para. 20,441 (No. 3395, 1976).
It is undisputed that compliance with the standard required the upper three feet of each side of the trench to be sloped back horizontally 1 1/2 feet. Since the trench was 2 1/2 feet wide at the bottom, it should, therefore, have been 5 1/2 feet wide at the top. It was in fact only five feet wide there. Accordingly, the Judge properly determined that Respondent had failed to comply with 1926.652(c).
In finding that the violation was serious, the Judge noted that the standard was directed against the hazard of a cave in, and concluded that death or serious harm would likely result from such an eventuality. He overlooked, however, the fact that there was only a slight deviation from compliance with the standard. Compliance would have been achieved had each side been cut back three more inches. Elementary principles of solid geometry reveal that this could have been accomplished by the removal of an additional three-quarters of a cubic foot of soil from each linear foot of the trench sides. See Appendix A. Clearly, this amount of soil was unlikely to have caused death or serious physical harm, had it fallen into [*4] the trench. Bruises or contusions could very well have resulted, however; and it cannot be said that the hazard was trifling so as to have rendered the violation de minimis. Compare Van Raalte Company, 76 OSAHRC 48/B8, 4 BNA OSHC 1151, 1975-76 CCH OSHD para. 20,633 (No. 5007, 1976). Accordinly, we conclude that the violation is properly classified as nonserious.
In his penalty assessment, the Judge properly considered Respondent's size, good faith, and prior history. It is apparent, however, that he overestimated the gravity of the violation. Because of the relatively slight hazard involved, we conclude that a penalty of $50 is appropriate.
Accordingly, the citation for violation of 29 C.F.R. § 1926.652(c) is modified to allege a nonserious violation, and as so modified is affirmed. A penalty of $50 is assessed.
APPENDIX A
[SEE ILLUSTRATION IN ORIGINAL]
The dark solid lines show the trench in cross-section as it was actually dug. Dashed lines show the trench sloped to the angle required by the cited standard; i.e., a one-half foot horizontal distance for each one-foot of vertical rise above the five-foot level of the trench. The cross-hatch lines represent the area [*5] of additional soil which should have been removed.
The amount or volume of extra soil which had to be removed in order to achieve compliance may be calculated by obtaining the area (xyz, x'y'z') encompassed by the cross-hatch lines and multiplying that figure by an appropriate length figure for the trench. The cross-hatch area is in the form of a triangle, the area of which is obtained from the formula A = 1/2 bh, where b is the length of any one of the triangle's sides and h is the vertical distance between side b and the apex of the two sides opposite side b. Thus, for cross-hatch triangle xyz in the illustration, b = 3 inches (1/4 foot), h = 3 feet, and x is the apex of the other sides. By applying the formula, we find that the area of triangle xyz is 3/8 of a square foot. The area of both triangles is twice that amount or 3/4 of a square foot. Consequently, the volume of both cross-hatch portions of the trench, along a linear foot of the trench, is 3/4 of a cubic foot.