NEVADA PIPE LINE CONSTRUCTION CO.
OSHRC Docket No. 12935
Occupational Safety and Health Review Commission
June 23, 1977
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Before BARNAKO, Chairman; CLEARY, Commissioner.
COUNSEL:
Baruch A. Fellner, Counsel for Regional Litigation, Office of the Solicitor, USDOL
Daniel Teehan, Regional Solicitor
Jerry L. Ray, President, Nevada Pipe Line Construction Company, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Chairman:
A decision of Judge Robert N. Burchmore is before us for review pursuant to 29 U.S.C. 661(i). The Judge affirmed a citation alleging that Respondent violated 20 C.F.R. 1926.652(c) and (e) n1 by failing to adequately slope or shore a trench. He assessed a penalty of $250. We affirm the Judge's decision.
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n1 These standards provide:
1926.652(c): 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. . .
1926.652(e): Additional precautions by way of shoring and bracing shall be taken to prevent slides or cave-ins when excavations or trenches are made in locations adjacent to backfilled excavations, or where excavations are subjected to vibrations from railroad or highway traffic, the operation of machinery, or any other source.
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Respondent had opened the trench in order to install a storm drain. At the time of the alleged violation, the trench was sixty feet long, nine feet six inches deep, five feet wide at the top, and forty inches wide at the bottom. The sides of the trench were not shored or braced. As indicated by the difference in width at the top and bottom, the sides of the trench were only slightly sloped. n2
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n2 Respondent does not argue that this degree of sloping was sufficient to comply with 1926.652(c).
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It is undisputed that the native soil in which the trench was dug consisted of cemented sand and gravel. Part of one of the trench walls, however, was composed of material which had previously been used to fill a trench adjacent to the trench here at issue. At the time the earlier trench was backfilled, the soil with which it was filled was compacted in order to solidify it. Respondent's expert witness testified that this soil would, after [*3] a sufficient period of time, again exhibit the properties of cemented sand and gravel. He stated, however, that this would take "quite a bit of time," and that a sufficient amount of time had not yet elapsed. Thus, according to Respondent's expert, if this material was disturbed or loosened, it could possibly slough into the trench. This witness also stated that vibrations resulting from the use of a hoe ram adjacent to the trench could increase the possibility of collapse of the backfilled material.
On these facts, the Judge found that the cited standards were violated with respect to the portion of the trench wall containing backfilled material. n3 He therefore affirmed the citation. He determined that the violation was serious because a collapse of the trench wall would likely have resulted in death or serious injury to Respondent's employees in the trench. He concluded, however, that the possibility of an accident was slight due to the stability of the trench walls. He also concluded that Respondent had acted in good faith. He therefore assessed a penalty of $250.
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n3 It is not clear whether the Secretary argued before the Judge that the standard was violated with respect to the side of the trench dug in undisturbed soil. The Secretary has not, however, taken exception to the Judge's conclusion that a violation did not occur with respect to that side, and that issue is therefore not before us.
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On review, Respondent does not take specific exception to the Judge's decision, but asks that we consider the same arguments it made before the Judge. Having done so, we conclude that the preponderance of the evidence supports the Judge's findings, and that the Judge properly decided the case. Accordingly, the Judge's decision is affirmed.
So ORDERED.