OSHRC Docket No. 13008

Occupational Safety and Health Review Commission

June 29, 1977


Before BARNAKO, Chairman; CLEARY, Commissioner.  


Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

Richard Bohanon, for the employer




BARNAKO, Chairman:

A December 11, 1975 decision of Judge Jerry W. Mitchell is before this Commission for review pursuant to 29 U.S.C. 661(i).   Judge Mitchell affirmed a serious citation alleging Respondent's failure to comply with the safety standards at 29 C.F.R. 1926.652(c) and (e). n1 The citation alleges that employees of Respondent were exposed to hazards while working in a trench dug in hard or compact soil that was not adequately sloped or shored. It further alleges that additional precautions were not taken to prevent slides or cave-ins in the trench due to its location next to a backfilled area.   We affirm the Judge's decision.

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n1 The Judge also vacated a nonserious citation alleging Respondent's failure to comply with the standard at 29 C.F.R. 1903.2.   The Secretary has not taken exception to the Judge's ruling, and it is therefore not before us on review.

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Respondent, a utility contractor, was engaged in the ongoing excavation of a trench in which it was laying a 48-inch water main when one of the Secretary's compliance officers inspected its worksite.   The trench was about 9 feet deep and 15-16 feet long.   A 12-inch water main that had been installed some ten years earlier was located along the south side of one trench wall, at a level above and parallel to the 48-inch water main. A television cable ran directly above the 12-inch water main. Two of Respondent's employees were working in the trench.

The width of the trench, and the degree to which its walls were sloped is in dispute.   The compliance officer testified that the top of the trench was six feet wide. He obtained that measurement by standing atop the 48-inch pipe in the trench and stretching his tape measure across to the north wall of the trench. With the tape resting on the north wall, the compliance officer let out enough of the tape to reach the trench's south wall and thereby complete the measuring process.   He estimated the bottom of the trench to be the same width as its top. The compliance [*3]   officer also testified that the north wall of the trench was not sloped at all, but that one area of its south wall was sloped at an 80-90 degree angle.

Respondent's secretary-treasurer testified that he had measured the trench with the assistance of Respondent's construction manager, and had made a drawing showing a cross-section view of the trench. He testified that the distance from the top of the north bank of the trench to the top of the south bank was 16.05 feet.

In the opinion of the compliance officer, the composition of the soil in the south wall of the trench was soft clay.   He testified that the soil there was easily compressible into a ball.   He also testified that the soil in the lower part of the trench's north wall was a soft shale, while the soil in the upper part of that wall was compacted clay.   Respondent's secretary-treasurer testified that the soil above the 12-inch water main was a "clayey" sand, and the soil below it a brown shale.

Judge Mitchell, in affirming the citation, found that the testimony given by the compliance officer and secretary-treasurer of Respondent was in close agreement, and that it was obvious from such testimony that the soil was not [*4]   solid rock or shale. He found that the evidence taken as a whole clearly established that the trench was excavated in "hard or compact" soil. He further found that the sides of the trench were nearly vertical, and therefore not sloped to the ratio required for trenches excavated in hard or compact soil. The Judge also concluded that Respondent failed to take additional precautions by way of shoring and bracing in the trench where it was excavated adjacent to the backfilled area of the twelve-inch water main.

Respondent argues in its review brief that the Secretary failed to sustain his burden of proving noncompliance with the cited standards in three particulars: 1) The compliance officer had not taken any soil sample to prove that the soil in the trench was hard or compact rather than solid rock or shale, which would not have required shoring or sloping pursuant to 1926.652(c); n2 2) The compliance officer's testimony did not establish the width of the trench at its five-foot level, the level above which sloping or support is required by 1926.652(c); and 3) The backfilled area containing the 12-inch water main was not proven to be a backfilled excavation as required by 1926.652(e),   [*5]   n3 but was instead a trench.

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n2 The standard at 1926.652(c) 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.

n3 The standard at 1926.652(e) reads:

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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We reject these arguments.   Proof of a violation of 1926.652(c) does not necessarily require that a soil sample [*6]   be introduced into evidence.   Both the compliance officer and Respondent's secretary-treasurer offered their lay opinions as to the soil's composition. Such testimony was properly admissible, and suffices to support the Judge's finding that the soil in the trench was hard and compact, and not solid rock or shale. Rule 701, n4 Federal Rules of Evidence.  

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n4 Rule 701 reads:

Opinion Testimony By Lay Witness.   If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

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In finding that the trench was not adequately sloped, the Judge credited the compliance officer's testimony that the trench was six feet wide at the top. The Judge also found that two of the Secretary's [*7]   photographic exhibits substantiated the compliance officer's width measurement when the top width of the trench was compared in those exhibits to the width of the 48-inch pipe lying in the trench. The Judge further found that the Secretary's photographic exhibits supported the compliance officer's testimony that the sides of the trench were almost vertical. Judge Mitchell specifically found that the sloping of the trench sides did not even approach the magnitude portrayed in Respondent's cross-sectional drawing of the trench. Based on the foregoing, the Judge concluded that neither side of the trench was sloped enough to meet the requirements of the standard at 1926.652(c).   We have no reason in this case to evaluate differently the evidence underlying the Judge's credibility finding.   Okland Construction Company, 76 OSAHRC 30/F4 3 OSHC 2023, 1975-76 OSHD para. 20,441 (1976); Paul L. Heath Contracting Co., 20 OSAHRC 297, 3 OSHC 1550, 1975-76 OSHD para. 20,006 (1975).

Respondent's argument that the Secretary failed to prove that the backfilled area was an excavation, not a trench, is also without merit.   A trench is "A narrow excavation made below the surface of the [*8]   ground (emphasis supplied) . . ." 29 C.F.R. 1926.653(n).   Thus, a trench is simply a specific type of an xcavation.  

Accordingly, the Judge's decision is affirmed.