SHEESLEY AND WINTERS CONSTRUCTION COMPANY

OSHRC Docket No. 6824

Occupational Safety and Health Review Commission

June 24, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

CLEARY, COMMISSIONER: On October 1, 1974, Administrative Law Judge J. Paul Brenton issued his decision in this case, vacating a citation and $500 proposed penalty issued to the respondent for a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"]. The respondent was cited for its alleged failure to comply with the occupational safety and health standard published at 29 CFR 1926.651(c). n1

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n1 That standard reads as follows:

1926.651 Specific excavation requirements.

. . .

(c) The walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by a shoring system, sloping of the ground, or some other equivalent means.

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The Secretary's Petition for Discretionary Review took exception to the Judge's order and that part of his decision in which he found:

a) That the respondent's "excavation" was sloped to the "angle [*2] of repose" as that term is defined in 29 CFR 1926.653(b). n2

b) That there was no danger of moving ground from the excavation.

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n2 That standard reads as follows:

1926.653 Definitions applicable to this subpart.

. . .

(b) "Angle of repose" - The greatest angle above the horizontal plane at which a material will lie without sliding.

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Alternatively, the Secretary submitted that the citation should be amended pursuant to rule 15(b) n3 of the Federal Rules of Civil Procedure and Commission Rule 2(b) to allege a serious violation of the standard published at 29 CFR 1926.652(b) n4 applying to "trenches" and that the citation, as amended, should be affirmed and the proposed penalty assessed.

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n3 Rule 15(b) of the Federal rules provides in pertinent part:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such an amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues.

n4 This standard reads as follows:

1926.652 Specific trenching requirements.

. . .

(b) Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. See Tables P-1, P-2 . . .

[*3]

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Pursuant to section 12(j) of the Act, the case was ordered before the Commission to pass upon the Secretary's exceptions. Having reviewed the record, the Judge's order vacating the citation and proposed penalty is affirmed for the reasons set forth below.

On February 6, 1974, respondent Sheesley and Winters Construction Company was inspected at its worksite in Fort Worth, Texas, by an authorized compliance officer from the Department of Labor. At the time of the inspection, the respondent was installing a sewage pipeline in a ground opening which measured approximately 100 feet long, 13 feet deep, 14 feet wide at the top, and 7 feet wide at the bottom. The eastern wall was virtually unsloped and the western wall was sloped to an angle of approximately 35 degrees above the 7 or 8 foot level. Neither wall was shored or braced.

The ditch contained four different stratas of soil. Beginning from the top to the 5-foot level, the soil was a relatively dry, sandy, and silky clay. From the 5-foot to 10-foot level the soil was sandier with iron-ore type gravel. From 10 to 11 feet the soil was borderline [*4] sand and gravel with some clay and more moisture than the upper levels. Finally, the bottom two feet of soil was hard clay shale. The Judge vacated the citation, holding that the excavation was sloped to the angle of repose n5 and that this constitutes compliance with the cited standard. n6

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n5 See n.2, supra.

n6 See n.1, supra.

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If the ditch were characterized as an "excavation," the Secretary has failed to prove a danger of moving ground as required by 1926.651(c), and if it were characterized as a "trench" he has failed to prove that the soil was unstable, as required by 1926.652(b). n7

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n7 See n.4.

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The evidence fails to establish that the soil was unstable. The only evidence relating to soil stability was testimony by the compliance officer that the "soil type didn't tend to show a stable material." This was [*5] strongly disputed by respondent. The compliance officer testified that he failed to see any sloughing off of the soil nor any cracking in the trench walls. Furthermore, photographs of the trench introduced by the Secretary indicate that the trench walls appear stable. Having analyzed the soil samples and having examined the photographs, the Secretary's witness, a mechanical engineer for an industrial testing company, was unable to testify that the soil was unstable.

The Secretary also asserted that the trench was subject to vibrations, that it was under additional stress from spoil material piled three feet from its edge, and that the trench was weakened by water which was seen in the bottom of the trench and which was attributed to rainfall.

The Secretary failed to prove this. Although a road passed within 50 feet of the trench, it was a country road with light traffic. The Secretary also believed that there was a danger of vibration from nearby equipment but, as with the alleged vibration from the road, the compliance officer was unable to sense any vibration.

Water in the trench, which the compliance officer attributed to rainfall, was in fact intentionally jetted into the [*6] trench by respondent to further compact the soil. Exposure to weather was minimal since, according to respondent's testimony, the trench was closed every night to prevent rain damage. In addition, there is insufficient basis upon which to accept the Secretary's assertion that spoil material located three feet from the edge of the trench increased the load factor so as to require additional precautions. Indeed, his own expert witness refused to draw such a conclusion.

I would, however, hold that the ditch was a "trench," n8 and that the issue of sufficient shoring or sloping of a trench in hard or compact soil, as required by 1926.652(c), n9 was tried. Accordingly, I would amend the pleadings to conform to the evidence, pursuant to Rule 15(b), F.R.C.P. to allege a violation of 1926.652(c). Evidence establishes that the trench, which had one vertical wall, was not sloped in accordance with the requirements of that standard. I would reverse the Judge and affirm the citation as amended.

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n8 29 CFR 1926.653(n) defines a "trench" as follows:

A narrow excavation made below the surface of the ground. In general, the depth is greater than the width, but the width of a trench is not greater than 15 feet.

The ditch in question, 100 feet long, 13 feet deep, 7 feet wide at the bottom and 14 feet wide at the top, may reasonably be classified as a trench. The depth-width relationship provides only a general guideline as to what constitutes a trench. It is important to note, however, that the width of a trench is to be measured at the bottom. Measuring the width at the top could lead to the absurd result whereby a properly sloped trench would become an excavation, subject to the requirements of the excavation rather than trenching standards.

n9 That standard reads, in relevant part, as follows:

1926.652 Specific trenching requirements.

(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 . . . .

[*7]

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Chairman Moran would find no prejudicial error in the Judge's disposition of this case. Thus, the members of the Commission are equally divided on whether the Judge properly disposed of the case. Rather than further delaying the disposition until a third member is appointed to the Commission, the Commission as presently constituted agrees to decide the case at this time.

Accordingly, the decision of the Judge is affirmed by an equally divided Commission. This decision has no precedential weight. Garcia Concrete, Inc., 18 OSAHRC 184 (1975).

So ORDERED.

[The Judge's decision referred to herein follows]

BRENTON, JUDGE: This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a citation issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of that Act.

This citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the respondent, located at County Roads 1015 and 1072, Fort Worth, [*8] Texas, and described as follows: "Pipe Laying Company," the respondent has violated section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.

The citation, which was issued on February 13, 1974, alleges that the violation results from a failure to comply with a standard promulgated by the Secretary by publication in the Federal Register on December 16, 1972 (Vol. 37 F.R. #243), and codified in 29 CFR part 1926.

The description of the alleged violation contained on said citation states:

Item 1 29 CFR 1926.651(c) The walls of the excavation in which employees were exposed to danger from moving ground at the following location were not guarded by a shoring system, sloping of the ground, or some other equivalent meanss Excavation site at intersection of county roads 1015 and 1072, stations 1550 and 00, 13 feet deep, 14 feet wide, and approximately 100 feet long.

The standard as promulgated by the Secretary provides as follows:

Section 1926.651 Specific excavation requirements.

(c) The walls and faces of all excavations in which employees are exposed to [*9] danger from moving ground shall be guarded by a shoring system, sloping of the ground, or some other equivalent means.

Pursuant to the enforcement procedure set forth in section 10(a) of the Act, the respondent was notified by letter dated February 13, 1974, from Charles J. Adams, Area Director of the Dallas area, Occupational Safety and Health Administration, U.S. Department of Labor proposed to assess a penalty for the serious violation alleged in the amount of $500.00.

After respondent contested this enforcement action, and a complaint and an answer had been filed by the parties, the case came on for hearing at Dallas, Texas, on July 1, 1974.

FINDINGS OF FACT

1. Respondent conducts its business from Watertown, South Dakota, and on February 6, 1974, it was engaged in the installation of an underground sewer pipe line in or near the city of Fort Worth, Texas.

2. At the time of the inspection by complainant respondent had made an excavation which measured approximately 100 feet in length, 13 feet in depth, 14 feet in width at its top and seven feet in width at its bottom.

3. The excavation was sloped to the extent that the bucket of the excavator, six feet in width, loaded [*10] with 5 yards of soil, placed 4 feet upon the top of each side and allowed to drag itself down the face or wall did remove unstable soil therefrom.

4. Complainant was on this site for three hours and at no time did he observe any flaking, sloughing, sliding, cracking, or movement of the soils constituting the sides of this excavation.

5. Two men were in the excavation performing assigned tasks at a point where the last joint of pipe had been laid.

6. The compliance officer, with 20 excavation inspections behind him, made a judgment within 15 minutes from the beginning of his visual inspection that there was danger from moving ground to the men at the pipe and he thereupon requested respondent to cause them to come out, which was done.

7. This officer also claimed 14 years experience with the Corps of Engineers in construction in soils. He judged the soils of the sides of the excavation to be shale, gravel, and hard for the first two feet from the bottom, the next six feet to be sand, clay and some silt and the top five feet to be sand, silty and clayey.

8. This judgment was substantially confirmed by an analysis of the disturbed soil from samples taken from the [*11] sides of those areas.

9. The excavating machine worked ahead of the area where the employees were engaged in laying the pipe some 50 feet or more. The spoil bank was maintained not closer than 3 to 4 feet from the edge of the excavation. Respondent's front end loader worked from the side of the excavation to carry the pipe and gravel into the excavation by means of a boom attachment extending out from the machine. It was also used to backfill.

10. Walls of any portion of the excavation were never open more than a day.

11. During the course of this five mile project there was no failure of the walls and faces of any part of the excavation.

12. Respondent's superintendent on this job, Bill Schultz, had been digging excavations for 15 years and never had a cave-in that came in contact with an employee.

13. The problem in evaluating whether there is danger from moving ground within an excavation is that a failure in the walls or sides of the excavation won't occur if the stresses are 99 percent of the failure, and it will occur if the stresses are 100 percent of the failure.

14. The shear strength of the several layers of soil constituting the sides of this excavation [*12] were not measured nor was the stress thereof calculated.

15. The inspector for the city of Fort Worth, an engineer, was of the opinion that respondent's angle of repose in this excavation was sufficient to guard its walls and faces from moving into the excavation.

16. A person with a Ph.D. degree in soil mechanics and analysis constantly attendant and performing all the tests to make a safe excavation could not eliminate all the risks of moving ground from its walls and faces.

ISSUES

Were employees exposed to danger from moving ground from the sides and faces of the excavation.

If so were the sides and faces guarded in accordance with the command of 29 CFR 1926.251(c).

DISCUSSION

According to complainant's expert witness, Harry W. Bulbrook, there is always a possibility of moving ground in any excavation even under the most ingenious and skillful precautions.

In the instant case respondent has been charged with exposing its employees to danger from moving ground from the walls and faces of an excavation in that it did not guard against such an occurrence by providing a shoring system, sloping of the ground or some other equivalent means in violation of 29 CFR 1926.651(c). [*13] This charge was designated as a serious violation in that respondent knew of the existing condition or with the exercise of reasonable diligence could have known thereof and that because of the existing condition there was a substantial probability that death or serious physical harm could result therefrom.

Complainant's burden was to show that there existed a danger of moving ground from the walls and faces of respondent's excavation onto its employees working therein because it had failed to guard the walls and faces in accordance with the commands of 29 CFR 1926.651(c). And that there was a substantial probability that death or serious physical harm could result from the existing condition which respondent knew or with the exercise of reasonable diligence could have known of the violation.

Danger is the general word for liability to all kinds of injury or evil consequences, either near at hand and certain, or remote and doubtful. Obviously the fashioners of the standard used the word danger in the sense that it means exposure to bodily injury. And it would appear that any manmade cavity in the earth's surface produces unsupported earth conditions along its sides, [*14] walls, or faces. Moreover, there is unanimity for the proposition that there always exists the possibility that earth may move from the faces and walls of an excavation. The evidence in the instant case is persuasive that respondent was well aware of these fundamental characteristics concerning the conduct of earth upon disturbing it by making a cavity in its surface. With this knowledge respondent, during the course of making its excavation, did slope the ground of its walls and faces before any employee made entry thereinto to perform a job assignment.

Complainant based his whole case for violation of the standard alleged on the proposition that respondent's angle of repose on the walls and faces of its excavation was not the greatest angle above the horizontal plane at which the soil thereof would lie without sliding, that is to say the earth materials on these slopes would not stand without movement. At no time did he even allude to his charges of failing to guard by a shoring system or by some other equivalent means except by way of argument.

Complainant in effect argued that the existing slope of the ground was inadequate protection from moving ground because of an increased [*15] load from the backhoe on the edge of the excavation, the spoil material stored three feet from its edge, gravel in the number one foot strata, and the general sandy, silty, clayey moisture content of the several stratas. He further argued that there were vibrations from traffic on a county road, estimated to be 50, 60 to 300 feet distant, and from the operation of the excavating machine. He could not feel, see, nor hear any such vibration. Moreover, he concluded that the traffic on the road was spasmodic and not very heavy. The role of the backhoe to the edge of the excavation is unclear. The dearth of the evidence on this proposition shows one set of tire tracks near the edge but the relation thereof to the backhoe is left to speculation. Also there is no showing of how close it worked to the edge in the proximity of the employees working in the excavation. The soil analysis did not measure the stability of the soil but it did show that the presence of clay and silt combined with the natural moisture acted as a binder material to the presence of sand. The water in the bottom of the excavation was not rainfall but was the result of having been jetted therein by respondent [*16] for the purpose of settling and aligning the pipe and the backfill as the work progressed. Finally the excavating machine operated 50 feet or more away from the place where the employees were working and each portion of the excavation was never left open more than one day.

Respondent simply argued that it had a safe excavation in that its slopes were cut to an angle that did, before, during, and after the inspection, maintain its walls and faces in place under all the facts and circumstances then and there existing with each progression of the work.

Respondent's duty, under the standard alleged, was to protect each workman, at such time and place he was engaged in performing a job related task within its excavation from the danger of moving ground from its walls and faces. The standard allows a wide range of choices in any endeavor to comply therewith and it specifically permits sloping of the ground. But it does not exact minimum dimensions for the angle of repose as do the specific trenching requirements of 29 CFR 1926.652.

The specific command or requirement of the standard alleged, if any, certainly relates to the underlying word guarded as contained therein. It is apparent [*17] that its fashioners used the word guarded in the sense that it means protected or restrained, that is, to keep under control or restraint as a matter of caution and prudence. This regulatory standard, then, calls for the "reasonable man" test or the making of a judgment under all the facts and circumstances peculiar to a given situation, in determining the angle of repose. Subsections (e), (g), and (h) of 29 CFR 1926.651 speak of the "angle of repose" and it is defined at 29 CFR 1926.653(b). It just seems, from the facts of record herein and reasonable inferences that may be derived therefrom, that respondent made a reasonable determination of its angle of repose in question in this case as it was based on factors of depth, moisture content, exposure to the weather, vibrations, and imposed loads by equipment and spoil from the excavation. Moreover, there is not a scintilla of evidence of any earth material sliding from the walls and faces of the excavation at the time of the exposure alleged. In fact the evidence is undisputed that during the course of this five mile project respondent never had a failure of any kind from the angle of repose it employed in each step [*18] of the way.

Complainant's soil expert confirmed respondent's conclusion when he said "it is very difficult to evaluate the state of stress in the soil. It gets down to quite a considerable amount of judgment." The witness also said that where an excavation is cut at such an angle that it respects or considers the added loads to be expected from the spoils of the excavation on the sides, the use of the backhoe and other equipment, weather expectations, and jetting operations, then the sides won't cave. But he added, "there is a possibility of failure of slope in the soil", however, he did not relate this conclusion to the chance of injury. Furthermore, this witness, when given the facts and circumstances as allegedly viewed by the compliance officer could not say that a hazard existed or that it did exist at the time and place of the exposure within the excavation.

It is also observed that no witness classified the soil in question as running. The compliance officer inferred that it was unstable. The expert was unable to judge its stability. The respondent knocked down the faces and walls to such an angle that the earth thereof remained without sliding upon the impact of a [*19] six feet bucket loaded with five yards of earth. At that point the ground of the faces and walls were judged to be of such stability that they would remain intact during the short duration of the limited outside influences to be anticipated.

Here respondent's superintendent, with many years of experience and having knowledge of the excavation standards, dug his excavation and sloped the ground of its faces and walls to the point the material thereof reclined without sliding, sloughing, flaking, cracking, or moving under the impositions encountered and anticipated. By his sense of sight and his feel for the conditions he made a judgment that he had the angle of repose that could be depended upon to restrain and control the walls and faces. Therefore, it just seems that the evidence shows that respondent exercised the care and prudence of the reasonable man under the same or similar facts, conditions, and circumstances.

One of the requirements of the standard alleged is sloping of the ground to guard against its movement. Respondent did slope and thereby an angle of repose was acquired within the criteria of 29 CFR 1926.651(e) and (g) in accordance with its definition [*20] at 29 CFR 1926.653(b). Accordingly respondent should not be adjudged a violator.

The foregoing discussion again points up the uncertainty and confusion which exists in the application and enforcement of the excavation and trenching standards. Nevertheless, it would appear that the conclusions reached are in accord with the applicable principles and reasoning as may be found in Secretary of Labor v. Warner Brothers, Inc. McLean Trucking Co. v. Occupational Safety and Health Review Commission, and Secretary of Labor, U.S. Court of Appeals, 503 F.2d 8 (4th Cir. 1974), CCH ESHG P18573; and Secretary of Labor v. M.A. Swatek & Company,

Complainant having failed to make his case for violation of the standard as charged the citation should be vacated together with the notification of the proposed penalty to be assessed.

Having reached this conclusion consideration of the alleged serious violation is rendered moot.

CONCLUSIONS OF LAW

1. Respondent is engaged in a business affecting commerce, therefore the Review Commission has jurisdiction to hear and decide this cause.

2. Where the evidence shows that [*21] the sloping of the ground of the walls and faces of an excavation meets the test of the definition of "angle of repose" (29 CFR 1926.653(b) there can be no violation of 29 CFR 1926.651(c).

3. The making of a safe excavation by means of sloping of the ground of its walls and faces is not made an exact science by the regulations under 29 CFR 1926.651, nor do they require an angle of repose in terms of specific degrees for specific conditions and circumstances. Rather, they require an identification of the problem of moving ground upon any confrontation, the gathering of relevant data from which a hypothesis may be formulated and empirically tested.

4. Facts and circumstances which show that an employer, in making an excavation, has exercised the care and prudence of a reasonable man, derived from empirical knowledge, under the same or similar circumstances in performance of his duty to guard employees against moving ground from its walls and faces do not admit of any liability as charged.

ORDER

Wherefore, it is ORDERED that:

The citation and the notification of the $500.00 proposed penalty to be assessed be and each is hereby vacated.

It is so ORDERED.