KENT NOWLIN CONSTRUCTION CO., INC.  

OSHRC Docket Nos. 76-191; 76-192

Occupational Safety and Health Review Commission

April 30, 1980

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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Leonard L. Pickering, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Dee C. Blythe is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ["the Act"].   Judge Blythe concluded that Respondent had committed serious violations of the Act due to noncompliance with 29 C.F.R. § §   1926.600(a)(6) and 1926.650(h), and two repeated violations of the Act based on failure to comply with 29 C.F.R. §   1926.652(b).   Former Commissioner Moran directed review "for error." n1

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n1 The judge vacated two citations alleging noncompliance with 29 C.F.R. § §   1926.601(b)(6) and 1926.651(i)(1).   Respondent contends on review that the Commission should affirm Judge Blythe's order vacating the 29 C.F.R. §   1926.601(b)(6) citation.   Respondent states that it is in complete agreement with the judge's decision on that issue.   Respondent also asserts on review that the judge erred in stating, as an alternative to his conclusion that Respondent had not failed to comply with 29 C.F.R. §   1926.651(i)(1), that, if there was technical noncompliance with that standard, it was de minimis.   Respondent contends that the judge further erred in declaring that the penalty assessed for noncompliance with 29 C.F.R. §   1926.652(b) at the Coors site covers this de minimis violation as well since the hazard was the same for both violations, i.e., the trench's collapse.   Respondent urges the Commission to affirm only that portion of the judge's order vacating the 29 C.F.R. §   1926.651(i)(1) citation.   The Secretary, the party aggrieved by the judge's disposition of these two citations, has not filed any exceptions to these parts of the judge's decision and order.

Where a party does not seek reversal of the judge's decision, but instead only takes exception to the judge's findings of fact or conclusions of law, the Commission will not consider those exceptions unless they raise an issue of compelling public interest.   Bethlehem Steel Corp., 79 OSAHRC 5/D12, 7 BNA OSHC 1053, 1979 CCH OSHD P23,287 (No. 13799, 1979).   Finding no compelling public interest that would warrant Commission consideration of the judge's order vacating these two citations, we will not review the judge's conclusion on these issues.   Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976).   Such unreviewed dispositions are not precedent binding on the Commission.   Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070 (2d Cir. 1976).

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Two of Respondent's worksites in Albuquerque, New Mexico, were inspected on November 11, 1975, by compliance officers Ansley and Miles.   Docket No. 76-191 arose out of an inspection of Respondent's worksite at Bluewater and 61st Streets, N.W.; Docket No. 76-192 arose out of an inspection of Respondent's worksite at 200 Coors Road, N.W.   Judge Blythe consolidated the cases for hearing and decision.

I.   Alleged Noncompliance with 29 C.F.R. §   1926.600(a)(6)

The Secretary of Labor ["the Secretary"] alleged that Respondent had failed to comply with 29 C.F.R. §   1926.600(a)(6) n2 at its Bluewater worksite because Respondent's backhoe came within 10 feet of 7200-volt electric power lines.   The violation was alleged to be serious, and a penalty of $900 was proposed.

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n2 The standard provides:

Subpart O - Motor Vehicles, Mechanized Equipment, and Marine Operations

§   1926.600 Equipment.

(a) General requirements.

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(6) All equipment covered by this subpart shall comply with the requirements of §   1518.550(a)(15) when working or being moved in the vicinity of power lines or energized transmitters.

Part 1518 was redesignated as part 1926 in 1971.   The pertinent subparagraph of section 1926.550(a)(15) reads as follows:

Subpart N - Cranes, Derricks, Hoists, Elevators, and Conveyors

§   1926.550 Cranes and derricks.

(a) General requirements.

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(15) Except where electrical distribution and transmission lines have been deenergized and visibly grounded at point of work or where insulating barriers, not a part of or an attachment to the equipment or machinery, have been erected to prevent physical contact with the lines, equipment or machines shall be operated proximate to power lines only in accordance with the following:

(i) For lines rated 50 kV. or below, minimum clearance between the lines and any part of the crane or load shall be 10 feet; . . . .

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A Koehring backhoe was being used to excavate a trench down the middle of the street at the time of the inspection. Three 7200-volt power lines were located atop a T-shaped utility pole which the nearby backhoe faced while it was digging the trench. Attached at progressively lower points on the pole were a neutral line, a "light standard" (a street light extending up and out from the pole at an angle of less than 90 degrees), and, lastly, three telephone lines.   According to the testimony of John Collins, Respondent's Safety Director at the time of the hearing, the distance from the primary power line to the ground was 32' 4".   The neutral line was about 25' 7" from the ground.   The approximate heights at which the highest and lowest telephone lines were situated were, respectively, 21' 1" and 17' 7".   Respondent admitted that it had not sought to have the lines deenergized at the time of the inspection.

Respondent's Exhibit No. 17, a page from Respondent's backhoe operator's manual consisting of the manufacturer's chart giving the working dimensions of the hoe attachment, shows that the bucket could [*4]   be elevated to a maximum height of 34' 7" when empty.   In this position, the lowest part of the bucket would be approximately 29' above the ground.

Compliance officer Ansley testified that he saw the backhoe operator empty his load and then, with the backhoe bucket "cramped" or "crimped up, and swung around like this" (indicating in a nonrecorded manner the position of the bucket), n3 fully extend, or straighten out, the boom so that the bucket passed over the top of the light.   Ansley stated that the bucket or a portion of the boom thus came as close as 5 feet to a power line. Based on his experience in the safety and engineering fields, Ansley testified that the alleged violation presented the hazard of electrocution.

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n3 Ansley's testimony as a whole, particularly, when considered in light of Miles' testimony, indicated that Ansley's description of the empty bucket as "cramped" or "crimped up" meant that the bucket was extended to its maximum height, just as the boom was.

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Compliance officer Miles testified that [*5]   the backhoe bucket and the fully-extended backhoe boom came within about 3 feet of one of the power lines as the boom was raised in order to get around the light standard.   Miles also testified that the bucket "was extended up in pretty much the straight-out position." As both Respondent and the judge noted, however, Miles admitted that he did not himself see the backhoe barely miss the lines because he was taking notes at the time.   Miles testified that, having been alerted to the occurrence of the alleged violation by compliance officer Ansley, he did observe the backhoe bucket as it was coming over the light standard.   Miles then took a photograph, which became Complainant's Exhibit No. 15, of the backhoe boom after it had gone over the light standard and swung down.   In that photograph the boom resembles an arm with the elbow bent at about a 50 degrees angle.   The photo focuses on the "elbow" joint and shows very little of the rest of the "arm" and none of the bucket.

At the hearing, the backhoe operator denied that the backhoe boom and bucket had been fully extended and had come within 10 feet of the power line. He testified that he did not recall nor would he have had any   [*6]   reason for moving the backhoe in the manner described by the compliance officers.   He stated that the boom of the backhoe was 5-7 feet from the telephone pole in Complainant's Exhibit No. 15, the photograph described above.   The backhoe operator testified that, if the backhoe boom had come within 10 feet of the power line in the manner described by the compliance officers, it would have struck and knocked down the power lines and telephone pole.   Respondent's foreman at the site testified that he never saw the backhoe operate within 10 feet of the power lines.

Respondent argued before the judge that this citation should be vacated because the Secretary failed to sustain his burden of proof.   Respondent contended that the testimony of the compliance officers lacked credibility, pointing to asserted ambiguities and inconsistencies in their testimony.   Respondent noted that neither Miles nor Ansley took any measurements.   It argued that, when their testimony is compared against photographs in evidence and Respondent's Exhibit No. 17, the diagram from the operator's manual, the only possible conclusion is that the backhoe could not have been operated in the manner described by the compliance [*7]   officers.   Respondent referred to the backhoe operator's testimony that he would not have had any reason to swing the backhoe's attachment over the light in the manner described by the compliance officers, and that, if he had operated the backhoe in this way, it would have struck down the pole, light, and power lines.   Respondent averred that, if the backhoe came close to any lines, they were the telephone lines.

Judge Blythe expressly noted in his decision the testimony of the witnesses, the conflicting nature of that testimony, and the arguments raised by Respondent.   The judge rejected Respondent's assertion that it was impossible for the backhoe to come within 10 feet of the power lines without causing damage to the pole or lines and found that there was noncompliance with 29 C.F.R. §   1926.600(a)(6).   The judge stated that, because the empty bucket could be elevated to 34' 7" and the power lines were 32' 4" above the ground, it was possible that the backhoe could have come within 10 feet of the power line when the boom was fully extended.   He credited the testimony of Ansley that the bucket had come within 10 feet of the power line, stating that Ansley was in a better position [*8]   than Miles to observe the alleged violation and was "quite convincing in his testimony." The judge noted that Ansley's testimony that the bucket was empty was consistent with his calculation of the distance between the bucket and boom and the power line. Judge Blythe stated that Ansley established, on the hasis of his previous experience, that the proximity of the bucket to the power lines created the danger of electrocution.   The judge affirmed the citation alleging a serious violation, but reduced the penalty from $900 to $500.

Respondent's contentions on review are essentially the same arguments that were made before the judge.

We reject Respondent's contentions that the judge erred in deciding this issue.   We conclude that the judge properly considered the evidence of record and the arguments of both parties.   The judge also set forth his evaluation of the evidence and his reasons therefor.   Accordingly we adopt the judge's factual determinations and conclusions of law, and affirm his affirmance of the citation item alleging a serious violation of the Act for noncompliance with 29 C.F.R. §   1926.600(a)(6), as well as the $500 penalty that he assessed.   See Adrian Construction   [*9]    Co., 79 OSAHRC 16/A2, 7 BNA OSHC 1172, 1979 CCH OSHD P23,389 (No. 15414, 1979); Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).

The judge expressly credited Ansley's testimony as "quite convincing" and stated his reasons therefor.   We have no reason to reevaluate the evidence upon which the judge's credibility determination was based.   We defer to the judge "who has lived with the case, heard the witnesses, and observed their demeanor." C. Kaufman, Inc., 78 OSAHRC 3/C1 at C7-8, 6 BNA OSHC 1295 at 1297, 1977-78 CCH OSHD P22,481 at p. 27,099 (No. 14249, 1978).   See Austin Bridge Co., 79 OSAHRC    , 7 BNA OSHC 1761, 1979 CCH OSHD P23,935 (No. 76-93, 1979).

We affirm the judge's conclusion that the violation was serious. n4

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n4 Chairman Cleary agrees with the judge that Ansley's testimony established that the violative condition posed the danger of electrocution and affirms the judge's conclusion that the violation was serious on that basis.   Commissioner Barnako affirms the violation as serious solely on the basis that Respondent has not contested the judge's conclusion that the violation was serious.   He notes that the judge only ruled upon the substantial probability element of a serious citation and did not address the knowledge element.   See note 6 and supporting text infra.

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II.   Alleged Noncompliance with 29 C.F.R. §   1926.650(h)

The Secretary cited Respondent for noncompliance with 29 C.F.R. §   1926. 650(h) n5 at Respondent's Bluewater worksite. Miles and Ansley both testified that they observed a loaded backhoe bucket travel over the head of a female employee on the bank of the trench. Ansley estimated the weight of the load at 5,000 pounds.   Miles testified that death or serious physical harm could result if the load fell on an employee.   Miles further stated that he saw the backhoe bucket, while empty, pass over the head of a male employee working in the trench.

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n5 The standard provides:

Subpart P - Excavations, Trenching, and Shoring

§   1926.650 General protection requirements.

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(h) No person shall be permitted under loads handled by power shovels, derricks, or hoists.   To avoid any spillage employees shall be required to stand away from any vehicle being loaded.

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Respondent's [*11]   safety director at the time of the inspection and also the operator of the backhoe at issue testified that they did not notice the loaded bucket pass directly over the head of any employee.   The backhoe operator admitted on cross-examination, however, that he had to keep his eyes on the bucket while operating the backhoe. In addition, the female employee allegedly exposed to the hazard stated that she did not see the loaded bucket pass over her head; nor did she notice any sand or dirt falling on top of her.

Judge Blythe concluded that "the clear and convincing testimony of the two compliance officers" established that a violation was committed.   He noted that the testimony of Respondent's witnesses was "not in direct contradiction" to that of the compliance officers because, rather than establishing as a fact that the loaded bucket did not travel over an employee's head, Respondent's witnesses testified only that they did not notice the bucket overhead.   Finding of Fact No. 6 reads: "The loaded backhoe bucket . . . was swung over the heads of two employees working in or near the trench . . . ." The judge affirmed the citation for a serious violation, but reduced the penalty [*12]   from the $900 proposed to $150 because he determined that the gravity of the violation was low.

Respondent argues on review that the Secretary did not meet his burden of proving that a loaded bucket passed directly over one of Respondent's employees and takes exception to the judge's Finding of Fact No. 6.   Respondent contends that the testimony of its employees should have been credited by the judge.   In urging the Commission to vacate this citation, Respondent asserts that the observations of the compliance officers were faulty and that their testimony was unclear and confusing.   Assuming that a violation is found, Respondent further argues that the fact that only one employee was exposed for a brief period of time should militate against a finding of a serious violation.

We reject Respondent's contentions.   We find, however, that the loaded bucket traveled only over the head of the female employee.   The testimony of the two compliance officers that a violation was committed with regard to the female employee was not effectively rebutted.   As the judge noted in his decision, the testimony of Respondent's witnesses did not directly contradict the statements of Miles and [*13]   Ansley.   Rather than denying that the loaded backhoe bucket passed over the employee, Respondent's safety director, the backhoe operator, and the exposed employee testified only that they did not notice the backhoe bucket moving in any such violative manner.   Because the judge's finding that the loaded backhoe bucket traveled over the head of a female employee is supported by a preponderance of the evidence, we affirm that finding.   See D. Fortunato, Inc., 79 OSAHRC    , 7 BNA OSHC 1643, 1979 CCH OSHD P23,781 (No. 76-3103, 1979); M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979).   Accordingly, we affirm the judge's conclusion that Respondent failed to comply with 29 C.F.R. §   1926.650(h).

For a violation to be serious within the meaning of section 17(k) of the Act, 29 U.S.C. §   666(j), n6 the record must establish that there was a substantial probability that death or serious physical harm could result if an accident occurred.   The probability of the accident occurring is irrelevant.   Niagara Mohawk Power Corp., 79 OSAHRC 36/A2, 7 BNA OSHC 1447, 1979 CCH OSHD P23,670 (No. 76-2414, 1979).   Thus, such factors as the [*14]   number of employees exposed to the hazard and the length of exposure, which concern the likelihood of an accident, are relevant only in determining the gravity of the violation for penalty assessment purposes under section 17(j) of the Act, 29 U.S.C. §   666(i).   The Secretary established that the 5,000-pound load could cause serious physical injury or death if it were dropped on an employee.   We agree with Judge Blythe that the violation was serious and that a penalty of $150 is appropriate.

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n6 The section reads as follows:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

In arguing on review that the violation was not serious, Respondent contends only that the fact that a single employee was exposed for a brief period of time precludes a finding that the violation was serious.   It does not argue that it did not know nor could, with the exercise of reasonable diligence, have known of the violation.   Accordingly, Chairman Cleary and Commissioner Cottine conclude that they need not address the question of whether the knowledge element of a serious violation has been established in this case.

Commissioner Barnako would reach the knowledge issue since Respondent has argued that the violation was not serious and proof of employer knowledge is an element of the Secretary's proof of a serious violation. He would find that the Secretary has failed to establish Respondent's knowledge of the alleged violation since the Secretary did not introduce any evidence that Respondent knew or could have known that the loaded backhoe bucket would pass over its employee.   Indeed, the only evidence directly related to the knowledge issue was introduced by Respondent and established that Respondent's foreman, Eloy Garcia, did not see a loaded bucket move over any employee's head.   Accordingly, Commissioner Barnako would vacate the citation for serious violation of 29 C.F.R. §   1926.650(h).   Under prevailing Commission precedent the Secretary must also establish the employer's knowledge to prove a nonserious violation of the Act.   Scheel Construction, Inc., 76 OSAHRC 38/B6, 4 BNA OSHC 1824, 1976-77 CCH OSHD P21,263 (No. 8687, 1976).   Therefore Commissioner Barnako would not amend the citation to find Respondent in nonserious violation of the Act.

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III.   Alleged Noncompliance with 29 C.F.R. §   1926.652(b)

The Secretary alleged that Respondent failed to comply with 29 C.F.R. §   1926.652(b) n7 at both the Bluewater and Coors worksites, in that trenches dug in unstable soil were not sloped sufficiently to protect Respondent's employees who worked within them.   The citation for the Bluewater trench alleged that the violation was "WILLFUL" and proposed a $9,000 penalty therefor; the citation for the Coors trench charged that the violation was "WILLFUL (Serious)" and proposed a $9,000 penalty therefor.   Because both trenches would have been in compliance with 29 C.F.R. §   1926.652(c) (requiring no more than a one-foot rise to each 1/2-foot horizontal above the 5 foot level of the trench) had the soil been characterized as hard or compact, most of the testimony at the hearing concerned the stability of the soil.

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n7 The standard provides:

Subpart P - Excavations, Trenching, and Shoring

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§   1926.652 Specific trenching requirements.

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(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 (following paragraph (g) of this section).

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A.   Bluewater Trench - Evidence and Judge's Decision

The Bluewater trench measured 10 feet wide at the bottom, 31 feet wide at the top, and 17 feet deep.   The angle of slope of the trench walls was 58 degrees.

There was general agreement at the hearing that the Bluewater trench was comprised primarily of sand, with approximately the bottom 5 feet of the trench being clay.   The compliance officers testified that tactile and visual examination of the soil revealed that it was unstable. Based on their personal observations, some of Respondent's employees opined that the soil was stable.

The Secretary's first expert witness, Lloyd, performed soil classification tests on soil samples taken during the inspection by the compliance officers from the bottom and 5 feet up from the bottom of the Bluewater trench. He characterized the soil from those samples respectively as sand with fines and poorly graded sand. Lloyd testified that the sand particles in the samples were rounded and thus a trench dug in these materials would require a flatter slope than a trench dug in sharp sand. He opined that   [*17]   the trench should have been sloped 1-1/2 feet horizontally for every one foot vertically in order for it to have been completely safe.   The Secretary's second expert witness, Cleveland, performed stability tests on separate soil samples taken from the Bluewater site five months after the inspection. n8 In performing his stability analysis, he assumed soil strength, a line of internal friction, and no cohesion in the soil. His tests were performed on remolded, saturated samples rather than on samples in their natural state.   He concluded that the Bluewater trench had a safety factor of .73, which he considered unsafe. n9 He testified that his results would have been significantly different had he assumed cohesion in the soil. With reference to the classifications used in Table P-1, Cleveland testified that the soil was somewhere between well-rounded sand and compacted sharp sand.

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n8 These samples were taken at 2-1/2 foot intervals from ground level to 17 feet below ground level.

n9 The safety factor is based on the ratio of driving and resisting forces in the soil. A safety factor of less than 1 indicates that the driving forces are greater than the resisting forces.   Conversely, a safety factor greater than 1 indicates that the resisting forces are greater than the driving forces.

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Respondent's only expert witness, Booth, performed classification and stability tests on soil taken from the Bluewater site more than one month after the inspection. His tests were performed on undisturbed samples taken from 12 to 12-1/2 feet and from 14 to 14-1/2 feet below ground level.   He testified that he was unable to extract undisturbed samples from 10 to 12 feet below the ground and that he did not try to take samples from any higher level.   He described the soil as mainly silty sand down to the 10-foot level, with "relatively clean" sand from the 10-foot to the 12-foot level.   He testified that from 12 to 14 feet below the ground was "clayey" sand, with clay of medium plasticity below that level.   His computations indicated a safety factor of 1.48 at the Bluewater site, and he concluded that the soil was stable.   He admitted, however, that the samples that he obtained were "only representative of the particular stratum in which they were obtained."

Respondent argued before the judge that an "excavation," rather than a "trench," was dug at the site. It based this argument on the fact that   [*19]   the width of the cavity at ground level was far greater than either the trench's depth or the 15-foot maximum width prescribed in the definition of a "trench" at section 1926.653(n). n10 Kent Nowlin further contended that, even if the cavity is characterized as a trench, the standard cited in nevertheless inapplicable because the weight of the evidence indicates that the cut was made in "hard compact soil" as defined in section 1926.653(h). n11 It based this contention primarily on the testimony of its expert Booth, asserting that the testimony of the Secretary's expert Cleveland should be rejected because of defects in his testing methods, e.g., the assumption that there was no cohesion in the soil and the use of remolded, saturated samples.   Respondent further argued that it complied with what it contended to be the applicable standard, section 1926.652(c).

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n10 The definition reads as follows:

§   1926.653 Definitions applicable to this subpart.

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(n) "Trench" -- 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.

n11 The definition reads as follows:

§   1926.653 definitions applicable to this subpart.

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(h) "Hart compact soil" -- All earth materials not classified as running or unstable.

"Unstable soil" is defined in §   1926.653(q) as follows:

(q) "Unstable soil" -- Earth material, other than running, that because of its nature or the influence of related conditions, cannot be depended upon to remain in place without extra support, such as would be furnished by a system of shoring.

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Judge Blythe rejected Respondent's argument that it dug an "excavation" instead of a "trench." He noted that, in Lloyd C. Lockrem, Inc., 77 OSAHRC 64/A12, 3 BNA OSHC 2045, 1975-76 CCH OSHD P20,444 (No. 4553, 1976), n12 the Commission held that the width of the cavity dug should be measured at the bottom rather than at the top. Since the bottom of the Bluewater cut was 10 feet wide, well below the 15-foot maximum width set by the definition of "trench" and less than the 17-foot depth of the cavity, the judge concluded that the cut was a "trench."

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n12 In the Lockrem decision cited above, the Commission found that the ground cavity at issue, which was 19 feet wide at the top but only 8 feet wide at the bottom, was a "trench" as defined in section 1926.653(n).   The Commission held that 29 C.F.R. §   1926.651(s), a "Specific Excavation Requirement," applied to the trench at issue.   The Commission accordingly reversed the administrative law judge's decision and remanded the case to the judge for a disposition on the merits.   Subsequently, a second judge's decision, a second Review Commission decision again remanding the case, and a third judge's decision were issued.   This third judge's decision became the final order of the Commission and was appealed to the United States Court of Appeals for the Ninth Circuit.   In Lloyd C. Lockrem, Inc. v. United States, 609 F.2d 940 (9th Cir. 1979), that court reversed the judge's decision on grounds that are unrelated to the issue of whether the width of a cavity should be measured at the top or the bottom. The court did not review the Commission's determination, which is the issue also before us in the case now under review, that the cavity in question was a trench.

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The judge determined, after a consideration of all the evidence, that the soil was "unstable" within the meaning of 29 C.F.R. §   1926.652(b).   He agreed with Cleveland that the soil should be classified according to Table P-1's terms somewhere between "well-rounded loose sand" and "compacted sharp sand," which the Table "recommends" should be sloped to a maximum angle of 26 degrees 34' and 33 degrees 41', respectively.   The judge noted that the 58 degrees angle at which the Bluewater trench was sloped was considerably steeper, and he found it significant that Respondent's expert was unable to obtain an undisturbed sample above the 12-foot level.   In his opinion, "[t]his appears to confirm the testimony of complainant's experts regarding the sandy, cohesionless character of the soil." The judge thus concluded that Respondent failed to comply with 29 C.F.R. §   1926.652(b) at the site.

B.   Coors Trench - Evidence and Judge's Decision

The Coors trench was 2 feet wide at the bottom, 5-6 feet wide at the top, and 6 feet deep.   The angle of the slope of the trench was 76 degrees, assuming a top width [*22]   of 5 feet. If the trench was 6 feet wide at the top, the angle would have been about 72 degrees.

There was general agreement that the Coors trench was also dug in sandy soil. The same dichotomy of opinion as to the stability of the soil at the Bluewater site manifested itself in the testimony of the witnesses in discussing the Coors trench. The compliance officers testified that the soil was sand and opined that the soil was unstable. More particularly, Miles described the soil as "very soft, crumbly, loose sand" that was "very dry, extremely dry." Lloyd classified soil samples taken by the compliance officers one foot below the ground and 18 inches up from the bottom of the trench as sand with fines.   Lloyd testified that the sand particles in the samples from the Coors trench, like the sand in the Bluewater trench, were generally round in shape.   Cleveland received no soil samples from the Coors trench, but he made a stability analysis based on the results of Lloyd's soil classification tests.   Cleveland concluded that the safety factor for the Coors trench was .64, which indicated unstable soil. The Coors worksite was only a few blocks from the Bluewater site, and Respondent'e [*23]   expert Booth testified that the soils at the two sites were similar.   Booth obtained undisturbed soil samples from 2-3 feet and from 5-6 feet below the ground of the Coors worksite more than a month after the inspection. He concluded that the soil was stable, cohesive sand, and computed a safety factor of 2.76.   Using the classifications of soil set forth in the standards, Booth categorized the soil as hard and compact.

Respondent argued before the judge that the trench at issue was dug in hard compact soil because the soil was indisputably not comprised of running material; nor was it, based on a preponderance of the evidence (particularly the testimony of Booth), unstable. See note 11 supra. It asserted that the language of the standards, including the definitions of terms used therein, controls, rather than Table P-1, which was assertedly discredited by Cleveland as well as Booth.   Respondent contended that the soil tests performed by Lloyd at the request of the Secretary were inadequate, and that Cleveland's stability analysis was defective due in part to his assumption of no cohesion in the soil. Respondent contended that the applicable standard was section 1926.652(c),   [*24]   with which it had complied.

Judge Blythe noted in his decision that the Coors trench was sloped at an angle of either 72 degrees or 76 degrees and that, "[i]n either event, the slope would have been steeper than Table P-1's recommendation of 63 degrees 26' for 'compacted angular gravels.'" He concluded that the classifications of the soil made by the Secretary's witnesses -- particularly Cleveland's classification of the soil "as somewhere between well-rounded loose sand and compacted sharp sand" -- "would of necessity place it in the 'unstable' category." The judge stated that he found the testimony of the Secretary's witnesses to be more credible than Booth's testimony.   Accordingly, the judge concluded that Respondent also failed to comply with section 1926.652(b) at its Coors worksite.

C.   The Alleged Violations of Review

Respondent's contentions on review are essentially the same assertions it made before the judge.

We affirm the judge's determination that Respondent failed to comply with 29 C.F.R. §   1926.652(b) at the two worksites. The judge properly rejected Respondent's argument that the width of the trench must be measured at the top to determine whether a cavity [*25]   is an excavation or a trench, citing Lloyd C. Lockrem, Inc., supra. In Kent Nowlin Construction, Inc., 77 OSAHRC 22/A2, 5 BNA OSHC 1051, 1977-78 CCH OSHD P21,550 (Nos. 9483, 9485, & 9522, 1977), rev'd in Pertinent part sub nom. Kent Nowlin Construction Co. v. OSHRC, 593 F.2d 368 (10th Cir. 1979), the Commission again held that the width of the hole in the ground should be determined by measuring at the bottom. Because the cit at Respondent's Bluewater site was only 10 feet wide at the bottom, it was a trench and 29 C.F.R. §   1926.652(b) is applicable.

We hold that the soil in which the two trenches were dug was unstable and that Respondent thus failed to comply at both worksites with section 1926.652(b).   Since the steepest slope allowed for hard and compact soil under section 1926.652(c) is 1/2 to 1, other types of soil mentioned in Table P-1 (to which section 1926.652(b) refers) requiring a flatter slope than "hard compact soil," such as "compacted sharp sand" (1-1/2:1 ratio) and "well rounded loose sand" (2:1 ratio), must be classified as unstable. The trenching standards, including Table P-1, thus create a rebuttable presumption that primarily [*26]   sandy soils, unless cemented, n13 are "unstable" within the meaning of the cited standard, section 1926.652(b).   Duane Meyer, d/b/a D.T. Construction Co., 79 OSAHRC    , 7 BNA OSHC 1560, 1979 CCH OSHD P23,742 (No. 16029, 1979).   See also Connecticut Natural Gas Corp., 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1978 CCH OSHD P22,874 (No. 13964, 1978).   In Duane Meyer we further concluded, "Scientific testing and analysis is not a prerequisite for determining the stability of soil in order to establish noncompliance with the trenching requirements." 79 OSAHRC at    , 7 BNA OSHC at 1563, 1979 CCH OSHD at p. 28,793.   In that case, the Secretary alleged that the employer was not in compliance with section 1926.652(b) with regard to two trenches. The testimony of all the witnesses established that the trenches were dug in sandy soil. However, the judge concluded that the Secretary failed to sustain his burden of proof in that the Secretary did not perform the scientific tests which the judge considered essential to properly determining the softness and stability of the soil. We reversed the judge and affirmed the citation based on the employer's failure to successfully rebut [*27]   the presumption of instability created by the classification of the soil as sand.

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n13 According to Table P-1, cemented sand and gravel, along with solid rock and shale, need not be sloped.

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In the instant case, it is undisputed that the soil in which the Bluewater and Coors trenches were dug was comprised mainly of sand that was not cemented.   We conclude that the presumption that the predominantly sandy soil at issue was soft and unstable has not been rebutted by Respondent. n14 We therefore hold that Respondent failed to comply with section 1926.652(b) at both the Bluewater and Coors worksites. In accordance with our conclusion in Duane Meyer that scientific tests and analyses are not prerequisites to a determination of soil stability, we need not evaluate the alleged defects in the methods and results of the scientific tests conducted and analyses done on the soil at the two worksites by the Secretary's experts. n15

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n14 In particular, we conclude that Booth's testimony does not rebut the presumption that the soil was soft and unstable. Respondent's soil samples were not taken on the date of the inspection, and the results of Respondent's stability tests were strongly controverted by the results of the Secretary's tests.   In addition, at the Bluewater site, Respondent's tests were performed on samples of soil that were clearly not representative of the soil throughout the sides of the trench.

n15 We agree with the judge's statement that the Commission is bound to apply the standards promulgated under Act, rather than the "safety factor" calculated by expert witnesses.   The "safety factor," like the other conclusions drawn by the expert witnesses from their scientific tests, is relevant to, but not dispositive of, soil stability.

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D.   The "Repeat" Characterization n16

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n16 The judge vacated the allegations in the citations that the two violations were willful.   He then amended sua sponte the two citations for failure to adequately slope the Bluewater and Coors trenches to allege "repeated" rather than "willful" violations, relying on Fed. R. Civ. P. 15(b), which allows amendment of pleadings to conform to the evidence.   Due to the fact that the Secretary has not taken exception to the judge's disposition of the "willful" charge in both of the two citations, we will not consider those allegations on review.   Moreover, the propriety of the judge's amendment is not before us because Respondent has not raised that issue on review.

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Judge Blythe determined that these violations at the Bluewater and coors trenches were repeated under section 17(a) of the Act, 29 U.S.C. §   666(a), n17 because a previous citation was issued to Respondent on July 18, 1973, for [*29]   noncompliance with 29 C.F.R. §   1926.652(b).   See Exhibit C-23.   The citation was not contested and became a final order under section 10(a) of the Act.   The judge thus affirmed both of the citations before him as repeated violations and assessed a $1,000 penalty for each.

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n17 The section states:

Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation.

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Respondent does not take exception to the judge's amendment of the citations.   However, it contends that the judge erred in concluding that the violations were repeated. It argues that, in order to be considered as repeated, a violation must have previously occurred more than merely once.   Respondent asserts that the single uncontested citation issued on July 18, 1973, was thus insufficient to establish a repeated violation.   Respondent [*30]   also argues, "[T]he 1973 citation involved a different location and an entirely different set of circumstances from the 1975 citations." Respondent notes that, due to the time lapse of over two years, employees, foremen, job superintendents, and other officers of the company had changed.   In further arguing that the violations were not repeated, Respondent relies on the merits of the violations by stating that the 1973 citation involved a trench dug in soft, unstable soil while the 1975 citations concerned cuts in hard, compact soil with an excavation, rather than a trench, dug at one of the two worksites.

In Potlatch Corp., 79 OSAHRC 6/A2 at A10, 7 BNA OSHC 1061 at 1063, 1979 CCH OSHD P23,294 at p. 28,171 (No. 16183, 1979), the Commission stated, "A violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation." In a case such as the instant one, in which the Secretary alleges repeated violations of section 5(a)(2) of the Act, the Secretary can make a prima facie showing of substantial similarity by establishing that the previous and present [*31]   violations resulted from noncompliance with the same standard.   This prima facie showing may be rebutted by evidence of disparate conditions and hazards associated with the violations of the same standard.

In the instant case, the Secretary has made his prima facie showing that the trenching violation at the Bluewater site was repeated in that: his Exhibit C-23 was admitted into evidence, Respondent stipulated that the citation constituting Exhibit C-23 was authentic, and Respondent failed a object to the statement of the Secretary's counsel that the Secretary's records indicated that the citation comprising Exhibit C-23 was not contested.

The citation labeled as Exhibit C-23 alleged in Item No. 3 that Respondent violated the Act by not complying with 29 C.F.R. §   1926.652(b) at two manholes and a sewer stub in Albuquerque, New Mexico.   The citation was issued on July 18, 1973.   Since it was not contested, the citation became a final order more than two years before November 11, 1975, the date of the inspection of the Bluewater worksite. The Secretary thus established that, at the time of the Bluewater trenching violation in 1975, there was a Commission final order against Respondent [*32]   for previous noncompliance with the same standard that was not complied with at the Bluewater worksite.

Under Potlatch Corp., Respondent can rebut the Secretary's prima facie showing by establishing that the circumstances surrounding the prior and instant violations were dissimilar.   Since the citations were not amended to allege repeated rather than willful violations until the judge did so sua sponte in his decision, Respondent's first opportunity to rebut the repeated characterization was on review.   As noted above, Respondent set forth in its brief on review its rebuttal in general terms, i.e., it asserted the circumstances surrounding the 1973 violation and the two 1975 violations were entirely different. n18

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n18 Respondent also mentioned that a number of personnel changes occurred over the period of greater than two years.   We held in Potlatch Corp. that, among other factors, the commonality of supervisory control over the violative conditions and the time lapse between the violations have no bearing on whether a specific violation is repeated, although such factors will be considered in assessing a penalty.

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We conclude that the judge's affirmance of the amended citation alleging a repeated violation at the Bluewater site was proper.   However, we recognize that only on review has Respondent been afforded an opportunity to challenge the repeated characterization and that that opportunity preceded the issuance of Potlatch Corp. We therefore conditionally affirm the citation alleging a repeated violation due to noncompliance with 29 C.F.R. §   1926.652(b) at the Bluewater worksite. See The Rogers Manufacturing Co., 79 OSAHRC    , 7 BNA OSHC 1617, 1979 CCH OSHD P23,800 (No. 76-896, 1979).   Our decision on this issue will become a final order of the Commission unless Respondent files a statement of intent to submit a brief in rebuttal on the repeated issue within ten days of this decision's date of issuance.   Respondent's brief in rebuttal should set forth in detail the asserted dissimilarities between the 1973 violation and the 1975 Bluewater violation, excluding those factors listed in Potlatch Corp. as having no bearing on whether a violation was repeated. See note 18 supra. We agree [*34]   with the judge that a $1,000 penalty is appropriate for the repeated violation at the Bluewater site. n19

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n19 Commissioner Barnako also conditionally affirms the citation, but on different grounds.   He does not presume that a violation of the same standard fulfills the substantial similarity requirement and shifts the burden to the employer to prove otherwise.   Instead, he looks to whether the second violation is of such a nature that the employer, as a result of the notice provided by the earlier citation, should have taken steps to eliminate from its workplaces the condition allegedly constituting a repeated violation.   Where such notice is not apparent from the face of the earlier citation, Commissioner Barnako requires the Secretary to prove substantial similarity by other means.   In addition, once substantial similarity is established, Commissioner Barnako permits the employer to defend against a repeated charge by proving that it took reasonable steps in good faith after entry of the final order establishing the prior violation to prevent the recurrence of a substantially similar violation.   See generally, Stearns-Roger, Inc., 79 OSAHRC    , 7 BNA OSHC 1919, 1979 CCH OSHD P24,008 (No. 76-2326, 1979) (concurring opinion).

Applying this test to the instant case, Commissioner Barnako would find that the 1973 violation and the 1975 Bluewater violation were substantially similar.   The standard cited in both the prior and present citations, section 1926.652(b), is not directed at a variety of situations, but instead solely addressed the hazard of unstable trench walls collapsing and prescribes abatement methods applicable to all such violations.   Communications, Inc., 79 OSAHRC    , 7 BNA OSHC 1598, 1979 CCH OSHD P23,759 (No. 76-1924, 1979) (concurring opinion).   Therefore, Respondent was put on actual notice by the prior citation that its safety precautions for unstable trenches were inadequate.

With regard to the good faith efforts defense, Commissioner Barnako notes that this case was tried and decided prior to the Commission decision in Potlatch. Therefore Respondent did not know at the hearing that it could defend by providing it took reasonable good faith steps after the entry of a prior final order to prevent the recurrence of a substantially similar violation.   In situations where there has been a significant intervening change in the law between the hearing and the decision on review of the case, the usual practice of the Commission is to allow the parties an opportunity to present additional evidence relevant to any new defense or legal theory.   See Truland-Elliott, 77 OSAHRC 163/A7, 4 BNA OSHC 1455, 1976-77 CCH OSHD P20,908 (No. 11259, 1976).   Because the record is silent with respect to the good faith efforts defense, Commissioner Barnako would permit Respondent an opportunity to show the steps it took after receipt of the initial citation to prevent the recurrence of a substantially similar violation.   Accordingly, Commissioner Barnako would affirm the citation as repeated unless within 10 days from the issuance of this decision Respondent requests that the case be remanded for the taking of evidence on the good faith efforts defense.

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Having reviewed the entire record, the Commission members are divided on the appropriate disposition of the allegation that the trenching violation at the Coors worksite was repeated n20 and on the propriety of the $1,000 penalty assessed by the judge.   In accordance with the statutory purpose of expeditious adjudication, the Commission members agree to resolve their impasse by affirming Judge Blythe's order regarding the Coors trench. That portion of the judge's decision and order affirming the citation, as amended, for a repeated violation based on noncompliance with section 1926.652(b) at the Coors worksite and assessing a penalty of $1,000 is accorded the precedential value of an unreviewed judge's decision.   Dravo Corporation, 80 OSAHRC    , 7 BNA OSHC 2095, 1980 CCH OSHD P24,158 (No. 16317, 1980), appeal filed, No. 80-1267 (3d Cir. February 27, 1980); Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD P22,313 (No. 14910, 1977), aff'd, 591 F.2d 991 (4th Cir. 1979).

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n20 In accordance with his views on the Bluewater trench, Chairman Cleary concludes that the Secretary made his prima facie showing that the Coors trenching violation was repeated based on the admittance into evidence, authenticity, and timely finality of Exhibit C-23.   The Chairman would conditionally affirm the citation; he would afford Respondent the opportunity to file a brief with the Commission to rebut the repeated allegation by stating in detail the asserted dissimilarities between the 1973 violation and the 1975 Coors violation.

Commissioner Barnako's analysis and conclusions regarding the repeated characterization of the Coors trenching violation are the same as his views concerning the Bluewater violation, which are set forth in note 19 supra. Accordingly, he would affirm the citation unless within 10 days from the issuance of this decision Respondent requests that the case be remanded for the taking of evidence on the good faith efforts defense.

Commissioner Cottine concludes, in his separate opinion, that the citation alleging noncompliance with section 1926.652(b) at the Coors worksite should be vacated.   He therefore does not reach the repeated issue.

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IV.   Order

Accordingly, it is ORDERED that Judge Blythe's:

(1) Affirmance of the citation alleging a serious violation based on noncompliance with 29 C.F.R. §   1926.600(a)(6) and assessment of a $500 penalty therefor are affirmed:

(2) affirmance of the citation alleging a serious violation due to failure to comply with 29 C.F.R. §   1926.650(h) and assessment of a $150 penalty therefor are affirmed;

(3) affirmance of the amended citation alleging a repeated violation for lack of compliance with 29 C.F.R. §   1926.652(b) at the Bluewater worksite and assessment of a $1,000 penalty therefor are affirmed, unless Respondent submits a statement of intent to file a brief to rebut the repeated characterization within ten days of this decision's date of issuance.

(4) affirmance of the amended citation alleging a repeated violation for noncompliance with 29 C.F.R. §   1926.652(b) at the Coors worksite and assessment of a $1,000 penalty therefor are affirmed, but are accorded the precedential value of an unreviewed judge's decision.  

CONCURBY: COTTINE (In Part)

DISSENTBY: COTTINE (In Part)

DISSENT:

COTTINE, Commissioner, concurring in [*37]   part, dissenting in part:

I concur in the Commission's affirmance of a serious violation of 29 CFR §   1926.650(h) and a repeat violation of 29 CFR §   1926.652(b) at the Bluewater trench. However, for the reasons that follow I dissent from the affirmance of the citation items alleging a serious violation of 29 CFR §   1926.600(a)(6) at the Bluewater trench (Part I) and a repeat violation of 29 CFR §   1926.652(b) at the Coors trench (Part II).

I.

The citation for noncompliance with §   1926.600(a)(6) charged that the Respondent's backhoe came within 10 feet of 7200 volt electric power lines.   My colleagues affirm the judge's conclusion that the standard was violated as alleged.   However, the resolution of this factual issue is far more complex than the judge and the Commission acknowledge.   A Koehring backhoe was being used to excavate a trench at the time of the inspection. A utility pole, to which were attached 3 power lines, 3 telephone lines, a neutral line and a light standard, was located near the trench. n1 Compliance officer Miles testified that the bucket of the backhoe came within 3 feet of a power line as it swung over the light standard with the backhoe boom fully extended.   [*38]   Compliance officer Ansley stated that the bucket came within 10 feet of the power line while the boom was fully extended and the backhoe bucket was in a "cramped" position. n2 The backhoe operator denied that the backhoe came within 10 feet of the power line. He stated that the boom of the backhoe was 5-7 feet from the telephone pole in the Complainant's exhibit 15, a photograph that was taken immediately after the backhoe bucket had assertedly travelled over the light standard.   The backhoe operator contended that if the backhoe boom had come within 10 feet of the power line in the manner described by the compliance officers, it would have struck the power lines and the telephone pole.

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N1 The power lines were 32' 4" above the ground and the neutral line was 25' 8" above the ground.   No evidence was presented concerning the distance of the telephone lines or light standard above the ground, although examination of various exhibits indicates that at its highest point the light standard was approximately 1 foot above the neutral line, or 26' 8" above the ground.

n2 The maximum clearance between the ground and the backhoe boom and the bottom of the extended bucket was 29' 2".   The ground clearance for the bucket when in a "cramped" position with the boom fully extended was approximately 23' 6".   When fully extended, the highest point of the bucket was 34' 7" above the ground.   These distances are derived from the Respondent's exhibit 17, which is a page from the Respondent's backhoe operator's manual.

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Judge Blythe rejected the Respondent's assertion that it was impossible for the backhoe to come within 10 feet of the power lines and affirmed a violation of §   1926.600(a)(6).   The judge stated that because the bucket could be elevated to 34' 7" and the power lines were 32' 4" above the ground, it was possible that the backhoe could have come within 10 feet of the power line when the boom was fully extended.   He credited the testimony of Ansley that the bucket was within 10 feet of the power line, stating that Ansley was "quite convincing in his testimony."

In its brief on review, the Respondent claims that the Judge erred in crediting the testimony of Ansley.   The Respondent asserts that its exhibit 17, a diagrammatcial representation of the maximum and minimum possible extensions of the backhoe boom and bucket, demonstrates that it was impossible for the bucket to come within 10 feet of the power line. The Respondent contends that if the backhoe came close to any lines, "it was the telephone lines and it was not in the manner described by the Compliance Officers."

The judge failed to discuss the [*40]   testimony of the backhoe operator that the backhoe boom was 5-7 feet from the telephone pole in the Complainant's exhibit 15.   If the backhoe operator's testimony is credited, the boom of the backhoe could not have passed over the light standard without striking the telephone pole. n3 In addition, the judge's statement that the bucket could have passed over the light standard had the boom been fully extended ignores Ansley's testimony that the backhoe bucket was in a "cramped" position.   When the bucket is in a "cramped" position, its vertical clearance is approximately 23' 6", while the light standard was 26' 8" above the ground.   Even when the bucket is not in a "cromped" position, the bottom of the bucket is only 29' 2" above the ground, more than 3 feet below the power lines.   The Judge does not explain why he accepts Ansley's determination that the boom was fully extended but implicitly rejects his testimony that the bucket was "cramped." n4 Finally, Judge Blythe does not discuss the factual significance of Respondent's diagram except to note that this exhibit was the basis for the Respondent's argument that it was impossible for the backhoe to come within 10 feet of the power [*41]   line.

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n3 This conclusion is premised on examination of the Respondent's exhibit 17.

n4 It is not at all clear whether the bucket was "cramped" in an upward or downward position.   Because the descriptive gestures of the witnesses are not revealed by the transcribed record of the hearing in this case, it is appropriate for the judge, "who has . . . heard the witnesses, and observed their demeanor." C. Kaufman, Inc., 78 OSAHRC 3/C1, C7-8, 6 BNA OSHC 1295, 1297, 1977-78 CCH OSHD P22,481 at p. 27,099 (No. 14249, 1978), to make the specific finding on the question.

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The majority correctly observes that the judge's description of compliance officer Ansley's testimony as "quite convincing" is a credibility determination that is ordinarily accepted by the Commission.   C. Kaufman, Inc., supra note 4.   However, the judge failed to discuss why conflicting testimony was not credited.   See Asplundh Tree Expert Co., 78 OSAHRC 77/E12, 6 BNA OSHC 1951, 1978 CCH OSHD P23,033 (No. 16162, 1978).   To warrant deference,   [*42]   the Commission requires its Administrative Law Judges to fairly consider the entire record and to adequately explain the reasons for crediting particular witnesses over others.   P & Z Co., Inc., 77 OSAHRC 211/F5, 6 BNA OSHC 1189, 1977-78 CCH OSHD P22,413 (No. 76-431, 1977).   In view of the complicated nature of the evidence, a more extended analysis by the Judge is necessarily required.   Accordingly, I would remand this item to the judge for reconsideration and entry of adequately explained credibility determinations on this essential factual issue.

II.

With respect to the Bluewater trench, I agree with the majority that the Respondent failed to rebut the presumption that predominantly sandy soil, unless cemented, is unstable within the meaning of §   1926.652(b).   However, the record evidence regarding the soil at the Coors site requires a different conclusion.

The majority errs in relying on Duane Meyer, d/b/a DT Construction Co. 79 OSAHRC 57/D4, 7 BNA OSHC 1560, 1979 CCH OSHD P23,742 (No. 16029, 1979), to avoid considering record evidence regarding the methods and results of scientific testing and analysis performed by the soil experts who testified in this case.   Although [*43]   Duane Meyer held that "[s]cientific testing and analysis is not a prerequisite for determining the stability of soil in order to establish noncompliance with the trenching requirements," 7 BNA OSHC at 1563, 1979 CCH OSHD P23,742 at p. 28,793, the holding in that case was never intended as a license to ignore record evidence.   While the use of scientific methodology for soil classification and stability analysis is not a necessary component of the Secretary's proof under §   1926.652(b) that "soft or unstable soil" was present, it is clearly probative on this issue.   It is incredible that the majority would consider alleged defects in Booth's soil samples and testing methodology, yet rely on Duane Meyer to avoid considering "the alleged defects in the methods and results of the scientific tests conducted and analyses done on the soil at the two worksites by the Secretary's experts." n5

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n5 Lead opinion n. 13.

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Cleveland, one of the Secretary's experts, performed soil stability analysis for the soil at the Bluewater [*44]   site on completely saturated and remolded soil samples, not soil that was representative of the soil in its natural state.   The expert assumed as part of his analysis that there was no cohesion in the soil, admittedly affecting the outcome of his analysis.   He obtained a safety factor of 0.73 for the Bluewater trench. n6 Cleveland's analysis was performed on soil samples taken from Bluewater five months after the initial inspection. n7 His stability analysis for the Coors trench was based on the soil classification tests received from Lloyd, the Secretary's other soil expert, and he again assumed no cohesion in arriving at a safety factor of 0.64.   Lloyd classified the soil from both trenches as sand with fines, but he did not conduct stability tests on the samples.

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n6 A safety factor of less than 1.0 indicates that the driving force is greater than the resisting force.   Accordingly, this soil would be unstable.

n7 Although the majority rejects Booth's test results because his soil samples were not taken on the date of the inspection and the Bluewater samples were not representative of the soil throughout the trench, my colleagues fail to explain why Cleveland's late-obtained samples yielded more reliable results.

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Booth, the Respondent's expert, performed soil analysis on undisturbed samples taken from approximately 12 feet below and 14 feet below ground level at the Bluewater trench. He was apparently unable to obtain undisturbed samples above the 12 foot level.   Booth computed a safety factor of 1.48 and concluded that the soil was stable.   Booth's samples for the Coors cite were taken from 2-3 feet below ground level and 5-6 feet below ground level.   He obtained a safety factor of 2.76 for the Coors trench and concluded the soil was stable.

Only the test results obtained by Cleveland and Booth deal with the stability of the soil at the two sites. Cleveland's tests were performed on soil not representative of the soil in its natural state at the Bluewater site because it had been completely saturated and remolded, thereby destroying natural cementation.   His stability analysis for the soil at the Coors site was based on Lloyd's classification. Cleveland assumed no cohesion for the soil at both sites, yet acknowledged that his results would have been "significantly different had cohesion been assumed." n8 [*46]   On the other hand, Booth's results for the Bluewater site were indicative only of soil stability below 12 feet and he admitted that the "samples I obtained are only representative of the particular stratum in which they were obtained." Booth's samples for the 6-foot-deep Coors trench were representative and appear to be the only valid stability tests entered into evidence.

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n8 Booth found the following cohesion factors for the Bluewater trench: a) 0.27 from 0-10 feet, b) no cohesion from 10-12 and 12-14 feet, and c) 0.35 from 14-17 feet. He found a cohesion factor of 0.27 for the two Coors samples.

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The majority correctly notes that the witnesses generally agreed that the two trenches were dug primarily in sand. With respect to the Bluewater trench, the stability tests performed by the experts neither support nor rebut the presumption of instability for predominantly sandy soils set forth in Duane Meyer. However, the presumption has been rebutted successfully for the Coors trench by the test results obtained by [*47]   Booth.   The judge indicated that he found the testimony of the compliance officer and the Secretary's experts more credible with respect to the classification and characterization of the soil than the "extremely high safety factor calculated by Mr. Booth." However, the weighing of the conflicting record evidence involves the validity of testing methodology and the reliability of the results obtained, not credibility as that term is commonly understood. n9

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n9 See Asplundh Tree Expert Co.,    OSAHRC   , 7 BNA OSHC 2074, 1980 CCH OSHD P24,147 (No. 16162, 1979); C. Kaufman, Inc., supra.

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Accordingly, the presumption that a trench dug primarily in sandy soil is unstable within the meaning of §   1926.652(b) has been rebutted with respect to the Coors trench and the alleged violation should be vacated.