AUSTIN BRIDGE COMPANY

OSHRC Docket No. 76-93

Occupational Safety and Health Review Commission

September 26, 1979

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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

Steven R. McCown, for the employer

OPINIONBY: COTTINE

OPINION:

DECISION

COTTINE, Commissioner:

A decision of Administrative Law Judge David G. Oringer is before the Commission for review under 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ("the Act"). The judge found that the Respondent, Austin Bridge Company ("Austin"), violated the construction safety standard published at 29 C.F.R. 1926.652(c) n1 by failing to adequately shore or slope a trench dug in hard or compact soil. He concluded that the violation was "serious" as defined in 17(k) of the Act, 29 U.S.C. 666(j), and assessed a $350 penalty. The direction for review issued by former Commissioner Moran did not specify issues to be considered by the Commission. However, in its petition for review and its brief, Austin has filed several exceptions to the judge's decision. Austin maintains that the judge erred in concluding that: (1) the earth cavity in question was a "trench" within the meaning of 1926.652(c), (2) Austin's employees were exposed [*2] to a hazard of a possible cave-in, and (3) the violation was "serious." n2

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n1 The standard states in pertinent part:

1926.652 Specific trenching requirements.

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(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. . . .

n2 Austin also argues that the judge erred in: (1) characterizing the issues to be decided, (2) finding that the walls of the cavity would have been safer if they had been shored or sloped above the five foot level, (3) referring to trenching accidents involving other employers, (4) implying that Austin was not complying with the cited standard for economic reasons, and (5) stating that Austin deliberately widened the cavity to avoid complying with the more stringent trenching standards. We do not rule on these contentions because a ruling is not necessary to our disposition of this case. However, we note the following. The issue actually decided by the judge was whether Austin violated 1926.652(c) as alleged in the citation. Therefore, any error the judge may have made in characterizing the issues to be decided was harmless. Furthermore, the judge's finding that compliance with the standard would have made the cavity safer was not necessary to his disposition of the case because the Secretary does not have the burden of proving the utility of the method required by the standard for eliminating the hazard. See discussion infra. Austin's other exceptions are to statements by the judge that are properly considered dicta.

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I

At its worksite in Houston, Texas, Austin excavated a civity adjacent to a highway in order to construct a manhole and install sewer pipes. As a result of an inspection conducted by an authorized representative of the Secretary of Labor, Austin was issued a citation alleging a serious violation of 29 C.F.R. 1926.652(c). The citation stated:

The sides of a trench 9' deep in which four men were working was not properly sloped, shored or otherwise supported to prevent its collapse.

At the hearing, the compliance officer testified that the cavity was irregularly cut. It measured 9 feet deep and 10 feet wide at the location indicated on Exhibit C-8. The compliance officer estimated that the cavity was 40 feet long and one side of the trench was 17 feet high because of the slope of the land. Concrete forms covering the sewer pipes extended the length of the cavity. The compliance officer estimated that these forms were approximately 2-1/2 to 3 feet wide and 2-1/2 to 3 feet high. Four employees were working in the cavity at the time of the inspection. The photographic exhibits indicate that one [*4] employee was working inside the installed manhole, one was walking along the concrete forms and the remaining two employees were working on the floor of the cavity near the manhole.

Austin's safety director, Henry Cornelius, disputed the height and width dimensions of the cavity. He testified that the cavity had been widened so that it was wider than it was deep and therefore was not a trench. n3 On the day following the inspection, he measured the trench as being 8-1/2 to 9 feet deep and 11 feet wide at its narrowest point. James Gray, Austin's superintendent at the site, estimated the depth at 7-1/2 to 8 feet and the width at 10 to 11 feet. He testified that the dimensions of the forms were 3 feet wide by 3 feet high. Gary Schneider, Austin's expert witness, n4 testified that, although the walls of the trench were vertical below the nine foot level, the 17 foot bank was sloped at an angle of approximately 1/2 to 1 above the nine foot level. In response to the Secretary's request for admissions and again in response to a question from the judge at the hearing, Austin admitted that the soil in the cavity was hard and compact.

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n3 The definition of a "trench" is set forth in 29 C.F.R. 1926.653(n), which states:

(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. (emphasis added).

n4 In response to a pretrial order issued by the judge, Austin listed Schneider as an expert witness, set forth his qualifications, and stated that he would testify "as an expert witness concerning the soil at the excavation site, the stability analyses of the soil, and related matters." At the beginning of the hearing, the Secretary's counsel indicated that he did not question "the scope of authority" of any of Austin's witnesses as set out in its response to the judge's order. Nor did the Secretary object to any of Schneider's testimony on the ground that he was not qualified to render an opinion. In his decision the judge referred to Schneider as an expert witness.

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The compliance officer testified that the four employees were exposed to a hazard of possible collapse of the [*6] cavity walls. He added that it was his opinion that in the event of a collapse employees would probably suffer broken bones, or be crushed or suffocated. According to the compliance officer, the hazard could have been eliminated had Austin shored or sloped the walls of the trench.

Two of Austin's witnesses testified regarding the stability of the trench walls. Austin's expert witness, Schneider, testified that he supervised and directed tests to determine the stability of the soil. Based upon his analysis, he prepared a report stating that "the trench was very stable and failure could not have occurred under the conditions encountered." He testified that no hazard existed in the cavity. However, on cross-examination he admitted that the soil was not a stiff soil but merely a hard soil. Furthermore, in response to questions from the judge, the expert stated the safety factor would have been increased if the cavity had been sloped from the five foot level or the walls had been shored, sheeted or braced. Superintendent Gray testified that the soil was very hard and the cavity had been difficult to excavate. He referred to photographic exhibits depicting teethmarks made by a backhoe [*7] as indicating that the soil was hard. While not rebutting the compliance officer's testimony as to the severity of the injury likely to be suffered by employees in the event of a collapse, Austin's safety director, Cornelius, indirectly disputed the compliance officer's testimony regarding the possibility of injury. Cornelius stated that, even if a collapse occurred, the 3 by 3 foot forms were not high enough to entrap an employee in the cavity.

Following the hearing, Austin submitted a brief and proposed findings of fact and conclusions of law to the judge. It proposed that the judge enter findings that the cavity was approximately 8 to 9 feet deep and 10 to 11 feet wide, that the concrete forms in the cavity were approximately 3 feet wide and 3 feet deep, and that the cavity was excavated in hard and compact soil. It argued that the judge should conclude that the cavity was an excavation rather than a trench because its width was greater than its depth. Alternatively, Austin argued that, if the judge concluded that the concrete forms reduced the width of the cavity, he should also conclude that the forms reduced the depth of the cavity to 3 feet. n5 It contended that under [*8] either theory the cited standard was inapplicable -- either the cavity in question was not a trench or it was a trench that was less than five feet deep. See notes 1 & 3, supra. Therefore, Austin concluded that the citation should be vacated. Austin further argued that the record establishes that the employees in the cavity were not exposed to a hazard and that the violation, if any, was not "serious" because the Secretary failed to prove that there was a likelihood of a cave-in that would result in death or serious physical harm.

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n5 Austin provided no explanation as to how it calculated a depth of 3 feet, which is inconsistent with its own proposed findings as to the relevant dimensions. Accepting those dimensions, Austin's theory would lead to the conclusion that the forms reduced the depth to approximately 5 to 6 feet. We note that the height of the form was 3 feet. Accordingly, Austin may be arguing that the side of the form should be viewed as one side of the cavity. This argument is without merit. Under the trenching and excavation standards, the determinative dimensions are the depth, width and the length of the earth cavity. It is the sides of the earth cavity and not the sides of the forms that pose a hazard to employees. Thus, in the case before us, if either side of the cavity collapsed, employees could be injured. The 3-feet high forms would not protect them from injury.

Commissioner Barnako agrees that in this case it was the sides of the earth cavity that posed a hazard to employees and therefore the height of the sides govern the depth of the trench. Nevertheless, he does not agree that in all cases the depth, width, and length of the earth cavity will be the determinative dimensions under the trenching and excavation standards. In some cases those dimensions may be altered by installed forms. See, e.g., 29 C.F.R. 1926.653(f) and pp. 13-14, infra.

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II

Referring to the compliance officer's testimony, the judge found that the dimensions of the cavity were 9 feet deep on one side, 17 feet deep on the other, 10 feet wide and 40 feet long. He concluded that the cavity was a trench because 29 C.F.R. 1926.653(f) provides that, "If installed forms or similar structures reduce the depth to width relationship, an excavation may become a trench." n6 He stated that, although the cavity was wider than it was deep, the manhole and the forms in the cavity reduced its width. The judge reasoned as follows:

The width of the trench gives the employees the room in which to move. . . . The men were certainly not able to freely move in the ten feet of width and, in view of the hazard, that is, a cave-in or a collapse of soil, their movement certainly would be constricted and reduced because of the form in the trench and the manhole being constructed.

Accordingly, the judge ruled that the "excavation" became a "trench" under the quoted provision because the forms reduced the width of the cavity in relation to the depth. However, because the employees were working [*10] on the floor of the cavity and not on top of the forms, he rejected Austin's contention that the depth of the cavity was also reduced by the forms.

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n6 29 C.F.R. 1926.653(f) defines an "excavation" as:

(f) "Excavation" - Any manmade cavity or depression in the earth's surface, including its sides, walls or faces, formed by earth removal and producing unsupported earth conditions by reasons of the excavation. If installed forms or similar structures reduce the depth-to-width relationship, an excavation may become a trench.

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The judge next considered Austin's contention that "[even] if the opening is a trench, the Secretary's regulations do not require shoring or other support" and the related claim that "the employees were exposed to no hazards." He was unpersuaded by the testimony of Austin's expert witness that a cave-in was impossible and found that the expert's testimony proved "only that the soil was hard and compact." He noted that the expert stated that the trench would have been safer had it been shored or [*11] sloped in compliance with the standard. "Looking at the exhibits and listening to the compliance officer," the judge expressly credited the testimony of the compliance officer that the possibility of an accident existed. He concluded that "respondent came within the purview of the trenching standard and, therefore, had to meet the criteria thereof."

The judge also found the violation to be "serious" because death or serious injury probably would have resulted from a trench collapse. However, the judge assessed a penalty of $350 rather than the proposed penalty of $500 because the possibility of a collapse was "minimal."

At the conclusion of his decision the judge noted that the Commission has held that piping is generally laid in a trench as distinguished from an excavation. See, e.g., Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976). He further noted that the Commission held in Leone that the language in the definition of "trench" stating "[i]n general, the depth is greater than the width," does not create a rigid rule. See note 3, supra. He observed that the Respondent's attempt to avoid compliance with [*12] the trenching standard by widening the trench so that it was wider than it was deep was a "dangerous practice", particularly when forms were installed in the trench.

III

Austin takes exception to several of the judge's findings and conclusions, renewing before us the contentions it made before the judge. It again argues that the cavity is not a trench. According to Austin, the judge's findings on the dimensions of the trench are not supported by the record. It also contends that the judge erred in considering only the width and not the height of the forms in applying the definition at 29 C.F.R. 1926.653(f). n7 Moreover, Austin contends that no hazard existed and therefore no "serious" violation of the Act occurred. It argues that the judge erred in crediting the testimony of the compliance officer over the testimony of its expert on the existence of a hazard. It further argues that the judge erred in finding that the soil was merely "hard and compact." According to Austin the trench was "impenetrable" and the possibility of collapse was no more than "minimal." It also contends that the violation was not "serious" because there was no possibility of an accident and even if [*13] a collapse occurred the forms were not high enough to entrap an employee in the cavity. Finally, Austin argues that the judge's interpretation of 29 C.F.R. 1926.653(n) renders the trenching standards unenforceably vague because it fails to apprise an employer when a cavity that is wider than it is deep will be considered a trench. n8

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n7 As indicated in note 5 and the accompanying text, Austin contends that the forms reduced the height of the cavity so that one side of the cavity was less than five feet deep. Relying on Burtex Constructors, 76 OSAHRC 149/A2, 4 BNA OSHC 1928, 1976-77 CCH OSHD P21,394 (No. 11553, 1976), it argues that this cavity does not come within the scope of the trenching standard because both sides of a trench must be five feet deep for the standard to apply. Austin's reliance on Burtex is misplaced. There was no majority interpretation of the five foot rule in Burtex and only one Commissioner espoused the interpretation urged by Austin. Moreover, Austin's contention fails based on our decision to affirm the judge's finding that each side of the trench was more than five feet deep.

n8 In Leone Construction Co., supra, the Commission held that piping is generally laid in a "trench" as distinguished from an "excavation." The Commission further held that the language in 1926.653(n) (the definition of "trench") stating "[i]n general, the depth is greater than the width," does not create a rigid rule. Judge Oringer noted these holdings at the conclusion of his decision and order and Austin's exception is directed to that part of the judge's decision. We reject Austin's exception for two reasons. First, the judge's interpretation of 1926.653(n) and his reliance on Leone Construction Co. are consistent with Commission precedent. See, e.g., Wes Construction Corp., 76 OSAHRC 103/A2, 4 BNA OSHC 1536, 1976-77 CCH OSHD P20,996 (No. 4106, 1976). Second, in the context of this case, the judge's discussion of Leone Construction Co. is properly characterized as dicta. Judge Oringer clearly based his finding that the earth cavity in question was a "trench" on his interpretation and application of 1926.653(f), supra at n.6, rather than his interpretation of 1926.653(n).

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Several of Austin's exceptions are based on its assertion that the sides of the cavity did not create any hazard to its employees. Austin implicitly argues that it is exempt from the requirements of 1926.652(c) because its noncompliance, if established, did not create any possibility of a cave-in. However, it does not identify any legal theory that would excuse its noncompliance due to this asserted absence of a hazardous condition.

IV

Section 6 of the Act grants to the Secretary of Labor the comprehensive authority to promulgate "occupational safety and health standard[s]." n9 29 U.S.C. 655. It is well-settled that the Commission lacks authority to question the wisdom of standards promulgated by the Secretary. See, e.g., Van Raalte Co., Inc., 76 OSAHRC 48/B8, 4 BNA OSHC 1151, 1975-76 CCH OSHD P20,633 (No. 5007, 1976). For this reason, we lack authority to question the Secretary's determination that the requirements or prohibitions of a standard are "reasonably necessary or appropriate" means of eliminating or reducing workplace hazards. See Van Raalte Co., Inc., supra. [*15] n10

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n9 These are defined as "standard[s] which [require] conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." Section 3(8) of the Act, 29 U.S.C. 652(8).

n10 In considering challenges to standards promulgated under section 6, the U.S. Courts of Appeals have long recognized that they were reviewing decisions by the Secretary containing "elements of both a legislative policy determination and an adjudicative resolution of disputed facts." Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467, 474 (D.C. Cir. 1974), quoting Mobil Oil Corporation v. F.P.C., 483 F.2d 1238, 1257 (D.C. Cir. 1973). See also, Society of Plastics Industry, Inc. v. OSHA., 509 F.2d 1301 (2d Cir. 1975); American Iron & Steel Institute v. OSHA, 577 F.2d 825 (3d Cir. 1978). Decisions such as Van Raalte represent the Commission's acknowledgement that it has not been granted statutory authority to review the quasi-legislative determinations made by the Secretary during the standard-setting process. See 6(f) of the Act, 29 U.S.C. 655(f). Clearly, when the Secretary determines that particular conditions, practices or procedures create a hazard to employees and promulgates a standard designed to eliminate or reduce that hazard, his determination that a hazard exists contains "elements of both a legislative policy determination and an adjudicative resolution of disputed facts."

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Certain standards promulgated by the Secretary contain requirements or prohibitions that by their terms need only be observed when employees are exposed to a hazard described generally in the standard. E.g., 29 C.F.R. 1910.132(a), 1910.212(a)(3)(ii), and 1926.28(a). See also, M.J. Lee Construction Co., 79 OSAHRC    , 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979). However, most occupational safety and health standards include requirements or prohibitions that by their terms must be observed whenever specified conditions, practices or procedures are encountered. E.g., 29 C.F.R. 1926.500(d)(1). These standards are predicated on the existence of a hazard when their terms are not met. Therefore, the Secretary is not required to prove that noncompliance with these standards creates a hazard in order to establish a violation. See Vecco Concrete Construction, Inc., 77 OSAHRC 183/A2, 5 BNA OSHC 1960, 1977-78 CCH OSHD P22,247 (No. 15579, 1977) and cases cited in that decision.

The cited standard in this case, 1926.652(c), requires sloping above the 5-foot level, [*17] shoring or other support whenever a trench is excavated in hard or compact soil and is more than 5 feet deep and at least 8 feet long. n11 As written, the standard imposes alternative requirements (sloping above the 5-foot level, shoring or other support) that must be observed whenever specified conditions (a trench excavated in hard or compact soil, more than 5 feet deep and at least 8 feet long) are encountered. This standard assumes the existence of a hazard when its terms are not met. Accordingly, the determination that the conditions specified in the standard create a hazard to employees is a determination that has been made by the Secretary in promulgating 1926.652(c). Austin's contention that it need not comply because its noncompliance assertedly created no hazard to its employees necessarily requires us to examine the wisdom of the Secretary's determination that noncompliance does create a hazard to exposed employees. Thus we must reject Austin's contention because we have no statutory authority to rule on it. n12

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n11 Table P-1 of 29 C.F.R. 1926.652 implicitly creates a limited exemption from this requirement by indicating that trenches or excavations in solid rock, shale or cemented sand and gravels may be excavated at an angle of 90 degrees. See Frank Irey, Jr., Inc., 77 OSAHRC 192/F11, 5 BNA OSHC 2030, 2031, 1977-78 CCH OSHD P22,283 at p. 26,837 (No. 701, 1977). The cavity at issue was not dug in any of these materials.

n12 We note in passing that Austin's contention that the cavity did not pose a hazard is not supported by the record. The judge based his finding that a hazard existed on the opinion testimony of the compliance officer, discrediting the contrary opinion testimony of Austin's expert witness. Therefore, the judge's finding is essentially based on a credibility determination. The trier of fact must determine what weight, if any, will be given to the testimony of each witness. Expert testimony is usually accorded greater weight than lay testimony. However, expert testimony need not be accepted even if uncontradicted. Connecticut Natural Gas Co., 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1978 CCH OSHD P22,874 (No. 13964, 1978). See also, Adrian Construction Co., 79 OSAHRC    , 7 BNA OSHC 1172, 1979 CCH OSHD P23,389 (No. 15414, 1979). In this case, the judge recognized that the evidence was contradictory and gave the reasons for his resolution of this conflict. He evaluated the testimony of Austin's expert witness, stating his reasons for the weight he assigned that testimony. Moreover, he expressly based his crediting of the compliance officer's testimony upon his evaluation of that testimony and the exhibits. We therefore have no reason to reweigh the evidence underlying his determination.

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Austin also takes exception to the judge's rulings on its various contentions that 1926.652(c) does not apply to the cavity at issue. The judge found that the cavity was 9 feet deep on one side, 17 feet deep on the other, 10 feet wide and 40 feet long. He found that the forms in the cavity reduced its width but not its height and, applying 1926.653(f), concluded that the cavity was a "trench." He further found that the cavity was excavated in hard or compact soil. Based on these findings, the judge concluded that 1926.652(c) was the standard applicable to the cited conditions.

We reject Austin's contention that the judge failed to consider the height of the forms in determining that the cavity was a trench. The judge's opinion clearly reveals that the height of the forms was considered in reaching his conclusion. In addition, the judge's factual findings are supported by the record and accordingly we find unmeritorious Austin's exceptions to them. n13 Moreover, Austin's contentions on review are essentially the same contentions made before the judge even though they are in the form of exceptions [*19] to the judge's conclusions regarding the trenching standard. Inasmuch as the judge correctly decided that 1926.652(c) applies to the cited conditions, we adopt the judge's conclusion. See Adrian Construction Co., supra; Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).

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n13 The judge based his finding regarding the dimensions of the trench on the testimony of the compliance officer. In entering this finding, the judge did not refer to the testimony presented by Austin as to the dimensions of the trench. Although there is no indication that the judge considered the entire record and he did not adequately explain his findings, including the underlying credibility determinations, see, e.g., Asplundh Tree Expert Co., 78 OSAHRC 77/E12, 6 BNA OSHC 1951, 1978 CCH OSHD P23,033 (No. 16162, 1978), we are not in this case precluded from relying upon the judge's finding. The compliance officer testified that the dimensions he gave were based upon his measurements, the only measurements taken on the day of the inspection. Moreover, the Respondent adduced testimony from Cornelius that the trench was 8 1/2 to 9 feet deep and from Gray that the trench was 10 to 11 feet wide. This testimony corroborates the compliance officer's testimony that the trench was 9 feet deep and 10 feet wide. We further note that Austin requested the judge to enter findings that the trench was approximately 8 to 9 feet deep and 10 to 11 feet wide. Therefore, we conclude that the judge's findings are supported by a preponderance of the evidence and we sustain those findings. See M.J. Lee Construction Co., supra.

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The judge's findings that four of Austin's employees worked in the trench on the day of the inspection for approximately 20-30 minutes and that the trench was not sloped above the 5-foot level, shored, or otherwise supported are not contested on review and are supported by the record. Accordingly, we conclude that Austin was in violation of the cited standard.

Finally, the judge's ruling that the violation was "serious" is consistent with Commission precedent. It is well established that only the degree of potential injury from a trench collapse and not the likelihood of a collapse is relevant to determining whether a trenching violation is "serious." See, e.g., Andy Anderson d/b/a Andy Anderson Irrigation and Construction, 78 OSAHRC 34/A2, 6 BNA OSHC 1595 (No. 76-4082, 1978). The Respondent's contention that the forms in the trench were not high enough to entrap a person is rejected. The testimony relied upon by Austin in support of this assertion is vague and unpersuasive. Moreover, it is contrary to the photographic exhibits, which clearly indicate that the three foot high forms [*21] created a significant obstruction that would have impeded employee movement in the event of a collapse. Also, the record establishes the potential for serious injury even if no employee were entrapped. The compliance officer testified that an employee could be seriously injured by having large chunks of the trench wall fall on him. Accordingly, we reject Austin's exceptions to the judge's conclusion that Austin's violation of 1926.652(c) was "serious" and affirm that conclusion. We also conclude that the judge's assessment of a $350 penalty is appropriate for the reasons stated by the judge.

Accordingly, it is ORDERED that the judge's decision is affirmed.

CONCURBY: CLEARY

CONCUR:

CLEARY, Chairman, Concurring:

I concur in the result in this case.