SECRETARY OF LABOR,
Complainant,

v.

B.G. DANIS COMPANY,
Respondent.

OSHRC Docket No. 80-6933

DECISION

Before:  BUCKLEY, Chairman; and CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA").  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

The issue on review is whether B.G. Danis Company violated the trenching standard at 29 C.F.R. 1926.652(b).[[1]] Administrative Law Judge Paul L. Brady found that a violation was not established and vacated the citation.  For the reasons stated below, Chairman Buckley and Commissioner Cleary disagree on whether the judge's decision should be affirmed. [[2]]

I

A compliance officer from OSHA inspected Danis's excavation of a trench in Trenton, Ohio, and observed three employees working in the trench.  He examined the soil in the trench and determined that it was composed of sand and gravel.  He concluded that the soil was soft and unstable because it was composed partly of sand and because he saw soil slough off the trench wall.  On the same day as the OSHA inspection, soil samples were taken from the trench at Danis's direction by Bowser-Morner Testing Laboratories.[[3]]  Bowser-Morner's report stated the soil was composed of sand and gravel with traces of silt, though the percentages of these components were not stated. [[4]]  Approximately one to two months after the inspection, Danis arranged to have further sampling done by Geotechnical Consultants, Inc.  This sampling was done by Daniel Longo, a professional soils engineer and president of Geotechnical Consultants.   Longo stated that he attempted "to reconstruct some of the conditions" that existed during the inspection by using a backhoe to excavate the soil at the original trench site to a depth of five feet.  Longo's samples showed that the soil taken 10 feet west of the trench's center line was 50 percent sand and 50 percent gravel and that soil taken eight feet east of this line was 50-60 percent sand, 25 percent gravel and approximately 15 percent silt and clay.

Bowser-Morner and Geotechnical both performed angle of repose tests on the soil from the area of the excavation.[[5]]  Two samples tested by Bowser-Morner showed that the soil's angle of repose was between 41 and 45 degrees.  Based on Geotechnical's tests, Longo stated that the angle of repose was "something like" 51 degrees and that on Table P-1 it would be between 45 and 63 degrees.  Longo also stated that he had "[n]o reason to disagree" with the Bowser-Morner report.

During his inspection, the compliance officer measured various dimensions of the trench without entering it.  To obtain width estimates, he extended a tape measure across the trench at a location 20 to 30 feet away from where employees were working.  He then estimated that where the employees were working the trench was 19 1/2 feet wide at the top and 9 feet wide at the bottom and that the horizontal components of the slopes of the east and west walls were 6 and 4 1/2 feet respectively.

Danis's foreman, Bobby Slone, disputed the compliance officer's width measurement, stating that his estimated measurements showed that the trench was 28 to 30 feet wide at the top.   Employees who had worked in the trench also disagreed with the compliance officer and contended that the trench was 5-6 feet wide at the bottom.  The employees who worked in the trench assisted the backhoe operator in lowering each pipe section to the completely excavated trench bottom and sealed the end of the section to the preceding pipe section.  After the pipe section is installed, the backhoe dumps soil around the pipe to "cradle" it in position.

The compliance officer determined that the depth of the trench was 9 feet 2 inches from a measurement made by the employees with a depth stick.  The compliance officer, however, noted that this measurement would "fluctuate a couple of inches depending on where you're going to measure it."  Danis's employees agreed that the trench was approximately nine feet deep.  The compliance officer also measured each trench wall from the top of the trench to the "toe," i.e., the point where the wall met the bottom of the trench.  These distances were measured with a tape measure at the part of the trench where employees were working.  These measurements showed that the sloped east wall was 12 feet 4 inches from top to "toe" and the west wall was 10 feet 8 inches.

Based on his estimates of the dimensions of the trench made from a distance of 20-30 feet from where employees were working, the compliance officer concluded that the slope of the east wall was approximately 56 degrees and that the slope of the west wall was approximately 63 degrees.  In the compliance officer's view, the trench was inadequately sloped and posed an imminent danger to Danis's employees.  He asked Danis's supervisor to remove the employees from the trench and slope the walls to 33 degrees, which he considered appropriate for the soil involved.  Danis complied with this request.

Employees of Danis working at the trench site testified that the slope of the trench was not as steep as the compliance officer claimed.  Danis's project manager, Parrish, who had a degree in civil engineering and who had studied soil mechanics, testified that the slope was about 45 degrees.  In Parrish's view, the "toe" of each trench wall was farther from the top of the wall than the compliance officer asserted.   Parrish also noted that the toe of each trench wall was "rais[ed]" when soil was returned to the trench to "cradle" the installed pipe.  Based on his later excavation of the trench site, Longo estimated that the trench walls were sloped between 45 and 33 degrees.  He also stated that the slope was approximately 39 degrees but "was not accurately defined."

The record also contains extensive testimony from soil expert Longo and from Danis's witnesses on the composition of the soil and the stability of the trench walls.  Longo testified from his examination of the soil that it was compact sand and gravel and was "very stable".  After reviewing photographs of the trench, he also stated that the trench walls were "stable."  Danis's project manager, Parrish, stated that the material in the trench was "hard and compact" granular soil composed of sand and gravel.  According to Parrish, the soil was sloped to its angle of repose which, in his view, was the angle at which "the soil will support itself."  Danis's foreman, Slone, who had worked in trenches for 15 years in many types of soil, testified that the trench was dug in undisturbed, "compacted" virgin soil and that it was safe.  Parrish and Slone also noted that the stability of this trench was increased because it had been "benched," i.e., approximately 3-4 feet of top soil, which was less stable than the underlying soil, had been removed before the trench was excavated.  An employee who worked in the trench, Blondell Goosey, who had 20-years experience in trenching, stated that the trench had "real good walls" and that he considered it safe.  Parrish, Slone, and Goosey also testified that vibrations from a tamper being used nearby knocked a small amount of soil into the trench.  Slone also noted that sloughing occurred even after the trench was sloped to the angle requested by the compliance officer.

II

The judge vacated the citation.  He rejected the Secretary's assertion that Duane Meyer d/b/a D.T. Construction Co., 79 OSAHRC 57/D4, 7 BNA OSHC 1560, 1979 CCH OSHD 23,742 (No. 16029, 1979), in which the Commission held that "predominately sandy soils" are presumed to be "soft or unstable" within the meaning of section 1926.652(b), was controlling.  The judge determined that, although sand was present in the soil at the excavation here, the record did not show that this soil was "predominately sandy."  He concluded that the soil, therefore, could not be considered "soft or unstable" under the Duane Meyer presumption.   Even if the soil were presumed to be "soft or unstable," the judge alternatively determined that the presumption was rebutted by the testimony of Longo, who, the judge noted, was "the only expert on soils to testify in this case," and who stated that the soil in the excavation was "very stable."  The judge further reasoned that, even if the soil were irrebuttably considered soft or unstable, a violation was not proven because the recommended angle of repose for the soil in question "[was] not listed in Table P-1 and it [was] not shown that the sides of the trench were improperly sloped for the material."  The judge determined that the soil was compact and cohesive and that the unrefuted evidence "reveals that a slope with a ratio of approximately 1 to 1 [45 degrees] is adequate for the soil involved."  Although he did not enter findings as to the dimensions or slope of the trench, he determined that "[t]he sides of the trench were adequately sloped to protect the employees working in the trench."

III

On review, the Secretary contends that a violation was proven because Danis's trench was dug in soft and unstable soil and was inadequately sloped.  The Secretary cites Connecticut Natural Gas Corp., 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1978 CCH OSHD 22,874 (No. 13964, 1978), for the proposition that soils listed in Table P-1 as having an angle of repose less steep than 63 degrees must be considered soft or unstable since the slope required for hard and compact soil under section 1926.652(c) is 63 degrees.  Because the angle of repose tests show that the appropriate angle of repose for the soil in question was between 41 degrees and 50 degrees, the Secretary concludes that the soil must be considered "soft or unstable" under Connecticut Natural Gas. The Secretary further asserts that the Duane Meyer presumption that predominately sandy soils, unless cemented, are soft or unstable was not rebutted because sand was the predominant component of the soil and because soil with an angle of repose less than 63 degrees must be considered soft or unstable "as a matter of law."

The Secretary also argues that section 1926.652(b) required a slope of 45 degrees for the walls of Danis's Trench.  According to the Secretary, the compliance officer's measurements are more accurate than the measurements advanced by Danis and establish that the trench was not sloped to this angle.  In the Secretary's view, the judge erred by failing to explain why he credited the testimony of Danis's witnesses as to the dimensions and slope of the trench over that of the compliance officer.  Finally, the Secretary submits that the violation was willful because Danis failed to slope the trench walls to a less steep angle after the representative of the Ohio Industrial Commission informed Danis's foreman that the sloping of the trench walls was inadequate.

Danis argues that the judge's disposition was correct.  The soil in the trench walls is not listed in Table P-1, since it was not sand but a mixture of sand, gravel and silt, and one sample showed the presence of clay.  Therefore, Danis argues, the judge correctly found that the Duane Meyer presumption does not apply to this soil.  Even if it did, however, the presumption was rebutted by the expert testimony as to the angle of repose of the soil samples and the on-the-scene observations of Danis's experienced employees.  Danis asserts that the trench was not only sloped adequately for the type of soil, but it was also "benched" for extra stability.  Danis claims that the compliance officer's measurements were taken not where its employees were actually working in the trench but rather were made near the end of the trench in a location where excavation had not yet been completed.  Therefore, it contends that the judge correctly rejected the compliance officer's measurements.

IV

Chairman Buckley would affirm the judge's decision.  Section 1926.652(b) states in part that the "[s]ides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced [or] sloped . . . to protect the employees working within them."  To prove a violation of section 1926.652(b), the Secretary therefore must prove that an employer's trench was dug in "unstable or soft material" and that it had not been "shored, sheeted, braced [or] sloped . . . to protect the employees working within [it]."  Neither of these facts was established.

The Secretary maintains for two reasons that Danis's trench was dug in "unstable or soft material":  first, the angle, of repose of this soil was less than 63 degrees and thus "unstable or soft" as "a matter of law" under Connecticut Natural Gas; and second, the soil was "predominately sandy" and, therefore, presumed to be "unstable or soft" under Duane Meyer.  Chairman Buckley finds both of these arguments are without merit.  In Connecticut Natural Gas, the Commission stated "that those materials listed in Table P-1 as having a less steep angle of repose [than 63 degrees] must be considered soft or unstable, and are therefore regulated by 1926.652(b)."  6 BNA OSHC 1799, 1978 CCH OSHD at p. 27,668 (emphasis supplied).  The soil in Danis's trench was composed of sand and gravel in roughly equal proportions with some silt.  As the judge observed, this material is not listed in Table P-1. Accordingly, this soil is not unstable or soft as a matter of law under Connecticut Natural Gas.  Moreover, the presumption created in Duane Meyer that "predominately sandy" soils are soft or unstable is a rebuttable presumption.  The judge found that this presumption was rebutted by the testimony of the soil expert Longo.  Chairman Buckley agrees with this finding and notes that the extensive testimony of Danis's experienced employees that this trench was stable or safe, discussed immediately below, is consistent with that of the soil expert and rebuts any presumption of instability that may be drawn in this case.

The Chairman also finds insufficient evidence that the walls of this trench were not sloped "to protect the employees working within them" as required by the standard.  The judge found that "[t]he sides of the trench were adequately sloped to protect the employees working in the trench."  This finding is well supported in the record.  Soil expert Longo testified that the material in the trench was compact and "very stable."  Danis's project manager, Parrish, an engineer who had studied soil mechanics, stated that the soil was "hard and compact."  He also stated that the sides of the trench were sloped to the angle at which "the soil will support itself."[[6]] Danis employees Slone and Goosey, both of whom had extensive trenching experience, stated that the trench was adequately sloped and considered it safe.  The stability of this trench also was enhanced by the initial "benching" operation, which involved the removal of 3-4 feet of top soil from the excavation site.  Indeed, the only evidence that this trench was unsafe was the opinion testimony of the compliance officer, whose training and experience, when compared to the witnesses mentioned above, can best be described as limited.[[7]]   Based on the testimony of Danis's better-trained and more-experienced witnesses, Chairman Buckley would conclude that the judge correctly found that this trench met the standard's requirement than walls be sloped "to protect employees working within them."

The muddled evidence on which the Secretary relies concerning sloping and angle of repose does not show that the walls were inadequately sloped.  To prove his case the Secretary must show what the proper angle of the slope should be for the soil in the trench and that the trench was not sloped to this angle.  Section 1926.653(b) defines a soil's "angle of repose" as "[t]he greatest angle above the horizontal plane at which a material will lie without sliding."  It is clear from the title of Table P-1, "Approximate Angle Of Repose For Sloping Of Sides Of Excavations" (emphasis supplied) and from the testimony of the soil expert, Longo, that any given angle of repose is only an approximation of the angle at which it will lie without sliding.  It is also clear from the unrebutted testimony of Longo that the angle of repose test is "very unsophisticated" and yields only an "approximation" of the angle of repose.  In fact, as Longo observed, the angle of repose of soil in its natural state would be 5 to 10% higher than the angle of repose determined in a lab.  In sum, an angle of repose test yields little more than a general range of appropriate slopes .[[8]]

This record contains five different estimates of the angle of repose for the soil in Danis's trench.  During his inspection and later at the hearing, the compliance officer stated that the walls should have been sloped to 33 degrees.  On review, the Secretary contends that, "[f]or purposes of this case the Secretary will assume that a 1:1 [45 degree] slope would have been adequate."  The Bowser-Morner laboratory angle of repose tests show that the angle of repose was 41 or 45 degrees and that this would be 10% higher in the field:  45 to 50 degrees.  Longo stated that Geotechnical's laboratory results showed that the angle of repose was approximately 51 degrees, which would be approximately 10% higher in the field or 56 degrees.  Longo also stated that the angle of repose of this soil was between 45 and 63 degrees.

The Secretary argues on review that the appropriate angle of repose for this soil is 45 degrees.  In view of this and the lack of evidence that the compliance officer tested this soil or was qualified to estimate a soil's angle of repose from visual observation, the Chairman would accord no weight to his 33 degree estimate.  The remaining estimates, which are based on laboratory tests and expert opinion, show that the angle of repose was in the range of 45 to 63 degrees.   As adjusted for field conditions, the Bowser-Morner test shows the angle of repose was 45 or 50 degrees.  The Geotechnical test shows that this angle was 56 degrees. Longo's estimate that the angle of repose was between 45 and 63 degrees also stands unrebutted.  Chairman Buckley finds no principled basis in this record for selecting one of these estimates as the appropriate angle of repose for the soil in Danis's trench. Given the state of this record, the only finding that may be entered as to this soil's angle of repose is that this angle was somewhere in the range of 45 to 63 degrees.

The evidence on the slopes of the trench walls is similarly uncertain.  The compliance officer made an estimate, based on measurements he took at the site, that the slope was approximately 63 degrees.[[9]]   Danis's project manager testified that the slope was approximately 45 degrees, while Goosey, the pipelayer who was in the trench, testified that the slope was "a little better than 1:1 [i.e., less steep than 45 degrees] because when the pipes were put in, I could walk right up the side of the bank.  I never used the ladder."  Longo testified that his tests determined that the slope was "between 1:1 [45 degrees] and 1-1/2:1 [33 degrees].  There was nothing sharper than 1:1."  Given this disparity in estimates, Chairman Buckley would not disturb the judge's finding that the trench was sloped adequately to satisfy even the Secretary's claim that a 45 degree slope was necessary.

The Secretary's claim of a violation hinges on the testimony of the compliance officer and on the disputed measurements made by him at the site.  There is considerable conflict in the record as to the width of the trench at both top and bottom.  The compliance officer testified that one spot in the trench was measured as having a depth of 9 feet 2 inches.  It is generally agreed that this trench was approximately 9 feet deep.  The compliance officer testified that the length of the east wall of the trench from top to toe in one area where the employees worked was 12 feet 4 inches and that a comparable measurement along the west wall was 10 feet 8 inches.  By applying trigonometry to these dimensions, the slope of the east wall is calculated to be 46 degrees and the slope of the west wall to be 57 degrees.  In the Chairman's view, the slopes obtained by this trigonometric determination may be somewhat more reliable than the conflicting figures advanced by the parties, which are based on guesswork and estimations.   Yet these trigonometrically-determined slopes are not sufficiently reliable to support a finding as to the actual slope of Danis's trench on the day of the inspection.

First, it is clear that if the compliance officer's depth and wall measurements are taken as correct, the trench would be almost 23 feet wide at the top and not 19 1/2 feet as the compliance officer claimed.  The Chairman finds that this internal inconsistency in the Secretary's figures casts doubt on the accuracy of the compliance officer's measurements.

Second, to measure or calculate slopes of a trench, one must assume only the best of circumstances, i.e., that the terrain was perfectly level and that the dimensions of a relatively large trench were measured with accuracy down to the inch.  Unlike certain material--such as lumber--mounds of dirt do not lend themselves to precise measurement.  A failure to align a tape measure precisely at the top of a trench wall--if such a sharply demarcated point exists--or the presence of a clod of earth or a stone at the end of the tape measure on the bottom of the trench could result in a measurement that is inaccurate by several inches.

Third, the photographic exhibits here clearly show that the bottom of the trench wall was not sharply defined and it can fairly be said that measurement of the top to "toe" distance could vary by as much as two feet depending on what point is considered the "toe" of the trench.  Indeed, project manager Parrish considered the "toe" of each trench wall to be farther down the trench wall than the point urged by the Secretary at the hearing.  Yet, a deviation of eight inches in the compliance officer's measurement of the height and fifteen inches in his measurement of the steepest sloped side of the trench would yield a slope that would be appropriate under the 45 degree angle of repose that the Secretary deems adequate for this soil.  Given the accumulated uncertainties in the record and the disputed dimensions of the trench, Chairman Buckley concludes that a finding that the slope of this trench exceeded 45 degrees cannot be supported on this record.  The Secretary has not carried his burden of proving that the actual slope at this site exceeded his own estimate of a safe angle.

In sum, the Chairman would credit the extensive testimony from experienced employees that the trench walls were stable and agree with the judge's holding that the walls of Danis's trench were sloped to "protect employees working within them," as required by the standard.  The Chairman further concludes that the citation must be vacated because the Secretary failed to establish by a preponderance of the evidence that the walls of the trench were not sloped to the appropriate angle of repose.  Accordingly, Chairman Buckley would affirm the judge's decision.

Commissioner Cleary would reverse the judge's vacation of the citation, and would find that the soil in Danis's trench was soft or unstable within the meaning of section 1926.652(b).  The trenching standard at 29 C.F.R. 1926.652 compels the conclusion that this soil was soft and unstable.  Under 29 C.F.R. 1926.652, soil is classified as either soft or unstable, 29 C.F.R. 652(b), or hard and compact, 29 C.F.R. 652(c).[[10]]  CCI, Inc., 80 OSAHRC 127/D4, 9 BNA OSHC 1169, 1173, 1981 CCH OSHD 25,091, p. 30,993 (No. 76-1228, 1980), aff'd, 688 F.2d 88 (10th Cir. 1982).  Since the slope allowed for hard and compact soil under section 1926.652(c) is 63 degrees, soil with an angle of repose of less than 63 degrees must be soft or unstable.

The Bowser-Morner test results, which were not questioned by Danis's soil expert, Longo, show that the angle of repose for the soil in Danis's trench was between 41 and 45 degrees.  Since the angle of repose of this soil is less than 63 degrees, the regulatory framework established by the trenching standard compels the conclusion that is was unstable.[[11]]  This is borne out by Table P-1. The table states that the angle of repose for "compacted angular gravel" is 63 degrees and that the angle of repose for "compacted sharp sand" is 33 degrees.  Based on its angle of repose, soil composed entirely of "compacted angular gravel" therefore would be considered "hard or compact."  The soil in Danis's trench, however, was approximately 50 percent gravel and 50 percent sand with a percentage of sand possibly as high as 60 percent.  Since this soil contained only 50 percent gravel with an equal if not greater percentage of unstable sand, its angle of repose would be less than the 63 degree angle considered appropriate for homogeneous "compacted angular gravel."  Accordingly, Commissioner Cleary would find that the soil in Danis's trench was "unstable or soft" under the trenching standard.

Commissioner Cleary considers the testimony of Danis's expert and employees that the trench was "stable" or safe to be beside the point.  This testimony amounts to a challenge to the wisdom of the standard, which the Commission will not decide.  The Commission is not in a position to re-write the standard.  See Heath & Stich, Inc., 80 OSAHRC 65/E12, 8 BNA OSHC 1640, 1643, 1980 CCH OSHD 24,580, p. 30,152 (No. 14188, 1980)(employer impermissibly challenged wisdom of standard by arguing that hard and compact soil was "so stable" that trench need not comply with section 1926.652(c)).  The stability of trenches is not to be measured on the basis of employees' beliefs.  The cases decided by this Commission are replete with instances of employee deaths in trenches they thought to be safe.

Once it is shown that soil is "unstable or soft" within the meaning of section 1926.652(b), a determination must be made as to whether the sides were "shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them."  The judge did not specifically determine to what angle the trench walls were sloped.  Indeed, he never resolved the evidentiary conflict over the trench's dimensions.[[12]]  In concluding that a violation was not proven, however, the judge entered the following conclusion:

Testimony on behalf of [Danis], which is not refuted, reveals that a slope with a ratio of approximately 1 to 1 [45 degrees] is adequate for the soil involved.  Thus, improper sloping of the sides of the trench has not been shown in this case.

In Commissioner Cleary's opinion, the judge's conclusion that "improper sloping....has not been shown...."cannot be sustained because he did not determine what the slope of each wall was nor did he explain the basis for this conclusion.

As Chairman Buckley observes, the slopes of the east and west trench walls may be calculated using trigonometry.  Commissioner Cleary finds nothing in this record to suggest that the measurements of the compliance officer which have been used in making this calculation are unreliable.  Although Danis's witnesses sharply questioned the compliance officer's measurement of the trench's width, they did not take issue with his measurement of the distance of the east and west walls of this trench nor did they advance contradictory measurements.  The depth measurement of 9 feet 2 inches also was not disputed and, indeed, was made by the employees who worked in the trench.  In calculating the slopes of the trench walls, the proper assumption is that the depth of this trench was 9 feet 2 inches and not "approximately 9 feet."  Based on the foregoing, the slopes of the east and west walls may be reliably determined to be 48 and 59 degrees respectively.

To decide whether a violation of section 1926.652(b) was shown, it must be determined whether sloping of 48 and 59 degrees is appropriate for soil containing a roughly equal mixture of sand and gravel.  The more reliable Bowser-Morner angle of repose laboratory tests show that the angle of repose for this soil is approximately 41 to 45 degrees.  The judge also found that the appropriate angle of repose was 45 degrees.  The 48 and 59 degree sloping of the walls of this trench clearly exceeds this angle of repose.[[13]]

Finally, the applicable standard of proof in Commission proceedings is the preponderance of the evidence standard.  Astra Pharmaceutical Products, Inc., 81 OSAHRC 79/D10, 9 BNA OSHC 2126, 2131 nn.16 & 17, 1981 CCH OSHD 25,578, p. 31,901 nn.16 & 17 (No. 78-6247, 1981), aff'd in pertinent part and remanded on other grounds, 681 F.2d 69 (1st Cir. 1982).  A preponderance of evidence is that quantity of proof that convinces the trier of fact that a fact more likely than not is true.  See id. To conclude that a fact is established by a preponderance of the evidence, one is "not required to find the facts to an absolute certainty or even beyond a reasonable doubt, as in a criminal case."  Burch v. Reading Co., 240 F.2d 574, 579 (3d Cir. 1957).  The evidence shows that it is more likely than not that Danis dug its trench in unstable soil and that it failed to slope the trench walls to the appropriate angle of repose.  To conclude otherwise one necessarily must find that the employees' general assertions as to the safety of the trench are more reliable than the undisputed measurements made by the compliance officer.  More significantly, however, such a conclusion may be reached only by viewing the evidence so skeptically as to require the Secretary to prove a violation "beyond a reasonable doubt" or to an "absolute certainty."   This approach is inappropriate in resolving civil disputes under remedial legislation such as the Occupational Safety and Health Act.

Under section 12(f) of the Act, 29 U.S.C. 661(e), official action can be taken by the Commission with the affirmative vote of at least two members.  To resolve their impasse, and permit a resolution of this case, Chairman Buckley and Commissioner Cleary agree to vacate the direction for review.  E.g., Texaco, Inc., 80 OSAHRC 74/B1, 8 BNA OSHC 1758, 1980 CCH OSHD 24,634 (Nos. 77-3040 & 77-3542, 1980).  The judge's decision in this case therefore becomes the appealable final order of the Commission, but is accorded the precedential value of an unreviewed judge's decision.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  APR 10 1985



FOOTNOTES:

[[1]] Section 1926.652(b) states as follows:

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 Table P-1, P-2 (following paragraph (g) of this section).

Table P-1 is a guideline that suggests the approximate angles of repose for various types of soil:

Solid rock, shale or cemented sand and gravel - 90
Compacted angular gravels - 1/2:1 (63 26')
Average Soils - 1:1 (45)
Compacted Sharp Sand -1 1/2 :1 (33 41')
Well rounded loose sand - 2:1 (26 34')

Table P-1 lists, for certain specified soil types, the ratio of horizontal feet to which a trench wall should be sloped to each foot of the wall's depth.  For example, Table P-1 indicates that the approximate angle of repose for compacted angular gravels is 1/2:1 or approximately 63 degrees.  For soil with an angle of repose of 1/2:1, 1/2 foot of horizontal distance would be excavated for each foot of depth.  Less stable compacted sharp sand, which has an angle of repose of 1 1/2:1, or approximately 33 degrees, would be excavated 1 1/2 feet horizontally for each foot of depth.

[[2]] As established by the Act, the Commission is composed of three members.   Section 12(a) of the Act, 29 U.S.C. 661(a). Currently, the Commission has two members as a result of a vacancy.

[[3]] Danis had arranged to have the Bowser-Morner sampling done after the site was visited by a safety consultant from the Ohio Industrial Commission.  That visit occurred approximately one month before the OSHA inspection.  The safety consultant told Danis's project manager that the trench walls should be sloped to approximately 26 degrees to conform with OSHA's trenching standard.  The safety consultant also supplied Danis's project manager, Parrish, with a copy of the OSHA trenching standards. Parrish reviewed the standards and Table P-1 and concluded that the standard did not apply to Danis's trench.  He arranged, however, to have the soil sampled ''in case there was any question [as] to what the slope should be ...."

[[4]] At the hearing, Danis objected to the introduction of the Bowser-Morner report into the record.  This objection seems to have been sustained by the judge though the exchange is unclear.  Portions of the report were read into the record, however, and in post-hearing briefs to the judge, both Danis and the Secretary relied on the report.  The judge also relied on the report in his decision.  The record certified to the Commission by the judge after review was directed contains this report as Exhibit G-16.  In its brief on review, Danis does not contend that this report is not properly in the record.  Indeed, it cites the report in arguing for affirmance of the judge's decision.  In view of the parties' and judge's reliance on this report and in the absence of any objection from Danis on review, the Commission has considered this report as part of the record.

[[5]] An angle of repose test is conducted in a laboratory.  The soil is first dried to remove moisture then poured through a funnel onto a flat surface.  The natural angle that soil will attain on the flat surface is considered the angle of repose.  Longo stated that although this test was an accepted procedure it was an accepted procedure it was "very unsophisticated" and yielded an "approximation" of a soil's natural angle repose.  He explained that the "actual field angle of repose" is five tested in the laboratory is in a "disturbed" state and because the removal of moisture from the soil reduces its cohesiveness.

[[6]] Parrish's description of the manner in which the trench was sloped is entirely consistent with the standard's definition of angle of repose, i.e., "[t]he greatest angle above the horizontal plane at which a material will lie without sliding."  See 29 C.F.R. 1926.653(b).

[[7]] The compliance officer previously had inspected 15 excavation sites.  His training as a compliance officer included two days of instruction in OSHA's trenching standards.  Before his employment as a compliance officer, he worked as an intern at OSHA and received "on-the-job" training in soil recognition from another compliance officer.  Although he had received an undergraduate degree in "Safety Management," his course work did not address soils or soil mechanics.  His only other experience in excavation work consisted of one year's employment laying sewer lines before and while attending college.

[[8]] The uncertainty is also inherent in the definition of "angle of repose" in section 1926.653(b).  See F. Yokel & R. Stanevich, Development of Draft Construction Safety Standards for Excavations, vol. I, p. 58 (NBS/NIOSH, 1983)(recommending deletion of present definition as "too vague").

[[9]] The Chairman notes that there is reason to doubt the compliance officer's estimate that the slope was 1/2 to 1, i.e., 63 degrees. That estimate was based on measurements whose accuracy is open to serious question.  The compliance officer took the measurements at the end of the trench that was being excavated, where the sloping had not been completed.  He stood 20-30 feet away from where employees were working and ''eyeballed" the width of the trench.  Using this technique, he decided that the trench was 9 feet wide at the bottom.   All Danis's witnesses, however, testified that the trench was no more than 5 to
6 feet wide.  They stated that not only is there is no reason to take out more soil than that, but that the soil removed must then be returned to the trench and compacted to meet specifications which takes time and slows down the work.  There is therefore a very good reason not to take out any more soil than necessary.  Given the unanimity of this testimony, Chairman Buckley finds that the width of the bottom of the trench was considerably less than the compliance officer's "measurement."  He therefore questions the accuracy of the compliance officer's other estimates.

[[10]] The trenching standard, as amplified by Table P-1, provides one exception to the general rule stated in the text:  solid rock, shale and cemented sand and gravels are treated as "something other" than "hard or compact" or "soft and unstable" soil.  They have a 90 degree angle of repose.  CCI, Inc., 9 BNA OSHC at 1173, 1981 CCH OSHD at pp. 30,993-4.  In this case, Danis does not contend that its trench was dug in solid rock, shale, or cemented sand and gravel.

[[11]] This conclusion also finds support in the testimony of Danis's soil expert, Longo, who testified that the angle of repose was approximately 51 degrees.  Longo alternatively stated that the angle of repose would be in the range between 45 and 63 degrees. Longo's testimony also shows that a specific measurement of the angle may be made in a laboratory but that the measurement would be an "approximation" of the soil's angle of repose in the field.  Commissioner Cleary agrees that a laboratory-determined angle of repose would only be an approximation of a soil's natural angle of repose.  He nevertheless would note that Longo's estimate that the angle of repose could range between 45 and 63 degrees would allow almost 20 degrees leeway in sloping.  Such a wide-ranging estimate is of little value in determining the angle of repose of this soil.  Inasmuch as Longo was able to more specifically state that the angle of repose was approximately 51 degrees, Commissioner Cleary would disregard his alternative opinion that the angle of repose ranged between 45 and 63 degrees.  Although Commissioner Cleary considers the Bowser-Morner estimate of the angle of repose more reliable because it was based on sampling done on the day of the inspection, he notes that Longo's more specific estimate, which was based on sampling done more than one month after the trench was refilled also tends to show that the angle of repose was less than 63 degrees and, thus, supports the conclusion that this soil was unstable.

[[12]] With respect to these disputed dimensions, he stated that "[d]espite the conflicting testimony as to the width of the trench, the measurements are not crucial to the decision in this case."

[[13]] The Secretary alleged that the violation was willful.  A violation is willful if it is committed with intentional disregard of, or plain indifference to the Act's requirements.  Kus-Tum Builders, Inc., 81 OSAHRC 97/B2, 10 BNA OSHC 1128, 1981 CCH OSHD 25,738 (No. 76-2644, 1981).   After a question was raised as to the sloping of the trench by the safety consultant from the Ohio Industrial Commission, Danis arranged to have the soil tested by Bowser-Morner.  Later, during the inspection, Danis removed its employees from the trench and sloped to the angle requested by the compliance officer.  In Commissioner Cleary's view, Danis's actions do not reflect plain indifference to or intentional disregard of the standard's requirement or employee safety.