UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

October 13, 1976

Before Barnako, Chairman; Moran and Clearly, Commissioners

Barnako, Chairman:

  A decision of Administrative Law Judge Ben D. Worchester is before the Commission for review pursuant to 29 U.S.C. Sec. 661(i). Judge Worchester vacated two citations that allege violations of the Occupational Safety and Health Act of 1970.1 One of the citations alleges that Respondent committed a serious violation by failing to comply with the occupational safety standard at 29 C.F.R. Sec. 1926.652(c). The other alleges nonserious violations for failing to comply with the standards at 29 C.F.R. Secs. 1926.652(h) and 651(i)(1). We have examined the record and conclude that the Judge’s disposition of these citations is erroneous. For the following reasons, we reverse his decision, affirm the nonserious citation and remand the serious citation.

  The Serious Citation

  The record indicates that Respondent was installing a sewer in a trench 30 feet long, 14 feet wide at the top, 10 feet 10 inches wide at the bottom, and 14 feet deep. The soil was hard or compact.

  An employee was working in the trench on the inside of a wooden chamber which was to be the site of a manhole. The top of the chamber was open. The walls of the trench rose three or four feet above the chamber.

  The trench walls in the vicinity of the chamber were shored up with 4x8 sheets of ¾ inch plywood supported by 2x10 uprights and 3x6 cross braces. The spacing between the bracing measured 9 feet, 6 feet, and 5 feet, respectively. The braces measured 9 feet, 6 feet, and 5 feet, respectively. The braces were held in place by 2 × 4 cleats. There were four sections of shoring in the area of the chamber. The two center sections corresponded roughly with the location of the chamber.

The standard at 29 C.F.R. Sec. 1926.652(c) requires shoring for trenches in hard or compact soil that are more than 5 feet in depth and 8 or more feet in length, and Table P-2 of Sec. 1926.652 describes minimum shoring requirements. Judge Worcester concluded that the standard was applicable and that shoring was required. He also determined that the shoring Respondent used was inadequate, but his determination was based on a conclusion that the shoring did not meet the minimum requirements of Table P-2. He did not, however, conclude that there was a violation. In his opinion, the employee working in the trench was protected by the wooden chamber and consequently was not exposed to a hazard as a result of the inadequate shoring.

Judge Worcester erred in finding that the employee was not exposed to a hazard. The trench walls rose three or four feet above the open top of the wooden chamber. Therefore it is apparent that the employee in the chamber could have been injured by a cave-in or collapse of the trench walls. Even Respondent's witness admitted this possibility.

Judge Worcester also erred in finding that the shoring was inadequate simply because it did not meet the requirements of Table P-2. The table does not establish exclusive shoring requirements. Adams and Mulberry Corporation, 17 OSAHRC 410, BNA 3 OSHC 1077 (1975); Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir. 1976). The determination should have been based upon an examination of whether the shoring provided the protection required by the cited standard, Sec. 1926.652(c). We cannot, however, decide that issue on the record before us.

Complainant attempted to adduce evidence from his compliance officer concerning the adequacy of the shoring. Judge Worcester considered the witness qualified as an expert on the subject in issue. Nevertheless, he sustained Respondent's objection to a question whereby the witness was asked whether in his opinion the shoring was adequate to support the walls of the trench from collapse. It was error to exclude this testimony, and the error was prejudicial since Judge Worcester permitted Respondent's expert witness to state his opinion on the question of whether the shoring was adequate. In the circumstances, the parties must be afforded the opportunity to adduce evidence on the question of the adequacy of the shoring and the opportunity to present additional argument.

The Nonserious Citation

Judge Worcester vacated the nonserious allegations on the lack of proof of employee exposure. He also held that Complainant had failed to prove noncompliance with the standards. We have reviewed the record and reverse the Judge's disposition of the nonserious citation for the following reasons.

The citation alleges that Respondent did not comply with the standards at 29 C.F.R. Sec. 1926.651(i)(1) and Sec. 1926.652(h). The standard Sec. 1926.651(i)(1) states that, “In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.” The record establishes that excavated soil was stored within two feet of the trench, and that the employee in the wooden chamber was exposed to the hazard thereby created. Accordingly, Judge Worcester erred in finding that Complainant did not carry its burden of proof with regard to this allegation.

The standard Sec. 1926.652(h) states that, “When employees are required to be in trenches 4 feet deep or more, an adequate means of exit … shall be provided and located so as to require no more than 25 feet of lateral travel.” The record establishes that the only means of exit was a ramp consisting of loose, backfill material, and that the employee in the trench had to scale a chamber wall before he could reach the ramp. A ladder 8 feet in length was lying on the bottom of the trench. Obviously, a ladder that is only 8 feet long does not provide an adequate means of exit from a trench with walls 14 feet high. Moreover, the ramp could not provide an adequate means of exit for the employee in these circumstances. We conclude that the Judge erred in finding that Complainant did not establish this violation.

The parties stipulated that Respondent is average, or lower than average, in size compared to other firms doing similar business in the same geographical area. We have no reason for questioning Respondent's good faith. Respondent has a previous violation on its record. Permitting spoils to accumulate within two feet of the trench created a hazard moderate to low in gravity. The failure to provide an adequate means of exit created a hazard somewhat higher in gravity. Giving due consideration to these factors, we assess a penalty of $150 for the violation of 1926.651(i)(1) and a penalty of $165 for the violation of 1926.652(h) as proposed by Complainant.

Accordingly, we reverse; the citation for non-serious violations is affirmed and an aggregate penalty of $315 is assessed; and the matter is remanded for further proceedings consistent with the decision on the citation for serious violation. So ORDERED.

MORAN, Commissioner:

I concur with my colleagues’ disposition of the Sec. 1926.652(c)2 and Sec. 1926.652(h) charges. I must dissent, however, from the affirmance of the alleged Sec. 1926.651(i)(1) violation because the standard is not applicable to the working conditions involved.

As the lead opinion notes, the excavated cavity was 14 feet deep, 14 feet wide at the top, and 10 feet, 10 inches wide at the bottom. It was clearly a trench because, as defined under 29 C.F.R. Sec. 1926.653(n) in subpart P of the regulation, a trench is:

“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.”

Section 1926.651(i)(1), which is entitled “Specific Excavation Requirements” and is also contained in subpart P of the regulation provides that:

“In excavations which employees may be required to enter excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.”

However, 29 C.F.R. Sec. 1926.652, which is contained in the same subpart under the title of “Specific Trenching Requirements” does not contain a similar provision.

Messrs. Barnako and Cleary concede that the subject cavity is a trench. Nevertheless, they find respondent in violation of 29 U.S.C. Sec. 654(a)(2) for failing to comply with an excavation standard. Such a result is clearly an injustice. Since the Secretary of Labor in promulgating his regulations has elected to provide different requirements for trenches and excavations, it is wrong for the Commission to disregard that distinction and treat sections 1926.651 and 1926.652 as if they are coextensive. Secretary v. Lloyd C. Lockrem, Inc., OSAHRC Docket No. 4553 (February 24, 1976) (dissenting opinion); Secretary v. Dobson Brothers Construction Company, OSAHRC Docket No. 3847 (February 18, 1976) (concurring and dissenting opinion); Secretary v. Salem-Willamette General Contractors, 9 OSAHRC 227 (1974).

[Judge Worcester’s Decision of March 10, 1975 is not available.]

1 29 U.S.C. 651 et seq.

2 In addition to the one employee which the foregoing opinion indicates was exposed to the alleged hazard, the record establishes that at least one other employee had been in the trench. Employee Cortiera was working in the trench during the inspection, as the photographic exhibits demonstrate. Employee Bauliue also testified that he was in the trench on the day of the inspection.