CEDAR CONSTRUCTION COMPANY

OSHRC Docket No. 10929

Occupational Safety and Health Review Commission

April 22, 1977

[*1]

Before: BARNAKO, CHAIRMAN; MORAN and CLEARY, Coommissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Reg. Sol., USDOL

Thomas J. Monaghan, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge Vernon Riehl, dated August 27, 1975, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision, which is attached hereto as Appendix A, n1 held that respondent committed two willful violations of 29 U.S.C. 654(a)(2) by failing to comply with the occupational safety standards codified at 29 C.F.R. 1926.651(h) and 1926.652(e). The Judge assessed a penalty of $4,750 for each violation. For the reasons which follow, respondent's failure to comply with both standards is affirmed as one willful violation and a total penalty of $4,750 is assessed.

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n1 Chairman Barnako does not agree to this attachment.

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On May 17, 1974, two of respondent's employees were working in a trench that was 14 to 15 feet deep when a large section of earth fell from the [*2] west wall of the trench, killing one of the employees. There was ground water in the trench on the day of the accident which had posed a continuous problem for respondent. Soil samples taken subsequent to the accident showed that the bottom of the trench was composed of a combination of sand, silt, and mud, while the earth above was comprised of a loessial material. Adjacent to the section of the trench that caved in was backfilled area. The trench, which was approximately 50 feet from a heavily traveled highway, was not shored or braced in any way.

The evidence further establishes that respondent had been inspected and cited for violations on three prior occasions. Although none of the prior citations involved the standards here at issue, they all involved, at least in part, trenching standards. Furthermore, the respondent's president and his project superintendent had been generally advised of the trenching requirements at the time of the previous inspections, and they admitted being generally familiar therewith.

The direction for review granted respondent's petition for review. In that petition, respondent raised the following contentions as to the 29 C.F.R. 1926.651(h) [*3] n2 charge:

"(a) .651(h) is unenforcably [sic] vague.

(b) The evidence is clear, under any interpretation of .651(h), Respondent complied with .651(h) in that the Respondent's employees when encountering water conditions throughout the project increased the slope of the sides of the trenches.

(c) The trench in question was dug in conformance with .652(c) procedure which had been previously approved by Occupational Safety and Health Review Commission's compliance officers and by the decision of Judge Wienman in Docket No. 8407."

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n2 That standard provides that: "The angle of repose shall be flattened when an excavation has water conditions, silty materials. . . ."

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Commissioner Cleary agrees with the rationale utilized by Judge Riehl in concluding that 1926.651(h) is not unenforceably vague. Chairman Barnako finds the standard imprecise but would not declare it unenforceably vague in this case since respondent did not comply with the minimal sloping standards specified by 29 C.F.R. 1926.652(b). See Secretary [*4] v. Coughlan Construction Company, 20 OSAHRC 641 (1975), and Secretary v. A. Friederich & Sons Co., 9 OSAHRC 799 (1974), for their positions in general on claims of vagueness. Commissioner Moran agrees with Judge Wienman's conclusion in Secretary v. Anchor Construction Co., OSAHRC Docket No. 8122, June 16, 1976, that the standard is unenforceably vague and, therefore, finds it unnecessary to address respondent's other contentions.

Chairman Barnako and Commissioner Cleary find that respondent's remaining contentions lack merit. Respondent's trench was located in soft and unstable soil and was required to be sloped to an angle of repose of at least 45 degrees from bottom to top by 29 C.F.R. 1926.652(b). The Judge correctly found that the bottom 10 to 11 feet of "the trench was almost vertical." Since respondent had not complied with section 1926.652(b), it is obvious that it had not complied with additional flattening requirement of section 1926.651(h). Similarly, respondent was not in compliance with 29 C.F.R. 1926.652(c) which requires that sides of trenches in hard or compact soil "shall not be steeper than a 1-foot rise to each 1/2-foot horizontal," an angle of [*5] repose of about 63 degrees. Furthermore, the trench involved in this case was located in soft and unstable soil, rather than hard and compact soil, and the conditions prevalent in another trench in a different case are not relevant in this case.

Respondent raises the following contentions as to the 29 C.F.R. 1926.652(e) n3 charge in its petition for review:

"(a) The record is devoid of evidence which would tend to show that the trench in question was substantially affected by vibration or backfill conditions.

(b) No evidence was adduced by the Secretary showing any measurements taken to determine either the existence of vibrations or the affect of alleged vibrations, if any.

(c) The provisions of .651(h) and .652(e) are contradictory in that .651(h) even as interpreted by the Secretary, calls for increased sloping, while .652(e) calls for shoring and bracing."

None of these contentions have merit.

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n3 That standard provides as follows: "Additional precautions by way of shoring and bracing shall be taken to prevent slides or cave-ins when excavations or trenches are made in locations adjacent to backfilled excavations, or where excavations are subjected to vibrations from railroad or highway traffic . . . ."

[*6]

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The standard does not limit compliance to those situations where a trench is "substantially affected" by vibration or backfill conditions, and respondent misconstrues the evidence in the record. The Judge found as follows in regard to vibrations:

"The . . . trench was . . . open for a distance of approximately 50 feet along Cornhusker Highway, which highway is heavily travelled and was also parallel to an access road used by trucks entering and leaving a cement and concrete block plant of [a] steel warehouse."

These findings are supported by the record of trial. Moreover, expert testimony established that these heavy trucks emitted vibrations in a manner which would cause the loessial type of soil in respondent's trench to collapse. See Secretary v. Boh Brothers Construction Co., OSAHRC Docket No. 7184, December 1, 1976.

Even if the evidence were insufficient to establish vibrations, respondent was in violation of this standard because the trench cut across a backfilled area. Respondent's contention in its review brief "that all of the previous excavated material was removed" also [*7] lacks merit. The backfilled area in question pertained to a gas line which ran perpendicular to the trench. The photographic exhibits clearly show the gas line running across the trench and into each side thereof. Therefore, each side of the trench obviously contained backfill materials.

Respondent's assertion that sections 1926.651(h) and 1926.652(e) are contradictory is also rejected. Compliance with both standards presents problems but the respondent, having not complied with either standard, is not in a position to contend that compliance with both is impossible. Additionally, any possible prejudice in this regard is removed by our action hereafter in affirming just one willful violation.

Chairman Barnako and Commissioner Cleary agree that Judge Riehl's findings as to the willful nature of the violations were proper. Considering the readily apparent unsafe conditions in the trench along with respondent's knowledge of the water conditions therein and its familiarity with trenching standards because of prior citations, respondent's failure to comply with the standards was, in their opinion, the result of an intentional disregard of the standard or, at the very least, plain [*8] indifference thereto. See Secretary v. Gravens Brothers and Company, OSAHRC Docket No. 2538, March 26, 1976, and the cases cited in each of their opinions therein. Also see Secretary v. Kent Nowlin Construction, Inc., OSAHRC Docket No. 9483, February 17, 1977. Chairman Barnako would, however, merge the two violations into one because they are duplicitous. In his opinion it would be unjust to affirm two willful violations for respondent's failure to provide adequate protection for what is essentially one charge, i.e., the need to provide additional precautions in view of a combination of outside factors influencing the stability of the trench's sidewalls. Commissioner Cleary disagrees. In his opinion, each violation is separate and distinct. He would, therefore, affirm two willful violations. Commissioner Moran would find that respondent's noncompliance with section 1926.652(e) was serious but not willful because complainant has failed to prove the respondent had actual knowledge of the specific standard and noncompliance therewith, two elements which, in his opinion, must be proved in order to establish a willful violation. See his opinions in Secretary v. Amulco [*9] Asphalt Company, 19 OSAHRC 467 (1975); Secretary v. Frank Irey, Jr., Inc., 4 OSAHRC 1 (1973). However, he also agrees with Chairman Barnako's position on the duplicity of the charges and, in order to avoid the unjust result of an affirmance of two willful violations because of the lack of a Commission majority to reverse the Judge, he joins Chairman Barnako in affirming a single willful violation.

Accordingly, a single willful violation is affirmed for respondent's failure to comply with 29 C.F.R. 1926.651(h) and 1926.652(e), and a penalty of $4,750 is assessed therefor.

APPENDIX A

STATEMENT OF THE CASE

JOHN WEISS, Office of the Solicitor, United States Department of Labor, for the Complainant

THOMAS J. MONAGHAN, for the Respondent

Hearing held March 26, 27, 1975, Lincoln, Nebraska, Judge Vernon Riehl presiding.

Vernon Riehl, Judge, OSAHRC:

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970, (29 U.S.C 651 et seq., hereafter called the Act) contesting citations issued by the complainant against the respondent under the authority vested in the complainant by section 9(a) of that Act. The citations alleged that [*10] an inspection of a workplace under the ownership, operation and control of the respondent revealed the existence of workplace conditions that violate section 5(a)(2) of the Act for the reason that these conditions failed to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.

Respondent, Cedar Construction Company, is a Nebraska Corporation located in Omaha, Nebraska. It is primarily engaged in the business of excavating, trenching and installing utility sewer pipes.

Roger Steuckrath is the President of the company (T. 398). During the period from about July 1973 to September 1974, respondent was engaged in excavating a trench and laying a sewer line for the city of Lincoln, Nebraska, along Cornhusker Highway, from 56th to 70th Streets, with a number of stubs or laterals at designated locations as shown on Exhibits G-9 and G-10 (T. 61-63, 65, 398, 401).

On May 17, 1973, the respondent employed four men, working under its project superintendent Loyal Bridges, who were excavating and laying a stub or lateral sewer from the main line at about 60th and Cornhusker Highway, between Manhole numbers 21 and 22, [*11] shown on Exhibits G-9, G-10 (T. 29). (It was stipulated that the location was 60th and Cornhusker Highway. However, Omaha police officer Jan Hansen reported the cave-in as occurring at 62nd and Cornhusker Highway.)

Respondent by its answer and by stipulation admits that it was engaged in a business affecting commerce and therefore an employer within the meaning of the Act (T. 338, 402, 412).

On May 17, 1974, Daniel J. Silva, an employee of respondent, while working in the trench between manholes 21 and 22, about 50 feet north of the north edge of Cornhusker Highway, was killed when a large section of the west side of the trench slabbed off and a clod of earth struck him, crushing the base of his skull and causing bleeding from the eyes, ears, nose and throat. The cause of death was diagnosed as being a skull fracture with brain stem injury (Exhibits G-7, G-8) (T. 36-37, 38, 44-45, 53-54, 57).

Lieutenant Ed Martin of the Lincoln Fire Department was in the trench within a few minutes of the cave-in. He rendered first aid and he was able to determine that the base of Silva's skull was "crushed" (T. 52-54) and Exhibits G-2, G-3, G-4 show several large clods a foot or more in diameter [*12] inside the metal box in the trench.

The Lincoln police department was called concerning the accident at 2:45 p.m.. Officer Donald Buckner, one of the officers who answered the call, took pictures of the trench which were identified as Exhibits G-1, G-1(a), G-2, G-3, G-3(a), G-4, G-5, G-6 and G-6(a) at approximately 3:10 p.m. (T. 32-35). Officer Buckner identified the area where the body was inside the metal box. This metal box was approximately 53 inches high, 42 inches wide and 16 feet in length (T. 40, 45, 87, 416, 419).

Another of respondent's employees, Steven Bliss, was in the metal box in the trench with Silva at the time of the cave-in. Bliss identified the location where Silva was working as by the steel bar in the box when hit and that Silva was lying bleeding where the pool of blood is shown on Exhibits G-4 and G-5 (T. 108-111).

Respondent's foreman, Jack Bruha, informed police officer Jan Hansen that the trench in which deceased was killed was 14 feet deep. Compliance Officer Robert Bruno also measured this trench on May the 20th and found it to be 14 feet deep (T. 39, 258). The depth is also ascertainable from a cross-section of a lateral shown on the profile [*13] of the specifications on Exhibit G-10 which was identified by Wilmer Hunt, Deputy City Engineer for the city of Lincoln. The depth to the bottom of the 8-inch clay pipe from the ground level where the trench is crossed by the gas line as shown on Exhibit G-1(a) is 14-1/2 feet. An additional 10 inches had been excavated for laying the rock base, which made the actual trench cut over 15 feet in depth or more from the edge of the highway to where the cave-in occurred (T. 65-67, 72, 83, 98, 125, 131-132).

Respondent's officers never did make a measurement of the width of the trench. They asserted that it was laid back one foot for every one foot of rise beginning above the bottom five feet of the trench which admittedly was vertical (T. 132, 138, 140-142). Respondent's employee, Jack Bruha, agreed that the trench was not laid back one on one as shown in Exhibits G-2 and G-6 (T. 134-136). Mr. Bruha expressed the opinion that seven to eight feet of the high pressure gas line was exposed (T. 138). Compliance Officer Bruno measured the width of the trench in the presence of Roger Steuckrath, president of the company, by having Bruha hold one end of the tape on May 20th. This measurement [*14] at the ground level was made above the north end of the box in the trench and was 16 feet (T. 259, 261, 264). This was done after the cave-in and included any additional width which may have resulted from a cave-in. Bruno then measured the distance of the four inch high pressure gas line across in the trench and found that the top of this line was three feet and 11 inches below the ground level (T. 261).

There was a variance in the testimony as to the distance of the sides of the metal box from the walls of the trench. Bruha testified that it was approximately 2 feet. Bruno's estimate was approximately 15 inches. Mr. Steuckrath agreed that 18 inches was a fair approximation (T. 143, 269, 416). Respondent apparently relied upon the metal box as having been a "french shield." However, Mr. Steuckrath's testimony was to the effect that its purpose was not to give lateral support to the sides of the trench but instead to provide support and guide the rock bedding laid in the bottom of the trench for the purpose of stabilizing the pipe (T. 84, 89, 90, 92, 98, 112, 118, 125, 127, 361, 409, 410). It was Mr. Steuckrath's testimony that this box provided no protection above 53 inches [*15] (T. 419). Examination of the various exhibits will bear this out.

There is no question whatsoever but that ground water was in the trench on the day of the cave-in and had been an almost continuous problem in the installation of pipe on this project. So much so that the company had kept pumps on the jobsite to remove the water (T. 89, 116, 117, 406). Also, it is to be noted that water had been a constant condition in this trench between Manholes 21 and 22 (T. 86, 89, 94, 115, 117, 124, 425). Mr. Bliss testified that this water was seepage from out of the ground having silt or sand in it and described it as "muck." Respondent's foreman, Bruha, described the condition of the bottom of the trench as "sand and mud" T. 116, 124).

A crushed rock base of about 10 inches in thickness was being placed in this trench before laying the pipe and had been used in other areas on this project (T. 83, 88-89). Deputy City Engineer Hunt and the City Inspector, Orville Basel, also testified the purpose of the rock was to stabilize or provide a firm foundation for the pipe to prevent it from sinking into the ground or pushing up (T. 72-73, 84, 90, 425). Mr. Steuckrath stated that with a soft [*16] base underneath the pipe, a condition existed that could cause heaving (T. 425).

The complainant made core drillings up to a 15 foot depth at locations 10 and 11 feet upon each side of the sewer line of the trench near where the gas line crossed the trench as identified by Compliance Officer Levalds on Exhibit G-9 (T. 191-194). These drillings were made by Gary Proskovec, an engineer with Haskins-Western-Sondregger, Inc., an engineering firm, on July 18, 1974 (T. 162-164, 191-192, 193-194). The steel tubes containing the core samplings were sealed with plastic and paraffin at each end and delivered to the United States Army Corps of Engineers on July 19, 1974 (T. 173, 197). The respondent also made core drillings, using Haskins-Western-Sondregger to do the drilling (T. 25, 189).

Jack Monzingo, an engineer in charge of the laboratory for the Corps in Omaha, made an identification analysis and classification of the soils performed under the direction of Charles Flagg, with the results as shown on Exhibits G-16 and G-17 (T. 172, 174, 176, 178, 202). These results were identified with the core drilling log prepared by Proskovec and received in evidence as Exhibits [*17] G-15 (T. 165, 167). Six more pictures identified as Exhibits G-18 through G-22 were also taken by Monzingo as part of his soil analysis and identification. The numbers on the ruler in these pictures identify the the Shelby tube samples, shown on Exhibits G-15, G-16 and G-17, and the depth was marked on the ruler by Monzingo. Monzingo stated there was no mishandling which could have caused the samples to break along the fracture lines as shown in the Exhibits (T. 178-181, 183, 184).

Charles Flagg, a soils and foundation engineer for the Army Corps of Engineers, whose responsibility is reviewing and analyzing all designs on large and small dams and foundations for military construction in the Missouri Valley division, testified as an expert witness for the Secretary. Flagg had 16 years experience as a soils and foundation expert, and prior to that 12 years experience as a design engineer for the Corps (T. 201, 202).

Mr. Flagg reviewed the terms used in identifying or describing soils and factors affecting the strength of soils, in particular the soils shown on Exhibits G-16 and G-17, which were found at the 12 to 14-1/2 foot depth in the trench. Flagg pointed out that silts and [*18] silty soils have "no plas city" or strength under load weight (T. 208), also that silt "is highly erosive and will move and migrate quite easily"; that sand "due to partial saturation" has no cohesive strength at all; and on saturation, all cohesion is lost in sand" (T. 208-209). Flagg analyzed the soil analysis contained on Exhibits G-16 and G-17. He testified that as the water or moisure content of soils approaches the liquid limit, voids in the soil are being filled as water and loses its "effective stress" or strength, resulting in the loss of friction with an effect "like stepping on a banana peel" (T. 210-211). He also said that he would additionally expect that the soil materials and conditions shown on the two bore holes would be the same in between the locations where the trench was at the respective levels (T. 212).

Flagg based his testimony upon his background and years of experience with soils and soil properties; having reviewed the results of the analysis shown on Exhibit G-16 and G-17; having listened to witnesses Basel, Bruha and Bliss who were familiar with the conditions of the soil and water in the trench, and examination of pictures taken by the police officer [*19] showing the conditions immediately following the cave-in on May 17, 1974. Flagg then gave as his expert opinion that considering the type of sandy and silty soil below the 13 foot level in the trench, and because the ground water would "bleed" into the trench moving the sands or fine material out from under the upper deposits so that the bearing strength of these soils would be lost, the mass of loess material (which is very much given to cracking in the vertical manner) lying above these sands and silts "would then be in a cantilevered position having no strength underneath it. And due to the vertical cracks, would then slab off and a failure would occur in this fashion" (T. 218-220, 246, 248).

The foregoing testimony is credible and correct because it is based on the facts in the instant case. It is also such a thing that even a layman could understand and become aware of the danger to employees in unshored trenches of this kind.

It is also a situation that respondent knew or should have known (being in the trenching business) could cause a collapse and therefore the death of an employee. To go ahead and let an employee work under these conditions is a willful act on the part [*20] of respondent and in violation of the standards. Flagg's testimony was that the significance of placing rock in the bottom of the trench was to assure "alignment both in the vertical and horizontal direction", and the necessity for this (based on examination of Exhibits G-16 and G-17) was the indication it was a sand material at the base of this excavation, that this was saturated, and, this material was probably moving and the moving process would render itself unstable (T. 223-224). Flagg also said that loess in the samples provided from the core drillings would weigh from 95 to 110 pounds per cubic foot (T. 226).

He then identified cracks in the samples from the core drillings taken out of the loess deposit areas from the 5 foot to the 13 foot depth shown on Exhibits G-19 through G-22, and gave it as his opinion that they actually existed in the field and that "this type of crack we have found in the samples here were inherent in the material in the field."; and that this conclusion was confirmed by the stains on the cracks shown on Exhibits G-19, G-20 and G-21 (T. 235-236, 391).

He also said that because of the silty sandy nature of the soils where the grains are held in suspension [*21] by water, the vibrations from trucks moving along the highway in this vicinity could have caused the cave-in because of the nature of loess to break along columnar joints and fall after it has lost its support underneath due to liquid fraction (movement of water and sands and silts) (T. 236-239, 250, 251). This we feel in our opinion is what the evidence establishes as the cause of the fall of the columnar joint which struck and killed respondent's employee, Silva.

Flagg then stated, in answer to a question of what precautions should have been taken to prevent the cave-in, that due to the water conditions and sand in the bottom of the trench, the proper precaution "should have been to flatten these slopes from the bottom of the trench in lieu of carrying them up" to the 5-foot level, which he illustrated on Exhibit G-34 (T. 230, 232). The evidence establishes respondent did not do this and therefore was in violation of the standard 1926.651(h).

Dr. Joseph Benak, a professor of civil engineering at the University of Nebraska at Omaha since 1967, testified that the cracks shown on G-18 to G-22 could have been caused by the sampling method but agreed that Haskins-WesternSondregger [*22] was a recognized engineering firm and generally recognized as very competent in the work they perform (T. 353, 392). Dr. Benak admitted that there was "substantial agreement" in the soil conditions and analysis made by the Corps of Engineers of the soil samples obtained from the two bore holes shown on Exhibits G-16 and G-17 (T. 354).

On direct examination, Dr. Benak would not agree that the water table could be determined from an examination of these logs (T. 355). However, when cross-examined about Flagg's testimony that the soils toward the bottom of the bore logs showed high levels of saturation and the testimony of water in the trench, he offered the hypothesis that the water in the trench could be the result of capillary action (T. 364). He then stated "this was not my intent to indicate that this [capillary action] was the primary cause -- I said this could have been the reason that the soils at the bottom of the trench were saturated." (T. 364). Dr. Benak then agreed that ground water is "an alternative explanation" (T. 365). He also stated that he could "heartily agree" with Bliss' use of the term "muck" as appropriate terminology to describe the combination of sand, [*23] silt and water (T. 116, 365-366).

Dr. Benak on direct examination stated he could not agree with Flagg's opinion as to the cause of the failure of the trench and would not attempt "to establish the mode of failure without actually having observed the failure and the conditions at the site." (T. 358). However, on cross-examination, when interrogated concerning factors considered by Flagg in reaching his conclusion as to the cause of the cave-in he said: "That is one possible hypothesis that I could not refute." (T. 368-369).

Dr. Benak agreed that water content is the single most important factor affecting the strength of loess to stand vertically and one of the most prominent features and characteristics of loess is its breaking in columns or vertical joints (T. 366-367), and that the minute you open it [a trench] you have created a situation which tends to cause joints or separation in the clay itself (T. 385). Benak also said that the hair roots shown in Exhibits G-16 and G-17, from two to three feet below ground level, would facilitate "surface water" seeping into the loess deposits (T. 368).

Dr. Benak also testified that bearing in mind the tendency of loess to joint or break [*24] in columns that if the "under-supporting structure" was removed and the weight exceeds the cohesive strength, "then it may break off, certainly." (T. 369) Benak also acknowledged that absent compaction backfill material would loss its cohesive strength and be susceptible to greater seepage because of its softness and looseness (T. 370-372), and that without knowledge of whether a backfill area has been compacted, it would be an open warning that added precautions should be taken under regulation 1926.652(e) (T. 373-374). Dr. Benak answered a question as to what caused the slab shown in Exhibit G-1(a) to fall. He gave as two variables, "Well, certainly moisture conditions. Possibly vibrations," or a combination of causes (T. 384-385).

We note that three previous citations have been issued to Cedar Construction Company for violations of trenching standards, and Roger Steuckratb, respondent's president, acknowledged that he had copies of and was familiar with the regulations (Exhibits G-23, 24, 25; T. 289-296, 303, 402-403, 413).

In the instant case, the inspection was made on May 20, 1974, and the citation issued on November 8, 1974 (T. 258, 310). The case was then referred [*25] to the Regional Solicitor's Office for consideration of criminal prosecution because it was felt there was evidence of willfulness in accordance with the Operation Manual, Occupational Safety and Health Administration, Exhibit G-27 (T. 305, 310-311, 312). The file was received in the Regional Solicitor's office May 31st, and then sent to the Solicitor in Washington on June 21st with a recommendation that it be referred for criminal prosecution to the Attorney Ganeral. The evidence then establishes that due to review procedures involving the Regional Solicitor and Office of Associate Solicitor for Occupational Safety and Health Administration in Washington, the final decision was not made as to whether to proceed criminally or civilly until November 7, 1974, at which time the Regional Solicitor was notified it had been determined to proceed by citation (T. 145-152). During this period no citation could be issued because of an agreement with the Department of Justice that until it was decided whether a case will be referred for criminal action, the Administration should withhold issuing a civil citation (T. 148). Also, processing of the file was delayed by heavy workloads at [*26] the Washington and regional levels (T. 153-154). We note that respondent's counsel who had represented respondent in May 1974 and 1973 inspections, was informed "at least a month or month and a half after the inspection" that this file had been referred to the Associate Solicitor in Washington with a recommendation for criminal prosecution and that there were police reports and photographs (T. 7, 23). Also it is to be noted that following the inspection, soil samples were taken from the walls of the trench for respondent by Haskins-Western-Sondregger and subsequent to that, "core samples" were also taken by Haskins-Western-Sondregger for respondent (T. 25, 189). So therefore it is readily apparent that respondent was preparing for the worst, namely, a criminal prosecution and had taken what necessary precautions it felt should be done in anticipation of a possible criminal citation.

We note also from the file that the police report lists Steve Bliss, Jack Bruha, Loyal Bridges and John Lynch as witnesses to the accident. A the hearing the complainant produced Bliss and Bruha. Respondent had its superintendent present. Respondent was furnished with the address of Lynch and given [*27] a week following the trial to take the testimony of Lynch and Elmer Cole who was out of town at the time of the hearing.

ISSUES

1. Is the Act constitutional?

2. Should the complaint be vacated because of the "reasonable promptness" provision of section 9(a) of the Act?

3. Was the respondent in willful violation of section 5 of the Act and the requirements of the regulation as prescribed in 29 CFR 1926.651(h) and 1926.652(e)?

4. Is the proposed assessed penalty appropriate?

5. Has the respondent been prejudiced in any way by the delay in the issuance of the citation.

There was reasonable delay in issuing the citation and "exceptional circumstance" that would constitute "reasonable promptness" within the meaning of section 9(a) of the Act.

DISCUSSION

Respondent's allegation that the Act is unconstitutional is without merit.

See also American Smelting and Refining Company v. OSHRC, 501 F.2d, 504, 515.

We hold that the reasonable promptness provision of section 9(a) must be read and considered with the six months limitation [*28] of section 9(c) of the Act.

A careful consideration of all the factors involved in the instant case compels us to believe that Congress felt that exceptional cases could stand up to six months delay before citation, and that if exceptional circumstances delayed the issuing of the citation up to a six months cut off date, that it was a reasonably prompt issuance within the meaning of the Act.

This may also be considered as "reasonable delay under the circumstances prevailing" before the issuance of a citation.

The purpose of limitations on actions is that potential litigation should end some time because with passage of time witnesses may become unavailable, evidence lost and memories become faded. Order of Railroad Telegraphers v. Railway Exp. Agency, 321 U.S. 342, 348, 64 S.Ct. 582, 586 [8] (1944), Burnett v. New York Central Railroad Company, 380 U.S. 424, 428, 85 S.Ct. 1050, 1054 (1965) and Am. Pipe and Construction Company v. Utah, 94 S.Ct. 757, 766 [9] (1974).

The statute of limitations is an affirmative defense, Rule 8(c), Rules of Civil Procedure, and "must be . . . proved by the asserting party." Sterling Drug, Inc. v. Cornish, 8th Cir., 370 F.2d 82, 86 [*29] [10].

The purpose of any statute of limitations is to protect the defense from being prejudiced by the unavailability of evidence and witnesses. Mere general assertions of prejudice are insufficient, e.g., Natl. Roofing Contractors Association v. Brennan, 495 F.2d 1294, 1296 [1].

In the instant case, respondent was not prejudiced. All of the employees who had been identified as working at the time of the cave-in were available. Bruha and Bliss were called by complainant as witnesses, respondent's project superintendent, Bridges, was present at the trial, and John Lynch was located by complainant's counsel and his address furnished respondent's counsel before the hearing (T. 8-9). The local police officers together with pictures, the rescue squad officer and members of the city engineering department were available (T. 29, 37, 50, 61, 80).

We note further that respondent's president, who was unquestionably expecting a criminal citation, had Haskins-Western-Sondregger remove samples from the side of the trench before it was closed and then had core samples drilled (T. 25, 189, 422). The record will show that respondent has not been misled in any way. Respondent's counsel [*30] was advised a month and one-half following the inspection that criminal prosecution had been recommended (T. 23). He was given a week after the hearing should he want the testimony of two witnesses (T. 433). Apparently, respondent decided not to do so as no action was taken.

Respondent is not shown as being deprived of any testimony that was or could have been available to it within 72 hours of the inspection or in the 12 months since then.

In the case of Brennan v. Chicago Bridge and Iron Company and OSHRC, the Seventh Circuit on April 22, 1975, vacated an order of the commission dismissing a case on the grounds of "reasonable promptness."

The Court stated that the Commission had misread the legislative history when it held that "the Act contemplated the issuance of citations within 72 hours from the time the Secretary formed a belief that a violation had occurred." The court further noted that: "The sole absolute limitation was a six month limitation set forth in 658(c)."

The court further stated:

While the language of 658(a) seems to indicate that the time for determining "reasonable promptness" should be measured from the instant the Area Director concludes [*31] that a citation shall be issued, for several reasons we cannot believe that Congress intended the Commission to establish such a prophylactic rule based on this starting point (emphasis added).

The court does not define "reasonable promptness." We feel that is a question to be decided in each individual case.

In the instant case a fatality had resulted from an employer's failure to comply with the Act (involving a fatality). This fatality possibly involved criminal prosecution. In said circumstances, the government has set up administrative procedures as a safeguard to be followed in a decision making process. These procedures require thorough checking by several people before such a serious procedure as issuance of a criminal citation. In the instant case, it delayed the issuance of the civil citations for shortly less than six months. The evidence produced at the hearing indicates that respondent was not prejudiced in any way. The respondent has not come forward with any probative evidence to indicate that it has been prejudiced.

Under the facts known to all parties in this cause, the fatality occurring as it did, made certain that either criminal action or a citation [*32] would issue (one or the other). The government has set up a procedure in the Compliance Operations Manual, Chapter XI-11, wherein the Area Director must consult with and refer the file to the Regional Director for the Occupational Safety and Health Administration and, if appropriate, to the Regional Solicitor, Exhibit G-27, where criminal penalties are involved (T. 311). The Operations Manual specifically prohibits the Area Director from issuing a willful violation on his own authority, Chapter XI-10.

Thereupon the Regional Solicitor in such criminal prosecutions is required to analyze the file and submit his recommendations to his Washington Office where the file is reviewed (T. 146, 150). The record shows that all representatives of the Secretary at the regional level were of the opinion that considering the circumstances of the fatality and the fact respondent had had the benefit of three previous inspections, a criminal violation had occurred (T. 146, 310-311).

A decision at the highest level not to prosecute was not made until November 7, 1974. Thereupon the Area Director issued a Citation on November 8th (T. 5, 152, 312). The reason for the delay as given in the testimony [*33] was that there were heavy case loads at both the Washington and regional levels (T. 151, 153-154, 157), and in cases involving potential criminal prosecution, in conformity with an agreement with the Justice Department, the Occupational Safety and Health Administration withheld the issuance of a citation until after a decision on not prosecuting criminally had been reached (T. 148).

Accordingly, due to "exceptional circumstances" there was a reasonable delay under the prevailing conditions. A citation was not issued until November 8th. Respondent as one of its main defenses sets up this delay as lack of "reasonable promptness" as a defense. The simple fact is that the government's checks and balances procedures in the Department's handling of this inspection saved respondent from a criminal prosecution.

We note that respondent previously had three different inspections and received citations for violations. Respondent's president and project superintendent were present at the inspection and both they and the respondent's counsel obviously expected that either a citation or possible prosecution would result (T. 7-8, 14-15, 23, 259, 422). The passage of time did not harm the [*34] respondent in any way. The witnesses were still available. The facts remain the same as developed at the hearing. Respondent has not shown in any way that the citation was not issued with "reasonable promptness" "under the circumstances", nor that respondent had been prejudiced in any way. The record shows that the citation was filed within the six months limitation of section 9(c).

We feel that this rationale is supported by the Seventh Circuit's decision in Chicago Bridge and Iron, supra, U.S. Court of Appeals (Apr 22, 1975) and the decision in Brennan v. Jack Conie & Sons Corporation, OSHRC No. 6794. Both decisions indicate respondent's defense is without merit.

RESPONDENT WILLFULLY VIOLATED THE REQUIREMENTS OF SECTIONS 1926.651(h) AND 1926.652(e) OF 29 CODE OF FEDERAL REGULATIONS.

Regulation 29 CFR 1926.651(h) provides:

"The angle of repose shall be flattened when an excavation has water conditions, silty materials, loose boulders, and areas where erosion, deep frost action, and slide planes appear."

The solicitor in complainant's brief has stated that:

"Respondent's requiring Silva, or any other employee, to work in a trench under the circumstances disclosed [*35] by the evidence was like a suspended death sentence, subject to revocation anytime!"

We are compelled to agree with this statement as the record is replete with evidence that water seepage into the trenching excavations on this project, from the beginning to Silva's death, was a continuing if not almost constant problem. This was particularly true between Manholes 21 and 22 (T. 86, 89, 94, 115, 117-118, 124, 130, 425). Respondent had all the notice in the world necessary to indicate to him that this was a dangerous situation unless proper precautions were taken, more so because he had pumps on the job to remove the water (T. 89, 116, 117, 406).

The evidence shows that the material at the lower levels of this trench at the 12 to 14-1/2 foot depth was almost wholly composed of fine silt, sandy silty clay, sand and clayey sand which when Laboratory tested by Monzingo, of the Corps of Engineers, was "sensitive," "wet" and of "low toughness," Exhibits G-16, G-17 (T. 174, 175). Witnesses Bliss and Bruhs were both familiar with the trenching and ground water seepage. They described it as "muck" and "sand and mud" (T. 116, 124). These descriptions are commonly recognized by most everyone. [*36] He further testified that sand, "due to partial saturation, has no cohesive strength at all" and that as moisture or pore water fills in between the grains of soil and strain rates increase, it loses all strength (T. 209-211).

It was Flagg's expert opinion from examination of the results of the tests of the soil samples taken from the bore holes shown on Exhibit's G-16 and G-17 that the bottom samples indicate "total saturation below the water table in the sands and the clay sands and the sand silty clays" (T. 216). These borings were made 11 feet west and 10 feet east of the center of the sewer line, near the gas line, as shown on Exhibit G-9 (T. 191-193).

It was Flagg's testimony that based on a comparison of soil composition shown on the bore holes, there was no reason to believe the material between the two holes would not be the same (T. 212).

Respondent's present job superintendent had ample knowledge of the treacherous nature of the soil at the level where this work was being performed. This is well demonstrated by the fact that because the soil was so unstable, much of the sewer pipe, on the project, and all of it between manholes 21 and 22, were being laid on a 10 inch [*37] bed of crushed rock 42 inches wide (T. 72, 75, 83, 87, 90, 94, 115, 117-118, 124, 125-126, 425). The evidence definitely shows that the purpose for which the rock was being used was to provide a stable bed for the pipe to prevent settling and heaving because of the unstable condition of the soil at this level (T. 73-74, 78, 85, 90, 125, 223-224, 425).

City engineer inspector Basel testified that this was done to hold the "line and grade" (T. 84).

It was the testimony of both Flagg and Benak that loess has a tendency to joint or break in vertical columns (T. 218, 219, 247, 250, 369). Steuckrath admitted that he was familiar with the tendency to break off in vertical or columnar structure (T. 421). This characteristic to crack is well illustrated by stains from water migrating in the core samples shown in Exhibits G-18 through G-21 (T. 218).

Witness Benak speculated that cracking might have resulted from removal. Witness Flagg pointed out that in his 16 years of experience with soils and foundations "that this type of crack we have found in the samples here were inherent in the field" and, although they tend to open up in handling regardless of amount of care "actually [*38] existed in the field before samples were opened" (T. 234-235, 352). Flagg referred to stains in Exhibits G-19, G-20 and G-21 as a definite "indication this cracking was open in the field or it would never have been stained" (T. 218, 235). Benak agreed that hair roots found in samples shown on G-16 and G-17 facilitate surface water seeping into loess (T. 368), which may explain the staining.

It was witness Flagg's expert opinion that the cause of the cave-in was the ground water bleeding or carrying particles of sand and silt from the lower levels of the side of the trench into the excavation thereby removing the soil support from the loess material above, which being subject to vertical cracking and left unsupported was "in a cantilevered position having no strength or support underneath to support it. And due to these vertical cracks, would then slab off" (T. 219-220, 237-238). Exhibits G-1, G-3, G-4, G-6 clearly show the slabs and G-2, G-3, G-4, G-5 show large clods in the metal box that may have been slabs or broke into chunke when slabs hit the box. The weight of this material was 95 to 110 pounds per cubic foot (T. 226). In this trench which had a height of 12 [*39] to 13 feet above the silt and sand level, there well could have been 1200 or more pounds of material pressing down per square foot on the weakened support in the bottom 2 feet of the trench for every foot the trench was open. This, plus a spoil pile 8 to 10 feet high on top of the surface, which even though sloped, added weight to the unsupported trench cut (T. 128-129). The exceptional weight of this soil accounts for the fact that any one of the clods, and particularly the one visible in Exhibit G-4 near the metal bar, which appears to be at least a cubic foot in volume, could have hit Silva with the force of a sledgehammer crushing the base of his skull.

Benak's testimony amounts to offering an alternate theory on the source of the ground water saying it could have come from capillary action and hypothesizing, it could have exerted an upward pressure (T. 357). This theory is not tenable. The failure of this theory is that regardless of the source of the water, the soil was saturated, there was muck, sand and water in the trench, unquestionably the bottom was so unstable that ten inches of rock had to be laid for a bed to stabilize an eight inch pipe. All of this is notice [*40] to the respondent of danger if he does not take proper precautions as set forth by the cited standards.

It is to be noted that Benak on cross-examination did not contend capillary action was the primary cause of water. He admitted water was a valid "alternative explanation." He declined to offer an explanation for the cave-in and admitted Flagg's hypothesis "I could not refute" (T. 358, 364, 365-366, 368-369).

Respondent did not offer results of any of its tests made from the sides of the trench, while still open from its core drilling (T. 25, 189, 422).

29 CFR 1926.651(h) requires that where water conditions, silty materials, or areas of erosion exist, that "the angle of repose be flattened." One of respondent's principle arguments is against this phrase "the angle of repose be flattened" arguing that the angle of repose has no meaning when applied to materials in situ (T. 241, 348-349). Benak actually was questioning the terms used in describing soils, e.g., "average soil," and not the angle of repose (T. 377-378). The Commission and hearing judges have been applying the term angle of repose to materials in situ since the inception of enforcement of the Act, [*41] and angle of repose has no such limit as respondent would claim.

29 CFR 1926.652(a) and 1926.652(b) specifically refers to the guide in Table P-1 which provides, "Approximate angle of repose for sloping sides of excavations," and witness Flagg stated "the angle of repose is a function of materials" in response to respondent's counsel's question of "how would you flatten a bank" (T. 240-241).

Respondent refers to the term "flattened" as vague, and contradictory to "angle of repose" (T. 240, 341, 347). Citing Brennan v. Anchor Construction Co., OSAHRC No. 8122, the Commission has directed review of this decision. We do not feel the term "flattened" is vague and contradictory to "angle of repose."

In a Tenth Circuit case, Brennan v. OSHRC and Santa Fe Transport Co., 505 F.2d 869. The Court said:

We are considering a regulation promulgated pursuant to remedial legislation, . . . and must do so in the light of conduct to which it is applied . . . . The question is whether the regulation 'delineates its reach in words of common understanding '. . . . A permissible 'leeway' is allowed in the field of regulatory statutes governing business activites in narrow categories. [*42]

The phrase 'near proximity' is redundant but emphasizes the desirability of prompt assistance when an injury occurs. Any specific delineation would present a myriad of complications. (emphasis supplied) (505 F.2d at 872 [4-6]).

Webster's New World Dictionary, 2nd College Edition, defines "flatten" "to become flat or flatter" and "to make or become flatter by spreading out." We find no difficulty with applying this definition to the situation in the present case. The knowledge that the trench is full of water and silt "muck", plus heavy walls appear on the perpendicular, would indicate to just about anyone interested in their safety for getting into such a trench that it should be "flattened" out more. In other words to make it flat enough so that it will not fall upon you due to erosion at the bottom or inability of a soil wall to hold itself through vibration.

Witness Flagg, on cross-examination, said that while the language in the trenching regulations might be difficult for a soil mechanics expert, "I think they're more of a layman's understanding, not someone who has a lot of education in the field of soil mechanics" (T. 249). Witness Benak appeared to agree with this [*43] on cross-examination (T. 377). Respondent's witness Steuckrath, had no difficulty with the meaning of the words. He was asked about being able to correct areas where "you had water." He answered: "it was corrected by flattening the slopes." This simply means getting down to a flatter level to the point where they're no longer a menace to anybody in the trench (T. 407-408). In Brennan v. Southern Contractors Service and OSHRC, 492 F.2d 499, the Court stated that the Secretary's "interpretation" is entitled to great weight" and "is controlling as long as it is one of several reasonable interpretations." We feel that the interpretation of "flatten" as used in the statute fite the instant case, and, that the respondent did not flatten the walls to the point where they were safe within the meaning of the standard.

The Court further stated in the Southern Contractors Service (supra) case that:

"In view of the salutary purpose of the Occupational and Safety Health Act, we cannot conclude that the ambiguity in the term impractical is so fatal as to warrant condemnation of the Secretary's interpretation of the regulation as unreasonable."

"In contrast, the Commission's construction [*44] would eviscerate the import of the regulation and flout the purposes of the enabling legislation. . . . Under the Commission's interpretation, an employer unsolicitous of the safety of his employees could dodge the Act's sanctions merely by adducing evidence that a device listed in 29 CFR 1926.105(a) could have been practically utilized." (492 F.2d at 501 [1-3])

The sloping or shoring required in section 1926.652(b) is not the same as the flattening or leveling out required under the conditions described in 1926.651(h). A close reading of section 1926.651(h) establishes that this standard contemplates conditions which make a trench more dangerous to employees than those conditions which would be contained in 1926.652(b).

Section 1926.651(h) does not become applicable until there are water conditions, silty materials or erosion appears. In the instant case each of these conditions was present, including the erosion of silt and sand as muck in the trench. The angle of repose, according to the definition, embraces the concept of "sliding." We feel that angle of repose would include vertically cracking and falling as it is in the nature of a slide. As we have indicated we find [*45] no trouble at all in adopting the word "flatten" to the leveling off of soil under certain conditions to the point where it becomes safe for every employee working in the trench. It is significant that Benak in his testimony stated that he would have not wanted to work in it himself (T. 395-396).

The Secretary's interpretation of angle of repose and flattening is a reasonable one and we will follow it (Brennan v. Southern Contractors, 492, F.2d at 501[1]). There is no doubt in our mind that section 1926.651(h) is tailored to a specific kind of condition (as in the instant case) requiring greater precaution than 1926.652(b) or 1926.652(c). The word "flattened" means "to make or become flat or flatten by spreading out," this the respondent did not do. No measurements were ever made of the sides of the trench (T. 140-142) and if the dipper stick (T. 138) of the backhoe shown on Exhibits G-1(a), G-3, G-6 and G-32 is examined closely, it is readily apparent that the walls of the trench, even making allowance for the caved in west side, are not even one foot rise to one-half horizontal, but are almost in a vertical position (T. 134-136).

Bruha was asked the length of the gas pipe [*46] which was exposed. His answer was "seven to eight feet" (T. 137-138). This appears reasonable and a true measurement of comparison for the width below. The evidence shows that the trench box was 42 inches wide. Steuckrath agreed the distance from the sides of the box to the wall of the trench was 18 inches (T. 417). The sum total of these figures are equal to 6-1/2 feet which would indicate that the trench at the gas line level was only 6 inches to one foot wider than at the bottom; and this was 3 feet and 11 inches below the surface.

Flagg was asked what extra precautions should have been taken. He said "all prudent efforts should have been made to flatten these slopes from the bottom of the trench . . . with the water type conditions we had at this location (T. 231).

We hold that "angle of repose" and "flatten" are not contradictory where water, silt and erosion conditions exist and that the term flatten as used in this regulation is one of common understanding and is, at least, "one of several reasonable interpretations." Brennan v. Southern Contractors, supra.

The total credible evidence definitely establishes that the respondent did not flatten the sides of the [*47] trench so as to conform with the standards and this failure to so do is the cause of the sliding fall of the slab of earth which killed respondent's employee, Daniel Silva.

29 CFR 1926.652(e)

This standard provides:

"Additional precautions by way of shoring and bracing shall be taken to prevent slides or cave ins when excavations or trenches are made in locations adjacent to backfilled excavations, or where excavations are subjected to vibrations from railroad or highway traffic, the operation of machinery, or any other source."

The preponderance of the credible evidence establishes that respondent has failed to take additional precautions in the trench involved in the accident. This trench was not only adjacent, but right under a backfill area where it was subjected to vibrations from highway traffic.

The high pressure gas line is shown in Exhibits G-3 and G-6. This line is 3 feet 11 inches below ground level (T. 261). Thus, in the area of the metal box which was immediately below it, as shown in these exhibits, almost one-fourth of the top part of the trench had been disturbed. Both witnesses Benak and Flagg testified that such soil was more permeable and was subject [*48] to greater ground surface water seepage (T. 205, 370-371, 372), and Flagg stated "it would never have the [same] strength again" (T. 205).

Benak testified that if compacted, the area would be impervious, but he agreed it would be unlikely to be compacted unless there was some future construction (T. 374). Flagg testified that there was no reason to compact the soil "and most contractors leave it heaped up to settle under its own weight" (T. 250).

Steuckrath, made no inquiry to ascertain that the soil had been compacted (T. 420).

In regard to the vibrations, Cornhusker Highway is a heavily traveled thoroughfare (T. 375) and the access road, as shown on Exhibits G-28, G-29, provided entrance and egress to a concrete mix and concrete block plant and to General Steel, which was used by strucks hauling their products (T. 136, 272).

It was Flagg's testimony that because of the prevailing soil conditions and water, that the slabbing off could have been caused by vibrations (T. 237). Benak, when asked what caused the slab to fall, answered: "Well, certainly moisure conditions. Possibly vibrations. Possibly inadvertent hitting of this side of the trench with a backhoe, for example, [*49] or a number of causes. Or a combination, certainly." (T. 384-385). There is no evidence the backhoe hit the side. Therefore, the only two causes Benak could actually name were moisture and vibrations. These are the two conditions which respondent is charged with in the citation for having willfully failed to take action or additional precautions to comply.

Benak was asked if in a backfilled area where it was not known whether the soil had been compacted, whether it is not "an open warning? Either [to] make a determination or take ample precautions or added precautions as required under this regulation?" [1926.651(e)] He answered, "I would agree to that" (T. 373-374). This regulation requires additional precautions of shoring or bracing in trenches adjacent to backfilled excavations or subject to vibrations. These precautions must be taken before workers are subjected to the hazard posed by these conditions.

There have been a great number of deaths during the past from cave-ins of excavations. The Occupational Safety and Health Administration was created for the definite purpose of reducing these deaths. The purpose of the two standards for which respondent [*50] was cited was to provide a margin of safety for employees and to prevent cave-ins such as occurred in the instant case. Respondent took no precautions by way of bracing or cutting back in the area where this cave-in occurred. The trench where the pipe was exposed was only a foot or so wider at this level than at the bottom level of the trench. Respondent's own expert has stated that he would not get into the trench as it was at the time of the accident and work there.

WILLFULNESS

Section 17(a) provides in pertinent part:

"Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or . . . regulation . . . may be assessed a penalty of not more than $10,000 for each violation."

It needs to be noted that there were three previous inspections made of complainant's trenching operations and citations issued because of violation, Exhibit Nos. 23, 24, 25 (T. 290-297). All of this points out vividly the fact that respondent had full notice of the total trenching regulations and in spite of that willfully persisted to disregard these regulation, thereby causing the death of employee Silva.

Congress has used the words "willful [*51] or repeatedly" in the disjunctive, not the conjunctive, which would indicate they should apply to different situations and be treated differently. Respondent in the instant case has full knowledge of the total trenching regulations. To hold that the employer would have to be cited for the exact regulation regarding trenching before his conduct is willful, would render the use of these words meaningless and negate the intent of Congress.

The Field Operations Manual governing OSHA inspections recognizes this difference, Chapter VIII, B-4 and B-5, Volume 1, Employment Safety and Health Guide, 43602, which requires a previous citation of a regulation for a repeated as distinguished from knowing and intentional conduct for willful conditions.

In the case of U.S. v. Dye Construction Co., 510 F.2d 78, the Tenth Circuit has defined willfulness under the Act in an instruction as follows:

"The failure to comply with a safety standard under the Occupational Safety and Health Act is willful if done knowlingly and purposely by an employer who, having a free will or choice, either intentionally disregards the standard or is plainly indifferent to its requirement. An omission or failure [*52] to act is willfully done if done voluntarily and intentionally." (510 F.2d at 81)

The duty owed or standard of willfulness owed in a civil case is certainly no higher than in a criminal and probably less stringent. In another willful case the First Circuit held that an employer, "through its foreman, made its choice, a conscious, intentional, deliberate, voluntary decision, which regardless of venial motive, properly is described as willful," Messina Construction Corporation v. OSHRC, 505 F.2d 701, 702 [2]. In this case Messina had been cited previously and found in violation. The employee was killed while working in a trench below a 4-1/2 foot deep water line which burst causing the collapse of the trench where no effective steps had been taken to slope or brace. The effects of ground water in the instant case is similar to that of a water pipe breaking. See also the citations in the Messina case.

Bridges and Steuckrath admittedly had knowledge of the trenching regulations (T. 304, 404, 413, 418). Their actions in failing to flatten or slope in the face of ground wter, silt, and erosion and to take "additional precautions" in a backfilled area where there was heavy truck [*53] traffic, which was a warning of potential vibration, cannot be characterized as anything but a voluntary, conscious, intentional and, therefore, willful disregard of the requirements of sections 1926.651(h) and 1926.652(e).

In summation therefore we find that the respondent was, in fact, in flagrant negligent disregard of the sandards involved and that they have been in willful violation.

We come down to the question of the penalty.

The intent of the Act is to furnish a safe workplace for employees and if we are ever to make progress in that area, the standards must be observed.

Here in the instant case the respondent is guilty of a number of violations after having knowledge of what is required of them by the standards. It is evident that each of the violations consist of not doing something which would perhaps cost a little additional in order to make the area safe for the employees. To just give a slap on the wrist to a respondent in a case where he has grossly neglected his duty in furnishing a safe workplace would be a gross disservice to those employees engaged in the trenching business. It would tend to deteriorate the Act because it would probably be cheaper to pay [*54] a number of small fines than to do the work necessary to protect employees from loss of life or limb. We have examined the method of penalties, the Act itself in regard to penalties, and have concluded that the total preponderance of the credible evidence of record establishes that the Secretary made a proper evaluation of the penalty respondent has earned through its dereliction of duty. Accordingly, we will let the citations and penalties stand.

FINDINGS OF FACT

1. Respondent is a Nebraska Corporation located in Omaha, Nebraska, where it is engaged in excavating, trenching, and installation of utility pipes and sewers for municipalities (T. 338, 398).

2. Respondent is engaged in a business affecting commerce and during the period July 1973 through September 1974 generally employed approximately 30 employees (T. 338-339). During the period in question respondent was engaged in the laying of a sewer line with laterals or stubs branching out therefrom for the city of Lincoln, Nebraska (T. 62-63, 81).

3. On May 17, 1973, respondent employed four employees under the direction of a construction foreman, Jack Bruha, and project superintendent, Loyal Bridges, in the excavation [*55] and laying a lateral branch of the sewer from the main line at about 60th and Cornhusker Highway extending approximately 50 feet north of Cornhusker Highway on a project between what was designated as Manholes Nos. 21 and 22 (T. 29, 131), Exhibit G-7 and G-9.

4. Respondent's employee, Daniel Silva, was killed while working in a trench between Manholes 21 and 22 on May 17, 1974, when a section of the west wall of the trench broke off and large slabs or clods of earth fell into the trench, with one or more of the slabs or clods striking Silva in the back of the head, crushing the base of his skull, and causing brain stem damage and his death (T. 36-37, 44, 52-53, 108, Exhibits G-1 through G-6).

5. The area of the occurrence of the cave-in was adjacent to and below a four inch high pressure gas line (Exhibit G-1 and G-3, T. 110, 136, 138).

6. At the point where Silva was working and where the cave-in occurred, the trench in which he was working had been excavated to a depth of 14 to 15 feet, this was approximately 10 inches below the level at which the sewer pipe was being laid, in order that a crushed rock bed or foundation could be placed under the pipe (T. 65-67, 72, 83, 92 [*56] and Exhibit G-7).

7. The crushed rock bed or foundation was 10 inches thick and approximately 42 inches wide. It was necessary to put this rock in the excavation because water and unstable soil conditions at the bottom of the trench required this rock bed to provide stability of alignment both vertically and horizontally for the pipe and to prevent sinking or heaving of the pipe (T. 34-35, 89-90, 92, 104, 115-116, 124-125, 425).

8. The condition of water in the trench together with unstable soil conditions were well known to respondent's president, Roger Steuckrath, and his project superintendent, Loyal Bridges. The rock foundation had also bee used in other areas where ground water had been experienced in the laying of the pipe in order to provide stability (T. 89, 116, 117, 124, 406, 424). Respondent had placed pumps at the location of the accident and other places on the project to remove ground water which had been a continuing problem (T. 86, 415).

9. Sample soil cores were obtained by drilling two bore holes to a depth of approximately 15 feet on each side of the location of this trench and sewer (after it had been filled) and approximately 10 feet from the center line [*57] of the sewer. These samples showed hat the first 12 to 13 feet in depth below the surface contained a loessial type of material basically composed of clay; that soil below the 12 to 13 foot depth is best described as silt, sand, clayey sand and sandy silty clay; that it is reasonable to conclude these conditions existed where the trench was excavated (T. 208-210) Exhibits G-16, G-17.

10. The tests made of the soil taken from the 12 to 15 foot depth in the trench showed the varying degrees of moisture, ranging from being very moist to totally saturated, and employee who were working in it are familar with conditions in the trench and described the ground in the bottom of the trench as muck and sand, and sand and muck and mud (T. 116, 124, 210).

11. Silt is highly erosive and it is known that it will move and migrate when permeated by ground water or pore water. It loses its cohesive strength to bear loads, and sand when subjected to partial saturation loses all cohesive strength or ability to hold together (T. 208-211).

12. It is a well recognized fact that loessial soil has a tendency to jointing or cracking along columnar or vertical lines; that this soil will collapse and [*58] break in sections when support is removed beneath it (T. 218, 219, 247, 250, 369, 421).

13. Under the conditions existing in the trench on May 17, and in this trenching operation generally, as a result of the ground or pore water, the sand and silt were subject to migrating or moving toward the open cut or excavation of the trench, thereby leaving the loessial material without support, and, as described by an expert in a "cantilevered" position subject to vertical creacking or breaking (T. 219, 220, 226, 237-238, 364, 367-369).

14. Slabs or clods did separate and break off from the west side of the trench on May 17, 1974, falling in the trench. One or more of which hit or struck Daniel Silva causing his death.

15. The area where the sewer pipe was being laid at the time of the cave-in was adjacent to and under a high pressure gas line which was 3 feet 11 inches below the surface of the ground constituting an open warning that the area between the surface and the bottom of the gas line had been backfilled. Respondent made no effort to determine the cohesive strength or stability of this material in the backfilled area or whether it had been compacted; respondent also made no [*59] inquiry of the company that installed the gas line as to when it had been installed or if the backfilled area had been compacted (T. 205, 250, 261, 370-372, 373-374, 420).

16. The aforementioned trench was also open for a distance of approximately 50 feet along Cornhusker Highway, which highway is heavily travelled and was also parallel to an access road used by trucks entering and leaving a cement and concrete block plant of steel warehouse (T. 136, 272).

17. The width of this trench at the bottom was approximately 6-1/2 to 7 feet, the width at the level of the high pressure gas line where it was exposed and crossing the trench was approximately 7 to 8 feet (T. 138, 261, 269, 416).

18. Respondent's president claimed that the backhoe operator and foreman, Bruha, had sloped the trench or laid it back one foot horizontal to one foot of rise. No measurements had ever been made by respondent or its foreman, and this claim is not supported by the evidence of record. The walls of the trench as indicated from the pictures taken immediately afterwards, and the testimony, established that the trench was almost vertical from the bottom to the area where the gas line was exposed which [*60] is a distance of 10 to 11 feet.

19. Respondent did not flatten the walls of the trench which had water, muck, sand and silty materials in it. This trench at the time of the accident was subject to water erosion below the 13 foot level because of the water in the bottom of the trench.

20. The walls of the trench in the backfilled area where the high pressure gas line crossed the trench, and which were subject to vibrations from highway traffic, were not shored and braced.

21. OSHA had issued three previous citations to respondent, on June 12, 1972, August 2, 1973, and May 16, 1974. The last citation resulted from an inspection made on May 7, 1974. All of the citations were for violations of the trenching regulations contained in 29 CFR sections 1926.651 and 1926.652. The president of respondent company and his project superintendent had been advised of the trenching requirements at the time of these preceding inspections and they were knowledgeable of the regulations and trenching requirements of said regulations (T. 289, 291, 294, 299, 303-304, 403, 421, 425).

22. Inspection of the trench involved in the fatality to employee Silva was made on May 20, 1974. The citations [*61] were issued on November 8, 1974. Because of the willful nature of the violations resulting from respondent's officer's knowledge of the regulations, and also the conditions under which this trench had been opened and work was being performed in it by employees, the case had originally been recommended for criminal prosecution. According to the United States Department of Labor and occupational safety and health procedures, the case had to be submitted for review by the Washington office of the Solicitor of Labor. Due to review procedures and case loads, the decision not to prosecute criminally was not made until November 7, 1974. Under the facts and exceptional circumstances, the citation was issued with reasonable promptness.

23. The delay under the total circumstances was reasonable so as to constitute "reasonable promptness" within the meaning of the Act. There was no prejudice to the respondent from the late issuance of the citation (T. 7-8, 23, 25, 146, 147, 148, 153, 154, 311).

24. The complainant has shown that the issuance of the citation was with reasonable promptness and there was no prejudice to the respondent. Respondent has not brought forth any credible evidence [*62] showing that it has been prejudiced in any way by the delay in the issuance of the citation and, rather than being prejudiced regarding delay, respondent has benefited by not being prosecuted criminally.

CONCLUSIONS OF LAW

1. Respondent at all material times was an employer engaged in a business affecting commerce within the meaning of section 5(a) of the Act.

2. Jurisdiction of the parties and the subject matter is conferred upon the Occupational Safety and Health Review Commission by section 10(c) of the Act.

3. The citations for willful violations were issued within 6 months of the occurrence of the violation as provided in section 9(c) of the Act and with "reasonable promptness", in accordance with section 9(a) of the Act, considering the seriousness of the violations and the internal administrative procedures providing a system of checks and balances in evaluating cases involving willfulness which are necessary and reasonable in enforcing the provisions of both section 17(a) and 17(e) of the Act. Complainant's evidence has shown a lack of prejudice against respondent from the ligations of the citation. Incofar as the presentation of its defense in this action in [*63] any way, respondent has introduced no credible evidence to show prejudice under the circumstances.

4. Respondent willfully violated occupational safety and health standard 29 CFR 1926.651(h) by failing to flatten or slope the walls of the trench involved in the fatality beyond the angle of repose when water, silty conditions and erosion were present.

5. Credible evidence establishes that (after considering all the legal factors) the penalty in amount of $4,750 is appropriate for this willful violation.

6. Respondent willfully violated occupational safety and health standard 29 CFR 1926.652(e) by failing to take added precautions by way of shoring and bracing to prevent the cave-in when this trench was located adjacent to a backfilled area and subject to vibrations from highway traffic. The credible evidence establishes that a penalty in the amount of $4,750 is appropriate for this willful violation.

7. The credible evidence of record (which establishes the duty of OSHA to follow administrative internal procedures provides a system of checks and balances in evaluating cases involving willfullness and criminal penalties) established that there was a reasonable delay under such [*64] circumstances which did not prejudice the respondent in the defense of the citation, and, such reasonable delay constituted "reasonable promptness" under the Act.

Based on the above findings of fact and conclusions of law, it is ORDERED that:

1. The citation for willful violation of 29 1926.651(h) issued to respondent November 8, 1974, and the penalty of $4,750 is affirmed.

2. The citation for willful violation of 29 CFR 1926.652(e) issued to the respondent on November 8, 1974, and the penalty of $4,750 is affirmed.

Date: August 27, 1975

Vernon Riehl, Judge, OSAHRC