OSHRC Docket No. 13372

Occupational Safety and Health Review Commission

April 19, 1977


Before BARNARKO, Chairman; MORAN and CLEARY, Commissioners.  


Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, USDOL

Joe F. Canterbury, Jr., for the employer



This case is before the Commission pursuant to a sua sponte order for review.   The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review.   Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest.   Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed Judge's [*2]   decision.   Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.  



MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A.   For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.



Jack Ostrander, for the Secretary of Labor

Joe F. Canterbury, Jr., for the Respondent

Risteau, Judge: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter called the Act), in which the respondent contests citations issued by the complainant pursuant to section 9(a) of the Act.   The citations, which were issued on May 7, 1975, allege that as the result of an inspection on May 1, 1975, of a workplace under the ownership, operation or control of the respondent, located at Loop 820 and Granbury Road, Southcliff Center, Fort Worth,   [*3]   Texas, and described as: "underground utilities," respondent violated section 5(a)(2) of the Act in the following manner





Description of Alleged Violation


29 CFR

The walls of the excavations in which employees


were exposed to danger from moving ground at

the following locations were not guarded by a

shoring system, sloping of the ground, or some

other equivalent means: Excavation measured

35'-0" wide X 14'-9" deep X 46'-0" long, locatedat

[sic] north side of parking lot area, Loop

820 and Grandbury Road, Southcliff Center.


29 CFR

Special precautions were not taken in sloping


or shoring the sides of the excavation adjacent

to previously backfilled area.   Location: Loop

820 and Granbury Road, Southcliff Center.


The cited standards provide:



The walls and faces of all excavations in which employees

are exposed to danger from moving ground shall be guarded

by a shoring system, sloping of the ground, or some other

equivalent means.


Special precautions shall be taken in sloping or shoring

the sides of excavations adjacent to a previously back-

filled excavation or a fill, particularly when the

separation is less than the depth of the excavation.

Particular attention also shall be paid to joints and

seams of material comprising a face and the slope of

such seams and joints.






Description of Alleged Violation


29 CFR

Sides of trench in unstable material at the


following location were not shored, sheeted,

braced sloped, or otherwise supported to

protect the employees working within it:

Trench measured 17'-0" at top, 11'-0" at

bottom, 14'-9" deep, and 48'-0" in length.

Trench was in previously backfilled area and

was adjacent to existing drain line at Loop

820 and Grandbury Road, Southcliff Center.


The cited standard provides:



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.






Description of Alleged Violation


29 CFR

Materials used for backfilling excavation


were not effectively stored at least two feet

or more from edge of the excavation at the

following location: west side of excavation,

Loop 820 and Granbury Road, Southcliff Center.


29 CFR

Heavy equipment was operated at level near


excavation which was not sheet piled, shored,

or braced to resist the extra pressure due

to superimposed loads, located at west side

of trench at Loop 820 and Granbury Road,

Southcliff Center.


29 CFR

Adequate access was not provided for employees


working in trench at the following location:

trench located at Loop 820 and Granbury Road,

Southcliff Center.


The cited standards provide:



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.


If it is necessary to place or operate power shovels,

derricks, trucks, materials, or other heavy objects

on a level above and near an excavation, the side of

the excavation shall be sheet-piled, shored, and

braced as necessary to resist the extra pressure due

to such superimposed loads.


When employees are required to be in trenches 4 feet

deep or more, an adequate means of exit, such as a

ladder or steps, shall be provided and located so as

to require no more than 25 feet of lateral travel.


Pursuant to the enforcement procedure set forth in section 10(a) of the Act, respondent was notified on May 7, 1975, by W. E. Hargrove, Director of Area 1730, Occupational Safety and Health Administration (OSHA), United States Department of Labor, of the following proposed penalties:






Item 1


Item 2


Item 3




After the filing of a Notice of Contest, Complaint, and Answer, the case came on for hearing at Dallas, Texas, on September 3, 1975.


On May 1, 1975, employees of respondent were installing a 90 inch (outside diameter) sewer pipe in a shopping center parking lot in Fort Worth, Texas.   The workplace, which was inspected by an OSHA compliance officer (inspector) on that date, included an excavation measured by him at 35 feet wide by 46 feet long at ground level (Tr. 11, 72-73).   From the excavation there extended a trench 48 feet long and 17 feet wide, again measured at ground surface (Tr. 11; Ex. C 1).   Pipe had been laid in portions of the trench and excavation, which were about 14 feet 9 inches deep (Tr. 12, 73).   Employees were working in both the trench and excavation, the walls of which were not braced or shored (Tr. 28, 56; Ex. C 3, C 16).

No measurements were made of the slope of the walls of the excavation or trench, although the compliance officer testified that, to his observation, they were essentially vertical or with a very slight slope (Tr. 12, 42-46, 53, 88).   He stated further that he had been told by respondent's supervisor on the project that the [*7]   bottom widths of the excavation and trench were 29 and 11 feet, respectively (Tr. 11).

Complainant's evidence on Item 1a of Citation No. 1 consisted of testimony of the inspector that he had seen heavy equipment operating in the area of the excavation (Tr. 24), construction material stored at its edge (Tr. 27-28), and standing water in its bottom (Tr. 25-26; Ex. C 12, C 13), all conditions which were stated to be conducive to soil movement.   The witness also described moving soil in the form of sloughing from the surface of the walls (Tr. 24-25, 78-79).   Under such circumstances, the testimony was that the walls should have been shored or sloped to their angle of repose, the point at which no soil movement can take place (Tr. 19, 23-28).

On Item 1b of Citation No. 1, the witness stated that more than half of the excavation was in soil which had been backfilled during installation of another sewer line at an earlier date (Tr. 31-36).   Since the composition of backfill is not known, the angle of repose of the walls of an excavation dug in such material cannot be ascertained (Tr. 45, 49).   The situation in the present case was aggravated by the presence of water, sloughing, operation [*8]   of heavy equipment, and storage of backfill at the edge of the excavation, as described in connection with Item 1a (Tr. 36-37).   Accordingly, special shoring or sloping precautions were required (Tr. 33, 41), and the witness did not consider that adequate measures had been taken (Tr. 31, 44-46).

The testimony of the compliance officer on Citation No. 2 was similar to that summarized above in that the unshored walls of the trench were described as having been dug in both backfill and moving soil; hence they were characterized as "unstable" and subject to the requirements of the cited regulation (Tr. 48, 53, 57).

The qualifications of the compliance officer included approximately 22 years in the construction industry, although his experience in trenching operations during that period was "very limited." Between December 1971, when he was hired by OSHA, and the time of the inspection of respondent's worksite, he had inspected between 40 and 50 trenches or excavations. He had also given and received instruction in trenching safety as part of the OSHA training program (Tr. 7-8).

Respondent's evidence on the alleged serious violations included the testimony of its project superintendent,   [*9]   who stated that the excavation was 20 feet square at the bottom, according to his measurements (Tr. 104-105, 112-113, 118-120).   The bottom of the trench was 10 feet wide (Tr. 119).   He had observed no moving ground or significant sloughing during daily observation of the installation, both before and after the inspection (Tr. 106-107).   He attributed water in the bottom of the excavation to leakage from one of the pipes and the fact that the lower level was dug in solid rock; there had, however, been some rain (Tr. 107, 114, 116-117, 121).   The bottom of the trench was dry (Tr. 116).   Backfill was limited to the immediate areas of the existing pipes, and he had "shaved" a pipe running adjacent and parallel to the one being laid so as to minimize the presence of backfill and give support to the trench walls (Tr. 108, 127-129).   Construction equipment was not operated while men were below ground, and traffic was not less than 50 feet away (Tr. 110, 124-125, 127).

During 35 years in the business, much of it in supervising the digging of trenches and excavations, the witness had seen a few cave-ins but none with workmen inside (Tr. 104, 120-122).   He determines whether a trench or excavation [*10]   needs to be shored or sloped by reference to his experience, and can distinguish between a safe or unsafe installation on the same basis (Tr. 121-123).

Also testifying for respondent was the backhoe operator on the job, who stated that special equipment had been used to dig out rock in the bottom of the trench and excavation (Tr. 137-140, 144; Ex. R 1), and that he had observed no sloughing of the walls (Tr. 144).   He considered that material dug from over the top of the previously laid pipe was backfill (Tr. 147-149, 152).

Respondent called one other employee witness, a pipelayer since 1941 (Tr. 155-156), who stated that personnel would not enter the trench where the backhoe was operating or where backfilling was taking place (Tr. 155-157).   The witness had not observed sloughing or cave-ins in the trench walls (Tr. 157-158).   He could request the backhoe operator to widen the trench if he considered such action necessary and believed that the trench was safe at the time of the inspection (Tr. 158).   The witness further stated that no employees had reason to work in the confined space between the pipe and trench walls (Tr. 162-164; Ex. C 14).

Respondent's final witness was an   [*11]   expert in soil mechanics who saw the project about 3 weeks after the inspection, at which time he believed it to be safe (Tr. 179, 181). n1 The witness also produced the results of tests of core borings in both natural soil and backfill in the worksite area.   These results demonstrated that vertical walls in soils of the type sampled would be stable at heights greatly above the depth of the excavation and trench (Tr. 175-176; Ex. R 2).   The samples also showed rock from about 12 1/2 feet to 15 feet below ground level, which, along with an adjacent parallel pipe in the trench, would add to the stability (Tr. 177-178).   Soil above the rock varied from high to low plasticity clay (Tr. 193).

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n1 The configuration of the excavation had, however, been altered at this time (Tr. 86, 105, 112).

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On cross-examination, the witness stated that his opinions and analyses as to stability had been made without reference to a superimposed burden from a spoil bank at the side of the excavated areas or heavy machinery operating in the   [*12]   area (Tr. 183-184, 186).   He considered, however, that the height at which the unsupported walls could be expected to stand, as demonstrated by his analyses, was sufficiently great to support such additional burdens (Tr. 183).   The witness also did not consider the fact that water was standing in the excavation in arriving at his opinions on soil stability, since he had not observed that phenomenon on his visit to the installation (Tr. 206-207). n2

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n2 The test results do, however, show the presence of water at the 12 foot level in one of the excavation borings (Ex. R 2, page 4; plate 3).

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Evaluation of this conflicting evidence on the two citations for serious violation requires the conclusion that complainant has failed to sustain his allegations by a preponderance of the evidence.   The key issue in each item is the stability or instability of the walls of the excavation and trench, and this Judge can find no basis in the record for accepting the opinion of the compliance officer on this point over the contrary opinions [*13]   of respondent's witnesses.

Indeed, it would appear that the officer had an erroneous view of the angle of the excavation walls, which, as pointed out above, he described as nearly vertical or having minimal slope. n3 As a matter of fact, the photographs he took (Ex. C 2, C 4, C 5, C 6, C 7, and C 10) show a significant slope, apparently sufficient to permit an employee to walk out of the excavation up one of the "nearly vertical" walls (Ex. C 5).   In view of this discrepancy, the opinion of the compliance officer simply cannot be given great weight, for the opinions in conflict with his must be presumed to be based on a correct assessment of the slope. Moreover, the opinions of respondent's witnesses are corroborated by the objective soil tests reported on by the expert witness.   Items 1a and 1b of Citation No. 1 must therefore be dismissed. n4

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n3 The witness attempted to bolster his visual observations of slope with Exhibit C 1, sheet 2, where the toip width of the excavation is given as 35 feet and the bottom as 29.   If these were the true dimensions, the wall might in fact be "nearly vertical." The second figure, however, was, according to the witness, obtained from respondent's superintendent.   The latter, as pointed out above, testified that he measured the bottom dimension at 20 feet. Use of this lower figure in computing slope would appear to approximate that shown in the photographs which are discussed below in the body of this decision.

n4 In view of this holding, respondent's Motion to Dismiss Item 1b of Citation No. 1 for vagueness of the cited regulation will not be discussed.


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As to Citation No. 2, the walls of the trench were apparently close to vertical, in accordance with the testimony of the compliance officer (Ex. C 14, C 15, C 17).   However, his opinion as to stability, based on subjective factors alone, was again in conflict with those of the other witnesses, which were corroborated by the results of the soil tests. n5 Citation No. 2 must also therefore be dismissed.

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n5 The results of tests on core borings of soil made at complainant's request were apparently never made known to the witness (Tr. 68-72).

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Item 1 of Citation No. 3 for nonserious violations does not, under the language of the cited regulation, require consideration of the stability of the walls of the excavation. Consequently, the testimony of the compliance officer that an employee was working beneath the spoil bank at a point where it was less than two feet from the edge of the excavation (Tr. 60; Ex. C 10) is sufficient to establish [*15]   the alleged violation.   Moreover, respondent's evidence on the point, to the effect that the pipe-laying operation was carried on in such manner that employees would not be exposed to hazard from material at the edge of the excavation (Tr. 109-110, 157), does not detract from the weight to be given to the testimony of the officer, who observed and described the specific violation.   Finally, respondent's size, history under the Act, and good faith, as well as the gravity of the violation, warrant imposition of a $50 penalty on this Item.

Item 2 of Citation No. 3 is similar to the violations alleged in Citations Nos. 1 and 2 in that it deals with measures required to prevent collapse of the excavation walls, specifically when heavy machinery is operated nearby.   This circumstance has already been discussed in connection with Item 1a of Citation No. 1, where it was held that complainant had not estaboished a violation by a preponderance of the evidence.   Item 2 of Citation No. 3 will be dismissed for the same reasons.

In nonserious Item 3, the evidence established that the depth of the trench was greater than 4 feet. Moreover, the means of exit illustrated in Exhibit C 5 cannot be [*16]   described as "adequate" in a safety context.   Item 3 is therefore affirmed; a zero penalty is proper.


1.   On May 1, 1975, employees of respondent were at work laying a sewer pipe having a 90 inch outside diameter in vicinity of the intersection of Loop 820 Highway and Granbury Road, Southcliff Center, Fort Worth, Texas.

2.   The workplace on that date consisted of an excavation 35 feet wide and 46 feet long at ground level and 20 feet square at the bottom. Extending from the excavation was a trench 48 feet long and 17 feet wide at ground level, with a width of 10 or 11 feet at the bottom. Both excavation and trench were 14 feet, 9 inches, in depth.

3.   Pipe as described above had been laid in portions of both the excavation and trench on the above date; men were at work below ground level in both areas.

4.   The walls of the excavation and trench were stable on the above date.   No additional shoring, sloping, or special precautions were require to protect employees working within.

5.   Material used for backfilling the excavation described in the preceding Findings was not effectively stored at least two feet from the edge of that excavation.

6.   Adequate [*17]   means of access and exit was not provided by respondent for employees working in the trench described above.

7.   Respondent employed 16 persons at the worksite. Respondent had no record of previous violation of the Act, and had in effect an adequate employee safety program.

8.   Respondent has admitted the facts which underlie the jurisdiction of this Commission and its Judges.


1.   This Commission and its Judges have jurisdiction over the parties and the issues raised by the citations issued herein.

2.   On May 1, 1975, respondent was not in violation of the following sections of Title 29, Code of Federal Regulations, comprising safety standards promulgated by the Secretary of Labor pursuant to the Occupational Safety and Health Act of 1970:

29 CFR 1926.651(c)

Item 1a, Citation No. 1

29 CFR 1926.651(m)

Item 1b, Citation No. 1

29 CFR 1926.652(b)

Item 1, Citation No. 2

29 CFR 1926.651(q)

Item 2, Citation No. 3


3.   On May 1, 1975, respondent was in violation of the following Regulations promulgated pursuant to the Act:

29 CFR 1926.651(i)(1)

Item 1, Citation No. 3

29 CFR 1926.652(h)

Item 3, Citation No. 3


These are nonserious violations [*18]   for which penalties of $50 and zero, respectively, are appropriate, based on the gravity of the violation, as well as respondent's size, good faith, and history under the Act.


On the basis of the preceding Findings of Fact, Conclusions of Law, and the entire record, it is hereby ORDERED that Citation Nos. 1 and 2 and Item 2 of Citation No. 3 issued on May 7, 1975, be DISMISSED and the proposed penalties be VACATED.   It is further ORDERED that Items 1 and 3 of Citation No. 3 be AFFIRMED and that a total penalty of $50 be imposed.


January 19, 1976