Docket No. 13812

STIMSON CONTRACTING COMPANY

OSHRC Docket No. 13812

Occupational Safety and Health Review Commission

March 28, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Reg. Sol., USDOL

Joe F. Canterbury, Jr., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On January 5, 1976, Administrative Law Judge William J. Risteau issued his order finding respondent, Stimson Contracting Company, in violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter cited as "the Act"] for failure to comply with the trenching and excavation standards published at 29 CFR § 1926.651(i)(1), n1 § 1926.651(q), n2 § 1926.652(b), n3 and § 1926.652(h). n4 Total penalties of $135 were assessed.

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n1 § 1926.651 Specific excavation requirements.

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(i)(1) 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.

n2 § 1926.651

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(q) 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.

n3 § 1926.652 Specific trenching requirements.

* * *

(b) Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. See Tables P-1, P-2 (following paragraph (g) of this section).

n4 § 1926.652

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(h) 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.

[*2]

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Following the timely filing of a petition for discretionary review by respondent, review was directed by Commissioner Moran pursuant to section 12(j) of the Act. Respondent's petition raised the following issues:

1. Whether the Judge erred in finding that respondent's excavation was a trench?

2. Whether the Judge erred in finding respondent in violation of the Act for failing to comply with the standards at:

a. 29 CFR § 1926.651(i)(1);

b. 29 CFR § 1926.651(q);

c. 29 CFR § 1926.652(b);

d. 29 CFR § 1926.652(h)?

Respondent has filed a brief with us. The Secretary has not.

The only question of law raised by respondent in its petition for review is whether the Judge erred in finding that the cited excavation was a "trench" and, accordingly, whether it was subject to the standards at § 1926.652(b) and (h). The excavation was 52 feet long, 17 feet deep, 4 feet wide at the bottom, and 27 feet wide at the top. Respondent contends that because the top of the excavation was more than 15 feet wide it did not qualify as a trench as defined at 29 CFR § 1926.653(n). n5 It is well settled that in determining [*3] whether an excavation is a trench, the width is measured at the bottom. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976); Sheesley & Winters Constr. Co., 3 BNA OSHC 1340, 1974-75 CCH OSHD para. 19,756 (No. 6824, 1975). Thus, the excavation was a "trench" subject to the requirements of § 1926.652.

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n5 § 1926.653 Definitions applicable to this subpart.

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(n) "Trench" -- A narrow excavation made below the surface of the ground. In general, the depth is greater than the width, but the width of a trench is not greater than 15 feet.

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Respondent takes numerous exceptions to Judge Risteau's findings of fact. Specifically, respondent excepts to the Judge's findings that employees working within the trench were not provided with an adequate means of exit, that the spoil pile was located within two feet of the trench, that the machine located near the trench added stress to the trench walls thereby increasing the danger of collapse, and that the top width of the trench was [*4] 27 feet. Furthermore, although the Judge found it unnecessary to resolve the dispute over the nature of the soil at the bottom of the trench, respondent contends that the bottom five feet was composed of solid rock. n6

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n6 The Secretary contended that the bottom of the trench was composed of clay. Respondent argued that the bottom was comprised of rock. The Judge noted that even if the bottom of the trench was comprised of solid rock, the top 12 feet of the trench would have had to be sloped at a 1:1 ratio, or 45 degrees, to comply with § 1926.652(b). He found that if the trench were so sloped, the top width would have been 28 feet. Finding that the top width of the trench was 27 feet, he determined that a violation of § 1926.652(b) existed even if the bottom of the trench were rock.

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Concerning the spoil pile, respondent's foreman admitted that while an employee was in the trench the spoil pile was not recessed at least two feet from the edge of the trench. As to whether respondent provided employees an adequate [*5] means of egress from the trench, the evidence establishes that to exit from the trench employees were required to climb over plywood sheeting placed over the sewer pipes, then ascend a rough slope to reach ground level. The compliance officer testified that an employee he observed using the exit had difficulty climbing the slope. The Judge found that respondent failed to comply with the safety standards at 29 CFR § 1926.651(i)(1) n7 and § 1926.652(h). The preponderance of the evidence supports his findings and we affirm the disposition of these items.

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n7 A trench is one form of excavation. When a hazard associated with a trench is addressed by a standard applying generally to "excavations" that standard will apply in the absence of a more specific standard for trenching dealing with the hazard. Lloyd C. Lockrem, Inc., 3 BNA OSHC 2045, 1975-76 CCH OSHD para. 20,444 (No. 4553, 1976), petition for review docketed, No. 76-1670, 9th Cir., March 26, 1976.

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Although we also affirm Judge Risteau's disposition [*6] of the § 1926.651(q) charge, we do so on different grounds. The Judge affirmed the item essentially on the ground that the trench did not meet the sloping requirements of § 1926.652(b). Although § 1926.651(q) requires precautions in addition to those of § 1926.652(b) when heavy equipment is placed or operated near an excavation, the extra precautions must be in the way of shoring and bracing, not sloping. n8 The record shows that a Lorain Crawler crane was located on top of the spoil pile above and approximately 18 feet from the edge of the trench. The walls of the trench were neither shored nor braced. The compliance officer testified that, in his opinion, the presence of the crane added a load factor on the trench wall that increased the likelihood of a collapse. This testimony was unrebutted. n9 Moreover, even assuming that the top width of the trench was 30 feet as respondent claims, the trench would have only slightly exceeded the minimum slope required by § 1926.652(b). n10 Thus, because of the superimposed weight of the crane respondent should have taken the additional precautions required by § 1926.651(q). Its failure to do so results in the violation.

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n8 Although Judge Risteau recognized that § 1926.651(q) requires additional shoring and bracing, he premised his disposition on his opinion that the Secretary cited respondent because of its failure to provide additional sloping. But, the citation clearly stated that respondent was being cited because "the side (west) of the excavation . . . was not shored, braced, or sheet piled as necessary to resist extra pressure . . . ."

n9 Respondent argues that the item should be vacated because, although cited for "operating" the crane within 18 feet of the trench, the evidence establishes that the crane was not being used at the time of the inspection. The cited standard, however, requires precautions whenever it is necessary "to place or operate" (emphasis added) equipment or other heavy objects above and near an excavation.

n10 See n.6 supra. In light of this conclusion, the Chairman does not reach the issue of whether sloping is a permissible method of abatement under section 1926.651(q).

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Finally, we find the item alleging [*8] noncompliance with § 1926.652(b) to be duplicative of the item alleging noncompliance with § 1926.651(q). As stated, § 1926.651(q) requires precautions in addition to those required by § 1926.652(b) when heavy machinery is located near a trench opening. Thus, when applied to a trench to which § 1926.652(b) applies, § 1926.651(q) presupposes compliance with § 1926.652(b). When both standards are violated the failure to comply with § 1926.652(b) is included within the violation of § 1926.651(q). Citing an employer with noncompliance with both standards is, therefore, duplicative. Accordingly, having found a failure to comply with § 1926.651(q), we vacate the item alleging noncompliance with § 1926.652(b). Cf. Lee Way Motor Freight, Inc., No. 10699 (Jan. 12, 1977).

Inasmuch as we are vacating that item, it is unnecessary to pass upon respondent's objection to the Judge's finding that the top width of the trench was only 27 feet. Also, we need not resolve the dispute over the composition of the bottom five feet of the trench. Our disposition of the § 1926.651(q) charge is based on the presence of heavy machinery at the edge of the trench. As previously stated, even accepting [*9] respondent's contentions concerning the width of the trench and the composition of the soil, the violation has been established.

We adopt Judge Risteau's penalty assessment which comports with the requirements of section 17(j) of the Act. The Judge assessed no penalty for the alleged failure to comply with § 1926.652(b).

It is ORDERED that item three of the citation alleging noncompliance with the standard at § 1926.652(b) is vacated. Items one, two, and four of the citation alleging violations of § § 1926.651(i)(1) and (q) and § 1926.652(h) are affirmed and a total penalty of $135 is assessed.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I agree with my colleagues' finding that respondent failed to comply with 29 C.F.R. § 1926.652(h). I also concur as to their conclusion that the item alleging failure to comply with 29 C.F.R. § 1926.652(b) must be vacated, but on the basis that complainant failed to prove that the trench was insufficiently sloped. n11

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n11 The Judge correctly concluded that a top width of at least 28 feet was required in order for the trench to be in compliance with 29 C.F.R. § 1926.652(b) since at least five feet of the lowest part of the trench walls consisted of rock. However, he erred in accepting the inspector's measurement of 27 feet as the width at the top of the trench since that measurement was taken at the end of the trench where the cut was not yet completed rather than where respondent's employees were working. Respondent measured the top width of the trench as 30 feet where its employees were working. Thus, the evidence fails to establish that the trench was insufficiently sloped.

[*10]

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Although I agree with the decision's conclusion that the cavity in issue was a trench, I disagree with the finding that respondent failed to comply with 29 C.F.R. § 1926.651(i)(1) and (q) because the standards published at 29 C.F.R. § 1926.651 apply to excavations only and do not apply to trenches. For an exposition of my reasons for this conclusion, see my separate opinions in Secretary v. D. Federico Company, Inc., OSAHRC Docket No. 9879, October 13, 1976; Secretary v. Lloyd C. Lockrem, Inc., OSAHRC Docket No. 4553, February 24, 1976, and the cases cited in those opinions.

Since this decision relies in part on Judge Risteau's decision, his decision is attached hereto as Appendix A.

Appendix A

DECISION AND ORDER

Harvey Shapan, 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 a citation issued by the complainant pursuant to Section 9(a) of the Act. The citation, [*11] which was issued on May 8, 1975, alleges that as the result of an inspection on April 23, 1975, of a workplace under the ownership, operation or control of the respondent, located at Flat Creek Trunk Sewer Line, Interstate Highway 35, Waco, Texas, and described as: "underground utilities," respondent violated Section 5(a)(2) of the Act in the following manner:

NONSERIOUS VIOLATIONS
Item
No.	Standard	Description of Alleged Violations
1	29 CFR	Excavated material was not effectively stored
	1926.651(i)(1)	at least two feet or more from the edge of the
		excavation at the following location: Excavated
		material removed from trench was stored on west
		side of excavation. Spoil bank was estimated
		to be approximately 10'-0" in height and
		52'-0" in length.

2	29 CFR	The side (west) of the excavation at the
	1926.651(q)	following location was not shored, braced, or
		sheet piled as necessary to resist extra
		pressure caused by the operation of a Lorain
		Crawler crane, serial number unknown. Equip-
		ment was operated from top of spoil bank,
		approximately 10'-0" over top of excavation.

3	29 CFR	Sides of trench in unstable material at the
	1926.652(b)	following location were not shored, sheeted,
		braced, sloped, or otherwise supported to
		protect the employees working within it:
		Trench measured 17'-0" deep, 4'-0" wide at
		bottom, and 52'-0" in length.

4	29 CFR	Adequate access was not provided for employees
	1926.652(h)	working in trench at the following location:
		trench 17'-0" deep, 4'-0" wide at bottom, and
		52'-0" in length.

[*12]

The cited standards provide:

Standard
1926.651(i)(1)	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.

1926.651(q)	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.

1926.652(b)	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.

1926.652(h)	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 May 8, 1975, by W. E. Hargrove, Director of Area 1730, Occupational Safety and Health [*13] Administration (OSHA), United States Department of Labor, of the following proposed penalties:

NONSERIOUS VIOLATIONS	Item 1	$40
	Item 2	95
	Item 3	25
	Item 4

	Total	$160

After the filing of a Notice of Contest, Complaint, and Answer, the case came on for hearing at Dallas, Texas, on August 29, 1975.

DISCUSSION

On April 23, 1975, respondent's employees were installing a portion of a 27 inch underground sewer line in Waco, Texas. The workplace on that date at the time of an inspection by OSHA officials was an "excavation" or "trench" n1 about 52 feet long in which pipe had been laid for about half the distance (Tr. 36, 78). The exposed end of the pipe was covered by a sheet of plywood (Tr. 64-65; Ex. C 4, C 6). Depth ahead of this barrier or bulkhead was, according to measurements made by the inspectors, about 17 feet; depth on the other side was decreased by the diameter of the pipe and by backfill sloping upward to ground level (Tr. 36-39, 47, 74-75; Ex. C 4, C 8, C 10). Width of the excavated area was about 4 feet at bottom (Tr. 36, 87, 173). Width at the top was the subject of contradictory testimony, which will be discussed as it becomes relevant. [*14]

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n1 The 4 Items of the citation refer to this single dug out area, using the quoted terms as appropriate to the regulation cited. The same terminology will be followed herein.

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There was also disagreement as to the nature of the soil in which the pipe was laid. On the basis of visual and tactile observation and soil sample analysis, complainant's witnesses described the soil as soft or sandy clay (Tr. 12-13, 29, 70, 154; Ex. C 13). Respondent's testimony was that the upper portion was clay, while the lowest part, about 5 feet, was in rock (Tr. 173, 189, 225). These differences will also be discussed as they relate to the Items of the citation.

Item 1: Two issues are raised: Was the spoil bank at least two feet from the edge of the excavation; and were any employees in the excavation; under the bank? The first question must be answered in the negative. Complainant's inspectors observed that the bank was not set back from the edge (Tr. 25, 28, 68, 113-114), and respondent's foreman apparently did not dispute [*15] the fact (Tr. 176). Moreover, since the bank extended for approximately the full length of the excavation (Tr. 26, 115-116), and since the foreman further admitted that on employee was working below ground level (Tr. 167, 180-181), a violation is established. n2 The gravity of the violation was low, however, and a penalty of $40 is appropriate.

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n2 The witness attempted to "explain" the position of the spoil bank with the statement that the bank would be moved away before employees would be permitted to enter the excavation (Tr. 176). The explanation is meaningless in view of the earlier testimony from the same witness that an employee was working in the trench at the time of the inspection when the spoil bank was in place.

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Item 2: Here the regulation required that the walls of the excavation be shored or braced in such manner as to render them stable. Since, however, complainant apparently considered sloping to be an adequate substitute for some other kind of support, the issue is limited to the effectiveness [*16] of the sloping which was observed and described by the witnesses.

Complainant's inspector, whose testimony was that the walls of the excavation were dug in clay, considered that compliance with the cited regulation would be achieved if each wall sloped at a rate of one foot of horizontal displacement for each foot of depth (Tr. 38-44, Ex. C 11, C 12). In an excavation 17 feet deep and 4 feet wide at the bottom, the minimum safe width would be 38 feet.

As pointed out above, respondent's witnesses took issue with the inspector as to the composition of the soil in the lower levels of the excavation. Accordingly, respondent's safety consultant did not consider that sloping was required for the bottom 5 feet of rock. He did, however, believe that a one-to-one slope for the remaining 12 feet of clay wall was consistent with good safety practices (Tr. 215-216, 221-222). On these figures, the minimum required depth of an excavation 17 feet deep and 4 feet wide at the bottom would be 28 feet at surface level.

The actual width of the top of the excavation is, then, a critical issue. Complainant's inspectors measured the distance at 27 feet (Tr. 33-34, 71, 73); respondent's witnesses [*17] arrived at a 30 foot figure (Tr. 170-171, 182-185, 215). One measurement was made in each instance (Tr. 82, 215). In the normal factual dispute on a similar question, this Judge would resolve the difference by finding that the width varied between the two figures. Here, however, respondent's measurements were made some time after the inspection, when additional digging had taken place, and after the excavation had been filled in (Tr. 173, 215); the 27 foot width will be accepted as the correct one at the time of the inspection. It must therefore be found that the excavation had a lesser slope than that acceptable not only to complainant but to respondent's safety expert as well. Accordingly, respondent was in violation of Item 2 of the citation. n3 The gravity of the violation was not high, and a $95 penalty is proper.

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n3 It is respondent's contention that no employees were working in the deeper portion of the excavation, where complainant's measurements were made, and hence that no violation occurred. Photographs (Ex. C 6, C 8) show a hand shovel in front of the plywood barrier, and the testimony of the inspectors that they observed an employee using such an instrument in that area are therefore corroborated (Tr. 11, 16, 17-18, 34, 64-65).

[*18]

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Item 3: Consideration must be given at the outset to a question of law. Applicable regulations, 29 CFR 1926.653(n), state that "In general, the depth [of a trench] is greater than its width, but the width of a trench is not greater than 15 feet." If the 15 foot figure is exceeded, the dug out area is an excavation, as discussed in the preceding paragraphs.

In the present case, the parties are in sharp disagreement whether the width, as referred to in the regulation is properly measured at ground level or the point of maximum depth. There is no clear precedent on this question, and the Review Commission has permitted apparently contradictory decisions of its Judges to become Final Orders. Compare, for example, Secretary v. Salem-Willamette General Contractors, 9 OSAHRC 227 (1974) and Secretary v. Northwest Paving, Inc., 13 OSAHRC 455 (1974). When confronted with the question in the past, this Judge has in Secretary v. Moore Construction, Inc., Docket No. 5093, June 21, 1974, currently under review by the Commission, held that an installation which did not meet the "trench" [*19] definition quoted above could not serve as a basis for alleged violations of the trenching standards.

Since the issuance of Moore, however, the Commission has, in Secretary v. Tri-County Constructors, Inc., 12 OSAHRC 224 (1974) unanimously referred to a "trench" 18 feet deep, 4 feet wide at the bottom, and 25 feet wide at the mouth. n4 This decision will be considered as authority for a finding that respondent's worksite here was a trench in fact and law. Moreover, since the questions of proper support and slope of the trench walls were essentially the same as those in Item 2, it must be held that the trench was in violation of the regulation cited in Item 3.

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n4 Commissioner Cleary's dissent was on the ground that the penalty imposed was too low.

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Because, however, the extent and nature of the hazard covered by the two violations was the same, as were the proof and means of abatement, the violation described in Item 3 in no way increased the gravity of the total situation. No penalty should therefore [*20] be imposed on this Item.

Item 4: This is another alleged trenching violation and will be treated as such for the reasons stated above. Moreover, a violation is again proven, for the trench was more than 4 feet deep and had no ready means of exit. Employees were required to climb over the plywood sheet within the trench and then ascend a rough slope to reach ground level (Tr. 18-21, 49). This was a violation of low gravity, however, and no penalty should be assessed.

FINDINGS OF FACT

1. On April 23, 1975, employees of respondent were engaged in the installation of an underground sewer line in Waco, Texas.

2. Part of the workplace consisted of an excavation or trench about 52 feet long, 17 feet deep at maximum, 4 feet wide at the bottom, and 27 feet wide at the top. Water was standing in the bottom.

3. One of respondent's employees was working in the deepest portion of the excavation at the above time and place.

4. A spoil bank about 10 feet high, upon which a massive piece of construction equipment had been placed, extended for approximately the full length of the excavation described above; the bank was not separated from the excavation by any perceptible distance. [*21]

5. Testimony concerning the composition of the excavation or trench walls was contradictory. Complainant's witnesses testified that the soil was clay, while those of respondent stated that the lower 5 feet was rock, covered by 12 feet of clay.

6. Regardless of the nature of the soil in the walls of the excavation or trench, as referred to in Finding 5, above, such walls were not adequately shored, braced, or sloped in such manner as to give adequate protection to employees working within.

7. The trench described in the preceding Findings was more than 4 feet deep and was not provided with an adequate means of exit.

8. The gravity of all of the alleged violations was low, and the parties have agreed that the proposed penalties were appropriate.

9. Respondent has admitted those facts which underlie jurisdiction of this Commission.

CONCLUSIONS OF LAW

1. This Commission and its Judges have jurisdiction of the parties and issues raised by the citation.

2. On April 23, 1975, respondent was in violation of the following regulations promulgated by the Secretary of Labor pursuant to the Occupational Safety and Health Act of 1970:

Item 1	29 CFR 1926.651(i)(1)
Item 2	29 CFR 1926.651(q)
Item 3	29 CFR 1926.652(b)
Item 4	29 CFR 1926.652(h)

[*22]

3. Penalties in the following amounts should be imposed for the above violations:

Item 1	$40
Item 2	$95
Item 3
Item 4

ORDER

On the basis of the foregoing Findings of Fact, Conclusions of Law, and the entire record, it is hereby ORDERED that Items 1 through 4 of the citation issued on May 8, 1975, be affirmed and that penalties totaling $135 be assessed against respondent, as indicated in Conclusion of Law 3, above.

January 5, 1976

WILLIAM J. RISTEAU, ADMINISTRATIVE LAW JUDGE