TERRA MOTUS CO., INC.
OSHRC Docket No. 14154
Occupational Safety and Health Review Commission
August 1, 1977
[*1]
Before BARNAKO, Chairman; and CLEARY, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Albert H. Ross, Regional Solicitor
Charles E. Frey, President Terra Motus Company, Inc., for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Chairman:
A decision of Judge Abraham Gold is before this Commission for review pursuant to 29 U.S.C. 661(i). Judge Gold vacated a citation alleging that Respondent committed a serious violation of 29 C.F.R. 1926.651(c) n1 by failing to adequately slope or shore the walls of an excavation. The Judge determined that the ground opening to which the citation referred was a trench instead of an excavation, and that the trenching standard at 1926.652(b) n2 rather than the excavation standard at 1926.651(c) was applicable. The Judge declined to order an amendment of the citation on his own motion to allege a violation of 1926.652(b) on the basis that Respondent would be prejudiced by such an amendment. For the reasons which follow, we conclude that the issue of a violation of 1926.652(b) was tried by the implied consent of the parties. We therefore amend the citation pursuant to Fed. R. Civ. p. 15(b) to allege a violation of 1926.652(b), and affirm [*2] the citation as amended.
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n1 The citation originally alleged a violation of 1926.652(a). It was amended prior to the hearing to allege a violation of 1926.651(c), which provides:
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.
n2 This 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. See Tables P-1, P-2 (following paragraph (g) of this section).
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At the time of the alleged violation, two of Respondent's employees were working in a trench laying pipe. The trench was 36 feet long, 9 feet 10 inches deep, 4 feet wide at the bottom, and 13 feet 8 inches wide at the top. The sides of the trench were not shored or braced. The compliance officer who inspected Respondent's worksite described the [*3] soil as "very sandy," and stated that it had a uniform appearance and consistency throughout the walls of the trench. A soil sample taken from one of the trench walls was analyzed by a testing laboratory. The analysis revealed that the sample consisted of 99.4% sand. The laboratory manager testified that he would classify the soil as being "somewhere between compacted, sharp sand and well-rounded loose sand." Both the compliance officer and the laboratory director expressed the opinion that the the walls of the trench were unstable.
Respondent's president, who was in charge at the worksite, testified that in digging the trench, the sides were sloped to an angle he considered safe. He noted that the trenching standard at 1926.652(c) n3 requires that the sides of trenches dug in hard or compact soil be sloped 1/2 to to 1 above the 5 foot level. He observed that the sloping of the sides was sufficient to comply with 1926.652(c), which he thought was the standard applicable to Respondent's worksite.
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n3 This standard provides, in pertinent part:
Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot horizontal . . .
[*4]
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Judge Gold credited the Secretary's evidence regarding the nature of the soil. He concluded that the soil was soft, rather than hard or compact, and therefore rejected Respondent's argument that 1926.652(c) was applicable to its worksite. He noted that, according to Table P-1 of 1926.652, the sides of the trench should have been sloped at least 1 1/2 to 1 in order to be stable. n4 Thus, he concluded that the sides were not sloped sufficiently to prevent a cave-in. As noted above, however, the Judge determined that 1926.651(c) was inapplicable, and declined to amend the citation on his own motion to allege a violation of 1926.652(b).
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n4 Table P-1 lists the "approximate angle of repose for sloping of sides of excavations." The angle for "well-rounded loose sand" is 2 to 1 (26 degrees 34'), and for "compacted sharp sand" is 1 1/2 to 1 (33 degrees 41').
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On review, the Secretary agrees that the applicable standard is 1926.652(b). He contends [*5] that a violation of this standard was tried by the implied consent of the parties, and asks that the citation be amended, pursuant to Fed. R. Civ. P. 15(b), to allege a violation of 1926.652(b). He further contends that the record establishes that Respondent violated 1926.652(b).
We have previously observed that the standards at 1926.651(c) and 1926.652(b) are functionally equivalent, and that the factual issues arising under the two standards are identical. West Coast Construction Co., 76 OSAHRC 149/F1, 4 OSHC 1940, 1976-77 OSHD para. 21,419 (1976); D. Federico Co., 76 OSAHRC 13/A2, 3 OSHC 1970, 1975-76 OSHD para. 20,422 (1976), aff'd per curiam, No. 76-1084 (1st Cir., June 16, 1977). Thus, in view of the Judge's finding, which is supported by the preponderance of the evidence, that the sides of the trench were not shored and were inadequately sloped, n5 a violation of 1926.652(b) occurred.
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n5 The Secretary presented testimony to the effect that the stability of the soil was affected by vibrations from the operation of heavy equipment. The Judge did not credit this evidence, but found that in view of the composition of the soil the walls were insufficiently sloped to comply with 1926.651(c).
[*6]
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The Judge was concerned that an amendment of the citation subsequent to the hearing would prejudice Respondent. The only issue in dispute between the parties at the hearing, however, concerned the composition and stability of the soil. As discussed above, the factual inquiry concerning the nature of the soil is the same under both standards. D. Federico Co., supra. Thus, had Respondent defended against a "trench" standard rather than an "excavation" standard, it could not have presented any different defenses than it did. Indeed, Respondent did defend against a "trench" violation, for it contended at the hearing that it had complied with the trenching standard at 1926.652(c). Respondent obviously was not misled by the fact that the citation referred to the ground opening as an excavation. We therefore conclude that Respondent would not be prejudiced by an amendment of the citation to allege a violation of 1926.652(b), and that a violation of this standard was tried by the implied consent of the parties. D. Federico Co., Supra; Kaiser Aluminum & Chemical Corp., Docket No. 3685, 5 OSHC [*7] 1180, 1977-78 OSHD para. 21,692 (March 28, 1977). n6 As the evidence shows a violation of 1926.652(b), we will amend the citation and find a violation of that standard.
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n6 We also note that Respondent has had the opportunity to argue the propriety of the amendment before us on review, but has not done so. See Kaiser Aluminum and Chemical Corp., 5 OSHC at 1181, n.3.
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We turn now to the assessment of an appropriate penalty. We note that Respondent is a small employer, with seven employees and an annual gross income of approximately $250,000. We have no reason to doubt its good faith. The gravity of the violation, however, is high. Because of the instability of the soil a collapse of the trench walls was likely, and such a collapse could well have caused death or serious injury. On balance, we conclude that a penalty of $700 is appropriate.
Accordingly the citation is amended to allege a violation of 1926.652(b) and, as so amended, is affirmed. A penalty of $700 [*8] is assessed. So ORDERED.