M. J. LEE CONSTRUCTION COMPANY

OSHRC Docket No. 15094

Occupational Safety and Health Review Commission

February 12, 1979

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

James E. Poe, for the employer

OPINIONBY: COTTINE

OPINION:

DECISION

COTTINE, Commissioner: The Respondent, M. J. Lee Construction Company ("Lee"), was cited for 13 alleged violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ("the Act") while engaged in constructing a bridge for the Oklahoma State Highway Department. Lee contested all alleged violations and a hearing was held before Administrative Law Judge David G. Oringer. The judge subsequently issued a decision in which he affirmed five and vacated seven of the contested items, and modified one allegedly repeated item to find a nonserious violation. He assessed a total penalty of $870. Former Commissioner Robert D. Moran directed that the judge's decision be reviewed "for error" under 29 U.S.C. 661(i). Although the direction for review did not specify the issues to be reviewed, Lee had previously filed a petition for discretionary review and a supporting brief taking exception to the judge's affirmance of the citation for serious violation [*2] of 29 C.F.R. 1926.651(c) n1 and his assessment of a $750 penalty for that violation. n2

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n1 1926.651 Specific excavation requirements.

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(c) 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 Neither party has taken issue with the judge's disposition of any of the items in citations 1, 2, 4 and 5. Because of this absence of party interest and the further absence of any compelling public interest warranting further Commission action, the judge's disposition of these items will not be considered on review. Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976). Those portions of the judge's decision and order relating to the violations alleged in citations 1, 2, 4 and 5 are accorded the significance of an unreviewed judge's decision. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976).

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I

The citation at issue relates to an excavation dug by Lee for the purpose of erecting a concrete abutment that was to be part of the bridge structure. Lee completed digging the excavation on the day before the OSHA inspection began. Throughout the inspection, employees were working at the bottom of the excavation in preparation for pouring the footing of the abutment. It is undisputed that the walls of the excavation were not supported at that time by a shoring system or "some other equivalent means." However, Lee contends that its employees were not "exposed to danger from moving round" within the meaning of 1926.651(c), that the walls of the excavation were sloped to the "angle of repose" as defined in 29 C.F.R. 1926.653(b) n3 and that the excavation was accordingly in compliance with 1926.651(c). Alternatively, Lee argues that any noncompliance with the standard must be excused because it would have been impossible to comply with the standard's sloping or shoring requirements without rendering performance of the necessary work impossible or creating a greater hazard.

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n3 1926.653 Definitions applicable to this subpart [Subpart P -- Excavations, Trenching, and Shoring]

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(b) "Angle of repose" -- The greatest angle above the horizontal plane at which a material will lie without sliding.

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Judge Oringer rejected each of these contentions in his decision. He found that Lee's employees were exposed to a danger from moving ground, that the walls of the excavation were inadequately sloped and that the Respondent could have complied with the standard. On review, Lee takes exception to these findings, renewing the contentions it argued before the judge.

II

Danger from Moving Ground

Lee's first contention is that the judge erred in concluding that its employees were exposed to "danger from moving ground." It argues that the judge erroneously equated this term with "unstable or soft material" as used in 29 C.F.R. 1926.652(b), n4 the trenching counterpart to the cited excavation standard. Lee recognizes that the judge's interpretation of "danger from moving ground" was consistent with Commission precedent established in D. Federico [*5] Co., Inc., 76 OSAHRC 13/A2, 3 BNA OSHC 1970, 1975-76 CCH OSHD P20,422 (No. 4395, 1976), aff'd on other grounds, 558 F.2d 614 (1st Cir. 1977). It argues, however, that D. Federico should be reversed and that the standard should be interpreted under a "common knowledge" or "general recognition in the particular industry" test. Lee reasons that interpretation of "danger from moving ground" in accordance with the meaning commonly understood and accepted within the given industry is necessary because the term is undefined, its meaning is unclear and a constitutional vagueness question arises if the term is not defined in accordance with the industry's understanding. Applying this test, Lee concludes that its industry would not have recognized that its employees were exposed to a hazard from moving ground because, as the compliance officer's testimony indicated, there was no sloughing or movement of the excavation walls during the inspection.

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n4 1926.652 Specific trenching requirements.

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(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. . . .

[*6]

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We reaffirm the holding of D. Federico and the cases that follow it. See, e.g., Terra Motus Co., Inc., 77 OSAHRC 152/B1, 5 BNA OSHC 1696, 1977-78 CCH OSHD P22,040 (No. 14154, 1977). "Unstable soil" is defined at 29 C.F.R. 1926.653(q) as "[e]arth material, other than running, that because of its nature or the influence of related conditions, cannot be depended upon to remain in place without extra support, such as would be furnished by a system of shoring." It is clear that when an excavation is dug in "unstable soil" a " danger" or hazard arises because the soil "cannot be depended upon to remain in place" and that the danger is one of potential soil movement. Therefore, as we have held previously, an excavation dug in "unstable soil" by definition creates a "danger from moving ground."

In Connecticut Natural Gas Corp., 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1978 CCH OSHD P22,874 (No. 13964, 1978), the Commission rejected a contention similar to Lee's argument that the use of the term "danger from moving ground" renders 1926.651(c) unenforceably vague. The Commission held that, [*7] "[w]hen the various terms of 1926.652(b) are read in light of the other provisions of the trenching standards, their meaning is sufficiently precise to put employers on notice of what the standard requires." 78 OSAHRC 60 at B10, 6 BNA OSHC at 1799, 1978 CCH OSHD P22,874 at pp. 27,667-27,668. Since the terms "danger from moving ground" and "unstable or soft material" are equivalent in meaning, we reject Lee's claim that 1926.651(c) does not provide sufficient notice of the conditions under which protection is required.

Lee essentially urges us to limit the standard's applicapility to situations in which the ground has already started to move. However, as Judge Oringer correctly noted in rejecting the testimony that forms the basis of Lee's position, "this was not the congressional contemplation when the Act was written." n5 The Respondent's interpretation is also contrary to the clear purpose of the standard, i.e., the prevention of soil movement, and is not supported by the language of the standard. n6

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n5 Lee's contention that its industry would not have recognized that its employees were exposed to danger from moving ground is based upon the testimony of its expert witness, a design engineer involved in the design and construction of bridges and other structures. The witness testified only that, in his opinion, the excavation did not create an "unusual danger" in that soil was not sloughing from the walls of the excavation and accordingly additional precautions were unnecessary.

n6 Although we have rejected Lee's position on broader grounds, we further note that it is not supported by the record. The record does not establish that the meaning of "danger from moving ground" commonly understood and accepted in the construction industry is limited to situations in which there has been actual soil movement. See n. 5, supra. Moreover, the record establishes that prior to the inspection there had been soil movement in the form of erosion and sloughing in the same excavation.

[*8]

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Lee also takes exception to the judge's finding that its employees were exposed to a danger from moving ground because it is "based [solely] upon the nonexpert opinion of the compliance officer that the excavation walls were unstable." The characterization of the compliance officer's opinion as "nonexpert" is inaccurate. The compliance officer had worked for over twenty years on construction projects with an emphasis on work involving excavations and trenching. In addition, he had conducted approximately 50 OSHA inspections involving trenches of excavations. Given this background, the judge properly ruled, over Lee's objection, that the compliance officer was sufficiently qualified to give opinion testimony on the matters at issue. Therefore, it was proper for the judge to rely upon that testimony as the basis of his finding that there was a danger from moving ground.

Furthermore, the finding that Lee's employees were exposed to a danger from moving ground is supported by a clear preponderance of the evidence and is therefore sustained. The compliance officer based his opinion that this danger [*9] existed on the interrelationship of the following conditions, each of which was shown to be present at the worksite: inadequacy of the sloping (discussed more fully on pp. 8-10); the absence of shoring, sheeting or bracing; the type of soil in which the excavation was dug (silt and sandy silt); the presence of superimposed loads at the top of the excavation, particularly two cranes located near the south edge, one of which was engaged in pile driving operations and the other in backfilling operations; vibrations from the pile driving operation and from nearby vehicular traffic; and the erosion in the east wall of the excavation. The compliance officer's testimony is fully corroborated by the testimony of the Secretary's expert witness, a soils engineer who analyzed soil samples taken from the excavation. The testimony of the soils engineer establishes that the compliance officer's opinion was scientifically accurate. Thus, the expert witness testified in effect that silt and sandy silt cannot be relied upon to form a stable embankment and that the stability of these soils is adversely affected by water conditions, superimposed loads and vibrations. Based on his analysis of the [*10] soil samples taken at the time of the excavation, the witness prepared a report indicating that the stability of at least some of the soil in the excavation had already been seriously weakened. Presumably, this was as a result of the presence of these conditions at the worksite.

The testimony of the compliance officer and of the soils engineer was not effectively rebutted. Lee relied primarily on the testimony of its expert witness, the design engineer. n7 As indicated, that testimony was properly discredited by the judge for the reasons he stated. Thus, the record clearly establishes that the excavation was dug in "unstable soil" and that respondent's employees were accordingly exposed to danger from moving ground.

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n7 Note 5, supra.

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III

Adequacy of Sloping

Lee's second exception to the judge's decision is directed to his finding that the excavation was inadequately sloped. To a great extent, this exception is based upon arguments already rejected. Accordingly, we decline to adopt Lee's suggested interpretation [*11] of the term "angle of repose" for essentially the same reasons we rejected its interpretation of "danger from moving ground." n8 We conclude that a finding of failure to slope to the angle of repose is correct where, as here, the record establishes that the existing conditions created a potential for soil movement and that this potential was not eliminated by the manner in which the excavation was sloped. We further reject the contention that the judge erred in relying on the compliance officer's opinion testimony that the angle of repose of the excavation in question was at most 45 degrees. As stated, the judge properly qualified the compliance officer as an expert. The compliance officer's testimony constitutes "substantial evidence" and an adequate basis for the judge's finding. His testimony was not effectively rebutted and is fully consistent with Table P-1, 29 C.F.R. 1926.652, which indicates that the "approximate angle of repose" for "average soils" is 45 degrees.

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n8 As indicated, supra at n. 3, "angle of repose" is defined as the steepest angle at which "a material will lie without sliding." Lee argues that the excavation was sloped to the "angle of repose" because the soil was not in fact sliding at the time of the inspection.

[*12]

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Lee's remaining argument in support of this exception is that the judge could not find a failure to slope to the angle of repose because the record does not establish the angle to which the excavation walls were sloped. On the basis of measurements taken during the inspection, the compliance officer testified that the excavation had the following dimensions: length - 120 feet, depth on north side - 37 feet, depth on south side - 30 feet, width at bottom - 28 feet, width at top - 50 feet. Using these dimensions, the compliance officer computed the slope of the excavation (north and south sides) as approximately 63 degrees 26', an angle substantially steeper than the angle of repose (approximately 45 degrees). Respondent asserts that the compliance officer failed to take a sufficient number of measurements of the excavation's width at various locations along its 120 foot length. However, the compliance officer testified that the width of the excavation at both the top and the bottom remained relatively constant and this testimony is corroborated by the photographs and diagrams introduced into evidence. [*13] Under these circumstances, no additional measurements were necessary.

In addition, the compliance officer testified without contradiction that the north and south walls did not have a true slope in the sense of a straight, diagonal line extending from the bottom of the excavation. Instead, the walls rose vertically approximately eight to ten feet from the excavation floor, rounded and, toward the top of the walls, sloped back more flatly. In addition, the north wall was steeper than the south wall and there was an overhang on the north wall where soil had sloughed out from under the edge of a concrete parking lot. Inasmuch as excavations in unstable soil must be sloped from the bottom of the excavation (See Table P-1, 29 C.F.R. 1926.652), this testimony constitutes an independent basis for sustaining the judge's finding that the excavation walls were inadequately sloped.

IV

Affirmative Defenses

Lee's final exception is to the judge's rejection of its affirmative defense that it was not possible to slope or shore the walls of the excavation in compliance with 29 C.F.R. 1926.651(c) without rendering performance of the required work impossible or creating a greater hazard. [*14] This defense was raised only with respect to the north wall of the excavation. n9 Accordingly, for the reasons stated above, we affirm the citation's allegation that Lee violated 29 C.F.R. 1926.651(c) in that it failed to "guard" the south wall of the excavation "by a shoring system, sloping of the ground, or some other equivalent means."

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n9 Lee did not challenge the compliance officer's testimony that the south wall could have been sloped to the angle of repose and there is no evidence of record indicating that the south wall could not have been sloped to that angle. Therefore, we independently find that the south wall could have been sloped to the angle of repose. See Asplundh Tree Expert Co., 78 OSAHRC 77/E12, 6 BNA OSHC 1951 at 1954, 1978 CCH OSHD P23,033 at p. 27,841 (No. 16162, 1978).

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Lee's contention with respect to the north wall involves elements of three affirmative defenses long recognized under Commission precedent, i.e., impossibility of compliance, impossibility of performance, and the [*15] greater hazard defense. In order to establish either of the impossibility defenses, the employer must prove that (1) compliance with the requirements of the cited standard either would be functionally impossible or would preclude performance of required work, and (2) alternative means of employee protection are unavailable. See, e.g., Julius Nasso Concrete Corp., S & A Concrete Co., Inc., a Joint Venture, 77 OSAHRC 208/F2, 6 BNA OSHC 1171, 1977-78 CCH OSHD P22,401 (No. 16012, 1977) (impossibility of compliance); Alberici-Koch Laumand, a Joint Venture, 77 OSAHRC 179/A2, 5 BNA OSHC 1895, 1977-78 CCH OSHD P22,211 (No. 13026, 1977) (impossibility of performance). In order to establish a greater hazard defense, the employer must prove that (1) the hazards created by compliance with the requirements of the cited standard are greater than those resulting from noncompliance, (2) alternative means of protecting employees are unavailable, and (3) a variance application under section 6(d) of the Act would be inappropriate. See, e.g., National Steel & Shipbuilding Co., 78 OSAHRC 48/A2, 6 BNA OSHC 1680, 1978 CCH OSHD P22,808 (Nos. 11011 & 11769, 1978), appeal [*16] filed, No. 78-2695 (9th Cir. Aug. 3, 1978).

The record establishes that the north wall was 120 feet long and 37 feet high and only slightly and irregularly sloped. In addition to compliance problems posed by the sheer size of the wall, the Respondent was also faced with severe space limitations both at the top of the excavation and within the excavation itself. A large building and a parking lot owned by Blue Cross-Blue Shield as well as a highway were located immediately north of the excavation's north wall. A diagram introduced into evidence indicates that the entire north wall was bordered by either the parking lot or the highway. Indeed, Lee's right-of-way under its contract with the Oklahoma State Highway Department extended to the edge of the parking lot and the excavation went through the old roadbed of the highway. (Traffic was detoured around the west end of the excavation.) A few days prior to the inspection, the Respondent had resloped the north wall after heavy rains. Thus, at the time of the inspection, Lee had already removed part of the parking lot and encroached in excess of 8 feet over the property line of Blue Cross-Blue Shield. As a result, the Blue [*17] Cross-Blue Shield building and the edge of the north wall were twenty feet apart at their closest point.

The space limiations at the bottom of the excavation resulted from the work Lee was required to perform under its contract. The excavation was dug for the purpose of erecting a bridge abutment. The footing for this abutment was to be seventeen feet wide and was to extend virtually the entire length of the excavation. When completed, the north edge of the footing would be less than 5-1/2 feet from the bottom of the north wall.

The witnesses called by the parties sharply disagreed as to whether the north wall could have been "guarded by a shoring system, sloping of the ground, or some other equivalent means." However, the judge did not effectively resolve the conflicts in the testimony on this issue or enter findings on the various suggested methods of abatement. Instead, he concentrated on one part of the testimony of Lee's expert witness. Based on this testimony the judge found that if Lee had obtained the necessary funds it could have acquired the land necessary to slope the excavation to its angle of repose. He concluded that the Respondent should have followed this course [*18] of action and accordingly rejected its defense on the ground that compliance with the standard was possible.

Lee argues that the judge erred in finding that it could have sloped the north wall to the angle of repose, asserting that in order to accomplish this sloping it would have had to remove the Blue Cross-Blue Shield building, the parking lot or the highway. This contention has merit. We conclude that the judge's finding has no support in the record. In particular, it is not supported by the testimoy cited by the judge. Lee's expert witness testified only as to the course of action construction contractors generally should follow in order to avoid the type of compliance problem which Lee confronted. He did not testify that Lee could have obtained the funds and the land lecessary to properly slope the north wall. On the contrary, the record clearly establishes that there was not enough land available to accomplish adequate sloping of the north wall. Since the slightly sloped orth wall was 37 feet high and the required angle of repose was at most 45 degrees, it is apparent that the Respondent would have had to move the edge of the north wall back at least 30 feet [*19] in order to acomplish adequate sloping. However, the existing north wall was only 20 feet from the Blue Cross-Blue Shield building. We therefore reverse the judge's finding of fact. We find that it would have been physically impossible for Lee to slope the north wall to the angle of repose. Asplundh Tree Expert Co., supra at n. 9. Nevertheless, we hold that the Respondent has failed to establish its affirmative defense as a matter of law. We therefore sustain the judge's rejection of the affirmative defense but modify his supporting rationale. n10

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n10 For purposes of this analysis, we credit the testimony most favorable to the Respondent's position and assume the existence of findings based upon that testimony and inferences that reasonably could be drawn from it and from the other evidence of record. By doing this, we place the case in the same posture as if we had remanded to the judge and he had entered the findings most favorabl to the Respondent's position.

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Since it would have been physically impossible [*20] for Lee to slope the north wall to the angle of repose, we must consider the evidence pertaining to other permissible methods of compliance with the standard. These involve "a shoring system . . . or some other equivalent means." Lee's expert witness testified that the Respondent would have had to erect an elaborate and complex system of shoring in order to prevent soil movement in the north wall. The basic component of the system would have been sheeting, i.e., metal sheets placed against the wall of the excavation and driven into the excavation floor. This sheeting would have been used in conjunction with a system of whalers (vertical and horizontal beams) and cross-braces placed against the surface of the sheeting for the purpose of reinforcement. In addition, this bracing system would have been held in place at the bottom, in the middle, and at the top. The system would have been secured at the bottom by driving the sheeting and the vertical whalers into the ground. Bracing in the middle could have been accomplished only through the use of diagonal beams extending into the center of the excavation. n11 The system could have been secured at the top only through the use [*21] of such diagonal beams or through the use of "dead men", i.e., a system in which the vertical whalers are pulled back against the wall of the excavation by tying lines between the tops of the whalers and structural members ("dead men") driven into the ground behind the excavation wall (to the north of the wall in this instance).

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n11 Shoring systems are sometimes held in place by braces extended across the width of an excavation from bank to bank. However, the compliance officer conceded that this type of bracing could not have been used by Lee because of the necessity of erecting the bridge abutment in the center of the excavation.

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However, there is substantial record evidence supporting Lee's contention that the erection of this shoring system would have led to undesirable consequences. The Respondent's expert witness testified that the excavation wall would have been destabilized by the vibrations created by driving the sheeting and vertical whalers into the ground adjacent to the wall. He further testified [*22] that driving the "dead men" into the pavement would have diminished the stabilizing effect exerted by the presence of a "fixed overburden" at the top of the excavation -- the concrete parking lot and the highway. The wall would thereby have been further destabilized. In addition, he testified that the bracing system necessary to hold the shoring in place would have interfered with the lowering of equipment and supplies to the excavation floor, thereby creating additional hazards to employees working on the floor.

Moreover, the space limitations at both the bottom and top of the north wall would have created obvious difficulties in erecting this system. In fact, it can be inferred from the record that it would have been impossible to use diagonal bracing extending into the center of the excavation and still erect the bridge abutment in the center of the excavation. The space between the bottom of the north wall and the footing for the bridge abutment was to be only 5 1/2 feet wide. In addition, the Respondent's expert witness testified that it would have been necessary to place the "dead men" at least seventy feet north of the north wall in order to achieve the desired result [*23] of effective bracing. Obviously, this could not have been accomplished where the north wall was in close proximity to the Blue Cross-Blue Shield building. Moreover, it could not have been accomplished at any point along the north wall without the permission of the property owners.

We recognize that much of this evidence was contradicted by the Secretary's evidence. Nevertheless, assuming the entry of the findings most favorable to Lee's position, n12 we would conclude that it would have been impossible for the Respondent to comply with 29 C.F.R. 1926.651(c) without rendering performance of its required work impossible or creating a hazard greater than that existing at the time of the inspection. n13 This finding establishes a principal element of the three affirmative defenses raised by Lee's arguments. Under Commission precedent discussed above, this finding would therefore excuse Lee from literal compliance with the requirements of 29 C.F.R. 1926.651(c) with respect to the north wall. However, under that same precedent, this finding in itself does not justify vacating the citation with respect to the north wall. In order for the Commission to sustain any one of the [*24] affirmative defenses, the employer must also prove that alternative means of protecting employees were unavailable. n14 Here, we conclude that Lee failed to use alternative means of protecting employees that were available to it. Therefore, its affirmative defense fails.

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n12 See n. 10, supra.

n13 On rebuttal, the compliance officer testified in effect that Lee could have provided equivalent protection through a system of partial shoring and sloping above the shoring. Assuming arguendo that this system would comply with the standard's requirements, it is nevertheless clear that the suggestion suffers from many of the same deficiencies discussed above.

n14 Any of the enumerated defenses will be rejected if the evidence establishes that the employer failed to use a means of protection that would have been "reasonable" under the circumstances even though that means may not have provided protection equivalent to that accomplished by compliance with the cited standard. See, e.g., Kelly Construction Services, Inc., 76 OSAHRC 89/F3, 4 BNA OSHC 1491, 1976-77 CCH OSHD P20,925 (No. 7102, 1976). Therefore, our prior conclusion that the record permits a finding that Lee's employees could not have been protected "by a shoring system, sloping of the ground, or some other equivalent means" (emphasis added) does not resolve the question of whether Lee's employees could have been protected through alternative means. The term "alternative means" as used in the Commission's precedent refers to means other than those specifically required or permitted under a cited standard. See, e.g., McLean-Behm Steel Erectors, Inc., 78 OSAHRC    , 6 BNA OSHC 2081, 1978 CCH OSHD P23,139 (No. 15582, 1978).

[*25]

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The alternative method of employee protection established in the record is the "H-pile" system actually used by Lee after the inspection. It involves leaning "H-piles" (a type of beam) against the excavation wall and securing these "H-piles" against "kick-out" at the bottom. While it is clear that the "H-pile" system could not provide protection "equivalent" to that provided by adequate shoring or sloping, the record nevertheless establishes that it is a "recognized method in construction to add to the stability of the bank." (Tr. 236, testimony of the compliance officer on cross-examination.) Accordingly, we find that the "H-pile" system is a means of providing partial protection to employees and therefore is an alternative to compliance with the standard's terms under these specific factual circumstances. Asplundh Tree Expert Co., supra at n. 9. Lee's only justification for not providing this protection was its contention that the "H-piles" could not have been installed prior to pouring the footing for the bridge abutment because this footing secures the "H-piles" at the bottom against [*26] "kick-out". However, the compliance officer credibly testified as to a means whereby a special footing could have been created for the "H-piles" prior to pouring the footing of the bridge abutment. n15 On the basis of this uncontroverted testimony, we find that the "H-pile" system was a means of employee protection available to Lee prior to and at the time of the inspection. Id. Lee's failure to use this alternative defeats its affirmative defense with the result that the citation involving the north wall is affirmed.

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n15 The compliance officer testified that pilings laid parallel to the bottom of the excavation wall could have been held in place by vertical pilings driven into the ground behind the horizontal pilings. The "H-piles" leaned against the excavation wall could then have been secured against "kickout" by placing the lower ends of the "H-piles" against the base of this structure, i.e., the horizontal pilings.

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We agree with the judge that Lee's noncompliance with the standard was a "serious" violation [*27] within the meaning of section 17(k) of the Act, 29 U.S.C. 666(j). There was a substantial probability that these conditions could have resulted in death or serious physical harm in the event of a cave-in. Moreover, Lee knew or should have known of the conditions. In view of our findings that Lee failed to slope the south wall of the excavation to the angle of repose, even though this could have been accomplished, and failed to provide its employees with at least partial protection from the hazard created by the north wall through available means, we affirm the citation for serious violation of 1926.651(c) and the $750 penalty. We reiterate our prior holdings that employers have a duty to protect employees against the hazards to which standards are directed even where that protection cannot be provided through compliance with the standard's terms and even where that protection is not as complete as the protection that would be provided if the employer could comply with the standard. See n. 14, supra. This holding is required by the Act's stated purpose to assure "so far as possible every working man and woman in the Nation safe and healthful working conditions." Section [*28] 2(b) of the Act, 29 U.S.C. 651.

III

Accordingly, the disposition of the administrative law judge is AFFIRMED. It is so ORDERED.