DUANE MEYER, D/B/A D.T. CONSTRUCTION CO.

OSHRC Docket No. 16029

Occupational Safety and Health Review Commission

July 23, 1979

[*1]

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Oscar E. Davis, Jr., for the employer

OPINIONBY: COTTINE

OPINION:

DECISION

COTTINE, Commissioner:

The issue before the Commission in this case is whether Administrative Law Judge John S. Patton erred in vacating a citation alleging a willful-serious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ("the Act"), for noncompliance with the requirements of the standard published at 29 C.F.R. 1926.652(b). n1 Former Commissioner Moran directed that the judge's decision be reviewed, but did not specify issues to be considered by the Commission. However, the Secretary filed a petition for discretionary review taking exception to the judge's disposition of the 1926.652(b) allegation. n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The cited standard sets forth the following requirements:

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).

n2 Neither party has taken exception to Judge Patton's affirmance of a citation alleging noncompliance with 29 C.F.R. 1926.550(a)(14)(i). In addition, there is no compelling public interest warranting Commission review of that disposition. Accordingly, it will not be considered by the Commission on review. See Champion Construction & Engineering Co., Inc., 78 OSAHRC 102/A2, 6 BNA OSHC 2116, 1978 CCH OSHD P23,186 (No. 76-2576, 1978); Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976).

[*2]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

I

The Respondent, Duane Meyer, d/b/a D.T. Construction Co. ("D.T. Construction"), is a utility contractor that was engaged in the installation of a storm sewer when the Secretary's authorized representative ("compliance officer") inspected the worksite. The compliance officer observed three of D.T. Construction's employees working in a trench and saw one of the Respondent's employees enter a second trench for 2 or 3 minutes. n3 Following the inspection, D.T. Construction was cited for violating 1926.652(b) by failing to adequately support the sides of either trench.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 Employees of a different employer were also working in the second trench.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Trench number 1 measured 40 feet long in an east-west direction and was approximately 12 feet deep. The width at ground level varied from 13 to 15 feet, and the bottom width was approximately 6 feet. Both sides of the trench were sloped to some degree, except for a nearly vertical section of [*3] the north side where a large birch tree was growing at the edge of the trench. The second trench was approximately 30 feet long from east to west and varied in depth from 12 to 13 feet. The width at ground level was 16 feet at the east end, 20 feet in the middle, and 14 feet at the west end. The bottom width was 6 feet at each end and 20 feet in the middle. D.T. Construction's employee was seen entering the trench at a point where the trench was 6 feet wide at the bottom and 14 feet wide at the top.

The compliance officer took two soil samples from one side of each trench. A sample was removed by hand at a level 1 foot below ground level. A second sample was removed by shovel at a level 4 feet from the bottom of the trenches. The compliance officer testified that the soil was soft, sandy soil that did not "mold" or "compress" and that ran through his hands.

Duane Meyer, the Respondent's proprietor, testified that the soil was a "loamy type of soil," a mixture of clays and sands that was deposited by the Arkansas River over a period of years. n4 He stated that the soil was "a type of sand." The witness also testified that the soil was not soft and unstable, that it "stands [*4] quite well," and that there had been "no cave-ins on the job." Johnny Robinson, a D.T. Construction employee who had been working in the first trench at the time of inspection, testified that the soil in the trench was sand. He expressed the view that the trench was safe.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 The trenches were located 75 yards from the banks of the Arkansas River. The deepest sections of the trenches were approximately 3 feet above the water table. There is no allegation that the proximity to the river affected the stability of the trench walls.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

John Ferguson, chief of the engineering testing division of Barrow-Agee Laboratories, testified for the Secretary regarding the results of soil classification tests performed on the four soil samples that had been taken from the two trenches. Ferguson described all the soil sampled as "non-plastic" and "cohesionless," which he defined as soil that "does not bind together in the sense of a material that can be molded and will stick together." n5 Two of the four samples tested were "silty [*5] fine sands," one was a "silty course sand," and one was a "very fine sand." However, the witness stated that he was unable to determine the hardness or softness of the soil on the basis of the tests performed and could not make an accurate determination as to the stability of the soil. Ferguson asserted that an undisturbed core sample and a "blow count" n6 would be required to determine the stability of the soil because soil lines differently in an undisturbed state. The witness also stated that with proper testing he would be able to determine whether the soil was "soft or unstable." However, it was his opinion that the type of testing necessary to make this determination was not performed in this case.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 The witness stated that "[t]he best analogy is [to] think of a modeling clay which is plastic. You can mold that in your hands to take on different shapes as opposed to something like a beach sand which is at the other extreme. You really can't mold that into different shapes."

n6 In order to obtain a core sample, a sampler called a "split spoon" is driven vertically into the earth by a hammer. According to the witness, the number of hammer blows necessary to penetrate one foot determines the hardness or softness of the soil.

[*6]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Gene Ballew, D.T. Construction's superintendent, was in charge of the worksite. He testified that the trenches were dug by a backhoe in "sandy material and when you loosen it up it's soft." Ballew, who operated the backhoe, stated that he is generally able to determine the softness of soil by the feel of the backhoe as it digs. Ballew testified that the soil in the trenches was a sandy loam and a mixture of silt and sand. He also testified that sand is "probably" the softest type of dirt, followed by sandy loam and then clay. The witness stated that the soil in the trenches was compacted sand. In his opinion, the trenches were safe.

II

Judge Patton concluded that the Secretary failed to sustain his burden of proving that the soil in the trenches was soft or unstable within the meaning of the cited standard. Referring to Ferguson's testimony that scientific tests essential to accurately determine the softness and stability of the soil were not performed in this case, the judge found that there was "no substantial proof that the soil was soft or unstable." n7

- - - - - - - - - - - - - - - - [*7] - -Footnotes- - - - - - - - - - - - - - - - - -

n7 On the basis of the testimony by Hansen and Ferguson, Judge Patton found the "small amount of soil scraped off the top surface of the trenches" to be soft and unstable. However, he stated that it was "only a top surface sample."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The judge's findings with respect to the dimensions and degree of sloping of the trenches are not challenged by the parties, nor is the judge's conclusion that the two trenches were neither shored nor sloped to the degree required by 1926.652(b) at all locations where employees were working. n8 At issue is whether the soil in the trenches was "soft or unstable" within the meaning of 1926.652(b).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 Shoring material and a "steel shield box" were available at the worksite but were not being used at the time of inspection.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Secretary argues on review that his burden of proof does not include "conducting the engineering tests impliedly found by the Judge [*8] to be indispensable," and that the preponderance of the evidence establishes that the soil was soft or uns able. The Secretary also argues that the excavation and trenching standards, including Tables P-1 and P-2, "create a presumption that predominantly sandy soils, unless cemented, are by their very nature soft or unstable within the meaning of section 1926.652(b)." The Secretary asserts that the presumption was not rebutted in this case. Finally, the Secretary maintains that even if the presence of silt rendered the soil "average" within the meaning of Table P-1, a minimum slope of 45 degrees would have been required but was not achieved.

On review, D.T. Construction argues in support of the judge's disposition on the merits. n9 It implies that the judge's decision is predicated on credibility findings and cites CTM, Inc., 76 OSAHRC 87/D11, 4 BNA OSHC 1468, 1976-77 CCH OSHD P20,912 (Nos. 5106, 1976), rev'd, 572 F.2d 262 (10th Cir. 1978), for the proposition that the evaluation of witnesses' opinions made by the trier of fact should not be overruled.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 D.T. Construction noted that its agreement with the judge's disposition should not be construed as an abandonment "of any other defense, theory or argument" even though not briefed on review, and D.T. Construction "reserves its position concerning each such defense, theory or argument."

In its answer and in its brief to the judge, the Respondent argued that the citation should be vacated because it was not issued with "reasonable promptness" as required by 9(a) of the Act, 29 U.S.C. 658(a). The inspection of the worksite was conducted on October 2, 1975, and the citation was issued on November 11, 1975. D.T. Construction argued that it was prejudiced by the delay because it was unable, upon receipt of the citation, to independently test the soil. The Respondent relies on the rule set forth by the Commission in Chicago Bridge & Iron Co., 74 OSAHRC 3/E10, 1 BNA OSHC 1485, 1973-74 CCH OSHD P17,187 (No. 744, 1974), requiring that, in the absence of exceptional circumstances, a citation be issued within 72 hours of the time the Secretary's representative forms his belief that a violation has occurred. The judge rejected the claim of prejudice, noting that the cited trenches were "promptly backfilled" as the work progressed, the trench would have been backfilled within three days, and the delay in issuance of the citation had no effect on the Respondent's ability to test the soil. Finding no prejudice, the judge properly rejected the defense. Stephenson Enterprises, Inc. v. Marshall, 578 F.2d 1021 (5th Cir. 1978); Coughlan Construction Co., Inc., 75 OSAHRC 87/F6, 3 BNA OSHC 1636, 1975-76 CCH OSHD P20,106 (Nos. 5303 & 5304, 1975). The Commission decision in Chicago Bridge & Iron Co. was reversed on appeal by the Seventh Circuit, 514 F.2d 1082 (7th Cir. 1975), and the Commission has since rejected its previous 72 hour rule. See Coughlan Construction Co., Inc., supra; Mayfair Construction Co., 77 OSAHRC 178/A14, 5 BNA OSHC 1877, 1977-78 CCH OSHD P22,214 (No. 2171, 1977).

D.T. Construction also asserted in its answer that "the Act (1) unconstitutionally delegates a legislative and judicial power to the Secretary of Labor; (2) unconstitutionally denies the respondent procedural due process guaranteed by the Fifth Amendment . . .; and (3) unconstitutionally denies the respondent the right to trial guaranteed by the Sixth Amendment . . ." In his decision Judge Patton noted the Respondent's constitutional objections but stated that he did not have jurisdiction to pass upon the issues raised.

The Commission does not have the authority to pass upon the constitutionality of its enabling legislation. Buckeye Industries, Inc., 75 OSAHRC 12/B3, 3 BNA OSHC 1837, 1975-76 CCH OSHD P20,239 (No. 8454, 1975), aff'd, 587 F.2d 231 (5th Cir. 1979). However, where the United States Supreme Court has ruled on the issue, we will apply that dispositive ruling. See Pasco Masonry Co., Inc., 77 OSAHRC 175/C6, 5 BNA OSHC 1864, 1977-78 CCH OSHD P22,196 (No. 76-1697, 1977). D.T. Construction's arguments relating to jury trial and unconstitutional delegation of judicial authority have been considered and rejected by the Supreme Court in Atlas Roofing Co., Inc. v. OSHRC, 430 U.S. 442 (1977). Although the Court focused on the seventh amendment jury trial requirement, it noted that the sixth amendment would not require a jury trial for Commission adjudications. Although the Fifth Circuit's opinion in the Atlas case had rejected the fifth amendment due process claim presented to it, 518 F.2d 990 (5th Cir. 1975), the Supreme Court, having granted certiorari only on the jury trial question, did not pass on the issue.

[*9]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

III

Testimony by both parties' witnesses establishes that the soil in the trenches was sandy in nature. Although Ferguson, the witness with the greatest expertise in soil classification, testified that he was unable to accurately assess the nature and stability of the soil without a core sample and blow count, his testimony regarding the sandy composition of the soil corroborated the testimony of the other witnesses. In this respect the witnesses' testimony is not conflicting and the Commission need not defer to credibility findings that D.T. Construction asserts were made by the judge.

Section 1926.652(b) sets forth requirements for supporting the sides of trenches in unstable or soft material and expressly incorporates the requirements of Tables P-1 and P-2. Table P-1 sets forth the following angles of repose for various soil compositions: n10 (a) compacted angular gravels -- 1/2:1, (b) average soils -- 1:1, (c) compacted sharp sand -- 1 1/2:1, (d) well rounded loose sand -- 2:1. Under Table P-1, the sides of trenches dug in solid rock, shale or cemented sand and gravels need not be sloped. [*10] Section 1926.652(c) sets forth the requirements for supporting sides of trenches in hard or compact soil. Under 1926.652(c), where sloping is the means of support provided, the sides of the trench above the 5 foot level "shall not be steeper than a 1-foot rise to each 1/2-foot horizontal," or a 1/2 to 1 angle of repose. n10

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n10 "Angle of repose" is defined in 1926.653(b) as "[t]he greatest angle above the horizontal plane at which a material will lie without sliding." "Slope" is defined in 1926.653(1) as "[t]he angle with the horizontal at which a particular earth material will stand indefinitely without movement."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The phrase "unstable or soft material" in 1926.652(b) is contrasted with "hard or compact soil" in 1926.652(c). n11 Since the steepest slope permitted for hard and compact soils under 1926.652(c) is 1/2 to 1, materials listed in Table P-1 as requiring less steep angles of repose, such as compacted sharp sand (1 1/2:1) or well rounded loose sand (2:1), must be considered soft or unstable under [*11] 1926.652(b). n12 Connecticut Natural Gas Corp., 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1978 CCH OSHD P22,874 (No. 13964, 1978). Furthermore, Table P-2 jointly classifies "[s]oft, sandy, or filled" as earth conditions requiring "close sheeting" where trench shoring is used in lieu of trench sloping. It is apparent, therefore, that "soft" soil and non-cemented "sandy" soil are regarded by the trenching regulations as having the same degree of stability and requiring the same degree of support, even though the two terms are not in all instances synonymous. We argee with the Secretary that the excavation and trenching standards, including Tables P-1 and P-2, create a rebuttable presumption that predominately sandy soils, unless cemented, are soft or unstable within the meaning of 1926.652(b).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n11 "Hard compact soil" is defined in 29 C.F.R. 1926.653(h) as "[a]ll earth materials not classified as running or unstable."

n12 Under 1926.652(c), a trench wall must be sloped from the point 5 feet above the base of the trench. Under 1926.652(b), a wall must be sloped from the bottom of the trench. However, the angles of repose set forth in Table P-1 represent the maximum safe slopes for the soil compositions listed, without regard to the location of the base of the slope.

[*12]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Scientific testing and analysis is not a prerequisite for determining the stability of soil in order to establish noncompliance with the trenching requirements. See Harrington Construction Corp., 77 OSAHRC 7/B3, 4 BNA OSHC 1471, 1976-77 CCH OSHD P20,913 (No. 9809, 1976); J.D. Blum Construction Co., 76 OSAHRC 58/D14, 4 BNA OSHC 1255, 1976-77 CCH OSHD P20,735 (No. 3543, 1976). The testimony of all witnesses, including Ferguson, establishes that the trenches were dug in sandy soil. n13 In addition, the conclusion that non-cemented sandy soil is soft is supported by the testimony of D.T. Construction's superintendent who testified that sand, followed by sandy loam, is "probably" the softest type of soil.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n13 Ferguson's testimony that the soil was non-plastic and cohesionless applied not only to the soil sample removed from 1 foot below the top of the trench, but also to the soil removed at a level 4 feet from the bottom. Accordingly, we do not accept the judge's determination that the testimony referred only to a top surface sample.

[*13]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We conclude that the soil in the cited trenches was "soft or unstable" within the meaning of 1926.652(b) n14 and that D.T. Construction failed to comply with the sloping requirements of the cited standard. n15

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n14 Although we have determined that the soil involved was soft or unstable under the cited standard, we are unable to determine on the basis of this record the precise degree of sloping required by the standard. However, inasmuch as Table P-1 indicates that a trench dug in sandy soil should have a slope of at least 1 1/2 to 1, and the slope of the cited trenches did not even approach this degree of sloping, a violation has been established.

n15 Our conclusion is different with respect to that portion of the side of the first trench where a tree stood. The preponderance of the evidence establishes that the tree roots bound the soil and added stability. Accordingly, that portion of the trench wall was supported by means of sufficient strength to protect employees and, therefore, was "otherwise supported" within the meaning of the cited standard. See Connecticut Natural Gas Corp., supra.

[*14]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

IV

Having concluded that D.T. Construction failed to comply with 1926.652(b), the Commission must determine whether the violation was willful as originally charged. The Secretary alleged that the violation in this case was willful because D.T. Construction's proprietor, Duane Meyer, had knowledge of the standard's requirements. Meyer had previously been employed by McDonald and Associates. He was superintendent at one of its jobsites in May 1975, when the site was inspected by compliance officer Hansen, the same compliance officer involved in this case. The inspection resulted in the issuance of a citation alleging noncompliance with 1926.652(b) for failing to adequately slope the sides of a trench. The citation was not contested. Hansen testified that he had met Meyer during the May 1975 inspection, had held a closing conference with him, had given Meyer a copy of the construction standards, and had discussed the trenching standards with him. Meyer acknowledged having met Hansen during the May 1975 inspection, and stated that Hansen "probably" had given him the standards. However, he testified [*15] that he did not recall their discussion or whether he had read or even received the standards. Meyer testified that he had attended an "OSHA safety school" while employed by McDonald and Associates but did not recall whether construction standards in general or trenching standards in particular were discussed.

Superintendent Ballew supervised the work at D.T. Construction worksites. Meyer testified that he did not give Ballew specific instructions about shoring or sloping trenches. Rather, he relied on Ballew's years of experience and told Ballew to take whatever precautions he believed to be necessary. n16 Meyer testified that shoring material was available at the cited worksite and Ballew had been told to use it where necessary. Ballew stated that he did not recall ever being told "how wide I had to dig a ditch" or how much to slope the sides. Ballew also stated that he had not seen the trenching standard prior to the hearing in this case.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n16 The Respondent had been engaged in the storm sewer project involved in this case for approximately one month. Meyer was not on the site every day but, according to Ballew, was there "regularly," at least three times each week. On the day of the inspection, Meyer arrived at the site at the same time as compliance officer Hansen.

[*16]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In its post-hearing brief to the judge, D.T. Construction argues that, assuming a violation is found, the Secretary "has not established that Respondent's agent in charge of the jobsite either obstinately refused to comply with the standard's requirements or consciously disregarded its requirements." It is argued that, although Duane Meyer had attended an OSHA safety seminar and had been the superintendent during the May 1975 inspection, it was Ballew who determined that additional sloping or shoring of the cited trenches was unnecessary. D.T. Construction also emphasizes that Meyer encouraged the use of shoring and a trench box whenever they were needed. The Respondent also impliedly argues that since Ballew was unaware of the cited standard until after the inspection he could not have consciously disregarded or obstinately refused to comply with its requirements.

A "willful" violation is action taken knowingly by one subject to the statutory provisions of the Act in disregard of the action's legality. P.A.F. Equipment Co., Inc.,    OSAHRC   , 7 BNA OSHC 1209, 1979 CCH OSHD P23,421 (No. 14315, [*17] 1979). It is conduct that results from a conscious, intentional, deliberate or voluntary decision, Kent Nowlin Construction, Inc., 77 OSAHRC 22/A2, 5 BNA OSHC 1051, 1977-78 CCH OSHD P21,550 (No. 9483 et al., 1977), aff'd, No. 77-1258 (10th Cir. March 2, 1979), or conduct marked by a careless disregard of a standard or employee safety. Brown & Root, Inc.,    OSAHRC   , 7 BNA OSHC 1215, 1979 CCH OSHD P23,435 (No. 13685, 1979); Adrian Construction Co.,    OSAHRC   , 7BNA OSHC 1172, 1979 CCH OSHD P23,389 (No. 15414, 1979); National Steel & Shipbuilding Co., 78 OSAHRC 48/A2, 6 BNA OSHC 1680, 1978 CCH OSHD P22,808 (Nos. 11011 & 11769, 1978), appeal filed, No. 78-2695 (9th Cir. Aug. 3, 1978); Constructora Maza, Inc., 78 OSAHRC 6/E2, 6 BNA OSHC 1309, 1977-78 CCH OSHD P22,487 (Nos. 13680 & 14509, 1978).

D.T. Construction's failure to take positive steps to assure that its superintendent was informed of and complied with the trenching standards, particularly in view of Meyer's knowledge of the standards, constitutes careless disregard of or plain indifference to the requirements of the standards. n17 See Brown & Root, Inc., supra. Where [*18] a supervisory employee has wide discretion regarding safety matters, the employer has a duty to give appropriate guidelines and instructions. Kansas Power & Light Co., 77 OSAHRC 39/A2, 5 BNA OSHC 1202, 1977-78 CCH OSHD P21,696 (No. 11015, 1977). Generalized instructions to work safely are inadequate to satisfy this duty. Brown & Root, Inc., supra, see Barker Brothers, Inc., 78 OSAHRC 5/E7, 6 BNA OSHC 1282, 1977-78 CCH OSHD P22,488 (No. 12964, 1978). The violation is properly classified as willful.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n17 The U.S. Court of Appeals for the Fifth Circuit recently affirmed the Commission's finding of a willful violation of the Act where the employer failed to familiarize its supervisory employees with applicable OSHA standards, but merely expected employees to use their "common sense." Georgia Electric Co. v. Marshall, No. 77-1916 (5th Cir. May 21, 1979). The court stated:

It is precisely because the Company made no effort whatsoever to make anyone with supervisory authority at the jobsite aware of the OSHA regulation that the Company can be said to have acted with plain indifference and thereby acted willfully. A company may not, practically as a matter of policy, altogether ignore its known OSHA duties and then plead ignorance when it is caught in violation of an OSHA regulation [footnote omitted].

Slip op. at 5024. As in Georgia Electric Co., the employer in this case failed to inform its employee with full supervisory authority over the worksite of the OSHA requirements applicable to its operations. Accordingly, D.T. Construction "acted with plain indifference and thereby acted willfully."

[*19]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

V

The Secretary proposed a penalty of $3500 for the willful violation. Section 17(a) of the Act, 29 U.S.C. 666(a), provides that an employer who willfully violates the Act may be assessed a civil penalty not to exceed $10,000. The appropriateness of the penalty is to be determined in light of the employer's size, good faith, history of previous violations, and the gravity of the violation. Section 17(j) of the Act, 29 U.S.C. 666(i).

D.T. Construction is an individual proprietorship that was in business for less than two years at the time of inspection. Its workforce varies in number from 4 to 12 employees. Shoring material and a trench box were available at the site. Although Meyer had previously been informed of the requirements of the trenching standards, no prior citations hawever been issued to D.T. Construction. Had a cave-in occurred, the probable result would have been death or serious physical harm to D.T. Construction employees. In light of the provisions of 29 U.S.C. 666(a) and the penalty assessment criteria set forth in 29 U.S.C. 666(i), we conclude that a penalty of $1000 [*20] is appropriate.

Accordingly, citation no. 2, alleging a willful-serious violation of 29 C.F.R. 1926.652(b), is affirmed and a penalty of $1000 is assessed.

IT IS SO ORDERED.

CONCURBY: CLEARY; BARNAKO

CONCUR:

CLEARY, Chairman, Concurring:

I concur in the result in this case, and would find a willful violation, but inasmuch as I consider this a particularly egregious violation I would assess the $3,500 penalty proposed by the Secretary. This company in the person of Mr. Meyer, its proprietor, while aware of the OSHA standard for sloping and shoring of trenches completely disregarded the standard and conducted business as usual by instructing its superintendent to slope or shore as he saw necessary. One can only conclude that this respondent deliberately elected to disregard the standard as a matter of continuing policy in complete derogation of the intent of the statute, and the protections intended by the formulation of the standard for the benefit of employees. See Georgia Electric Co. v. Marshall, supra, footnote 17 of the lead opinion.

BARNAKO, Commissioner, Concurring:

I agree that D.T. Construction willfully violated the cited standard at 29 C.F.R. 1926.652(b), n1 and that a [*21] $1000 penalty should be assessed. I also agree that Tables P-1 and P-2 create a rebuttable presumption that predominately sandy soils, unless cemented, are soft or unstable within the meaning of 1926.652(b). See Connecticut Natural Gas Corp., 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1978 CCH OSHD P22,874 (No. 13964, 1978). However, I would conclude that Tables P-1 and P-2 are advisory only. See D. Federico,     OSAHRC    , 4 BNA OSHC 1790, 1976-77 CCH OSHD 21,233 No. 9879, 1976),

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 This standard is quoted in n. 1 of the lead opinion.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

While the majority opinion is unclear on this point, I would find that the tables are advisory for the following reasons: 1) the standard at 29 C.F.R. 1926.652(a) n2 specifically states that Table P-1 is to be used as a "guide" for determining the slope of the banks of trenches, 2) the standard at 1926.652(b) asks readers to "[s]ee" Tables P-1 and P-2 and thereby suggests that the tables are to be used as guides only, 3) Table P-1 itself is entitled "APPROXIMATE [*22] ANGLE OF REPOSE FOR SLOPING OF SIDES OF EXCAVATIONS" (emphasis added), and 4) the standard at 29 C.F.R. 1926.651(e) n3 plainly indicates that the angle of repose cannot always be the same for any particular type of soil because the angle of repose depends upon a number of different factors including the moisture content of the soil and exposure of the soil to the sun, freezing conditions and vibration from nearby traffic sources. Although I view Tables P-1 and P-2 as guides only, I nevertheless believe they are entitled to some weight and therefore would agree with my colleagues that they create a rebuttable presumption that predominately sandy soils, unless cemented, are soft or unstable.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 The standard at 1926.652(a) provides in pertinent part:

Banks more than 5 feet high shall be shored, laid back to a stable slope, or some other equivalent means of protection shall be provided where employees may be exposed to moving ground or cave-ins. Refer to Table P-1 as a guide in sloping of banks.

n3 The standard at 1926.651(e) provides:

The determination of the angle of repose and design of the supporting system shall be based on careful evaluation of pertinent factors such as: Depth of cut; possible variation in water content of the material while the excavation is open; anticipated changes in materials from exposure to air, sun, water, or freezing; loading imposed by structures, equipment, overlying material, or stored material; and vibration from equipment, blasting traffic, or other sources.

[*23]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Since D.T. Construction did not rebut the presumption that the soil in its trenches was sandy and since the sides of the trenches did not even approach the angles of repose given in Table P-1 for well rounded loose sand or compacted sharp sand, n4 I find that D.T. Construction violated 1926.652(b). n5

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 Since Table P-1 is to be used only as a guide, it does not create a mandatory requirement as to the degree of sloping required but should be used by employers as a reference in determining the precise degree of sloping required.

n5 I agree with the majority that on the basis of the present record no determination can be made regarding the precise degree of sloping required of D.T. Construction.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -