R. D. BLUE CONSTRUCTION, INC.

OSHRC Docket No. 19

Occupational Safety and Health Review Commission

January 23, 1973

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners.

OPINIONBY: BURCH

OPINION:

BURCH, COMMISSIONER: On February 16, 1972, the above titled case was directed to be reviewed by the Commission.

After considering the submissions of the parties together with the record on which the Judge based his decision, it is herewith ORDERED that the Judge's decision is AFFIRMED.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: The record in this case is insufficient to sustain a decision that the respondent violated Section 5(a)(1) of the Act n1 as charged.

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n1 The Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act).

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This proceeding was initiated by complainant pursuant to Section 9(a) less than 3 months after the Act became effective. On July 26, 1971, complainant caused a citation to be issued against the respondent charging a violation of Section 5(a)(1) in that:

[e]mployees were working in trenches 8 or more feet in depth, sides of which were composed of soft or unstable material. Sides of trenches were not sloped, shored, sheeted, or braced, nor was excavated material removed to a safe distance from opening of trench.

The evidence reveals that on July 20, 1971, the date of the alleged violation, respondent, a Nebraska corporation, was engaged in excavating a trench at a job site located near the Nebraska Methodist Hospital, Omaha, Nebraska. The trench, beginning on the north side of the hospital, ran approximately north and south some 100 to 150 feet. Two employees of the respondent were working in the trench following a back hoe which was performing the bulk of the excavation. The two men were fine grading with shovels as the back hoe proceeded along the intended course of the trench digging out the soil and depositing it as spoil on the west bank. Another piece of heavy equipment, a front-end loader, was following along removing some of the spoil from the immediate edge of the trench.

The evidence was in conflict on the composition and condition of the soil in which the trench was being excavated and the dimensions of the trench itself. The soil was characterized as "unstable, very loose" by Mr. Di Silvester, a Department of Labor Compliance Officer, and as "quite stiff," "firm," "hard," and "hard, compact soil," by Mr. Dressen, an engineering consultant. Likewise, the dimensions of the ditch were reported in variance from an overall minimum/maximum depth of 8 to 18 feet deep by Di Silvester to a minimum/maximum depth of 8 to 14 1/2 feet deep by Mr. Robert Blue, President of the respondent company and supervisor of this particular project. Mr. Cliffton, the back hoe operator, estimated a minimum/maximum depth of 8 to 10 feet for the first 150 feet of the trench. While these depths were estimated, not measured, by all the witnesses, Mr. Blue and Mr. Cliffton were guided by grade stakes located and marked by civil engineers for the purpose of achieving specific depths.

The widths of the bottom and top of the ditch, relevant to whether the sides were sloped, were likewise highly disputed, and whether or not there was a significant slope to the ditch banks was disagreed upon by Di Silvester on one hand and the respondent's witnesses on the other.

Also in dispute was whether and how much spoil remained piled along the bank of the trench on the date of the alleged violation.

Judge Brennan in his findings of fact relied almost entirely on the testimony of Di Silvester, and he almost entirely discounted the testimony of Blue and Cliffton, saying:

Due to the evident interest and stake in the outcome of this litigation, and due to inconsistencies in this testimony [by Blue and Cliffton], and further because of either poor memories or lack of knowledge . . . [it] cannot be relied upon herein . . . in contravention to the testimony of the inspecting Compliance Officer.

It should be made clear that no testimony of any respondent or employee should be disregarded or held unreliable merely because of interest or stake in the outcome. The very nature of our adversary system of justice creates an inherent interest in the outcome on the part of both parties. This interest alone cannot be the basis for excluding their sworn testimony from consideration. If the testimony is otherwise credible, the witness will not be discredited merely because he is a party to the action. Pellett v. Sonotone Corp., 26 Cal. 2d 705, 160 P. 2d 783, 160 A.L.R. 863 (1945); 59 CJS, Witnesses 542 at 484 (1957). In a criminal proceeding, which the case at bar is not, there is a presumption that the defendant has testified truthfully, and the jury may believe it even though the evidence against the defendant is strong and his story improbable. State v. Carden, 207 N.C. 517, 177 S.E. 647 (1935); State v. Baldwin, 70 Iowa 180, 30 N.W. 476 (1886); 59 CJS, Witnesses 543 at 485 (1957).

Likewise, and most importantly, the opinions of the witnesses varied widely as to whether or not the conditions present at the trench constituted a danger to the respondent's employees. The Compliance Officer was qualified as an expert and was allowed to give his opinion that there was a serious hazard. He based this opinion on a printed document which was to become effective as an occupational safety and health standard on August 27, 1971, some 38 days after the date of this alleged violation. n2

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n2 This document is found in Exhibit G-2, and was a part of safety and health regulations for construction adopted under the authority of Section 107 of the Contract Work Hours and Safety Standards Act, 40 U.S.C. 333 (76 Stat. 357), as amended August 9, 1969 (83 Stat. 96). Those regulations became effective under the latter act on April 28, 1971 (29 C.F.R. 1518, et seq. (1971), redesignated as 29 C.F.R. 1926.1, et seq. (1971). The regulations were later adopted by the Secretary of Labor under the authority of Section 6 of the Occupational Safety and Health Act of 1970, supra. They were adopted by reference in 29 C.F.R. 1910.12 (1971) to become effective for the purposes of this Act and the case at bar August 27, 1971, in accordance with 29 C.F.R. 1910.17 (1971). See also 29 F.R. 10466, May 29, 1971.

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The text of this standard-to-be was introduced as an exhibit by complainant in an attempt to establish what might be considered to be the state of knowledge of the trenching industry regarding hazards and the avoidance thereof. This is an essential element of proof in this case for it isn't enough to show merely that the safeguards for trench excavation set forth therein were not being observed by the respondent. In order for the complainant to prove a violation of Section 5(a)(1) of the Act, he must establish that the failure to observe those safeguards was recognized generally as a hazard causing or likely to cause death or serious bodily harm to employees.

No foundation for construing this standard-to-be as a consensus of the state of knowledge of the trench industry appears in the record, however, and no other evidence establishes the conditions at the work site to be recognized generally as hazardous.

The Judge based his finding that a recognized hazard was present upon Di Silvester's opinion and the parts of the text of the standard-to-be found in Exhibit G-2, page 7390, Table P-1. Judge Brennan makes the erroneous finding that respondent's owner relied on said text, in finding of fact 20 and 21, citing page 89 of the transcript. However, a close reading of the pertinent portions of testimony shows that, on the contrary, Mr. Blue rejects these standards-to-be, at least in part, as the generally accepted minimum safety requirements.

Q. Now you were not cited for violation of the standards for the construction industry, Mr. Blue, but I'm going to ask you a question based on the requirements of those standards. Not for the purpose of indicating you are violating the standards, but asking your judgment as to the accuracy of a statement contained in the standards, which is, sir, as I understand it, generally accepted to be minimum safety requirements by those expert in the field of safety in the industry. (emphasis supplied)

One statement is "Clays, silts, loams, or nonhomogeneous soils require shoring and bracing." Would you agree with that statement? [A discussion ensued regarding propriety of the question]

Q. (By Mr. Barnes) Mr. Blue, do you have a copy of the regulations for the Standard Construction Safety?

A. Yes, sir.

Q. Have you read the portion dealing with excavating and shoring and bracing, and so forth?

A. Yes, I think I have.

Q. Have you seen the chart which indicates certain angles of repose for certain types of soil?

A. Yes.

Q. Have you in the past relied on your judgment on how much sloping was needed, where you can rely upon sloping rather than shoring and bracing, upon your experience in the industry?

A. Yes.

Q. Your conversation with others in the industry?

A. Yes.

Q. You do concede the fact that different soils require different treatment, insofar as sloping is concerned, and insofar as whether shoring and bracing are required?

A. Anytime you dig, you've got to either shore or slope.

Q. (By Mr. Barnes) Do you agree with the statement contained in the standards, of which you have a copy and which you have read, at least, that "clay, silts, loams, or non-homogeneous soils require shoring and bracing?"

A. I think all soil has to be sloped, shored, or braced, one or the other. (emphasis supplied)

Q. (By Mr. Barnes) That doesn't answer my question.

A. That's as close as I can answer it for you.

Q. I see. In other words then, if I understand your answer correctly, you think that in clay soil, which you have testified the soil was, sloping is sufficient?

A. Yes.

Q. What ratio or angle of sloping would you say is required?

A. Slope it back far enough so it's safe.

Q. My point is, what do you consider safe?

A. Well, sir, we never get out and measure anything to see whether it's sloped just exactly what somebody specifies.

Mr. Dressen, respondent's expert witness, also disagrees with that portion of the text of the standard-to-be which states that all clay soils must be shored.

Apparently, complainant's own expert witness also disagrees to some greater or lesser extent since he states that a proper angle of repose would have been about 45 degrees and that had the soil been properly sloped, he would not have issued the citation. He also told Mr. Blue he could abate the hazard by angular repose, or shoring. These statements contravene Exhibit G-2 offered by complainant requiring shoring and bracing, exclusively, for the soil found at this job site. A part of this exhibit, which includes the note stating this, is attached hereto and marked Exhibit A.

The purpose of showing this conflict of opinion on safe trenching operations is not to overturn the Judge's finding based on the weight of evidence. Rather, it is to show that there is no agreement and no clear consensus in the evidence as to what it was about the excavation of this trench which constituted a "recognized hazard" under Section 5(a)(1) of the Act. Stated another way, there is no proper predicate in this record for the conclusion that these standards-to-be or any other portion of the record establishes the state of knowledge either in this particular industry or generally as to what is recognized as hazardous in trench excavation.

An explanation of what the Congress intended by its use of the term "recognized hazard" may be found in a statement by Congressman Steiger commenting upon the conference committee report concerning this portion of the Act.

[Recognized] hazards are the type that can readily be detected on the basis of the basic human senses, (116 Cong. Rec. H. 10625, daily ed. November 23, 1970, Remarks of Congressman Steiger).

Senator Saxbe said it is

"something that would be recognized by all people" (116 Cong. Rec. S. 17967, daily ed. October 13, 1970, Remarks of Senator Saxbe).

And Congressman Daniels contributed this:

A recognized hazard is a condition that is known to be hazardous, and is known taking into account the standard of knowledge in the industry. In other words, [it] is a matter for objective determination; it does not depend on whether the particular employer is aware of it (116 Cong. Rec. H. 10625, daily ed. November 23, 1970).

There are two important elements that must be proved to show a "recognized hazard." One is a condition which endangers the respondent's employees. The other is general recognition that such condition is a hazard. The very fact that the Compliance Officer, the owner of the respondent company, and respondent's expert witness all disagree as to the danger involved, and as to what measures would be appropriate to prevent danger, show that there is no agreement in the evidence of this case as to whether the conditions which existed in this trench were recognized as hazardous.

Additionally, none of the witnesses on either side of this case agree that trenches in the soil at this job site absolutely require bracing and shoring, not sloping, the standard of conduct specified in the exhibit introduced by complainant. The Compliance Officer, confusing the matter further, states that he relied upon the cited standards-to-be, but disagrees with them to the extent shown above. Nevertheless, despite the fact that no witnesses herein accept the standard-to-be as a consensus of what may be generally accepted safe conditions or methods of trenching, Judge Brennan relies upon it to find the trench at respondent's work site to be a "recognized hazard."

Clearly, complainant introduced no evidence upon which to base a finding of fact that the condition for which this respondent was cited was recognized as a hazard causing or likely to cause death or serious physical harm. The text of a post-effective standard cannot be used for such a purpose and no predicate for such a determination has been established in this case. Neither can expert opinion alone be relied upon to establish a recognized hazard. The reasons for these conclusions have been discussed in several cases, most recently in Secretary of Labor v. Broadview Construction Company, OSAHRC No. 124, January 10, 1973.

The evidence having failed to show the existence of a recognized hazard, I cannot agree with the decision in this case.

[The Judge's decision referred to herein follows]

BRENNAN, JUDGE, OSAHRC: This is an action arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, Public Law 91-596; 84 Stat. 1590 et seq.; 29 U.S.C. 651 et seq.; (hereinafter the Act), to review a Citation for Serious Violation issued by the Secretary of Labor (hereinafter Secretary), pursuant to Section 9(a) of the Act and a proposed assessment of penalty thereon issued pursuant to Section 10(a) of the Act.

The Citation dated July 26, 1971, (R. p. 1) n1 alleges that R.D. Blue Construction, Inc. (Robert D. Blue, Owner) 2555 Avenue H, Council Bluffs, Iowa 51501, the employer, (hereinafter Respondent), at a work place under its ownership, operation, or control, namely, a trench excavation located on the grounds of the Nebraska Methodist Hospital, 84th and Dodge Street, Omaha, Nebraska, was in violation of Section 5(a)(1) of the Act. This Citation sets forth the following Description of alleged violation:

Employees were working in trenches eight or more feet in depth, sides of which were composed of soft or unstable material. Sides of trenches were not sloped, shored, sheeted or braced, nor was excavated material removed to a safe distance from opening of trench.

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n1 References hereinafter have the following meaning:

R. p. 1 -- That document, bearing page number 1 on its lower right hand corner, appearing in Docket File No. 19 of the Occupational Safety and Health Review Commission.

R. p. H-1 -- That document, bearing page number H-1 on its lower right corner, received or issued by the Hearing Examiner and made a part of the record in this matter and incorporated into Docket File No. 19.

TR. 1 -- Page 1 of the Transcript of the hearing held herein.

Ex. G-1 -- Exhibit number 1 received into evidence upon motion of the Government (Complainant).

Ex. R-1 -- Exhibit number 1 received into evidence upon motion of the Respondent.

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In the column in this Citation entitled, "Date on which alleged violation must be corrected" appear the following statements:

Violation, which constituted an imminent danger, was abated immediately upon request of Compliance Officer, by the administrative method of removing employees from trenches. Correction by feasible engineering controls, consisting of appropriate shoring and bracing of sides of trenches and removal of excavated materials to a safe distance was completed on July 21, 1971, on request of Compliance Officer.

This Citation is designated a "CITATION FOR SERIOUS VIOLATION" and alleges such a type of violation within the meaning of Section 17(k) of the Act [R. p. 1].

A "NOTIFICATION OF PROPOSED PENALTY" also issued on July 26, 1971, to the Respondent proposing the assessment of a penalty in the amount of $600.00 based upon the violations alleged in the Citation [R. p. 2].

By a letter from its counsel dated August 13, 1971, the Respondent acknowledged receipt of the Citation and timely indicated its intention to contest the same [R. p. 3-4].

This matter was thereupon forwarded to the Occupational Safety and Health Review Commission (hereinafter Commission), receipt of which was acknowledged by the Commission by its Notice to the Secretary's Regional Solicitor and Respondent's counsel dated August 20, 1971, for hearing pursuant to Section 10(c) of the Act [R. p. 5].

The undersigned was appointed and this case assigned to him for hearing pursuant to Section 12(j) of the Act. Notice of this action was given to the parties by the Commission's notice dated September 1, 1971. [R. p. 6, 6A].

This case was originally scheduled for hearing in Omaha, Nebraska on October 27, 1971 [R. p. H-2], which date was subsequently advanced one day [R. p. H-3].

The hearing was conducted as rescheduled on October 26, 1971 in the Federal Building in Omaha, Nebraska, the parties appearing by and through their respective counsel heretofore identified.

After receipt of the transcript of this hearing [R. p H-9], the parties submitted their Proposed Findings of Fact, Conclusions of Law and Proposed Orders [R. p. H-10, H-11].

Having heard the testimony of the witnesses, and having considered the same, together with the exhibits, Proposed Findings of Fact, Conclusions of Law, arguments and briefs of the parties, it is concluded that the substantial, reliable and creditable evidence, on the record considered as a whole, supports the following findings of fact.

FINDINGS OF FACT

1. The Respondent herein, R.D. Blue Construction, Inc., a corporation incorporated under the laws of the State of Nebraska, with its principal office located at 2201 West Broadway Street, Council Bluffs, Iowa, was, at all times involved in this case, engaged in the business of excavating trenches for and the installation of water mains (pipes), storm and sanitary sewage pipes, and the back-filling of said trenches, at locations in both the States of Iowa and Nebraska [TR. 4; 52-54].

2. During the year 1970, the Respondent performed $460,000 worth of business and estimated that it would perform $600,000 worth of such business within the year 1971. Of approximately 12 other companies engaged in this type of business, the Respondent considers itself, as to size, to be approximately in the middle. The average daily number of employees during the nine or ten month work period of the current year was 12 men; no one being employed during the two to three months of severe winter. Respondent employed five men at the Methodist Hospital work site [TR. 5, 6, 55].

3. The Respondent stipulated that during 1970, it was cited once by the State of Nebraska for a safety violation [TR. 6, 102]. The owner and President of the Respondent could not recall any specifics concerning this Citation [TR. 102-104].

4. The Respondent has acknowledged proper service and receipt of the Citation and Notice of Proposed Penalty issued by the Secretary herein [TR. 8].

5. This Citation was posted at the work place located at 84th and Dodge Street, Omaha, Nebraska, and the notice of time and place of hearing was posted at that location where all employees report daily, 29th and First Avenue, Council Bluffs, Iowa [TR. 6, 7, 181]. No affected employees or representatives thereof appeared at the hearing in this matter [TR. 3].

6. On July 20, 1971, an Occupational Safety and Health Compliance Officer in the Omaha Area Director's office of the Occupational Safety and Health Administration (hereinafter Administration), received an anonymous telephone call advising that employees were working in a trench being excavated at the Nebraska Methodist Hospital (hereinafter work place) which was hazardous because this trench was not shored nor were its sides sloped [TR. 13].

7. This Compliance Officer went to this work place early in the afternoon of July 20, 1971. His investigation revealed a trench being dug by Respondent on this hospital's grounds, beginning at the north side of the hospital building and running in a north-south direction toward Dodge Street for a distance of from 100 to 150 feet. Because of varying ground surface levels, the depth of this trench varied from 8 to 17 feet, averaging 12 feet [TR. 14, 15, 28, 29, 38, 39, 59, 88].

8. Two of Respondent's employees were observed working in this trench with hand shovels, at a distance of from 100 to 150 feet from the hospital building. The trench at this point was approximately 8 feet deep, 5 feet wide at the bottom and from 5 1/2 to 6 feet wide at the top. A previously installed underground telephone cable crossed this trench at this spot [TR. 16, 18, 57, 67, 68].

9. All of the excavated earth from this trench was piled to a height exceeding 5 feet along the west side of this trench immediately adjacent to the edge of the trench. There was such a pile of excavated material directly above that location in this trench where Respondent's two employees were working. This pile of excavated material was very loose and unstable [TR. 17, 19, 37, 38, 95, 96, 97].

10. After explaining the provisions of the Act and the Safety and Health Regulations to Mr. R. D. Blue, the owner and President of Respondent corporation, who was present at this work site, and after he acknowledged that he was familiar with these Regulations, the Compliance Officer advised that under the conditions existing at this site, Respondent's two employees were in a "very hazardous" situation and they would have to leave this trench immediately. Mr. Blue agreed to remove his employees [TR. 20].

11. In the opinion of this Compliance Officer, Respondent's two employees, while in this particular portion of this trench, were subject to "an imminent danger situation" because the trench was 8 feet deep, the walls of the trench were not stable, as he observed earth constantly falling from its face in dribbles, the excavated material piled to a height in excess of 5 feet immediately above the trench was itself very unstable and was exerting added weight upon the west wall of the trench and this trench was not shored, braced or sheeted in any way nor were its sides sloped. An appropriate notice of the existence of this "imminent danger" was posted at this work site by this Compliance Officer [TR. 16, 17, 19, 20, 21, 23].

12. In his discussion of this situation with Mr. Blue on July 20th, the Compliance Officer advised that the Respondent had two choices to correct the hazardous conditions observed, to either slope the sides of this trench or to shore the sides. Mr. Blue stated that he would be unable to slope the sides of the trench because of restrictions "placed upon him by the Hospital," and that he did not want to tear up anymore of the landscaping than was actually necessary, consequently, the trench would have to be shored [TR. 19, 20, 37].

13. The discussion between this Compliance Officer and Mr. Blue took place to the west of the pile of excavated material so that the trench was out of their view. Upon its conclusion, the Compliance Officer returned to the trench site to post the notice of "imminent danger", and observed a telephone repairman in the trench, Respondent's employees having left, conducting tests on the telephone cable which had been damaged in the trenching operation. The Compliance Officer advised this workman of the imminent danger and he left the trench. It developed that because of the damage to this telephone cable, the hospital had been left without any internal or external telephone service. After consulting with his Area Director, and because of the urgent need to restore telephone service to the hospital, the Compliance Officer ordered a wall of ladders (i.e., shoring) to be put into this trench and permitted four telephone repairmen, equipped with lifelines each tendered by a man outside of the trench to enter the trench to effect emergency repairs. These repairs were completed in approximately 45 minutes to an hour and the telephone workers left the site. Shortly thereafter, after posting the notice of "imminent danger," the Compliance Officer left this work site [TR. 23-26].

14. On July 21, 1971, the same Compliance Officer reinspected this work place and found that the excavated material had been removed a distance of approximately 4 feet away from the west edge of this trench. In addition, two or three of Respondent's employees were beginning to install shoring in this trench at the end nearest the hospital building. No other physical changes were observed. Specifically, the sides of this trench had not changed and were in the same condition as observed on the preceding day [TR. 21, 22].

15. The existence of the underground telephone cable crossing this trench at the location where two of Respondent's employees were observed working, conclusively establishes that there had been a prior trench excavation for its installation, that the sides of this trench at this location did not consist of previously undisturbed soil, that this prior excavation adversely affected the stability of the trench sides at this location and rendered the sides at this location unstable [TR. 117-118].

16. As observed and testified to by this Compliance Officer, and as reviewed, evaluated, and testified to by the Administration's Area Director, it is hereby found that the trench at this work place on July 20, 1971, excavated by this Respondent, was not shored, sheeted or braced in any way, nor were its sides sloped to an angle of repose sufficient to comply with the generally recognized minimum requirements for this type of construction to eliminate the hazards of death or serious bodily harm to employees working in said trenches [TR. 16, 17, 23, 33, 34, 44-46].

17. The Respondent admits that this trench was not shored, sheeted or braced in any way on July 20, 1971, but contends that the sides thereof were sloped on that day. This contention is advanced through the testimony of Mr. Blue. [TR. 52-105; 62-67, 91], coupled with the testimony of Respondent's foreman, the man who operated the back hoe which dug this trench [TR. 164-175; 164, 165, 174, 175]. Due to the evident interest and stake in the outcome of this litigation, and due to inconsistencies in this testimony [TR. 62, 63; 91-95; 102-105], and further because of either poor memories or lack of knowledge [TR. 63; 102-105; 173-175], this testimony is not free from serious questions of credibility and reliability and therefore cannot be relied upon herein as establishing that the sides of this trench were sloped on July 20, 1971, in contravention to the testimony of the inspecting Compliance Officer.

18. Approximately two weeks after July 20, 1971, the Respondent's President had a series of photographs taken of this trench [TR. 63, 64], which were admitted into evidence for limited purposes as exhibits R-1 through R-5 [TR. 79]. These photographs do establish that the abatement ordered in the Citation herein [R. p. 1], the removal of the excavated material away from the edge of the trench and the installation of shoring and bracing in this trench, had been completed on the day that the photographs were taken. These photographs do not establish the condition of this trench nor any sloping of the sides of this trench on July 20, 1971 [TR. 29-34, 79].

19. The Government introduced into evidence [TR. 176-179], as Exhibit G-2, certain applicable provisions of the Safety and Health Regulations for Construction of the Bureau of Labor Standards, U.S. Department of Labor, as published in the April 17, 1971, edition of the Federal Register (36 F.R. 7340, 7341, 7389, 7390, 7391; 29 CFR 1518.1-1518.4, 1518.652, 1518.653). No violation of these regulations is alleged in the citation herein [R. p. 1; TR. 88] and they were not introduced into evidence for that purpose. Rather, because of the method followed in their promulgation (as set forth in the preamble thereof, 36 F.R. 7340) these regulations were introduced and are here considered to be the expression of the consensus of informed expert opinion as to minimum requirements necessary to be followed in trenching construction work to avoid hazardous conditions to employees [TR. 176-179, Ex. G-2].

20. Paragraphs 1518.652(a) and (c) of these regulations provide as follows:

(a) Banks more than four feet high shall be shored or sloped to the angle of repose where a danger of slides or cave-ins exists as a result of excavation.

(c) Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 4 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 4 foot level may be sloped to preclude collapse, but shall not be steeper than a 1 foot rise to each 1/2 foot horizontal.

Respondent's owner testified that he had read, was familiar with, and in the past had relied upon the regulations set forth in Ex. G-2 [TR. 88-91].

21. Although the Respondent's owner did not take any soil samples at the site of the trench in question, he classified the soil at this site to be "clay" [TR. 83], based upon soil samples he did obtain across Dodge Street from this trench location [TR. 81, 82]. A note on Table P-1 of Exhibit G-2, (36 F.R. 7390) appears as follows: "Note: Clays, Silts, Loams or Non-Homogeneous Soils Require Shoring and Bracing. The Presence of Ground Water Requires Special Treatment." Despite Respondent's past reliance on these regulations in forming his judgments relative to the sloping or shoring of trenches [TR. 89], he disagrees with the above quoted note [TR. 91].

22. Even if the Respondent's contention that the sides of this trench were sloped on July 20, 1971, is taken as established, and this contention has been rejected on the evidence of this record (see Findings no. 16, 17, supra), according to the testimony of Respondent's owner, the trench, at the point where his two employees were working on July 20, 1971, was from 8 to 10 feet deep, 5 feet wide at the bottom and 12 to 13 feet wide at the top [TR. 57, 80]. With an average depth of 9 feet, average width at the top of 12 1/2 feet and bottom width of 5 feet, the angle of repose of this trench at this location was less than the 1/2 to 1 ratio set out in the above cited regulations as the required degree of slope for trenches dug in "compacted angular gravels" [Ex. G-2, Table P-1].

TRENCH SHORING -- MINIMUM REQUIREMENTS

Size and spacing of members

Uprights

Stringers

Cross braces *

Depth

Kind or condition of

of

earth

Width of trench

trench

Min.

Max.

Min.

Max.

dim.

spac.

dim.

spac.

Up to

3 to

3 ft.

6 ft.

Feet

Inches

Feet

Inches

Feet

Inches

Inches

3 X 4

or

Hard, compact

2 X 6

6

2 X 6

4 X 4

 4 to

Likely to crack

3 X 4

3

4 X 6

4

2 X 6

4 X 4

10

or

Close

sheet-

Soft, sandy, or filled

3 X 4

ing

4 X 6

4 X 4

4 X 6

or

2 X 6

Hydrostatic pressure

3 X 4

Close

6 X 8

4

4 X 4

4 X 6

or

sheet-

2 X 6

ing

Hard

3 X 4

4

4 X 6

4

4 X 4

4 X 6

or

2 X 6

10 to

Likely to crack

3 X 4

2

4 X 6

4

4 X 4

4 X 6

or

2 X 6

Close

sheet-

15

Soft, sandy, or filled

3 X 4

ing

4 X 6

4

4 X 6

6 X 6

Hydrostatic pressure

3 X 6

Close

 8 X 10

4

4 X 6

6 X 6

sheet-

ing

Close

15 to

sheet-

20

All kinds or conditions

3 X 6

ing

4 X 12

4

 4 X 12

6 X 8

20

Over

All kinds or conditions

3 X 6

Close

6 X 8

4

4 X 12

8 X 8

20

sheet-

ing

TRENCH SHORING -- MINIMUM REQUIREMENTS

Size and spacing of members

Cross braces *

Depth

Kind or condition of

Max. spacing

of

earth

Width of trench

trench

6 to

9 to

Vert.

Horiz.

9 ft.

12 ft.

Feet

Inches

Inches

Feet

Feet

Hard, compact

4 X 6

6 X 6

4

6

 4 to

Likely to crack

4 X 6

6 X 6

4

6

10

Soft, sandy, or filled

6 X 6

6 X 8

4

6

Hydrostatic pressure

6 X 6

6 X 8

4

6

Hard

6 X 6

6 X 8

4

6

10 to

Likely to crack

6 X 6

6 X 8

4

6

15

Soft, sandy, or filled

6 X 8

8 X 8

4

6

Hydrostatic pressure

6 X 8

8 X 8

4

6

15 to

All kinds or conditions

8 X 8

 8 X 10

4

6

20

Over

All kinds or conditions

 8 X 10

10 X 10

4

6

20

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

* Trench jacks may be used in lieu of, or in combination with, cross braces.

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

Shoring is not required in solid rock, hard shale, or hard slag

Where desirable, steel sheet piling and bracing of equal strength may be substituted for wood

23. The Respondent also produced the testimony of a civil engineer, Mr. Dressen, who testified as an expert witness [TR. 107-162]. This witness was first contacted by Respondent's owner on August 1, 1971 and at his request made a visual examination of this trench on that day [TR. 112]. From his visual observation, he classified the soil in the faces of this trench to be "Loveland Loess," a "relatively stiff" type of soil [TR. 113, 114]. On the day before the hearing herein, October 25, 1971, this witness took soil samples from points located approximately 77 feet north and 6 feet west of the northeast corner of the hospital building and approximately 37 feet east and 57 feet north of the same point [TR. 115]. Of the two samples taken, the closest was approximately 73 feet south of the location where Respondent's two employees were working in this trench on July 20, 1971. Because these samples were taken at this distance away from the location of Respondent's employees in this trench, and because there is no evidence in this record which establishes that there was any prior excavated material included in these samples, these samples cannot be accepted as representative of the soil conditions in this trench at the location of the prior telephone cable excavation where Respondent's employees were observed on July 20, 1971. Consequently, the laboratory tests conducted on these samples and the opinion of this expert based thereon, relating to the possible depth of an excavation that would stand without failure cannot be accepted as reliable as they pertain to this trench at the location in question [TR. 115-118]. Further, the testimony of this witness, which is either inconsistent (see TR. 118, 119, 159-161) or in disagreement with (see Tr. 127-130) the consensus of expert opinion in the field of trench construction (Ex. G-1) is not persuasive, and does not prove the absence of the hazardous conditions set forth in this citation [R. p. 1].

24. The Administration's Area Director testified that upon reviewing the report of the Compliance Officer, he classified the conditions reported to exist on July 20, 1971, at the Respondent's work place as a serious violation of the Act [TR. 41, 44-46]. He further testified that he calculated the proposed penalty, as set forth in the Notice of Proposed Penalty (R. p. 2 as $600.00, representing the following reductions from the maximum statutory penalty of $1,000.00:

10% reduction allowed for on-going safety programs of Respondent

10% for the size of Respondent's company -- 0 to 20 employees.

20% based on the fact that was Respondent's first violation of the Act. [TR. 42, 43].

The Area Director considered the violation to have been immediately abated [TR. 50].

CONCLUSIONS OF LAW

1. At all times involved in this case, Respondent herein was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

2. At all times involved in this case, the Respondent furnished employment to its employees at a work place within the City of Omaha, State of Nebraska, and the Act is applicable to such employment within the meaning of Section 4(a) of said Act.

3. On July 26, 1971, the Secretary, pursuant to the provisions of Sections 9(a) and 10(a) of the Act, issued to this Respondent a Citation for Serious Violation and Notification of Proposed Penalty thereon. On August 16, 1971, pursuant to Section 10(c) of the Act, this Respondent filed with the Secretary a notification of intent to contest this Citation. The Secretary thereupon transmitted this case to the Occupational Safety and Health Review Commission, which, pursuant to the provisions of Section 10(c) of the Act, has jurisdiction of the parties and of the subject matter herein.

4. Section 5(a)(1) of the Act provides that:

Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

5. The conditions found to exist at the Respondent's work place, on July 20, 1971, which formed the basis of the Citation issued herein, namely, two of Respondent's employees working in a trench excavated by Respondent, at a location where the trench was 8 or more feet in depth, 5 feet wide at the bottom and not more than 6 feet wide at the top, the sides of which were unstable, in part due to a prior excavation for the installation of an underground telephone cable and in part due to the added weight placed thereon by the pile of excavated material from this trench placed immediately adjacent to the side thereof, and the fact that this trench was not shored, sheeted or braced in any way, nor were the sides thereof adequately sloped, all constitute a recognized hazard that was likely to cause death or serious physical harm to employees working in this trench in violation of Section 5(a)(1) of the Act.

6. The conditions found to exist at Respondent's work place on July 20, 1971, constitute a serious violation within the meaning of Section 17(k) of the Act.

7. The abatement of the violation herein found to have existed at Respondent's work place on July 20, 1971, was satisfactorily accomplished.

8. The Citation and Notice of Proposed Penalty issued herein were properly served upon this Respondent and the said Citation and notice of time and place of hearing were posted by this Respondent consistent with the provisions of Section 9(b) of the Act and the regulations promulgated thereunder.

9. Due consideration having been given to the proposed penalty herein pursuant to the provisions of Section 17(j) of the Act, it is determined that said penalty, under the circumstances herein, is appropriate.

ORDER

Based upon the foregoing findings, conclusions and determinations, and pursuant to the provisions of Section 10(c) of the Act, it is hereby,

ORDERED:

That the Citation for Serious Violation and Proposed Penalty, dated July 26, 1971, addressed to the Respondent herein, as issued by the Secretary, are hereby affirmed.