SHAW CONSTRUCTION, INC.
OSHRC Docket No. 3324
Occupational Safety and Health Review Commission
January 30, 1978
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Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald M. Gaswirth, Reg. Sol., USDOL
David Ford Hunt, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
This case is before us on remand from the Court of Appeals for the Fifth Circuit. In a decision dated January 17, 1974 Administrative Law Judge William J. Risteau found that Shaw Construction committed serious violations of 29 C.F.R. 1926.651(i)(1) n1 and 1926.652(c). n2
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n1 1926.651(i)(1) provides:
In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.
n2 1926.652(c) provides:
Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise each 1/2-foot horizontal. When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion.
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The Commission, which consisted of two members at the time, issued a decision dated July 22, 1975 which affirmed the Judge's determination that a serious violation of 1926.651(i)(1) had occurred and affirmed his penalty assessment for that violation. However, the members could not agree on the merits of the serious violation of 1926.652(c), and the Judge's decision was affirmed by an equally divided Commission.
Shaw appealed, and the Fifth Circuit affirmed the Commission's decision insofar as it found Shaw in violation of 1926.651(i)(1). However, the Court found that the Commission erred in disposing of the 1926.652(c) violation. While the Court did not rule on the merits of the 1926.652(c) violation it interpreted the statutory provision at 29 U.S.C. 661(e) n3 to preclude the Commission from acting on a case in which at least two members did not agree on the disposition. The case was remanded to us for a determination on the merits of the alleged 1926.652(c) violation. Shaw Construction Inc., v. Usery, 534 F.2d 1183 (5th Cir. 1976).
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n3 Section 661(e) provides:
For the purpose of carrying out its functions under this chapter, two member of the Commission shall constitute a quorum and official action can be taken only on the affirmative vote of at least two members.
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The evidence establishes that the trench in question was approximately 9 feet deep. The lower 6-7 feet were dug in limestone, and the upper 2-3 feet were dug in hard or compact soil. The sides of the trench were not shored or sloped.
Shaw contends that, since the walls contained less than 5 feet of hard or compact soil, the standard at 1926.652(c) does not apply. A similar contention was rejected by the Commission in W.N. Couch Construction Co., 76 OSAHRC 44/A2, 4 BNA OSHC 1054, 1075-76 CCH OSHD para. 20,574 (No. 7370, 1976). In Couch the total depth of the trench in question was 11 feet. The bottom 6 1/2 feet were in hard, compact soil, but the top 4 1/2 feet consisted of soft, unstable soil. The Commission agreed with the Secretary's argument that the standard requires protection wherever a trench is five feet or more in [*4] depth and there is more than an insignificant amount of soft, unstable soil. The purpose of the standard is to protect employees against caveins, and the employees in Couch were exposed to a danger of at least 4 1/2 feet of unstable soil collapsing on them. We therefore interpreted 1926.652(b) n4 to require an employer to slope or shore all unstable components of trench walls if the trench is 5 feet or more in depth.
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n4 Section 1926.652(b). 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.
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Although in the instant case the upper portion of the trench was dug in hard, compact soil, employees were exposed to essentially the same hazard as in Couch: a danger of collapse of the top portion of the trench. We therefore interpret the standard at 1926.652(c) to require shoring or sloping of a trench more than 5 feet [*5] in depth even though the total depth of the hard and compact component of the soil is less than 5 feet. This interpretation is consistent with the requirement of the standard that "the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot horizontal." We therefore conclude that the cited standard applies to Shaw's trench and that Shaw violated the standard.
Shaw also contends that the citation should be dismissed because the compliance officer failed to present his credentials during the inspection, that the Judge erred in improperly permitting the Secretary to amend the citation, n5 and that the violation should not be classified as "serious" because there was not a substantial probability that death or serious physical harm could result. We reject these arguments for the reasons assigned by the Judge.
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n5 The citation originally alleged a violation of 29 C.F.R. 1926.652(a), a trenching standard requiring sloping or shoring of "banks." At a pre-hearing conference, the Secretary moved to amend to allege a violation of 1926.652(c). The judge, noting that the amendment did not change the description of the alleged violation, permitted the amendment.
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Shaw further contends that the amendment was improper because the Secretary sought to amend only his citation and not his complaint. The contention lacks merit. We consider the amendment of the citation to also be an amendment of the complaint under these circumstances. Furthermore, the issue of a violation of 1926.652(c) was fully tried, and thus the complaint is in any event deemed amended pursuant to Fed. R. Civ. p. 15(b).
Finally, Shaw argues that the knowledge requirement for a serious violation n6 was not satisfied because it could not have known that its conduct violated 1926.652(c). In support of this argument, Shaw points to some difference in opinion between the Secretary's compliance officer and his area director as to whether 1926.652(c) is the standard applicable to the trench Shaw had dug.
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n6 29 U.S.C. 666(j).
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We note first that the argument is inapposite. The "knowledge" of which 29 U.S.C. 666(j) speaks is knowledge [*7] of the condition constituting the violation. Shaw is presumed to have knowledge of the standard itself by virtue of the standard's publication in the Federal Register. Essentially, Shaw is arguing that it should not be found in violation of 1926.652(c) because the Secretary's representatives did not agree on which standard Shaw violated. Shaw does not, however, contend that 1926.652(c) is too vague to be enforceable, and we have concluded that the standard is applicable to Shaw's trench. Accordingly, Shaw's argument provides no basis on which to dismiss the citation.
We also find the Judge's penalty assessment proper for the reasons he assigned. Accordingly, the Judge's decision is affirmed.