A. FRIEDERICH & SONS COMPANY

OSHRC Docket No. 344

Occupational Safety and Health Review Commission

July 2, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order directing review of a decision made by Judge William E. Brennan. Among other things the Judge determined that Respondent was in serious violation of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") for having violated the provisions of 29 C.F.R. 1926.651(1). n1 He assessed a civil penalty of $500.

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

n1 The standard is presently designated as 29 C.F.R. 1926.651(m).

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

The standard, in pertinent part, is as follows:

Special precautions shall be taken in sloping or shoring the sides of excavations adjacent to a previously backfilled excavation or fill, particularly when the separation is less than the depth of the excavation.

Judge Brennan concluded that the phrase "particularly when the separation is less than the depth of the excavation" was fatally defective for being vague, and that the remainder of the standard did [*2] not suffer from the same defect. He therefore severed the standard and on the facts found a serious violation of the valid portion thereof.

On review submissions were requested on the questions whether the standard was defective in its entirety for being vague, and if not defective whether in view of other standards the standard involved herein had been violated in the circumstances.

We have reviewed the record. Based on such review we conclude that the standard is enforceable and that Respondent was in serious violation of it.

The standard involved herein cannot be read apart from the entirety of the excavation standards. Section 651(c) requires the shoring or sloping of excavation walls or faces when employees are exposed to the danger of moving ground. If a wall or face is sloped then according to section 651(g) it must be cut back to its angle of repose. n2 On the other hand section 651(h) demands a flattening of the angle of repose when water conditions, silty materials and the like are encountered. That is, the angle of the excavation face above the horizontal plane must be reduced because external conditions such as water affect the normal stability of the [*3] soil.

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

n2 According to section 653(b) the angle of repose is "the greatest angle above the horizontal plane at which a material will lie without sliding."

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

Similarly, the standard involved herein deals with an external condition which can affect the stability of the soil in which an excavation is made. That condition is the presence of a prior, back-filled excavation. According to the plain terms of the standard special sloping or shoring precautions are required when an excavation is adjacent to a previously backfilled excavation. n3 We see nothing vague in this requirement. Certainly, industry practice can indicate the necessary special precautions. See Santa Fe Trail Transportation Company, In any event, it would seem any flattening of the slope beyond the normal angle of repose would be a special precaution within the meaning of the standard.

- - - - - - - - - - - - - - - - - -Footnotes- [*4] - - - - - - - - - - - - - - - - -

n3 On review, Respondent recognizes the need for special precautions in this situation. As it says "previously disturbed earth is more likely to slide or cave-in than is earth that has never been disturbed." We agree.

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

Moreover, we do not agree with the Judge's conclusion that the phrase "particularly when the separation is less than the depth of the excavation" is fatally vague. n4 Since the standard applies to an excavation "adjacent" to a previously backfilled excavation the phrase deals with the distance separating the two. Thus, special precautions are particularly necessary when the depth of the new excavation is greater than the distance separating that excavation from the previously backfilled excavation.

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

N4 The Judge's decision in this regard was predicated on the fact that the witnesses did not understand the phrase. However that may be, one court has expressed the obligation imposed on the bench as follows:

. . . [t]he office of all the Judges is to always make such . . . construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for continuance of mischief . . . and to add force and life to the cure and remedy, according to the true intent of the makers of the act. . . .

Gray v. United States, 410 F.2d 1094, 1097, (3rd Cir., 1969) quoting from Heydon's Case, 76 Eng. Rep. 637 (Ex. 1584).

[*5]

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

Turning now to the facts Respondent argues that the standard does not apply because his excavation was made in fill or backfill. He then says there has been a complete failure of proof as to the nature of the soil adjacent to the excavation.

The facts are contrary to Respondent's argument. The soil adjacent to the excavation in question was also backfill; backfill used to fill an excavation Respondent had made in order to place building footings.

Accordingly, the decision of the Judge is affirmed to the extent that it is consistent herewith. It is so ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the result expressed in Commissioner Van Namee's opinion. However, I wish to emphasize that in my view this Commission lacks the power to pass upon a question as to whether or not a standard adopted by the Secretary of Labor is defective because of vagueness. See Santa Fe Trail Transportation Co., supra (dissenting opinion).

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: The decision below held the following part of 29 C.F.R. 1926.651(1) vague and unenforceable: [*6]

. . . particularly when the separation is less than the depth of the excavation . . . . (emphasis added)

Specifically in issue was the meaning of "separation." The officer who conducted the inspection believed it to mean the width of the new excavation at the bottom measured "from the face of the embankment south." Respondent's witness, a professional engineer in soils and foundation, testified that "separation" was the distance of the two walls of a "trench" and that he could not understand its use in this "excavation" standard. Complainant's witness, a safety engineer and a member of the Department of Labor committee which had formulated this standard, stated that the meaning thereof was "separating the dirt from the bottom of the slope."

Now comes the Commission, claiming it has arrived at the precise meaning, and states that it is the distance between the old and new excavations.

These different interpretations merely exemplify the wisdom of the conclusion reached below: no precise definition is possible; it is hopelessly vague.

To render this part void, however, would not necessarily invalidate the remaining portion of the standard. When a standard is self-sustaining [*7] and capable of separate enforcement without regard to the invalid part, that which remains should be sustained. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Utah Power & Light Co. v. Pfost, 286 U.S. 165 (1932).

An examiniation of the language of the remaining part reveals that it states:

Special precautions shall be taken in sloping or shoring the sides of excavations adjacent to a previously backfilled excavation or a fill . . . . (emphasis added)

What are "special precautions?" Is this a term of such precise nature that an employer is able to understand what actions would satisfy its requirements? I think the answer is "no."

The decision in this case attempts to define it by stating:

According to the plain terms of the standard special sloping or shoring precautions are required when an excavation is adjacent to a previously backfilled excavation.

I respectfully submit that this is not a definition. It is nothing more than a rewording of the standard. Additionally, the decision continues" . . . the industry can indicate the necessary special precautions." n5 (emphasis added)

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - [*8] - - - -

n5 Secretary v. Santa Fe Trail Transportation Co., That decision stated that a term otherwise vague may be saved if the industry has given it a technical definition. The use of the word "can" in the case sub judice indicates the industry's potential capability of defining "special precautions," not whether it has done so. This is an unwarranted extension of the Santa Fe Trail case as well as a principle which will be of no help whatsoever to an employer who wants to know how to comply with the standard.

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

The issue is not whether the industry "can" indicate the necessary precautions, but whether they "have," and whether that usage has been brought to the attention of those obligated by the regulation, to the intended beneficiaries of such protection, as well as to this tribunal, in order to assist it in determining the possible vagueness of this term. Regrettably, the record demonstrates that no evidence has been offered on any of these matters.

The decision in this case [*9] also states that the meaning of this term should be acquired by reading it as a part of the entire "excavation" standards -- in effect, requiring an employer to search other standards for the meaning of this otherwise vague term.

If 651(1) made reference to another standard to explain the meaning of "special precautions," no prejudice would result to respondent. But, as here, where a standard makes no such reference, should we expect an employer to comb other standards in hope of extrapolating the meaning of the vague terminology contained in the standard under which it is cited? Such a requirement would be an unnecessary imposition, an expectation unlikely ever to be realized, and would undermine the very purpose for promulgating safety standards: to state regulations clearly and plainly, uncolored by additional or subjective criteria. See Secretary v. California Stevedoring Co.,

Standards must contain specificity so as to put an employer on notice as to what is required. Secretary v. McDowell-Purcell, Inc., 1926.651(1) falls short of that requirement.

The Assistant [*10] Secretary of Labor for Occupational Safety and Health, the official specifically delegated responsibility for obtaining compliance with this Act and achieving the purposes for which it was enacted, recently stated ". . . that is precisely why OSHA exists -- to remind employers before tragedy strikes. . . ." n6 Standards containing vague terminology, or imprecise definitions, or which require extensive research to be understood, are incapable of reminding employers of anything prior to the happening of a tragedy or telling them what they must do to avoid being cited for noncompliance.

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

n6 U.S. Department of Labor News Release 74-287, June 3, 1974.

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

[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, 29 U.S.C. 651 et. seq. (hereinafter the Act), to review two Citations for Serious Violations issued by the Secretary of Labor, (hereinafter Secretary) pursuant to Section 9(a) of [*11] the Act, and a Notification of Proposed Penalty in the total amount of $1000.00 issued pursuant to Section 10(a) of the Act.

On December 3, 1971, the Secretary through the Syracuse New York Area Director of the Occupational Safety and Health Administration, issued to A. Friederich & Sons Co., 1143 Dryden Road, Ithaca, New York, (hereinafter Respondent) two Citations as follows:

Citation No. 1:

A Citation for Serious Violation alleging Respondent was in violation of the Act at a workplace under its ownership, operation, or control located at an addition to the Wilson Synchrotron Laboratory, Cornell University, Dryden Road, Ithaca, New York (hereinafter workplace), by its failure to comply with the Occupational Safety and Health Regulation for Construction set forth at 29 CFR 1926.651(d), (formerly 29 CFR 1518.651(d)), in that

The determination for the angle of repose was incorrect. The determination not to install a supporting system was incorrect. (R.P.1)

Citation No. 2:

A Citation for Serious Violation alleging Respondent was in violation of the Act at the above described workplace by its failure to comply with the Occupational Safety and Health Regulation for [*12] Construction set forth at 29 CFR 1926.651(1), (formerly 29 CFR 1518.651(1)) in that,

Special precautions were not taken in sloping or shoring the side of the excavation adjacent to a previously backfilled excavation or fill, particularly when the separation was less than the depth of the excavation. (R.p.1A)

Both Citations indicated that the alleged violations had been corrected.

The Secretary also issued to this Respondent on December 3, 1971, a Notification of Proposed Penalty in the following amounts:

Citation No. 1 -- $500.00

Citation No. 2 -- $500.00 (R.p.2)

Pursuant to Section 10(c) of the Act, the Respondent, on December 16, 1971, gave notice of its intention to contest both Citations and proposed penalties (R.p.3, Tr. 5/3/72p.4). n1

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

n1 The Commission file is incomplete in that Respondent's Notice of Contest to Citation No. 2 is missing, a fact made known the first day of hearing.

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

This case was thereafter referred to the Occupational Safety and Health Review Commission, (hereinafter Commission) [*13] for hearing pursuant to Section 10(c) of the Act, notice thereof being given to the parties of record on December 29, 1971.

On December 30, 1971, the Secretary filed his Complaint herein alleging in paragraph IV thereof the violations set forth in the two Citations, which was followed by Respondent's answer thereto, filed on January 12, 1972 (R.pp.6, 12).

This case, originally assigned to Judge Moran, was reassigned to the writer on March 7, 1972, notice thereof being given to the parties of record the same date.

The hearing herein was commenced as originally scheduled on May 3, 1972 at Ithaca, New York and after a second session at the same city on June 14, 1972, was concluded with a session held on June 27, 1972 at New York City.

After granting a joint request from the parties for an extension of time within which to file briefs, proposed findings and conclusions, said documents, including a Reply Brief from the Secretary's counsel were all finally filed by September 25, 1972.

Having considered the entire record herein, the testimony and demeanor of the witnesses, the exhibits, the stipulations, representations and admissions of the parties, it is concluded that the substantial [*14] evidence of record considered as a whole supports the following findings of fact and conclusions of law.

The Occupational Safety and Health Regulations for Construction n2 (hereinafter Regulations) relied upon by the Secretary in the two Citations for Serious Violation read as follows:

Citation No. 1 -- 29 CFR 1926.651(d)

(d) 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.

Citation No. 2 -- 29 CFR 1926.651(1)

(1) Special precautions shall be taken in sloping or shoring the sides of excavations adjacent to a previously backfilled excavation or a fill, particularly when the separation is less than the depth of the excavation. Particular attention also shall be paid to joints and seams of material comprising a face and the slope of such seams and joints. [*15]

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

n2 These Safety and Health Regulations for Construction formerly set forth at 29 CFR 1518, were adopted pursuant to Section 6(a) of the Act on May 29, 1971 (36 F.R. 10469) and have been set forth at 29 CFR 1926 since February 17, 1972 (37 F.R. 3512).

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

No affected employee or authorized representative of affected employees expressed any desire to participate as a party herein.

The following matters were stipulated to by the Secretary and Respondent:

The full and accurate name of Respondent is A. Friederich & Sons Company. It is a New York Corporation with its home office at 712 Lake Avenue, Rochester, New York. Respondent is one of the "smallest of general contractors" in the Ithaca, New York area involved in the type of construction pertinent to this case, with a 1971 annual dollar volume of from 6 to 8 million dollars. It employs, on a year round basis, from 15 to 20 employees. One of Respondent's employees was injured at the workplace here involved and died within two hours as a result of said injuries. [*16]

At all times relevant herein, Respondent was engaged in the general contracting business at 1143 Dryden Road, Ithaca, New York and at other sites throughout the State of New York. Many of the materials, equipment and supplies used by the Respondent in said business were manufactured and or produced outside of the State of New York and shipped to Respondent from without said State.

The Respondent was engaged in a business affecting commerce within the meaning of Section 3(5) of the Act at all times relevant herein.

This case arose as a result of a fatal accident to one of Respondent's employees in the early morning hours of November 19, 1972, at a worksite located adjacent to the Wilson Synchrotron Laboratory at Cornell University in Ithaca, New York and an investigation at this site by a duly authorized Compliance Officer of the Occupational Safety and Health Administration later the same day.

The record reveals that this Respondent was engaged at this worksite as a general contractor in building an addition to the existing laboratory building. It began this project the day after Labor Day, 1971, and the following work had been performed up to the time of the accident. For [*17] clarity, reference is hereafter made to Exhibit G-1, a drawing of the East Elevation, and G-2, a Plan View prepared approximately five months after the accident for the Respondent by a consulting engineer who appeared as an expert witness for Respondent.

Respondent first reduced the degree of the slope of the earth which abutted the existing laboratory building from a point immediately behind (North) of an existing retaining wall, which was about 14 feet high to a point approximately 10 feet to the right (North) of where the "sheet piling" is shown on Exh. G-1. An "excavating machine" was used for this task. (This area is hereinafter referred to as the slope.)

Next Respondent drilled five holes, 3 feet in diameter, installed reinforcing steel and then poured concrete into these holes to form caissons to support the proposed North Wall as shown in Exh. G-2. The depth of these holes ranged form 20 to 60 feet. The holes were then back filled to an elevation of 840 feet. Thus, by reference to the Benchmark of 827 feet as shown on Exh. B-1, the slope here involved was approximately level or horizontal from the point immediately North of the 14 foot retaining wall (elevation [*18] 841) to the top of the back-filled caisson holes, (elevation 840). These caisson excavations were made by the use of a large drilling mechanism mounted on a truck. Next Respondent pile drove approximately 160 feet of steel sheet piling from 4 1/2 to 16 feet to the North of the proposed North Wall as shown on Exh. G-1 and G-2.

The installation of this sheet piling took one month and was completed on November 12, 1971, one week before the accident. A 40 ton capacity pile driver, weighing approximately 15 tons was used to drive the sheet piling. During this operation, the pile driver was located to the South of the sheet piling on the slope in question.

Next Respondent excavated more earth between the retaining wall and the sheet piling. The evidence is inconclusive as to the angle of the resulting slope. Again, excavation equipment weighing about 4 tons was used to accomplish this task.

The construction of the proposed addition to the existing laboratory building called for the removal of the existing retaining wall and its concrete footers. Thus, Respondent next excavated an undefined area immediately adjacent to the North side of the retaining wall, i.e., in back [*19] of the wall. Then, cuts were made in the retaining wall with the use of pneumatic drills to expose the reinforcing steel within the wall, which steel was then cut. Then "railroad jacks" which were described as 3 feet high and capable of a one foot extension, were placed in a horizontal position between the retaining wall and the face of the excavation. This wall was then pushed over by extending the jacks using the face of this excavation as a base for the jacks.

Respondent's supervisor of the work in question testified that because of the "small angle" between the retaining wall and the face of the excavation, it was necessary to dig a "pocket" in the face to allow the use of the jacks to push over the wall.

After this operation approximately 18 inches of the bottom of the retaining wall and the concrete footers under this tub remained for removal.

Then, on November 18, 1971, the excavation which is the subject of this action was made. Respondent's job supervisor, Mr. Corning, directed the operator of a small, rubber tired backhoe (owned by the Carpenter Backhoe and Dozer Service but working under Respondent's direction and control) to "uncover the footer" (Tr. 6/14/72 p. [*20] 91) of the retaining wall. The backhoe operator was given no further directions by Respondent, and was not told to cut the face of this new excavation to any given angle. Positioning the backhoe to the South of the remaining stub of the retaining wall, the earth to the North of this stub was removed by the backhoe to a distance of about 6 1/2 feet, which uncovered the concrete footers which extended about 6 feet from the North Side of the stub wall. The face of this new excavation was about 6 feet high measured from the exposed footer to the top of the excavation and extended from the side of the existing laboratory building, easterly for about 40 feet. The backhoe operator testified that he cut the face of the excavation back (to the North) from the stub wall as far as his equipment could reach. As a result of this operation, the top of the face of this excavation was two to three feet back (North) from its base. Various witnesses estimated the angle of the face of this excavation to have been from 60 to 85 degrees. The record supports the conclusion that said angle was not less than 70 nor more than 80 degrees.

The backhoe operation and excavation in question was [*21] completed about 4 p.m. on November 18, 1971, at the end of Respondent's "first shift." The next operation by Respondent, begun on the "second shift" (4:30 p.m. to midnight) that day, was to begin breaking up the concrete footers. This was done with the use of two pneumatic "jack hammers" or pavement breakers. Mr. Hawks, a laborer first employed by Respondent on this shift, testified to spending his entire shift cutting a trench in the concrete footers using such equipment and to feeling vibrations in the concrete upon which he was standing caused by the "jack hammer" he was using.

The work of breaking up the concrete footers was scheduled to continue on the next shift, from midnight, to 8 o'clock in the morning on November 19th. Mr. Roger Eaton, Respondent's labor foreman on this job, who had worked at this site in this capacity during the first shift on November 18th, (from 8 a.m. to 4:30 p.m.), during which the excavation in question was dug by the backhoe, reported back for work for the midnight to 8 a.m. shift as labor foreman. He testified to signing on four workers for this shift, two of whom, Messrs. Myers and Potenza never having worked for Respondent previously. [*22] After instructing these two men briefly on the operation of pneumatic pavement breakers, they were assigned the task of breaking up the concrete footers using this equipment in the area between the stub of the retaining wall and the face of the excavation in question. At approximattely 2 a.m. a section of the face of this excavation about 25 feet long and approximately 3 feet deep broke off and slid in a southerly direction. Mr. Eaton, standing to the South of the stub of the retaining wall, testified to seeing the face of the excavation beginning to slide and to shouting a warning to Messrs. Myers and Potenza. Mr. Potenza had just shut off his pavement breaker, heard the shouted warning and jumped over the stub wall to safety. Mr. Myers, with his back to the face of the excavation and using his pavement breaker was buried by the slide except for one hand. Those at the scene began to dig the deceased out but he died soon after being removed from the scene by ambulance.

An investigation of this fatality at this jobsite was conducted on the morning of November 19, 1971, by a duly authorized Compliance Officer, Mr. Deaver, which resulted in the issuance of the two Citations at [*23] issue.

The evidence of record conclusively establishes that the face of the excavation which fell was neither shored nor braced, nor was any supporting system utilized. Further, that the face of this excavation was sloped to an angle of from 70 to 80 degrees. That the soil involved was described by various witnesses as hard pan or clay (Tr. 5/3/72 p. 20, 42), hardpack clay (Tr. 6/14/72 p. 31), "sandy silt with some clay, and scattered gravel" (Tr. 6/14/72 p. 130), or soil ". . . having a clay content . . . with some granular material" (Tr. 6/14/72 pp. 212, 213).

The evidence also conclusively establishes that this excavation had to have been made in filled or back-filled soil because the purpose of the excavation was to uncover previously installed concrete footers which obviously do not appear in undisturbed earth. There is no evidence in this record as to any line of demarcation between the soil which was filled or backfilled and the undisturbed soil in the slope in question.

The theory of the Secretary's case is that because the face of the excavation fell, "The determination for the angle of repose was incorrect and the determination not to install a supporting [*24] system was incorrect" (Citation No. 1). Further, that because the excavation was made in or adjacent to a previously back-filled excavation Respondent violated the Standard cited in Citation No. 2 because, "Special precautions were not taken in sloping or shoring the side of the excavation adjacent to a previously back-filled excavation or fill, particularly when the separation was less than the depth of the excavation" (Citation No. 2).

As to Citation No. 1, the Secretary's theory is bottomed on the assumption that the Standard relied upon, 29 CFR 1926.651(d), ". . . gives an employer the option of either shoring or sloping an excavation. If an employer chooses to slope, he must do so to the angle of repose for the material to be excavated. This section, together with table P-1 (37 F.R. 27554, 12/16/72: formerly published at 36 F.R. 7390, 4/17/71, appearing at the end of the sections governing excavations and trenching), explains to the employer those factors which must be taken into account to arrive at the proper angle" (Secretary's brief, "Discussion").

The Standard cited and relied upon herein, 1926.651(d) neither gives nor directs that any such option be selected [*25] or followed. Its plain words merely makes mandatory, by the use of the word "shall," a "careful evaluation" of five specified factors in determining the angle of repose and in determining the design of supporting systems. This standard does not declare that the face of an excavation must have either an angle of repose, as defined in the "Definition" section of these standards, 1926.653(b), or have a supporting system.

The unrebutted testimony of Respondent's job superintendent, Mr. Corning, was that he was aware of the Federal Construction Safety Standards, as well as the New York State Standards prior to November 19, 1971 (Tr. 6/14/72, pp. 8, 9, 27, 50-58, 79), that he prepared the plan for the excavation in question making reference to said standards, that he consulted with Respondent's Chairman of the Board, Mr. Lewis Friederich, and Assistant Vice-President and General Superintendent, Mr. Boniface concerning the planned excavation n3 and that he took into account the five factors set forth in the Standard at issue (Tr. 6/14/72, pp. 27-33). Additionally, based upon his familiarity with the worksite, his 10 years experience in construction, the fact that he intended the face [*26] of the excavation to be sloped at approximately 80 degrees, and the fact that the soil was hard compacted clay with some gravel in it, and because he considered the excavation to be a temporary one to allow only for the removal of the concrete footers, he considered the excavation to be safe and to comply with the Standards (Tr. 6/14/72 pp. 29, 77-89).

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

n3 These individuals readily acknowledged knowledge of the Federal Construction Safety Standards (Tr. 6/14/72, pp. 203-206, 225).

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

As the facts of this case prove, the judgment that this excavation was safe was, unfortunately, an erroneous judgment. However, the cited Standard does not purport to make an erroneous or mistaken judgment a violation. This case was tried on the theory that because the face of the excavation fell or slid, the proper angle of repose among other factors was not made, and the failure to properly angle the face of this excavation was a violation of the construction Standards. However, this specific charge was not made, as it could [*27] have been by citing the excavation Standard set forth at 29 CFR 1926.651(f). This Standard mandates that, "All slopes shall be excavated to at least the angle of repose except for areas where solid rock allows for line drilling or presplitting." Clearly the bank in question which fell could reasonably be defined as a "slope" as that term is used in the excavation Standards including the section setting forth the definitions of terms, 29 CFR 1926.653. The Secretary, however, declined to cite this Standard, because, perhaps, among other reasons, n4 there was no reliable and substantial evidence available to prove that the cave-in was caused by an improper angle of repose. The reliable evidence of record establishes only that it is impossible to assign any given reason for the failure of the face of the excavation in question. n5

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

n4 See Tr. 6/27/72 pp. 120-125, and Sec. brief at end of "Discussion" section.

n5 The opinion of the Compliance Officer that if the angle of repose had been correct the face of the excavation ". . . would not have fallen" (Tr. 5/3/72p139) is not persuasive in view of the fact that he did not consider himself an expert in the field of excavations or the digging of soil (Tr. 5/3/72p64).

[*28]

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

The facts of this case might also support the allegation that the Standard set forth at 29 CFR 1926.651(i) had been violated, which might have been proven through the testimony of a qualified expert witness. The Secretary, however, did not cite this Standard, (see footnote 4 supra ).

It is therefore concluded, that the Secretary has not established by substantial evidence that the Standard cited and relied upon in Citation No. 1 29 CFR 1926.651(d) was violated by this Respondent as charged. This Citation and the penalty proposed thereon must therefore be vacated.

As to Citation No. 2, although it is not without some difficulties, infra, I conclude that the substantial evidence does establish this violation.

The evidence of record conclusively establishes that the excavation in question, which collapsed, was made in or adjacent to filled or back-filled earth. It was not made in undisturbed soil As alluded to earlier, the purpose of the excavation was to uncover concrete footers, which were placed at some earlier time to support the retaining wall, and concrete footers do not appear [*29] in undisturbed soil.

Respondent, engaged in excavating for the addition to the existing laboratory building obviously knew or with the exercise of reasonable diligence should have known that the excavation in question was to be made in or adjacent to back-filled or filled earth, not undisturbed soil.

The construction Standard cited to support Citation No. 2 mandates that special precautions be taken in sloping or shoring the sides of excavations adjacent to a previously backfilled excavation or a fill, "particularly when the separation is less than the depth of the excavation" 29 CFR 1926.651(1).

Respondent argues, among other matters, that this Standard is unclear and fatally vague, (Resp. brief pp. 19-21). I find myself in agreement with part of this argument, to wit, that the phrase quoted above is unintelligible. The term "separation" as used in this Standard is unclear, vague and undefined, and the phrase "particularly when the separation is less than the depth of the excavation" is so vague that anyone subject to this Standard can not know what is required of him. The confusion caused by this phrase is readily apparent in this record. Compliance Officer Deaver [*30] testified that the "separation" in this case meant the distance form the stub of the retaining wall to the face of the excavation which fell, (Tr. 5/3/72 pp. 87, 88). The Secretary's witness, Mr. Davenport, a licensed engineer and one who participated in reviewing the construction Standards before their promulgation, gave a number of rather confusing definitions to the term "separation," see Tr. 6/27/72 pp. 49-54, 108-109. Respondent's licensed engineer witness, Mr. Hough, said the term "separation" as used in this phrase, ". . . is not comprehensible to me" (Tr. 6/14/72 pp. 133-134). It is therefore concluded that as a matter of law, the phrase "particularly when the separation is less than the depth of the excavation," is unclear, vague and thus has no force or effect.

However, this conclusion does not invalidate the remaining portions of this Standard. The first sentence of this Standard, except for the vague phrase supra, clearly directs that "special precautions" must be taken in relation to either sloping or shoring the sides of any excavation made adjacent to a previously back-filled excavation or fill. It is true that this Standard does not spell out in detail, what [*31] "special precautions" must be taken, other than relating such "special precautions" to either sloping or shoring. The obvious meaning of this Standard although perhaps inartfully drawn, is that, under the conditions specified, the slope of an excavation must be cut back to a greater angle than one made where backfill or fill is not present, or in the alternative, the face of the excavation must be shored. It is concluded that this is the obvious directive set forth in this Standard, and that this Standard is not fatally vague or unclear. n6

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

n6 Perhaps the Secretary may wish to give consideration to amending this Standard to conform more closely to his Standard set forth at 29 CFR 1926.652(e). Indeed, although the referenced Standard is in that Section pertaining to "trenching" it may well be applicable to the facts of this case because "excavations" are specially mentioned therein. Be that as it may, this Standard was not cited in this case.

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

As to this case, the evidence conclusively establishes that [*32] no "special precautions," either in sloping or shoring the face of the excavation which feel were taken by Respondent. No support system or shoring of any description was utilized, and the angle of the face of the excavation was from 70 to 80 degrees, which did not comply with the 45 degree angle set forth in table P-1 in these Standards, let alone any increased angle because of the presence of fill or backfill.

It is therefore concluded that the substantial evidence of record, does establish that Respondent did violate Section 5(a)(2) of the Act and the construction standard set forth at 29 CFR 1926.651(1) by its failure to take special precautions in sloping or shoring the sides of the excavation in question which was adjacent to a previously back-filled excavation or fill. This violation was a serious violation within the meaning of Section 17(k) of the Act in that there was a substantial probability that death or serious physical harm could result from the conditions which existed at this workplace, i.e., having two employees engaged in using pneumatic-pavement breakers, breaking up concrete footers adjacent to the face of an excavation made in or adjacent to previously [*33] backfilled or filled soil where no special precautions in relation to either sloping or shoring the face of this excavation had been taken, which conditions this Respondent knew or with the exercise of reasonable diligence could have known did exist.

There remains the question of the penalty to be assessed based upon the serious violation herein found to exist.

The Compliance Officer testified to allowing this Respondent, pursuant to general directives from the Secretary, a 50 per cent reduction in the allowable maximum penalty of $1000 (Section 17(b) of the Act); 20% for Respondent's good faith, 20% for no history of previous violations of the Act, and 10% for the number of employees on the job in question, 18, resulting in a proposed penalty of $500.

Mr. Friederich, Respondent's Chairman of the Board of Directors testified that he established a "safety council" in 1929 in this company, which has held monthly meetings ever since with the Superintendent and other eligible employees to discuss safety and to reduce accidents in its operations. He additionally has served as Vice-Chairman of a Safety Committee of a State Insurance Fund and his company has received safety awards each [*34] year from this fund up to 1969 when the awards were discontinued, (Tr. 6/14/72 pp. 219-221). Compliance Officer Deaver testified that Respondent assigned safety duties, on a part time basis, to two supervisory employees on the job in question, that safety information was made available to employees, personal protective equipment, i.e., head, eye, face and hand protection was provided and first aid supplies were available. Additionally, that Respondent's accident rate was less than the average for this industry (Tr. 5/3/72 pp. 88-93).

In my opinion the gravity of this violation falls somewhere in a middle range. Balancing this gravity against the demonstrated safety consciousness of Respondent, mindful also that this accident was the result of a mistaken, good faith judgment, and due consideration having been given to the provisions of Section 17(j) of the Act, it is concluded that the $500.00 penalty proposed herein based upon the violation set forth in Citation No. 2 is not inappropriate.

At all times involved in this case, Respondent herein furnished employment to its employees at a workplace located at the Wilson Synchrotron Laboratory, Cornell University, Dryden [*35] Road, Ithaca, New York. The Act is applicable to such employment within the meaning of Section 4(a) of the Act and the Commission has jurisdiction of the parties and of the subject matter herein.

All arguments and proposals of both parties hereto have been individually considered and weighed, and those not adopted have been rejected as not supported by the substantial evidence of record considered as a whole or not supported in law.

Based upon the foregoing findings and conclusions, and pursuant to the provisions of Sections 10(c) and 12(j) of the Act, it is hereby

ORDERED

1. That Citation for Serious Violation No. 1, alleging a violation of Section 5(a)(2) of the Act because of a failure to comply with the Standard set forth at 29 CFR 1926.651(d) (formerly 1518.651(d)) and the Notification of Proposed Penalty based thereon in the amount of $500.00, both dated December 3, 1971, directed to the Respondent herein, be and the same are hereby VACATED.

2. That Citation for Serious Violation No. 2, alleging a violation of Section 5(a)(2) of the Act because of a failure to take special precautions in sloping or shoring the side of an excavation adjacent to a previously [*36] backfilled excavation or fill, as required by 29 CFR 1926.651(1), (formerly 1518.651(1)), and the Notification of Proposed Penalty based thereon in the amount of $500.00, both dated December 3, 1971, directed to the Respondent herein, be and the same are hereby AFFIRMED.

3. Pursuant to Section 17(j) of the Act, said civil penalty in the total amount of $500.00 is hereby assessed against the Respondent herein.