O'DELL PLUMBING, HEATING & COOLING, INC.

OSHRC Docket No. 3476

Occupational Safety and Health Review Commission

November 1, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Paul E. Dixon, dated June 4, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i).

Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed in all respects.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the majority's disposition of this case. The issue upon which review was directed, however, deserves comment. Review was directed on the following issue:

Was there evidence to sustain the finding that the excavation at issue in this case was a "trench" in accordance with the definition of that term in 29 CFR 1926.653(n)?

The issue was raised neither before nor during the proceeding before Judge Dixon. It is not a jurisdictional issue to be raised at any other stage of the proceedings or considered by the Commission where it has not been raised by the parties. It is settled under Commission precedent that the Commission is not empowered to raise such an issue; see, e.g., Chicago Bridge & Iron Co., No. 744 (January 24, [*2] 1974); Morrison-Knudsen Co. & Assoc., No. 692 (March 29, 1974); Advanced Air Conditioning, No. 1036 (April 4, 1974); Transcon Lines, No. 687 (May 6, 1974); St. Mary's Cotton Mill, No. 1183 (June 18, 1974); and Puterbaugh Enterprises, Inc., No. 1097 (July 1, 1974). To permit otherwise might imply the Commission may take sides in the controversies brought before it. This would be misleading and wrong. Cf. Dale M. Madden Constr. Co. v. Hodgson & O.S.H.R.C., No. 72-1872 (July 29, 1974) (slip op. at 5), reh. denied, (9th Cir. October 1, 1974); Brennan v. Gilles & Cotting, Inc. & O.S.H.R.C., No. 73-2471 (4th Cir. October 18, 1974) (slip op. at 18). But cf. Brennan v. O.S.H.R.C. & John J. Gordon Co., 492 F.2d 1027, 1032 (2d Cir. 1974).

[The Judge's decision referred to herein follows]

DIXON, JUDGE: A Citation for Other-Than-Serious Violation and proposed combined penalties for four subitems 1 through 4 in the amount of $85.00 was issued on the 11th day of June, 1973, by Complainant, as a result of an inspection conducted on June 7, 1973, of the same worksite.

Non-Serious Citation

Item number -- Standard or regulation allegedly [*3] violated -- Description of alleged violation -- Date on which alleged violation must be corrected

1 -- 29 CFR 1926.152(a)(1) Page 27516, Col. 2 and 29 CFR 1926.155(1) Page 27519, Col. 2 -- Unapproved type of 5 gallon metal can being used for the storage and handling of gasoline. (Near office trailer). -- Immediately Upon Receipt of Citation.

2 -- 29 CFR 1926.152(d)(2) Page 27517, Col. 1 -- Failure to provide a 20-B rated fire extinguisher for flammable liquids stored outside. (North of office trailer). -- June 19, 1973.

3 -- 29 CFR 1926.152(g)(9) Page 27517, Col. 3 -- Signs prohibiting smoking were not posted where flammable liquids were stored. (North of office trailer). -- June 19, 1973.

4 -- 29 CFR 1926.350(a)(9) Page 27529, Col. 3 -- Compressed gas cylinder not secured in upright position. (North side of office trailer). -- Immediately Upon Receipt of Citation.

The above alleged violations are cited from 29 CFR 1926 dated December 16, 1972, Volume 37, Number 243.

This is an action under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereinafter referred to as the Act), contesting a Citation issued by the Complainant against the [*4] Respondent under the authority vested in Complainant by Section 9(a) of the Act.

A Citation for Serious Violation and proposed penalty in the amount of $550.00 was issued on the 11th day of June 1973, by Complainant, as a result of an inspection conducted on June 7, 1973, of the worksite under Respondent's ownership, operation or control at a jobsite located on Route 2, Liberty, Missouri, where Respondent was primarily engaged in work as a mechanical contractor.

Serious Violation

Standard or regulation allegedly violated -- Description of alleged violation -- Date of which alleged violation must be corrected

29 CFR 1926.651(i)(1) Page 27533, Col. 2 and 29 CFR 1926.652(a) Page 27553, Col. 3 -- The sides of a trench approximately 14 feet deep were not shored, laid back to a stable slope, or some other equivalent means used to protect employees from moving ground and/or cave-ins. Also, the spoils (excavated material) was not stored and retained at least 2 feet back from the edge of the excavation (Storm drain line southwest of hospital). -- Immediately Upon Receipt of Citation.

The above alleged violation is cited from 29 CFR 1926 dated December 16, 1972, Volume 37, Number [*5] 243.

Proposed Penalties

Serious Violations

Citation No. -- Proposed Penalty

1 -- $550.00

Other Violations

Citation No. -- Item No. -- Proposed Penalty

2 -- 1. -- $35.00

2 -- 2. -- $25.00

2 -- 3. -- $25.00

2 -- 4. -- $ 0.00

Total for All Alleged Violations: $635.00.

Respondent by letter of June 20, 1973, formally contested Citation No. 1 for Serious Violation, as stated therein. It did not contest Citation No. 2.

Thereafter, Complainant proceeded to file his Complaint, dated July 11, 1973, with the Respondent joining issue with its Answer filed July 17, 1973.

ADMISSIONS AND STIPULATIONS

The following admissions and stipulations were made:

1. Respondent, O'Dell Plumbing Heating Cooling, Inc., a Missouri corporation with a principal office at 1227 Iron Street, North Kansas City, Missouri, and at all times mentioned, had a worksite at the Liberty District Hospital, Route 2, Liberty, Missouri, and was engaged in the business of mechanical contracting.

2. Respondent employs 20 to 99 employees in its various activities, including 14 at its aforementioned worksite, Liberty, Missouri, is engaged in a business affecting commerce, and is an employer within the meaning [*6] of the Act.

3. As a result of an inspection by an authorized representative of the Secretary, Respondent was issued a Citation for Other-Than-Serious Violation, a Citation for Serious Violation, and a Notification of Proposed Penalties on June 11, 1973, pursuant to Section 9(a) of the Act. Such Citations and Notification of Proposed Penalties were received by Respondent on June 13, 1973. On June 20, 1973, Respondent filed with a representative of the Secretary a Notice of Intent to Contest the Citation for Serious Violation and a Notification of Proposed Penalty therefor, pursuant to Section 10(c) of the Act. This Notice was duly transmitted to the Occupational Safety and Health Review Commission. Jurisdiction of this proceeding is conferred upon the Commission by Section 10(c) of the Act.

4. In determining the amount of the penalty proposed, due consideration was given to the size of the business of the Respondent, the gravity of the violation, the good faith of Respondent, and the history of previous violations as required by Section 17(j) of the Act.

5. The language of the citation of the Standard 29 CFR 1926.652(a) has been changed to read 29 CFR 1926.652(b), in that [*7] the description of the violation cited relates to the unsupported and insufficiently sloped sides of a trench 14 feet deep.

6. On June 7, 1973, at its worksite at the Liberty District Hospital, Route 2, Liberty, Missouri, Respondent had at least one employee working in the trench, made the subject of a Citation for Serious Violation issued to Respondent on June 11, 1973 (Answer to Request for Admission).

7. The annual dollar or last year's gross volume of the Company was 3.2 million dollars (T.5).

The Standard

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).

(See Tables.)

Table P-1

APPROXIMATE ANGLE OF REPOSE FOR SLOPING OF SIDES OF EXCAVATIONS

[SEE ILLUSTRATION IN ORIGINAL]

Table P-2

TRENCH SHORING -- MINIMUM REQUIREMENTS

Size and spacing of members

Upright

Stringers

Depth of

Kind or condition

-- Minimum

Maximum

Minimum

Maximum

trench

of earth

dimension

spacing

dimension

spacing

Feet

Feet

Inches

Feet

5 to 10

Hard, compact

3 X 4 or 2 X 6

6

Likely to crack

3 X 4 or 2 X 6

3

4 X 6

4

Close

Soft, sandy, or filled

3 X 4 or 2 X 6

Sheeting

4 X 6

4

Close

Hydrostatic pressure

3 X 4 or 2 X 6

sheeting

6 X 8

4

10 to 15

Hard

3 X 4 or 2 X 6

4

4 X 6

4

Likely to crack

3 X 4 or 2 X 6

2

4 X 6

4

Close

Soft, sandy, or filed

3 X 4 or 2 X 6

sheeting

4 X 6

4

Close

Hydrostatic pressure

3 X 6

sheeting

8 X 10

4

Close

15 to 20

All kinds or conditions

3 X 6

sheeting

4 X 12

4

Close

Over 20

All kinds or conditions

3 X 6

sheeting

6 X 8

4

[*8]

Table P-2

TRENCH SHORING -- MINIMUM REQUIREMENTS

Size and spacing of members

Cross braces n1

Width of trench

Maximum spacing

Depth of

Up to 3

3 to 6

6 to 9

9 to 12

12 to 15

trench

feet

feet

feet

feet

feet

Vertical

Horizontal

Feet

Inches

Inches

Inches

Inches

Inches

Inches

Feet

5 to 10

2 X 6

4 X 6

4 X 6

6 X 6

6 X 8

4

6

2 X 6

4 X 4

4 X 6

6 X 6

6 X 8

4

6

4 X 4

4 X 6

6 X 6

6 X 8

8 X 8

4

6

4 X 4

4 X 6

6 X 6

6 X 8

8 X 8

4

6

10 to 15

4 X 4

4 X 6

6 X 6

6 X 8

8 X 8

4

6

4 X 4

4 X 6

6 X 6

6 X 8

8 X 8

6

4 X 6

6 X 6

6 X 8

8 X 8

 8 X 10

4

6

4 X 6

6 X 6

6 X 8

8 X 8

 8 X 10

4

6

15 to 20

 4 X 12

6 X 8

8 X 8

 8 X 10

10 X 10

4

6

Over 20

 4 X 12

8 X 8

 8 X 10

10 X 10

10 X 12

4

6

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

n1 Trench jacks may be used in lieu of, or in combination with, cross braces.

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

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

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - [*9] - - - - - - - - - -

THE EVIDENCE

Mr. Stino DeGrado appeared on behalf of the Complainant. He has been a compliance officer with the U.S. Department of Labor, Occupational Safety and Health Administration, since January 8, 1973. He has attended the OSHA Institute in 1972, and in 1973 took a one-week course in General Excavation, shoring and scaffolding. He spent five years as an inspector for the State of Missouri, Division of Industrial Inspection, primarily concerned with inspections in industry (T. 7; 37). He was a barber from 1947 until his employment by the State of Missouri.

On June 7, 1973, he made an inspection of the Liberty District Hospital worksite, which was new construction. He contacted the general superintendent of the job, Mr. J. E. Dunn, and another general superintendent, Mr. Harry Foster. The overall job was inspected and then attention turned to the subcontractors.

Mr. Foster introduced Mr. DeGrado to Respondent's foreman, a Mr. Gingle.

Respondent was doing trenching southwest of the Hospital and laying a storm drain. Mr. Gingle accompanied Mr. DeGrado on his walkaround, where he observed a trench and plumbing work inside the building.

The [*10] trench was for a storm drain running southwest from the Hospital, the storm pipe being laid toward the Hospital. The trench was approximately 80 feet long (T.13).

Referring to Government's Exhibit G-2, Mr. DeGrado pointed out that the spoils from the excavation of the trench were piled to either side, right and left of the trench.

Referring to Government's Exhibit G-3, Mr. DeGrado pointed out tools in the trench and a large boulder that was vertical (T. 15). Referring to the Standard, 1926.651(i)(1), it was Mr. DeGrado's observation the spoils were stored right at the edge of the excavation.

A back-hoe had made the excavation, but the work was not being done while Mr. DeGrado was there (T.17).

Referring to Standard 1926.652(b), it was Mr. DeGrado's observation that the trench was not cut to the angle of repose required by Table P-1 (T. 18). Referring to Government's Exhibit G-4, a cross section graph prepared by Mr. DeGrado of measurements taken at the time of his inspection, it was Mr. DeGrado's judgment the trench was not cut to the angle of repose.

Mr. DeGrado, with the assistance of who he thinks was a Mr. Gingle, measured across the trench from the top of the [*11] spoil on one side to the top of the spoil on the other side to be approximately 26 feet wide.

He measured from one side of the trench to the other side of the trench, which was approximately 16 feet wide. The trench was approximately 14-18 feet deep, although not measured by Mr. DeGrado; he obtained the measurements from Mr. Gingle of where the men were working and where the tools were located at (approximately 15 feet deep) (T.20-21).

Mr. Gingle told Mr. DeDeGrado the width of the bottom of the trench was 3 feet, based upon utilizing a 30-inch bucket with the back-hoe (T.21).

Mr. Foster and Mr. Gingle were present with Mr. DeGrado when the measurements were taken. The diagram was prepared the day following the inspection.

No employees were observed by Mr. DeGrado working in the trench, but Mr. DeGrado was advised by Mr. Gingle that they had been working in the trench, and he observed handtools in the trench (T.22). Mr. DeGrado was advised by Mr. Gingle that the employees were rounding out the bottom of the trench to lay sewer pipe.

While noting that the trench was not cut to the angle of repose of one-to-one, Mr. DeGrado was advised by Mr. Gingle that it was not feasible to [*12] shore the trench. He explained that the angle of repose is determined by the height of the trench. The measurement is from the toe of the trench to the top of the trench, which was approximately 14 feet. Mr. DeGrado felt the trench should have been laid back at least 28 feet (T.23).

The one'to-one angle is applicable to unstable soil (T.23).

Mr. DeGrado made observations of the soil throughout the trench and found it to be grayish-brown with a little bit of sand, gravel and moisture. He further learned from Mr. Foster, the superintendent, that prior to the inspection approximately 40 feet of the same trench had caved in.

Mr. DeGrado estimated that the soil was unstable, crumbly and that it had cracked, referring to Exhibit G-2. Mr. DeGrado also referred to water appearing at the bottom of the trench in Exhibit G-2, noting it had rained two or three days previous.

Mr. DeGrado estimated the actual slope was one-half-to-one, and in calculating the one-to-one slope Mr. DeGrado took in the 3-foot horizontal width of the trench, which would have equated to 31 feet on an exact one-to-one ratio (T.26-28).

Mr. DeGrado gave the opinion that a hazard was created by the conditions [*13] he observed, in that with the sloughing off men could be trapped and buried, and in the case of storage of spoils at the edge of the trench there was a creation of stress, which causes the trench to buckle out. He observed the spoils approximately 5 feet high on both sides of the trench and estimated a cubic yard of soil measuring 3 feet on all sides would weigh a ton or more.

In his closing conference, he advised Mr. Gingle not to put men in the trench unless he shored it or cut it to the proper angle of repose and discussed the storage of spoils at the edge of the trench. Mr. Gingle advised him that rather than shore the trench he would fill it in, redig it and cut it to the angle of repose.

Mr. DeGrado also spoke with the owner of the Company, Mr. Cecil O'Dell, and advised him of the apparent violations and his rights.

Mr. O'Dell acknowledged he knew that 40 feet of the trench had caved in (T.29-31).

Mr. DeGrado returned with Mr. John Ledgerwood, a compliance officer, on June 8 and found that the trench had been covered.

He observed that the soil in the general area was fairly uniform and other excavations laid back more than a 45 degrees angle.

In determining a violation, [*14] Mr. DeGrado found the violations serious, taking into account that employees were working in the bottom of the trench with handtools; the trench was approximately 14 feet deep; there was excavated spoils around the edge of the trench; and there was no shoring, nor was it cut to the angle of repose.

He further took into account information from Mr. Foster referring to a 40-foot section of the trench that had caved in before. He felt that the type of injury that might result would be death through suffocation because of the depth of the trench.

Utilizing the Department of Labor formula, he prepared Exhibit G-5 on June 11, 1973, starting with the unadjusted penalty of $1,000.00, giving maximum good faith credit of 20% for abatement and 5% credit because O'Dell had over 20 people. O'Dell had no history and was given the maximum of 20% credit, which reduced the unadjusted penalty of $550.00 (T.36).

Mr. DeGrado was at the trench site approximately an hour and-a-half and made his judgment that the trench was unsafe after taking measurements and observing the trench, and felt through his own observations that the trench was unstable and that the soil was unstable and crumbly. [*15]

He felt had the trench been laid back to a one-to-one angle it would have been safe (T.45).

Mr. DeGrado at no time saw any men actually in the trench, but did observe handtools (T. 49). However, upon making his interview he was told that men were working in the trench.

So far as Mr. DeGrado could determine, the soil was the same throughout the sides from the top to the bottom of the trench and was the same type of soil in the general area.

In making his measurements across the spoils and across the top of the trench, he acknowledged that his measurements could have been off a foot or more. He had no knowledge as to how long the trench had been open and in the condition that he observed.

Mr. Harry Foster was called on behalf of Complainant. He has been an employee of the J.E. Dunn Company for about 16 years, a superintendent for about 10 years, and was job superintendent June 7, 1973, at the Liberty District Hospital site (T.59).

The project had started in December of 1972, and Mr. Foster's general duties as job superintendent was to oversee the entire construction excavation and the putting up of the buildings.

Respondent O'Dell was a subcontractor under Dunn, the general [*16] contractor.

Ricky Brothers had performed excavation at the Hospital site and had been utilizing a one-to-one slope.

Shortly after the excavation started, there was rain and the banks caved in, so that it was necessary to redig the excavation. Mr. Foster noted they had difficulty with one-to-one sloping, in that they would have sloughing (T.62).

It was Mr. Foster's opinion that the soil in the area would slough off real bad. The soil did not differ greatly from place to place, although some places had boulders.

Test borings were made before the job was bid by Woodward and McMasters for the Liberty District Hospital and they were logged in specifications, which were submitted to the contractors and subcontractors (T. 63). The specifications would tell the condition of the soil, and the test borings mostly showed silty clay with traces of gravel to lots of gravel; some boulders; and some would have water. The borings were taken primarily at the Hospital site, but not at the location where O'Dell was working the trench.

As to the stability of the soil, it was Mr. Foster's opinion that it sloughed off (T.64).

Mr. Foster observed the work being performed by O'Dell at [*17] the trench where they were installing storm drain.

Prior to the inspection of June 7, 1973, the particular trench had caved off approximately 30 or 40 feet south from the point inspected and represented by Exhibit G-2 (T.65-66).

Mr. Foster was present when Mr. DeGrado made his measurements and he was assisted either by Mr. Gingle or a Mr. Jim Wilson. Referring to Exhibit G-2, Mr. Foster observed cracks in the side of the trench and water at the bottom of the trench, and noted a boulder within the trench represented by Exhibit G-3. O'Dell was attempting to get a sewer line around the boulder.

Mr. Foster was not completely sure whether he told the compliance officers about the cave-in the day of the inspection or the following day.

Mr. Foster, based upon his observations and his experience, gave the opinion that the soil was very unstable (T.68).

Mr. Foster observed employees of O'Dell working in the trench, although not particularly on the day of the inspection. The trench was not finished on the day of the inspection, as there was a lot of pipe yet to be laid (T. 69). The employees he observed were taking pipe into the trench and joining it up before the inspection [*18] and after.

Following the inspection, O'Dell filled the trench and reexcavated and shored (T.69-70).

Mr. Foster did not know the definition of well-rounded loose sand, but felt that average soil for that area would be silty clay. Mr. Foster acknowledged he was not a soil expert and had difficulty with soil definitions propounded to him by Respondent (T. 71). A sloughing at the building site occurred some two weeks following excavation and had to be redug.

Mr. Foster felt the only difference between the building site and the trench site in soil composition was that in the trench there were more rocks and boulders, which he personally observed.

Mr. Foster was present when the photo G-2 was taken; at that time he had not noticed water in the trench but became aware of it by observation of the Exhibit, as well as the cracks on the left side of the trench.

Mr. Foster recalled that the portion of the trench that had collapsed had a depth of 8-10 feet.

Mr. John Ledgerwood, senior compliance officer for the Occupational Safety and Health Administration, appeared on behalf of Complainant. He has a Bachelor of Science and Civil Engineering Degree, which he acquired in August, 1971. [*19] He spent nine and-a-half years working for General Services Administration as a construction engineer, and commencing in 1948 spent many years in the construction field working from water boy up to field engineer (T.79).

In connection with his education as a civil engineer, he took courses in basic soil mechanics and advanced soil mechanics.

Mr. Ledgerwood visited the trench site on June 8, the day following the inspection, and found the trench in question had been backfilled.

While there, he observed the type of soil that was being used for backfill, noting that the trench had been backfilled at the time within 2 or 3 feet and he also checked the soils around the building site.

It was Mr. Ledgerwood's opinion that the soils at the building site appeared to be the same as at the trench.

He further noted there was sloping at the building excavation, which would be 45 degrees or less, and spoke to Mr. Foster and Mr. Gingle.

He was advised by Mr. Foster that Mr. Foster had been concerned about the safety of the trench after seeing the general building excavation, with Mr. Foster noting they had trouble getting their footing then even with the sloughing in (T.81).

Mr. [*20] Ledgerwood distinguished between erosion and sloughing, defining erosion as a cutting away by surface water, wherein sloughing is a caving in process of the earth sliding (T. 82).

Mr. Ledgerwood noted the hazard of the piling of spoils within 2 feet of the edge of the trench and gave the opinion if the trench was laid well back the hazard would be minimal, whereas if the trench was not excavated to the angle of repose or was vertical, then the hazard would be extreme; and, depending upon the depth of the trench, the angle it was cut, and where the spoils were stored, the hazard to the employee would be from coming out unharmed to death in the event of a trench cave-in.

With respect to moisture, Mr. Ledgerwood testified that if the soil was saturated, the trench would have to be laid to a flatter degree than if the soil was reasonably dry.

Mr. Ledgerwood observed the soil being put back into the trench, which was within 2 or 3 feet, and noted that the trench soil was silty clay, fairly dry, and had traces of fine sands and gravel (T.85). He felt the soil was unstable.

Mr. Ledgerwood defined conglomerate as taking in a mixture of silt, sands, clays, and gravels interspersed and [*21] mixed.

Mr. Ledgerwood was also informed by Mr. Foster that a 40-foot section of the trench had caved in prior to June 7, 1973, the collapse having occurred within a week prior to the inspection.

Mr. Ledgerwood testified there was no definitive engineering word or expression directly defining "average soil"; nor would there be a book defining what "average soil" is, although he noted there were different classes that were definitive, such as solid rock or shale and compacted and gravels, which would be like angular gravels, such as pressure run gravels obtained from quarries would be compacted angular gravels being relatively stable.

There are compacted sands, sharp sands, that is quite fragmented, and well-rounded loose sands, that have not been compacted, such as sand carried by rivers and commonly called silt sand, with "average soil" being something that would fit between those categories and encompass a broad range (T.89-90).

Respondent's president, Cecil Francis O'Dell, expressed familiarity with the trench involved having visited the site approximately every week. In describing the project, he testified that Respondent had its own back-hoe operator using a rental [*22] machine because the ditch got bigger and they could not take care of a deeper ditch without the rented machine. Mr. Neidholt was Respondent's back-hoe operator and would excavate the ditch out and if it were over 5 feet deep Respondent had hydraulic shoring that they would use if possible. If shoring was not used because of the condition of the soil, then the trench would be sloped back.

Mr. O'Dell and Mr. Jim Wilson, his labor foreman, had gotten together when the OSHA rules were issued on sloping and tried to determine the intent of the rules and the angle of repose, using both the picture and the word description as to how a ditch should be sloped (T.92).

Mr. Wilson was responsible for the slope of the ditch or the shoring. Normally, a hole would be opened and men would work right behind the back-hoe that was digging the trench. A man would hand-grade the ditch immediately behind the back-hoe, then the tile would be laid and then dirt placed over the tile.

Men would work within two 4-6-foot joints of the back-hoe, or a distance from 10-12 feet. Within approximately 12 feet, the pipe would be completed and the work would be at an end at that point, except for filling (T.93). [*23]

Mr. O'Dell referred to the protrusion in Exhibit G-3 as a ledge of rock, rather than a boulder. In referring to Exhibit, he could see no open tile and assumed that the tile was further up toward the hospital building than the end of the picture, and expressed an opinion that the tile was already in the trench and presumed to be covered up (T.95).

Mr. O'Dell guessed the trench had been in existence a minimum of one week, noting that some days they were lucky to get 20 feet of tile in the ditch and ventured a guess that the ditch was 150-200 feet long (T.96). Mr. O'Dell did not know the kind of material represented by the dirt at the bottom of the excavation.

He was not present during the inspection of June 7, 1973. With respect to the 80-foot length of trench being open, it was Mr. O'Dell's observation that they were working in an open area and it was more economical to leave it open (T.98).

Mr. O'Dell had no idea that if the tile had already been laid why Mr. Gingle told the inspector that he would fill in the trench and redig it and that while there has never been any time that his Company has had more than 20 feet of trench open, there was more than 80 feet of trench [*24] open at the inspection site. He noted that they have had a cave-in at night while no one was there (T.99).

Mr. O'Dell talked to Mr. DeGrado over the telephone but could not remember whether he told the inspector they had lost a portion of the trench. In describing his conversation with Mr. DeGrado, Mr. O'Dell testified "he was belligerent, very authoritative and he was telling me what he was going to do. He told me how the cow was going to eat the cabbage" (T.100).

Mr. O'Dell expressed the opinion that the difficulty in laying tile where they could only get 20 feet sometimes in a day was due to a lot of dirt. No borings or tests were taken, nor did he rely upon the specifications (T. 101). In describing his procedures, men would be working close up to the back-hoe as the back-hoe was sloping the trench, and it would slope the trench as it excavated the trench.

Jim Wilson and the back-hoe operator, Mr. Neidholt, would make the determinations of the digging of the trench and observation of the soil. Mr. Olsen would be on the job 90% of the time. Mr. Gingle was described as a plumber foreman and Mr. Borne as the pipe fitter supervisor. Mr. Gingle would be the overall foreman [*25] on the job.

Mr. O'Dell received a communication from Mr. Foster that he was concerned about the trench prior to the inspection on June 7, 1973, and Mr. O'Dell advised Mr. Foster he would be digging it as best he could on OSHA regulations. He had also received a letter from J. E. Dunn following the citation to correct any deficiencies (T. 103).

Ordinarily, it takes one man to level the bottom of the trench and one crew of two men to lay the tile, which would either be lowered by the back-hoe or run down by a rope on the side of the trench.

Referring to Exhibits G-2 and G-3, Mr. O'Dell could see no tile whatsoever but could see rough dirt, which indicated the tile had been backfilled. The tile was laid uphill, and in reviewing the photographs, he noted that he could not observe teeth marks, which would indicate that the back-hoe had finished, but the rough dirt indicated that dirt had been thrown down onto the tile to protect it (T. 107).

Mr. O'Dell reiterated that he felt the trench had been open approximately a week, and with regard to Mr. Gingle's statement that the trench would be backfilled and reexcavated, Mr. O'Dell felt there was approximately a 6-foot length [*26] where tile had not been laid and that would be the area referred to as being backfilled and reexcavated.

Mr. O'Dell testified that as to whether tile had been laid or not was a presumption on his part, in that he was not at the worksite. Mr. Gingle's opinion that the tile had been laid was based upon the lack of appearance of teeth marks from the back-hoe, in referring to Exhibit G-3, and the appearance of dirt that had been shoveled into the trench (T. 109). It was also possible that the loose dirt could have sloughed off the sides of the trench.

Mr. Carl Neidholt appeared on behalf of Respondent. He is an operating engineer of heavy equipment and his employment with O'Dell was that of back-hoe operator, the type of work he had been doing on and off for twenty years (T. 111). Referring to Government's photographs, he testified the open trench was 150 feet long, with more trench not shown in the photograph.

Mr. Neidholt handled all the back-hoe work and described the operation of digging one set which could be 10, 15 or 20 feet, depending on the machine. Then he waits for the laborer to prepare the grade for the pipe, and at this trench the pipe was lowered with the machine. [*27] After the pipe was installed, the laborer would shade the pipe, namely, cover the pipe over with dirt to hold it in place and to protect it from breakage, and then the process would start over (T. 113).

On this job, they were laying about three joints of pipe or moving about 15 feet at a time, and from his position at the head of the trench he could dig 15 feet of trench to the necessary depth.

The spoils that were dug were placed to the side of the trench itself, and before the machine was moved again the pipe would be placed in the trench. If the shading was done by hand, the back-hoe would move on to dig; otherwise, if it were done by the machine, it would be done before the back-hoe moved.

On this trench site, both procedures had taken place. If the material was suitable, it was done by hand; if not, Mr. Neidholt would have to scrounge up material from other sources (T. 114).

He would look for something that didn't have rock and was not hand, such as top soil. There was a change in the composition of material that was useable as they went along.

From Mr. Neidholt's own knowledge, he testified that the pipe had been placed in the trench, although it did not show [*28] in Government's Exhibit G-3 because of dirt having been placed over the pipe. He estimated a 50-foot distance between the ledge of rock up to his machine and felt there would be no other duties for a laborer to perform within that area (T. 116).

As far as requiring personnel in the trench, it would be restricted from the last joint of pipe up to where the back-hoe was working, or three joints of pipe -- a distance of 15 feet. Beyond 15 feet, the work was completed except for backfill, which was performed from ground level and consisted of pushing dirt into the trench (T. 117).

In working on the trench, Mr. Neidholt encountered different types of dirt at different levels. The top 3 or 4 feet was top soil; various stages of clay; and then a conglomerate of various-sized rocks, clay and sand, which he characterized as being very hard to dig and very stable (T.117). The bottom of the trench was 6 feet of shale which could vary 10 feet in length (T.118).

Mr. Neidholt was not using O'Dell's regular back-hoe but one rented by O'Dell for more digging power, as the other machine would not cut through shale (T. 118).

Mr. Neidholt felt it was safe the way they were excavating [*29] by sloping back. He was informed by Mr. Wilson from time to time whether the slope was back far enough (T. 119). While performing his work, he had no difficulty with sloughing or cracking (T. 120). It was his opinion the trench had been open approximately two weeks, until the photographs G-2 and G-3 were taken.

He noted they had another machine moving dirt back away from the trench because they had so much material they couldn't dispose of it (T. 120). The machine ran along the edge of the ditch during this two-week period (T. 121). Mr. Neidholt felt it would have an effect due to vibration as far as the cracks were concerned, along with the weather, and felt that a previous rainfall had been responsible for water appearing in the photographs after the pipe had been laid.

Mr. Neidholt testified that at the time the men were in the trench behind him as he was operating the equipment there were no cracks, as shown in Exhibit G-2.

The material for shading the tile came from the top of the bank if it was done by hand standing at the edge of the trench (T. 122). Mr. Neidholt has had no formal training in soil or engineering.

As they dug back toward the Hospital the trench was [*30] getting deeper (T. 122), and Mr. Neidholt was trying to get a one-to-one slope or one-half-to-one, and while trying to get one-ot-one, he felt they were staying in the one-half-to-one.

No measurements were taken at any time while they were sloping. The angle was "eyeballed" (T. 123).

The excavated material was placed on the edge of the trench, and it was on the edge of the trench while Mr. Neidholt was digging.

With respect to the ladder and tools in the bottom of the trench shown in Exhibit G-3, Mr. Neidholt felt they were left there while the employees went to dinner, and there had been employees working in the vicinity. He was of the opinion that the pipe at the location beneath the ledge of rock had already been laid, and that work to be performed would be to the machine side of the rock or toward the bottom of the photograph G-3. He did not recall whether there was a ladder near the back-hoe (T. 124).

Mr. Neidholt identified the grade pole of approximately 12-14 feet in length, which is used to check the grade of trench. This pole checks the depths of the trench and is marked with feet and inches.

Mr. Neidholt described the shale encounter as very hard, compact, [*31] and yellow.

He had not read the job specifications and noted that no test borings were taken in the area where he was working.

Referring to the shale layer, he noted it was getting deeper as they progressed toward the building, and there was a rise in elevation.

Mr. Neidholt testified that another reason for the rental back-hoe was the machine's capability to dig the extra depth required, as they were digging 14 foot at the point where the photographs were taken.

Referring to Exhibit G-2, the depth of the southwest end of the trench up to the back-hoe, Mr. Neidholt felt they were at 10 feet where the water is located in the trench and 14 feet where the back-hoe was located (T. 128).

Mr. Neidholt assisted in observing the measurements being taken and identified the area where men were working within 15-20 feet from the back-hoe, with one man leveling the bottom and laying the tile, which was 5 feet in length with an inside diameter of 10 inches and weighing approximately 150 pounds. A machine was used to lower the pipe and one man was in the trench (T. 130). Referring to G-3, Mr. Neidholt identified shale from the bottom of the trench up approximately 6 or 7 feet, and another [*32] 6 or 7 feet upward of conglomerate, and the upper fourth of the trench being top soil and various stages of clay (T. 131-132).

The larger machine had been employed commencing at the point where the photographs were taken partly because of the increased depth and partly because of the material that was being dug.

In taking part in the measurements, Mr. Neidholt held the dumb end of the tape and thought Mr. Wilson was on the other end (T.133). The inspector had the smart end of the tape (T. 134). Mr. Neidholt was a bystander in measuring (this consisted of hanging a tape in the ditch), and did not recall who performed this operation (T. 135). The measurement was done from the back-hoe in front of where the machine was at the end of the trench. He testified no measurement was made at the point (Exhibit G-6) where the rock ledge was located, because the ditch was 30 feet across and 14 feet deep.

Referring to Government's Exhibit G-2, it was Mr. Neidholt's testimony that the pipe had been laid right up to the machine and covered with 18 inches to 2 feet of shading.

While he described the earth material as hard compact yellow shale, which was placed alongside the trench, [*33] he further testified that this same material would not necessarily go back into the trench as they avoid hard material to keep from breaking the pipe (T. 138).

And while the shale had a distinctive yellow color, and although Mr. Neidholt was present during the time of the inspection along with Mr. Foster, and while there was shale in the spoil at the side of the trench, this was not pointed out to the inspector by Mr. Neidholt or anyone else at the jobsite. This was explained as based upon the frame of mind of the inspector that nothing could be pointed out to him. (T. 140)

The trench was 8 feet down to the shale level, and the trench had 150 or 200 feet to go to reach the Hospital building.

Mr. Clarence James Wilson, Jr., appeared on behalf of the Respondent. He was the general labor foreman for O'Dell and had been on the job approximately two to three weeks prior to the inspection and was familiar with the entire excavation.

Mr. Wilson assisted the inspector in making his measurements and he and Mr. Neidholt made measurements, with Mr. Gingle observing the measurements as they were made.

Mr. Wilson described the inspection and photo taking by the compliance officer and inquired [*34] of him as to his judgment of the ditch being unsafe, with the reply that it was not shored or sloped properly.

Mr. Wilson measured the ditch to be 14 feet deep, the width at ground level to be 26 feet wide, and tile had been installed within 2 or 3 feet of the back-hoe machine (T. 144-145).

Mr. Wilson described the surface soil as having grass growing in it, and as the trench was deeper there were boulders and conglomerate soil, and beyond that was definitely shale. The bottom 6 feet of the trench was shale, with conglomerate extending to within 2 or 3 feet of the surface (T. 148).

As labor foreman, part of Mr. Wilson's duties was to see that the trench maintained a proper slope and utilized a "story-pole" reflected in Exhibit G-3, which was 12 feet long. The trench was dug with a 40-inch bucket, and would therefore have a 40-inch base.

His Company made no test to determine the quality of the soil as to density, compactness or shear strength (T. 153-154).

Mr. Wilson was aware of a prior cave-in that had occurred several weeks before.

Mr. Wilson testified further that Mr. DeGrado did not hold the tape, nor did he request a measurement. Such request was made by Mr. [*35] Wilson.

When sloping first began, Mr. Wilson had an objective of a one-half-to-one foot grade (T. 155).

Mr. Wilson noted that beyond the area inspected they had encountered solid rock, but not in the area of the inspection, which consisted of shale.

At the place inspected, there was generally no cemented sand or gravel, but there was some present (T. 158).

Mr. Wilson had reviewed the specifications on the Hospital borings, but did not remember any indication of a conglomerate of silt, sand, clay and gravel. His only recollection was that there was rock occasionally and shale occasionally. (T. 159)

No measurements were made after the trench was first sloped, and from that point on the angle was "eyeballed" (T. 163-164).

Mr. Wilson estimated that a cubic yard of dirt weighed from 2,000 to 2,700 pounds (T. 164).

Referring to Exhibit G-2, Mr. Wilson testified he noticed the cracks in the trench for the first time when he walked back with Mr. DeGrado to take pictures of the trench. He was also aware of the fact that when moisture gets into soil it tends to make it more plastic so it is softer and tends to slough off, and the looser the soil the more danger there is of sliding, [*36] and that soil on the side of the ditch will fall off if it gets too wet or has a greater tendency to fall.

Mr. Wilson agreed that the spoil tile was not laid back 2 feet from the edge of the trench, but was laid right at the edge.

THE ISSUES

Whether or not Respondent was in violation of 29 CFR 1926.652(b) and 29 CFR 1926.651(i)(1) depends on disposition of the following factors:

1. Was the Respondent engaged in digging a trench 5 feet and more in depth.

2. Were the sides of the trench in unstable or soft material.

3. Was the trench shored, sheeted, braced, sloped or otherwise supported by means of sufficient strength to protect the employees working within it.

4. Were or had employees been working in the trench under the aforesaid circumstances.

5. Did the Respondent adequately slope the sides of the trench in accordance with the approximate angles of repose established by Table P-1 of the aforementioned Standard.

6. Did the Respondent store excavated material within 2 feet of the edge of the trench, in violation of 29 CFR 1926.651(i)(1).

7. Did Respondent know or could Respondent have known of this violation.

8. Was Respondent in serious violation of 29 [*37] CFR 1926.652(b) and 29 CFR 1926.651(i)(1).

DISCUSSION

Issue 1: The preponderance of the credible evidence establishes that throughout the testimony the trench in question was in excess of 5 feet; this determined by the measurements of the compliance officer of the trench being approximately 14 feet deep (T. 20), the testimony of the back-hoe operator, Mr. Niedholt (T. 127), and the testimony of Mr. Wilson (T. 144).

Issue 2: There is some degree of conflict as to the composition of the soil. Mr. DeGrado described the soil throughout the trench as grayish-brown with a little bit of sand and gravel, and moist (T. 24); that it was crumbly and it had cracked (Exhibit G-2; T. 25); and, that there was water in the trench (T. 26; 44; Exhibit G-2).

Mr. Ledgerwood, the senior compliance officer who visited the site the following day and who has had as part of his attaining an engineering degree in Civil Engineering training courses in soil mechanics, noted the spoils to appear the same at the building site as those spoils around the trench, which was then backfilled within 2 or 3 feet of the top (T. 80). He found the soil to be silty clay, fairly dry with traces of fine sands [*38] and gravels (T. 85-86), and classified the soil as unstable.

Most persuasive evidence was given by Mr. Foster, the job superintendent for the project's general contractor, who had occasion to oversee the entire project; namely, the excavation for the building, the trenching operations and pipe-laying operations. He had observed the very same trench caved off some 30 or 40 feet prior to the inspection of June 7, 1973 (T. 65). This had taken place further south of the inspection site. He observed the cracks in the trench and water at the bottom, as demonstrated in Exhibit G-2 (T. 67). From his observations and experience, he classified the soil at the area as very unstable (T. 68), and when questioned as to the general uniformity of the soil in the area, he testified that it "sloughs off real bad," noting that previous banks at the Hospital excavation had caved in (T. 62). He noted there were, however, more rocks and boulders at the trenching site (T. 73). Mr. Foster had mentioned the condition of the ditch to Respondent's representative prior to the OSHA inspection (T. 103).

Respondent's evidence was that the bottom 6 feet of the trench had been dug through shale, with the [*39] bottom 6 feet of the trench being shale, then conglomerate soil above that, and then surface soil; the conglomerate extending within 2 or 3 feet of the surface (T. 148; 160; 118).

Respondent's own exployee, the back-hoe operator Niedholt, when discussing the shale at the bottom of the trench, testified that the shale would vary within 10 feet of length in trenching; and further, as the back-hoe operated toward the Hospital the trench was getting deeper and they were having such difficulty with excess material they could not dispose of it (T. 120). It was necessary to have a machine running on and off along the edge of the trench during the two-week period the trench was open removing excess dirt (T. 121).

Mr. Ledgerwood, a civil engineer with vast experience, defined conglomerate soil as taking in a mixture of silt, sands, clays and gravels interspersed and mixed (T. 86). He made a differentiation between solid rock that allows a vertical cut. He defined compacted angular gravels as relatively stable, and he defined compacted sands which are quite often fragmented, and well-rounded loose sands that have not been compacted, such as are carried by rivers and commonly called [*40] silt sand (T. 89).

In defining average soil, he felt it would be something that would fit between those categories and encompass a broad range (T. 89).

As defined in 29 CFR 1926.653(q), "unstable soil" is earth material ". . . that because of its nature or the influence or related conditions, cannot be depended upon to remain in place without extra support. . ."

In this connection, reference should be made to the note appended to Table P-1:

Note: Clays, Silts, Loams or Non-Homogenous Soils Require Shoring and Bracing.

The Presence of Ground Water Requires Special Treatment.

While Respondent attempts to establish a definition of the soil and the trench condition within one isolated area, i.e., that of within 15 feet of the back-hoe, this argument cannot be persuasive due to the foregoing testimony of the variety of soil by the other witnesses, his own back-hoe operator, and in particular, the testimony of his own foreman, Wilson (T. 165-166):

Q. And this is the type of soil that has a tendency to slough off?

A. I think that is an assumption. We had all kinds of soil in this ditch. Some of it did slide as it shows here in G-2. Some of it didn't slide.

Q. I'm not saying [*41] the shale part did but the conglomerate; the mixture of the sand, clay and the silt; that was looser type of soil and when it got wet it would have a greater tendency to slough off?

A. Yes, I would agree.

Therefore, based upon the preponderance of the credible evidence of the whole, it must be found that the soil within the trench involved was unstable.

Issue 3: All of the evidence demonstrates that Respondent failed to shore the aforementioned trench at the site of the inspection.

Issue 4: Respondent, by Answer to Request for Admissions, admits that on June 7, 1973, Respondent had at least one employee working in the trench made the subject of the Citation for Serious Violation issued to the Respondent on June 11. Mr. Gingle, one of Respondent's foremen, advised the compliance officer that Respondent's employees had been working in the trench and the compliance officer observed handtools in the trench (T. 22; Exhibit G-3; T. 49 -- where the letter "M" on Exhibit G-3 indicated the area where the compliance officer learned men had been working; the testimony of Mr. O'Dell that men would work within 8 to 10 or 12 feet to the rear of the back-hoe (T. 93); the testimony [*42] of the back-hoe operator that laborers would be shading the pipe behind the back-hoe, sometimes by hand, and the installation and connection of the pipe and grading for the pipe in sections of 15 feet (T. 113-130)).

The preponderance of the credible evidence establishes that Respondent had employees exposed to the conditions of the trench.

Issue 5: There is some degree of conflict between Complainant and Respondent as to the angle of repose established at the subject trench.

Mr. DeGrado, in his graph (completed the next day after his measurements on the day of the inspection), established a 3-foot width at the base of the trench; a height from the base of the trench to ground level of 14 feet, plus or minus a foot; a width from edge to edge of the trench at ground level of 16 feet, plus or minus a foot; and the width at the top of the spoils 26 feet, plus or minus (T. 19-21; Exhibit G-4). He concluded that the soil was unstable, that the top of the trench at ground level should have had a proper angle of repose of 28 feet to 31 feet taking into account the width at the bottom, rather than the 16 feet he found (T. 23-28). In same or similar type soil, except for rocks and boulders [*43] in the same general area, a one-to-one sloping had failed to support the banks and they would have sloughing according to the observations of Mr. Foster, the job superintendent (T.62).

Mr. Ledgerwood, in his observations of the angle of repose at the Hospital excavation site, which contained the same or similar type soils, found sloping at 45degrees or less, which inferentially would give some indication of an engineer's evaluation of the degree of sloping required for the trench.

Mr. Niedholt would follow the directions of Mr. Wilson, O'Dell's foreman, and to his knowledge no measurements were taken while they were sloping, but he merely "eyeballed" the angle of repose (T. 123). While Mr. Niedholt attempted to attain a minimum of one-half-to-one to a maximum of one-to-one angle, he felt they were staying at least in the one-half-to-one range (T.123).

Respondent's foreman, Wilson, testified to a stated objective of one-half-to-one as a minimum (T. 155), but after the trench was first sloped no measurements were made thereafter, and from that point on the angle was "eyeballed" (T. 163-164).

Respondent, through its foreman Wilson, severely challenged the measurements obtained [*44] by Mr. DeGrado and his points of measurement, with Mr. Wilson testifying that his measurements indicated the trench was 26 feet wide at ground level (T. 144-146). It will be noted that Mr. Wilson's testimony was in direct conflict with Respondent's own witnesses. Respondent's back-hoe operator, Mr. Niedholt, testified he held the "dumb end" of the tape and the inspector had the "smart end" of the tape (T. 133-134).

Q. (By Mr. Saeger) Do you know if you participated in the measurements that were supplied to the inspector?

A. There was no reason for measurements to be supplied because he was there when the measurements were made; depth as well as crossways.

Q. Was this the only measurement made while the inspector was there?

A. A complete measuring was done at the same time.

Q. And you were participating in these measurements?

A. Yes (T.134-135).

Mr. Gingle, Respondent's foreman who particpated in a portion of the measurements, was not called by Respondent; nor was any explanation given for his failure to testify. However, based upon the preponderance of the evidence as a whole no inferences need be drawn from his lack of appearance, and the issue of credibility [*45] as to the measurements is resolved in favor of the Complainant.

Therefore, assuming the evidence most favorable to the Respondent, that there was in fact 6 feet of shale at the bottom of the trench at the inspection site, there still remained an area of 8 feet of unstable material which, according to the corroborating testimony of the various witnesses, at least one of whom, Mr. Foster, had no interest in the litigation, that the soil was unstable, had a history of sloughing, the further fact that machinery was running to and from the edge of the trench removing excess soil, and that spoil piles were established right to the edge of the trench weighing 2,000-2,700 pounds per cubic yard (T. 164) or 22.4-22.9 (T. 83). The evidence demonstrates that the angle of repose was not one-to-one for "average soil," but in fact should have been much greater in accordance with the definition of 29 CFR 1926.653(q) and in accordance with the appended note to Table P-1.

Issue 6: There is no dispute that Respondent stored its spoils from the trench along the edge of the trench in violation of 29 CFR 1926.651(i)(1).

Q. It was true, was it not, Mr. Wilson, that the spoil pile was not laid back [*46] 2 feet from the edge?

A. That's right.

Q. It was laid right at the edge?

A. Yes (T.166).

Issue 7: Respondent acknowledged its familiarity with the trenching Standard. Mr. O'Dell testified that he and his job foreman, Mr. Wilson, had gotten together to consider the OSHA regulations pertaining to trenching (T. 92). Mr. Wilson was specifically designated as being responsible for the sloping or shoring of the trench (T. 92-93; 150). Therefore, Respondent knew or could have known of the violation.

Issue 8: Section 17(k) of the Act defines that a serious violation shall be deemed to exist in a place of employment if there is substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use in such place of employment, unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

In the instant case, the employer was aware of the Standard, had delegated responsibility for the trenching operation to be in conformity with the Standard, had various supervisory personnel [*47] on the jobsite, and could readily have known of the violation.

Further, the evidence demonstrates that there was employee exposure during the time that the trench remained in nonconformance with the Standard, and the evidence demonstrates that had the trench sloughed or caved in, it certainly would have resulted in serious physical harm, if not death. Therefore, the Respondent was in serious violation as to both the failure to establish a proper angle of repose and as to its failure to properly store the spoils 2 feet or more from the edge of the trench.

PENALTY

Section 17(b) provides that an employer who has received a Citation for Serious Violation of the requirements of a standard shall be assessed a penalty of up to $1,000.00 for each violation, taking into account the criteria established by Section 17(j), which requires that the Commission in having the authority to assess all civil penalties shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations. Respondent's gross volume for the previous [*48] year was 3.2 million dollars and therefore places Respondent in the moderate size. The gravity of the violation measured by the criteria of Secretary v. National Realty and Construction, Inc., The duration of the exposure is not clearly established, but based upon the total evidence that the employees were in and out of the trench as the back-hoe operator elongated the trench, it would appear that the duration was minimal.

Other than a ladder being in the trench and falling substantially short of reaching the top of the spoil pile, it cannot be said that this, coupled with the absence of a proper angle of repose, demonstrated any serious preautions taken by Respondent against injury.

Considering the limited number of employees exposed, and considering the short time of exposure along with Respondent's immediate abatement, it is concluded that the gravity of the violations was of such a nature as to warrant a penalty of $550.00.

The Secretary combined two items under one Citation, with one proposed penalty. This Writer must expressly disapprove [*49] of this practice. Each violation should have a separate and distinct proposed penalty. At arriving at this finding, the Writer has taken the view that the two violations acted in combination with one another, but under different circumstances would treat of the penalty separately for each violation.

FINDINGS OF FACT

1. Respondent O'Dell Plumbing, Heating & Cooling, Inc., is a corporation with a principal office at 1227 Iron Street, North Kansas City, Missouri, and at the time of the inspection, by a representative of the Secretary, maintained a worksite at the Liberty District Hospital, Liberty, Missouri.

2. Respondent has employees, is engaged in a business affecting commerce, and is an employer within the meaning of the Act.

3. As a result of an inspection of Respondent's worksite, Respondent was issued a Citation for Other-Than-Serious Violations, a Citation for Serious Violation, and a Notification of Proposed Penalty on June 11, 1973. On June 21, 1973, Respondent filed a Notice of Intent to Contest the Citation for Serious Violation and the penalty proposed therefor.

4. With respect to the contested Citation for Serious Violation, Respondent was charged with [*50] violating 29 CFR 1926.652(b) and 1926.651(i)(1), by failing to shore, slope, sheet, brace or otherwise support a trench in unstable soil, approximately 14 feet deep, and by failing to effectively store and retain excavated material at least 2 feet from the edge of the excavation, with a proposed penalty of $550.00.

5. Respondent failed to adequately slope or otherwise support a trench 14 feet deep in unstable soil.

6. Respondent failed to effectively store and retain excavated material at least 2 feet from the edge of the trench.

7. At least one of Respondent's employees was exposed to the hazard of cave-in or sloughing of the sides of the trench.

8. The failure to adequately support the sides of the trench and the failure to properly store excavated material created the substantial probability that death or serious physical harm could result.

9. Respondent knew, or with the exercise of reasonable diligence could have known, of improper sloping and storage of excavated material.

10. At arriving at the penalty, due consideration was given to the likelihood of physical harm, the probable severity of physical harm, and the extent of the violations, with proper allowance for [*51] size, history and good faith.

CONCLUSIONS OF LAW

1. Respondent is, and all times material herein was, an employer within the meaning of Section 5(a), as defined in Section 3(3) and 3(5) of the Act.

2. Jurisdiction of the parties in subject matter herein is conferred upon the Occupational Safety and Health Review Commission by Section 10(c) of the Act, and the Citation was issued in accordance with Section 9(a) of the Act.

3. Section 5(a)(2) of the Act imposed a duty on the Respondent to comply with the safety and health standards promulgated by the Secretary pursuant to Section 6(a) of the Act.

4. Respondent violated Occupational Safety and Health Standards 29 CFR 1926.652(b) and 29 CFR 1926.651(i)(1) by failing to adequately shore or otherwise support the sides of a trench 14 feet deep in unstable soil, and by failing to effectively store and retain excavated material at least 2 feet from the edge of the trench.

5. The violation of 29 CFR 1926.652(b) and 29 CFR 1926.651(i)(1) constituted a serious violation within the meaning of Section 17(k) of the Act.

6. The Respondent did not contest Citation No. 2, Item Nos. 1, 2, 3 and 4, with aggregate penalties of $85.00, [*52] and the aforementioned citations and proposed penalty, having not been contested, are deemed affirmed as a Final Order of the Commission.

DECISION

It is hereby ORDERED that the Citation for Serious Violation previously issued, as amended by the Complaint, be affirmed as to violation and the penalty of $550.00 be assessed, and the Citation for Non-Serious Violation and the proposed penalty of $85.00 be affirmed.