M-CO EQUIPMENT COMPANY, INC.

OSHRC Docket No. 3811

Occupational Safety and Health Review Commission

March 7, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On March 5, 1974, Judge Harold A. Kennedy issued his decision in this case, vacating the Secretary of Labor's citation for serious violation and affirming two of four items of a citation for non-serious violation. Among other things, the Judge held that the Secretary did not establish that a prescribed fire extinguisher was not accessible and available at the operator's cab or station of the Link Belt crane and thus no violation of section 1926.550(a)(14)(i) of Title 29, Code of Federal Regulations, was proved.

The Secretary of Labor excepted to this holding, and petitioned for review before the full Commission. On April 3, 1974, review before the full Commission was directed on the exception in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act"). The Secretary has briefed his position before the full Commission. Respondent has not.

The standard under which respondent was cited, 29 CFR 1926.550(a)(14)(i), provides:

An accessible fire extinguisher of 5 BC rating, or higher, shall be [*2] available at all operator stations or cabs of equipment.

There was no fire extinguisher at or near respondent's Link Belt crane. Respondent's witness testified that there was a fire extinguisher in a pickup truck within a "stone's throw" away where it would be safe from vandalism and theft. The pickup truck was normally about 150 feet from the crane, and was constantly moving about the worksite.

The Secretary's position is that the fire extinguisher was not available under these circumstances. Respondent contends that the fire extinguisher was available.

The Judge found for respondent, and vacated this item of the citation. He noted that the standard was arguably vague because it required the employer to make a judgment as to what was "accessible" or "available," but in any event found that the Secretary had not sustained his burden of proof.

In support of his position on vagueness, the Judge relied upon the Commission's decision in Santa Fe Trail Transport Co., No. 331 (December 20, 1973), which was subsequently reversed in Brennan v. O.S.H.R.C. & Santa Fe Trail Transport Co., 505 F.2d 869 (10th Cir. 1974). A standard is enforceable if it is sufficient [*3] to convey a reasonable understanding of the conduct required by it. n1 McLean Trucking Co. v. O.S.H.R.C., 503 F.2d 8, 11 (4th Cir. 1974); Ryder Truck Lines, Inc. v. Brennan, 498 F.2d 230, 233 (5th Cir. 1974). Every detail does not have to be spelled out in a standard. That an employer is required to think in implementing a standard does not render it unenforceable. Eichleay Corp., No. 2610 (October 16, 1973) (Administrative Law Judge).

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n1 This entire discussion of vagueness presupposes that the Commission has the power to rule on these questions. This is uncertain. See, e.g., Santa Fe Trail Transport Co., No. 331 (December 20, 1973) (Cleary, Commissioner, dissenting) rev'd, 505 F.2d 869 (10th Cir. 1974).

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Here, perhaps with some redundance the standard plainly requires that a fire extinguisher be at or near the cab or operator station. The obvious purpose is to have the fire extinguisher present when and where it is needed. Neither the text nor the purpose of the standard is served [*4] by the Judge's holding that having the fire extinguisher on the pickup truck was adequate. Accordingly, we reverse. At least one Administrative Law Judge has already held that the standard involved requires that a fire extinguisher be on the crane itself. Pima Constr. Co., No. 5221 (June 3, 1974), review directed on other grounds (June 20, 1973). While this may not be the exclusive form of abatement, the testimony in this case indicates that one appropriate method would be to mount the fire extinguisher on the outside of the cab.

We conclude that respondent was in violation of section 5(a)(2) of the Act for failing to comply with 29 CFR 1926.550(a)(14)(i). We further believe that $25 is an appropriate penalty, for the reasons assigned by the Secretary.

It is ORDERED that the Judge's decision be modified in accordance with this opinion, that the citation for non-serious violation be affirmed as to item 3, and that respondent be assessed a penalty of $25.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur in the dispositionof this case for the reasons assigned by Commissioner Cleary, but I do not subscribe to his individual view on the issue [*5] of the Commission's authority as set out in note 1 of the opinion.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: The Commission concedes that the standard at issue here requires a fire extinguisher to be available or accessible to the operator of the crane. The terms "available" and "accessible" are unnecessarily broad, n2 and at the very least a finding of noncompliance with the standard should be based upon a close examination of the facts of record.

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n2 While I am of the opinion that the lack of specificity of this standard raises questions of enforceability, I agree with the Judge's decision that this question need not be reached in the instant case. My position on the issue of vagueness has been set out in detail in many previous cases. See, for example, Secretary v. Santa Fe Trail Transport Co., 5 OSAHRC 840, 844-849 (1973), Secretary v. Modern Automotive Services, Inc., 6 OSAHRC 738, 742-748 (1974), Secretary v. Cape and Vineyard Division, 8 OSAHRC 701, 701-705 (1974). I take issue also with footnote one of the lead opinion and have set forth my reasons for such in Secretary v. Carpenter Rigging and Contracting Corp., 15 OSAHRC 400 (1975).

[*6]

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In the instant case, it is undisputed that the required fire extinguisher was located in a pickup truck 150 feet from the crane. It was kept there to protect if from the vandalism and theft which would result if it were mounted on the outside of the crane, that is -- so that it would be available if needed.

There is absolutely no evidence of record to support the assertion in the lead opinion that the truck was located anywhere other than 150 feet from the crane. Nor is there any evidence of record indicating the existence of any difficulties in reaching the truck quickly and easily enough to obtain the extinguisher.

While admitting that the standard permits the fire extinguisher to be located somewhere other than on the crane itself, the Commission rules without explanation that 150 feet constitutes inaccessibility. It determines also that the assured location of the fire extinguisher in the truck as opposed to a location threatened by theft or subject to lock and key procedures constitutes unavailability. I can only describe such a holding as a frightening display of arbitrariness [*7] which is both inconsistent with law and the purpose of the Act.

[The Judge's decision referred to herein follows]

KENNEDY, JUDGE: On June 26, 1973, Frank T. Walsh, a compliance officer for the Occupational Safety and Health Administration ("OSHA") of the United States Department of Labor, made an inspection under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq. ) of the Respondent Employer's workplace located adjacent to South Baseline Road between Dobbins and Price in Mesa, Arizona, where Respondent's employees were installing a 33-inch sewer line.

Shortly thereafter, on July 9, 1973, the Complainant Secretary of Labor issued two citations -- one "serious" and one "non-serious" -- against the Respondent. One citation, designated Citation No. 1, contains four "Items" which charge violation of Section 5(a)(2) of the Act through Respondent's alleged failure to comply with the occupational safety and health standards appearing at 29 CFR 1926.652(h), 1926.450(a)(10), 1926.550(a)(14)(i) and 1926.550(b)(2). n1 The other citation, designated Citation No. 2 (Serious), charges Respondent with violating the Act by failing to comply with the standards appearing at [*8] 29 CFR 1926.652(c) and (e). The latter citation alleges that "as a composite this constitutes a Serious Violation." n2 Also on July 9, 1973, the Secretary proposed penalties as follows for the alleged violations:

Citation No. 1 -- Non-serious Item No. 1

$ 25

No. 2

0

No. 3

25

No. 4

0

Serious Citation -- Items 1 & 2

500

Total

$550

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n1 Section 5(a)(2) of the Act provides that each covered employer "shall comply with occupational safety and health standards promulgated under this Act." Section 6 authorizes the Secretary to promulgate such standards.

n2 Section 17(k) of the Act provides that "a serious violation shall be deemed to exist in a place of employment if there is a 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."

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Respondent invoked the jurisdiction of the Review Commission as provided in Section 10 of the Act by timely contesting the "charges and the penalties." After complaint and answer were filed, a hearing was held in Phoenix, Arizona, on November 7, 1973. Neither an employee of Respondent nor a representative of any of Respondent's employees appeared or sought party status in the proceeding. n3

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n3 Respondent's employees are represented by Local Union 383 of Laborers District Council and Local 428 of the International Union of Operating Engineers, Phoenix, Arizona (J 6).

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Compliance Officer Walsh testified for the Secretary, and Mr. Grohs testified for the Respondent.

FINDINGS OF FACT

A. Issues

The pleadings and admissions made at the hearing establish that Respondent is a subsidiary of Shawnee Construction Co. of Kansas City, Kansas; that its principal place of business is located at 6603 West Northview in Glendale, Arizona; that it is engaged in the construction [*10] business, specifically installing sewer pipe manufactured outside of the State of Arizona; and that it is an employer engaged in a business affecting commerce within the meaning of the Act.

Respondent has admitted violating the standards appearing at 29 CFR 1926.652(h) and 1926.450(a)(10) as alleged in non-serious Items 1 and 2. The charge contained in non-serious Item No. 3 was amended, on motion of the Secretary, so as to delete reference to a crane described as a "P & H Model 25B" and thus allege violation of 29 CFR 1926.550(a)(14)(i) only as to a Link Belt Model YC 18 crane. Left for trial were the following issues:

1. Whether on June 26, 1973, Respondent violated the Act by failing to comply with 26 CFR 1926.550(a)(14)(i) with respect to Respondent's Link Belt Model YC 18 crane as alleged in non-serious Item No. 3;

2. Whether on June 26, 1973, Respondent violated the Act by failing to comply with 29 CFR 1926.550(b)(2) as alleged in non-serious Item No. 4;

3. Whether on June 26, 1973, Respondent violated 29 CFR 1926.652(c) and/or 29 CFR 1926.652(e) as alleged in the serious citation; and

4. If any violation did occur, whether any penalty should be assessed. [*11]

B. Non-Serious Item No. 3

Non-serious Item No. 3 alleged violation of 29 CFR 1926.550(a)(14)(i) in the following language:

Equipment was operated without a fire extinguisher of 5BC rating or higher, available at operator stations (a) Link belt model YC18(b) P & H model 25B

As indicated above, the allegation dealing with the P & H crane was withdrawn by the Secretary. Paragraph IV-C of the complaint, which is relevant to this charge, alleges that the cited standard was violated "in that respondent failed to have available on the operator stations or cabs of a Link Belt Model YC18 crane . . . an accessible fire extinguisher of 5BC rating."

The cited standard reads as follows:

(i) An accessible fire extinguisher of 5BC rating, or higher, shall be available at all operator stations or cabs of equipment.

Compliance Officer Walsh testified that he inspected Respondent's Link Belt crane with Respondent's representative, Job Superintendent Stockton, and found no fire extinguisher available. He indicated that the failure to have an extinguisher next to the crane operator's cab exposed him and possibly another employee to a fire hazard. On cross-examination he said he would [*12] recommend placing a fire extinguisher on the outside of the cab rather than inside. He did not recall asking where there was a fire extinguisher on the jobsite.

Testifying on defense, Mr. Grohs stated that there was an accessible fire extinguisher "in the pickup truck within a stone's throw" where "it was safe from vandalism and theft and . . . available at all times to the job itself."

The burden of proof, of course, was on the Secretary to establish Respondent had violated the cited standard and the Act (Rule 73 of the Commission's Rules of Procedure). The language of the standard presents some difficulty for the Secretary in proceeding upon the standard. As Mr. Grohs pointed out at the hearing, the standard calls for a judgment as to what "accessible" and "available" mean in Respondent' work situation. Mr. Groh's interpretation of the standard appears to be as valid as the one given by the inspecting officer.

It is certainly arguable that the standard is so vague as to be unenforceable. Santa Fe Trail Transport Company, dated December 20, 1973, wherein the terms "near proximity" as used in 29 CFR 1910.151(b) is [*13] discussed. It is not necessary to so hold here. Even assuming that the wording of the standard is precise enough as to have meaning for employers, it is clear that the Secretary did not establish that a prescribed fire extinguisher was not accessible and available at the operator's cab or station of the Link Belt crane. Kehm Construction Company, OSAHRC Docket Nos, 1209 and 1438, dated November 2, 1973.

Non-serious Item No. 3 must, therefore, be vacated.

C. Non-serous Item No. 4

Non-serious Item No. 4 alleges violation of 29 CFR 1926.550(b)(2), "Adopting American National Standards Institute B30.5, 1968," as follows:

Inspection records were not available for link belt model YC18 metor crane. (Monthly inspection of critical items including hooks, ropes, and brakes and annual inspection of items including brakes, clutch, sheaves, shafts, locking devices, gears, steering).

Paragraph IV-D alleges "respondent permitted a Link Belt Model YC18 crane to be used which did not meet the applicable requirements for inspection as prescribed in the ANSI B30.5 -- 1968, Safety Code for Crawler, Locomotive and Truck Cranes in that written, dated and signed inspection reports [*14] and records were not made monthly on critical items in use such as brakes, crane hooks, and ropes and the records were not readily available."

The cited standard reads:

(2) All crawler, truck, or locomotive cranes in use shall meet the applicable requirements for design, inspection, construction, testing, maintenance and operation as prescribed in the ANSI B30.5 -- 1968, Safety Code for Crawler, Locomotive and Truck Cranes.

Compliance Officer Walsh testified that Respondent's job superintendent and his Link Belt crane operator were unable to supply written inspection records on such crane as allegedly required by 1926.550(b). See Secy Ex. 3A.

Respondent maintains that it did not have such records because the cited standard does not apply to its Link Belt Model YC18, which it describes as a "hydraulic self-propelled crane."

In support of its position Respondent offered in evidence the manufacturer's specifications and description for its YC18 "Hydraulic Self-Propelled Crane" (Resp's Ex. 1) and the description used in a collective bargaining agreement with the Local Operating Engineers Union (Resp's Ex. 2), viz., ". . . truck mounted on self-propelled excavating and/or hoisting [*15] equipment . . ."

The Secretary relies on provisions of the "ANSI" B30.5 -- 1968 industry standard (Secy's Ex. 1) for crawler, locomotive and truck cranes, referred to in the cited standard. Section 5-0.1 thereof defines the scope of the industry as follows:

Within the general scope defined in Section 1, Volume B30.5 applies to crawler cranes, locomotive cranes, wheel mounted cranes of both truck and self-propelled wheel type, and any variations thereof which retain the same fundamental characteristics. The scope includes only cranes of the above types, which are basically powered by internal combustion engines or electric motors and which utilize drums and ropes. Cranes designed for railway and automobile wreck clearance are excepted. Supplements covering full hydraulic cranes and side boom cranes will be developed at a later date.

Some basic machine types within this scope are usually convertible for excavating work and other uses not considered to be lifting service. The requirements of this volume are applicable only to machines when used as lifting cranes.

The Secretary argues in his brief (p. 5) that "it should be obvious that 29 C.F.R. 1926.550(b)(2) in [*16] adopting the requirements of the ANSI standards also adopted the scope of its application." I cannot agree. The Secretary's standard or regulation could, at most, only refer the reader to the ANSI standard for the purpose of finding what the requirements are for a covered crane. The reference does not at all suggest that an employer need to search out a copy of the industry standard to determine if any of his machines could fall within its scope. Respondent's representative, Mr. Grohs, would have accepted the fact that the cited standard could have applied to its Link Belt crane if there had been an appropriate reference in the Secretary's standard or regulation.

. . . When they go into the ANSI Standards they bring . . . in an additional piece of equipment.

I'm going back to the man that wrote the law. If he had said in paragraph 2 all equipment defined in Section 5.1 of the ANSI Standard we would then be included, but he did not say that. He chose to say "all crawler, truck or locomotive cranes," and by so doing has eliminated the item we're talking about. n4

To hold Respondent's Link Belt crane subject to 1926.550(b)(2) here would, in my view, be tantamount "to a ruling [*17] inconsistent with the due process requirement that a regulation must give fair warning of precisely what conduct it prohibits" (quoting from Commission opinion in Kehm Construction Company, Dockets 1209 and 1438, dated November 2, 1973). n5

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n4 Mr. Grohs testified in a similar vein as a witness for the Respondent.

n5 The Secretary's compliance officer agreed that Respondent's Link Belt vehicle was a "special unit" and apparently subject to 1926.500(b)(2) only by resorting to the ANSI standard so there would be an "enlargement that includes self-propelled cranes."

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D. The Serious Citation

Citation No. 2 alleges Respondent's failure to comply with 29 CFR 1926.652(c) and 1926.652(e) constituted, "as a composite," a serious violation as follows:

Employer failed to install shoring or other means of support for sides of trench in hard or compact soil, more than 5 feet in depth and over 8 feet in length, nor in lieu of shoring were the sides of the trench above the 5 feet level sloped not steeper than a 1 [*18] foot rise to each 1/2 foot horizontal to preclude collapse.

Employer failed to take additional precautions by way of shoring and bracing to prevent slides or cave ins where work was being performed by his employees in a trench 16 feet deep in that trench was being subjected to vibrations from heavy highway traffic and machinery used on the trenching operation.

Paragraph IV-E alleges that "respondent violated the standard set forth at 1926.652 in that respondent permitted employees to work in a trench in hard or compact soil which was more than 5 feet in depth and eight feet or more in length and;

(i) the sides of which were not shored, or otherwise supported, nor in lieu of shoring were the sides of the trench above the 5 foot level sloped not steeper than a 1 foot rise to each 1/2 foot horizontal to preclude collapse (.652(c));

(ii) no additional precautions by way of shoring or bracing were taken to prevent slides or cave-ins where the trench was subjected to vibrations from highway traffic and the operation of machinery (.652(e)).

The cited standards read as follows:

(c) Sides of trenches in hard of compact soil including embankments, shall be shored or otherwise supported [*19] when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot horizontal. When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion.

(e) Additional precautions by way of shoring and bracing shall be taken to prevent slides or cave-ins when excavations or trenches are made in locations adjacent to backfilled excavations, or where excavations are subjected to vibrations from railroad or highway traffic, the operation of machinery, or any other source.

Compliance Officer Walsh testified that he determined, by taking some measurements and by questioning Respondent's job superintendent, that the sewer trench at Respondent's workplace was 16 feet deep, five feet wide at the bottom, 13 feet wide at the top and 200 feet long. n6 He considered the soil to be hard and compact (although he had observed some loose soil in the trench) and, thus, determined that 1925.652(c) applied. Inspector Walsh said he observed that the trench [*20] was neither shored nor sloped as required by the standard and that "approximately" two employees were working in the trench during the two-hour period of his inspection.

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n6 Mr. Walsh stated that the sewer line ran for about 11,000 feet, and that approximately 200 feet of it was open when he inspected it.

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According to Mr. Walsh, the trench ran parallel to Baseline Road about 13-1/2 feet away from the edge of the road. He stated that there was traffic on the road on one side of the trench, and on the other side two front-end loaders were operating, dumping loads into the trench. For this reason, he felt that the "additional precautions" provided for in 1926.652(e) should have been taken.

Mr. Walsh presented a cross-section sketch he had drawn of the trench to show how it looked from an end view and that "it was sloped to that amount" (Secy's Ex. 2A); a second sketch showing how he thought the trench should have been sloped -- "six inches of slope back for each vertical foot above the five foot level" (if not shored) [*21] to comply with 1926.652(c) (Secy's Ex. 2B); and another sketch showing how he thought it should have had "additional sloping" to satisfy 1926.542(e) (Secy's Ex. 2C). n7 He also presented several photographs of the trench which he took on the day of the inspection (Secy's Exs. 3 B-C-D-E-F-G-H-I-J-K-L).

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n7 According to the witness, sloping of the 16 feet deep trench as required by 1962.652(c) would have required the trench to be about two and one-half feet wider. Mr. Walsh's testimony on the serious citation appears at Tr. 34-55, 69-76, 80-1, 85-6.

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Respondent has not disputed the dimensions given to the trench by the OSHA inspector. It does dispute the inspector's view that the soil was hard or compact, however, and, thus, the applicability of 1926.652. Respondent's position is that the soil contained sufficient "caliche" that the walls were "cemented" and did not need any sloping.

In this connection, it is to be noted that Table P-1, which appears in 1926.652, shows varying angles of repose for excavations, [*22] depending upon the nature of the soil or material involved (e.g. "Average Soils," "Compacted Sharp Sand"). According to the table, sides consisting of solid rock, shale or cemented sand and gravel need not be sloped but can stand at a 90 degree angle.

Mr. Grohs, who is a civil engineer by training and experienced in heavy, underground construction work, testified that:

It was a cemented soil using the cementation which is unique to the Southwest area arid regions called caliche and consequently would fall more into the 90 degree angle of repose as defined for solid rock, shale, or cemented sand and gravels . . . It was a cemented soil. Caliche is a soil of cementation.

Consequently it was our professional opinion that the soils were of such a nature that we were well within the guidelines which have been set down under these Federal Regulations. We are also subject to inspection by other more learned -- or learned people -- once again, the Unions. They inspected it and made no comment.

The soil was basically a non-disturbed soil in its native state, and it probably laid there for some period of time. I'm talking of centuries. You were looking at a totally undisturbed soil [*23] still under the effects -- full effects of the caliche -- the cementation of the caliche that existed there.

Testifying with respect to the requirements of 1926.652(e) Mr. Grohs added:

We did not take any further precautions because we were adjacent to a highway, or extraordinary stresses to the trench. Once again, it was our feeling that the soil we were working in which is fairly unique to the Southwest area did create a safe trench condition for the men who worked in the trench using the angle of slope that we had effected in the trench. n8

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n8 Mr. Grohs' testimony with respect to the serious citation appears at Tr. 94-7, 102-3.

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The Secretary seeks to derogate Mr. Grohs' testimony on the basis that it is "only opinion" evidence (Secy's Brief, pp 8, 11). Of course, it was -- like the similar testimony of the compliance officer. But Mr. Grohs is obviously an expert on the soil in the Phoenix area, and his testimony was persuasive. The fact that Mr. Grohs was unable to say precisely how much caliche must be present [*24] in order to take the trench out of the hard, compact category and into a cemented one did not reflect on the worth of his opinion. As he himself indicated, a soil expert can make a determination by looking -- "the same way a doctor determines you've got a broken arm." n9

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n9 Mr. Grohs' testimony was not weakened on cross-examination or by any rebuttal evidence. Compliance Officer Walsh was familiar with "caliche." He defined it, in part, on cross-examination as follows: "It's a soil condition that's peculiar to semi-arid regions. It is created by cementation of the soil particles, mostly by calcium carbonates, COCO3, and the cementation is created by a mixture of water at a very slight degree. And this water gets into the COCO3 and cements the solid particles together. . ."

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Having failed to establish that the sides of the trench were made of hard or compact soil, the Secretary did not show applicability of 1926.652(c) and 1926.652(e) or the violation of either standard.

CONCLUSIONS OF LAW

Based on the [*25] foregoing, the following conclusions of law are entered:

1. Respondent is now, and at all times material herein, an "employer" engaged in a business affecting commerce within the meaning of Section 3 of the Act.

2. The Commission has jurisdiction over the parties and the subject matter of this proceeding.

3. The Secretary did not establish that Respondent violated 29 CFR 1926.550(a)(14)(i), 1926.550(b)(2), 1926.652(c) or 1926.652(e).

4. Non-serious violations of 29 CFR 1926.652(h) and 1926.450(a)(10) and the appropriateness of the proposed penalties therefor ($25 and none, respectively), were established by admissions of the Respondent.

ORDER

Based on the foregoing, it is ORDERED:

1. Non-serious Items 1 and 2 of Citation No. 1 issued against Respondent on July 9, 1973, and the penalties proposed therefore ($25 and none, respectively) are AFFIRMED.

2. Non-serious Items 3 and 4 of Citation No. 1 issued against Respondent and the penalties proposed therefor ($25 and none, respectively) are VACATED.

3. The Serious Citation, designated Citation No. 2, issued against Respondent on July 9, 1973, and the penalty proposed therefor ($500) are VACATED.