R.A. POHL CONSTRUCTION CO., INC.
OSHRC Docket No. 76-349
Occupational Safety and Health Review Commission
April 11, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
T. A. Housh, Jr., Regional Solicitor
Robert A. Pohl, Jr., Pres., R.A. Pohl Construction Co., Inc., for the employer
OPINION:
DECISION
This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.
In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.
The Judge's decision is accorded the significance [*2] of an unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
CONCURBY: MORAN
CONCUR:
MORAN, Commissioner, Concurring:
I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.
APPENDIX A
DECISION & ORDER
James M. Cleeton, U.S. Department of Labor, Office of the Solicitor, for the Complainant
Robert Pohl, Jr., President, R.A. Pohl Construction Co., for the Respondent
Wienman, Judge, OSHRC:
STATEMENT OF THE CASE
This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a citation issued to respondent December 31, 1975, under the authority vested in complainant by section 9(a) of that Act.
The citation for serious violation alleged that on December 30, 1975, at a workplace designated [*3] as 115 North Cherry, Kansas City, Missouri, the respondent violated occupational safety and health regulation 29 CFR 1926.652(c).
Regulation 29 CFR 1926.652(c) provides:
"(c) Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported 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."
The citation described the alleged violation as follows:
"The south and east sides of the trench at manhole 1-2, approximately 16 feet deep, was not sloped, shored or otherwise supported to protect employees working in the trench pouring concrete for the manhole base."
Respondent was notified by letter dated December 31, 1975, that complainant proposed to assess a penalty of $500 for the alleged violation. Respondent filed a timely notice contesting the alleged violation and proposed penalty. After complaint and answer [*4] had been filed by the parties, a hearing was held at Kansas City, Missouri, on April 8, 1976.
THE ISSUES
No jurisdictional issues are in dispute, complainant having pleaded facts sufficient to establish that the respondent is subject to the Act and that the Commission has jurisdiction of the parties and the subject matter, which allegations were not controverted by respondent and are deemed admitted pursuant to Commission Rule 33(2).
The general issue to be decided is whether the respondent violated occupational safety regulation 29 CFR 1926.652(c) as alleged in the citation. The specific factual issue for resolution is whether the trench was excavated through material in the nature of "solid rock, shale, or cemented sand and gravel" so hard and solid that shoring or sloping was not required in order to protect employees.
SUMMARY OF THE EVIDENCE AND DISCUSSION
The record produced no dispute as to the nature of the excavation work or the dimensions of the trench. OSHA Compliance Officer Stephen Barker testified that when he inspected the worksite respondent's employees were placing a pump in a manhole, identified as manhole 1-2, to pump out water so they could pour a [*5] concrete base (T. 7). Barker testified the manhole had vertical banks not shored, sloped, or otherwise protected to keep them from caving in (T. 8). Barker later modified this testimony by stating that the banks were sloped except for the east and south sides of manhole 1-2 (T. 10). Barker made no actual measurement at manhole 1-2 because of slippery conditions at the edge of the bank, but he and Richard Atkins, respondent's foreman, agreed that the manhole depth was 16 to 17 feet (T. 11). The bottom width approximated 32 to 34 inches (T. 25).
Barker testified that the soil in and around the manhole appeared to be a yellow clay. He did not obtain a soil sample at the time, but returned and took a sample at ground level a few days before the hearing. This sample was offered in evidence but not admitted (T. 15).
In Barker's opinion the soil at the excavation site contained no sandstone (T. 16). He believed that the excavation was hazardous because of the type of material, weather conditions, moisture content and the configuration of the trench. A cave-in could cause serious physical harm or death to an employee working in the excavation (T. 17). After giving respondent maximum [*6] credit for factors of good faith, size and history, a proposed penalty of $500 was recommended (T. 19).
Richard S. Atkins, II, respondent's field superintendent, testified the excavation was unusually difficult and lengthy because of the hardness of the soil material. He had to replace one set of teeth in the backhoe, and the digging took a half a day or longer (T. 33). He believed the soil material was hard sandstone, rather than clay. The excavation could have been completed in about one hour if the material had been clay. He and the other members of the crew thought the excavation was safe (T. 34).
On cross-examination Atkins admitted there was no need for blasting in order to open the trench (T. 35).
Robert A. Pohl, Jr., respondent's president, testified that he also obtained a soil sample in the area of the excavation some time after the inspection. In his opinion the material was "a windblown loess, mixed with cemented sand and gravel." (T. 38) He believed the soil contained sandstone and had some calcium and limestone deposits confirming the cementing of the material. He stated that the material was common throughout the area and that at a new highway north of the [*7] city similar material was standing 50 feet vertically (T. 38).
Mr. Pohl pointed out that the members of the excavating crew each had from 10 to 20 years experience, and they had concluded that the excavation was safe (T. 39-40).
The defense theory is one which has received recognition in Commission cases. Although the express provisions of regulation 29 CFR 1926.652(c) appear to require that the sides of all trenches excavated in hard or compact soil be shored, sloped or otherwise supported when the trench is more than 5 feet in depth, this requirement is not imposed upon excavations cut through "solid rock, shale, or cemented sand and gravels." The basis for the exception is Table P-1 which accompanies regulation 1926.652. This table sets forth the approximate angles of repose for various soil materials and indicates that a vertical or 90 degrees angle is permissible when the excavation is cut through hard and solid material. In two reported cases Judge Kennedy vacated citations alleging violations of sections 1926.652(c) where the trenches were dug in either cemented soil or coral, materials so hard and solid that they did not require sloping. See Secretary v. M-CO Equipment [*8] Co., Inc., 15 OSHRC 835 (Docket No. 3811, 1975) and Secretary v. Hood Corporation, 12 OSHRC 393 (Docket No. 6078, 1974). The Commission did not elect to review the two cited cases. Also, in Secretary v. Shaw Construction Co., 19 OSHRC 319 (Docket No. 3324, 1975) a divided decision without precedential weight, Commissioner Moran expressed the view that the tables appearing within 29 CFR 1926.652 indicate that no shoring or sloping is required in trenches excavated in solid rock.
While recognizing the legal basis for respondent's defense, we have difficulty resolving the factual issue because of the poor quality of proof submitted by the parties. Neither side obtained a soil sample from the excavation at the time of the inspection, and the conflicting opinions of the witnesses were neither supported nor rebutted by disinterested experts. There was a sharp dispute as to the nature of the soil material. Three witnesses testified, and each described a distinct soil material. The Compliance Officer observed what he thought was a yellow clay (T. 14). The field superintendent testified a backhoe wore out a set of teeth digging through a hard sandstone (T. 33). Respondent's [*9] president agreed with neither and opined that the soil was "a windblown loess." (T. 38)
Were we forced to choose among these opinions we would be inclined to favor "loess" as a material excavated with difficulty but not requiring blasting. But any such finding would be frankly speculative and would still beg the question of solidity without reliable evidence as to the amount of concretion present at the excavated site. n1
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n1 "Loess", as defined and described in standard reference works, conceivably may stand at a perpendicular angle of repose. Note the following --
"An essentially unconsolidated, unstratified, calcareous silt. Most commonly it is homogenous, permeable, buff to gray in color and contains calcareous concretions and fossils. In natural and artificial excavations the loess maintains notably stable, vertical faces."
7 McGraw Hill Encyclopedia of Science and Technology 649 (1971)
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In summary, we find the evidence as to the nature of the soil material so divided that we are unable to determine the [*10] proper classification, i.e. "hard or compact" versus "solid rock, shale, or cemented sand and gravels." The nature of the soil material is an essential element in the proof of a 29 CFR 1926.652(c) violation, and we therefore conclude that complainant has failed to carry its burden as mandated by Commission Rule 73(a).
FINDINGS OF FACT
Having held a hearing and considered the entire record herein, it is concluded that a preponderance of the reliable, probative and substantial evidence supports the following findings of fact:
(1) Respondent, R.A. Pohl Construction Co., Inc., is a corporation with a principal office and place of business at Riverside, Missouri, and is engaged in the business of construction as a sewer line contractor.
(2) On December 30, 1975, at a construction site at 115 North Cherry, Kansas City, Missouri, respondent excavated a trench approximately 16 feet deep and 32 to 34 inches in width at the bottom. The south and east sides of the excavation were neither sloped, shored, nor supported to protect employees working in the trench.
(3) The aforesaid trench was excavated with difficulty through a soil material which respondent maintained was solid enough [*11] to stand perpendicular without support.
(4) Complainant failed to rebut respondent's evidence bearing upon the nature of the soil material, resting its case solely upon the opinion of the Compliance Officer unsupported by soil sample or laboratory tests.
CONCLUSIONS OF LAW
(1) Respondent is and at all times material hereto was an employer within the meaning of section 5(a) of the Act.
(2) Jurisdiction of the parties and the subject matter is conferred upon the Occupational Safety and Health Review Commission by section 10(c) of the Act.
(3) On December 30, 1975, respondent was not in violation of the safety regulation codified as 29 CFR 1926.652(c).
ORDER
Based on the above findings of fact and conclusions of law, it is ORDERED that the citation for serious violation issued to respondent December 31, 1975, and the penalty proposed thereon are hereby vacated.
June 10, 1976
Alan M. Wienman, Judge, OSHRC