Docket No. 79-234

PIPE-RITE UTILITIES LTD., INC.

OSHRC Docket No. 79-234

Occupational Safety and Health Review Commission

January 28, 1982

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Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Douglas S. Eakins, President Pipe-Rite Utilities Ltd., Inc.

OPINION:

DECISION

BY THE COMMISSION:

This case is before the Commission for review under section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). The Secretary of Labor ("the Secretary") issued a citation to the Respondent, Pipe-Rite Utilities Ltd., Inc. ("Pipe-Rite") alleging noncompliance with the standard at 29 C.F.R. § 1926.651(c). n1 The standard requires that walls of excavations that expose employees to danger from moving ground be shored, sloped or supported by some other equivalent means. The citation alleged that three employees were exposed to danger from moving ground in that they were "working in an unshored, unsloped excavation (approximately 16'X16' and 12' deep, sandy soil)."

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n1 Section 1926.651(c) provides:

§ 1926.651 Specific excavation requirements.

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(c) The walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by a shoring system, sloping of the ground, or some other equivalent means.

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Administrative Law Judge J. Paul Brenton vacated the citation. The Secretary filed a petition for review and Commissioner Cleary directed review of the issues raised in the Secretary's petition. We find that the Secretary did not prove that there was a danger from moving ground and we therefore affirm Judge Brenton's decision.

Pipe-Rite had been engaged to excavate an area in sandy soil for the installation of a wet well to serve as a lift station at a sewage treatment plant. Inasmuch as the water table was within 2 to 3 feet of the surface, a wellpointing system was placed around the area to be excavated three days before the excavation was dug. The judge described wellpointing as "a system of pipes, inserted into the soil surrounding an area to be opened by excavating, connected with a pumping station to remove the water and dry out the area which will become the sides, faces, or walls of the excavation."

After the bottom of the excavation had been leveled, a crane adjacent to the excavation lowered a pre-formed concrete slab, 8 feet square and 2 feet thick, into the excavation and apparently [*3] into its center. When compliance officer Mylott arrived, she observed a pipe being lowered into the excavation and placed end-up on top of the slab. The pipe was 6 feet long and nearly 6 feet in diameter. An identical piece of pipe was then placed on top of the first piece.

The dimensions of the excavation were in dispute at the hearing. Compliance officer Mylott measured the length of the sides at the top by pacing off; she testified that they were 16 feet long. Mr. Simpson, the lead operator for the sewage treatment plant, testified that the length at the top was 12 to 15 feet. Mr. Eakins, Pipe-Rite's president, testified however that the walls were 18 feet long. Both Mr. Simpson and Mr. Eakins testified that the wellpoints were within 2 feet of the walls.

Whether and to what extent the walls of the excavation were sloped were also sharply disputed at the hearing. No measurements of the dimensions of the bottom of the excavation were taken. Compliance officer Mylott testified that the walls were not sloped, that "[i]t was a straight cut to the bottom . . . ." Mr. Simpson, who saw the excavation at the same time as the compliance officer, testified that it had "straight [*4] sides" and that he observed no sloping, except on one side where the wall had "a very slight slope to it." Mr. Eakins testified that the walls were not vertical because vertical walls of sandy soil will not stand even when wellpointed. Mr. Eakins further testified that "[t]he ditch was eight feet at the bottom because this bottom slab was graded off eight foot square," and that, given the top dimensions of the excavation, "there was three feet anyways, slope, to four feet." n2

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n2 Mr. Eakins was evidently referring to the horizontal component of the slope.

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Other testimony suggests that the dimensions of the bottom were greater than 8 feet square and therefore that the slope was steeper. Mr. Simpson estimated that there was "[n]ot more than two to three feet" between the edge of the concrete slab and the walls, and that while the slab was lowered, an employee stood off to the side on the bottom to guide it. Compliance officer Mylott testified that the employees applying sealer to the pipe were "[a] couple of feet" [*5] from the side of the excavation.

The nature and moisture content of the soil were also at issue at the hearing. Mr. Winterholler, a civil engineer with expertise in soil conditions, testified for the Secretary that he took a sample of undisturbed soil from the area about 7 months after the inspection. The sample had been taken from below the water table; the soil had not then been dried by a wellpointing system. Mr. Winterholler tested the sampled soil for its grain size, plasticity, and moisture content. He testified that the excavation was dug in sandy soil composed of "brown, fine to medium sand with some shell [rock], and slight traces of clay and silt." The moisture content of the sampled soil was 22 1/2%. Compliance officer Mylott testified that the area was much drier when the sample was taken than at the time of the inspection. Mr. Simpson testified that the water table had fallen considerably since the inspection. Both compliance officer Mylott and Mr. Simpson observed moisture in the bottom of the excavation. The compliance officer also observed moisture up to about the 9 foot level of the walls, but Mr. Simpson testified that the walls were dry. Mr. Eakins, Pipe-Rite's [*6] president, testified that the soil was dry. Miss Mylott and Mr. Simpson observed loose sand at the bottom of the south wall of the excavation, but Mr. Simpson testified that only small amounts of sand had given way.

All four sides of the excavation had superimposed loads nearby; on two sides there were large sewage treatment tanks, on another side there was a crane, and there was a pile of sand on the fourth side. Mr. Winterholler testified that he was not supplied with information on how full the tanks were and therefore could not determine the effect of the tanks on the stability of the walls; compliance officer Mylott testified that she lacked the training to determine whether the tanks influenced the stability of the walls.

The effect of wellpointing on the stability of the walls was discussed at the hearing. Mr. Winterholler testified that because moisture adversely affects the rigidity of the soil, a wellpointing system "must be used to dry out the area," and that "[i]f the area is dry enough, cuts can be made in sand for a short period of time." Mr. Eakins testified that "wellpointing holds the ground very safely" and that "conditions in the sides were very stable." He [*7] described wellpointing as "a practice we exercise quite often for short periods of time."

Counsel for the Secretary asked Mr. Winterholler several hypothetical questions. Mr. Winterholler was first asked to assume that there was an excavation about 12 to 16 feet long on each side and about 12 feet deep in the soil he examined, that it had the superimposed loads noted above, and that the soil appeared to the eye to be moist from the bottom to the 9 foot level. He was then asked whether "[u]nder those circumstances would there be a likelihood of moving ground . . . ." He assumed that the walls were vertical and answered that "there could be a likelihood of moving ground." For the third question, Mr. Winterholler was asked to assume, in addition, that up to the 7 foot level some sand was "apparently sloughing off." He was then asked what the sloughing would indicate; he answered that "either the well points weren't deep enough or that area had some moisture in there." He added that "there is a greater danger of cave-in when the soil is wet . . ., much greater."

In his decision Judge Brenton vacated the citation. The judge found that "the walls of the excavation were very dry [*8] and that there was no significant amount of the giving away of soil from the walls." The judge also found that the sides and bottom of the excavation were dry, that only "[a] little bit, a small amount of sand . . . was observed to give way." He discounted the conclusion of the Secretary's expert witness that there was a danger of moving ground. The judge stated that Mr. Winterholler's answer to the Secretary's first hypothetical question assumed that the walls were vertical when they were not, that the walls were moist to the 9 foot level when they were not, and that the hypothesis did not include the effect of the wellpointing system. The answer to the third hypothetical question was discounted because the sloughing hypothesized by the Secretary did not occur. As to the effect of the superimposed loads on the stability of the excavation walls, the judge found insufficient evidence to make a conclusion. The judge concluded that wellpointing together with some sloping were equivalent means of protection within the meaning of the standard.

The Secretary argues that it was "plain error" for the judge to conclude that the wellpoint system here afforded "equivalent protection." The [*9] Secretary notes that the slope of the walls was far steeper than that depicted in Table P-1, a table in Subpart P of 29 C.F.R. Part 1926; Subpart P contains excavation and trenching standards.

The Secretary also argues that the judge erred in finding that the soil was "very dry". In his brief, the Secretary describes the soil as "moist" and for support cites the testimony of the compliance officer and the sewage plant official who both testified that they observed moisture at the bottom of the trench. The Secretary also contends in his brief that there was a danger of moving ground because dirt was sloughing off the sides of the excavation, a large crane was adjacent to the excavation, and two large holding tanks were within a few feet of the excavation.

III

For the Secretary to prove noncompliance with section 1926.651(c), he must first prove that there is a danger from moving ground. See Seaward Construction Co., 77 OSAHRC 75/C5, 5 BNA OSHC 1422, 1977-78 CCH OSHD P21,803 (No. 8684, 1977). We conclude, for the reasons that follow, that Pipe-Rite's employees were not shown to have been exposed to a danger of moving ground. We therefore need not consider whether the [*10] judge correctly found that wellpointing together with some sloping were "equivalent means" of protection within the meaning of the standand.

The Secretary argues that Judge Brenton erred in finding that the "walls of the excavation were very dry and that there was no significant amount of the giving away of soil from the walls." However, the judge's findings were based largely on his view of the credibility of the witnesses. We see no reason to disturb the judge's findings. See C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1297, 1977-78 CCH OSHD P22,481, p. 27,099 (No. 14249, 1978). The judge correctly found that the soil sample does not reliably indicate the stability of the excavation's walls because the soil of the walls, unlike the sampled soil, "had been under the influence of the well point system for over 48 hours and had dried out." We also agree with the judge's view that the soil expert's answers to the first and third hypothetical questions are of little value because important facts not in evidence were hypothesized and important facts in evidence were not hypothesized.

In addition, the record does not permit a reliable calculation of the degree of sloping [*11] because no measurements were taken of the dimensions of the bottom of the excavation. Furthermore, as the expert witness testified, there is insufficient evidence to determine the effect of the nearby superimposed loads on the stability of the excavation walls. Finally, noncompliance with the sloping requirements of Table P-1 is not sufficient to establish a danger from moving ground within the meaning of section 1926.651(c). See Seaward Construction, 5 BNA OSHC at 1423, 1977-78 CCH OSHD at p. 26,243.

Accordingly, the judge's decision is affirmed and the citation is vacated.

SO ORDERED.

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

The majority's vacation of the citation in this case is inconsistent with Commission precedent and unsupported by the record evidence. Accordingly, I dissent.

The standard at § 1926.651(c) provides that "[t]he walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by a shoring system, sloping of the ground, or some other equivalent means." (emphasis added). As part of his prima facie case for alleged violations of this standard the Secretary is required to establish that there is [*12] employee exposure to a danger of moving ground. See M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979); Seaward Construction Co., 77 OSAHRC 75/C5, 5 BNA OSHC 1422, 1977-78 CCH OSHD P21,803 (No. 8684, 1977). The Commission has also held that the terms "danger from moving ground" in § 1926.651(c) and "unstable or soft materials" in § 1926.652(b) describe equivalent soil conditions and that an excavation dug in "unstable soil" by definition creates a "danger from moving ground". n1 M.J. Lee Construction Co., supra; D. Federico Co., Inc., 76 OSAHRC 13/A2, 3 BNA OSHC 1970, 1975-76 CCH OSHD P20,422 No. 4395, 1976), aff'd on other grounds, 558 F.2d 614 (1st Cir. 1977); West Coast Construction Co., 76 OSAHRC 149/F1, 4 BNA OSHC 1940, 1976-77 CCH OSHD P21,419 (No. 7454, 1976). Furthermore, the Commission has held that the excavation and trenching standards, including Tables P-1 and P-2, create a rebuttable presumption that predominately sandy soils, unless cemented, are soft and unstable within the meaning of § 1926.652(b). See Duane Meyer d/b/a D.T. Construction Co., 79 OSAHRC 57/D4, 7 BNA OSHC 1560, [*13] 1979 CCH OSHD P23,742 (No. 16029, 1979). Inasmuch as the terms "unstable soil" and "danger from moving ground" are equivalent, it follows that if sandy soil satisfies the definition of one term (unstable soil) it also satisfies the definition of the other term (danger from moving ground). Accordingly, predominately sandy soil in an excavation wall creates a danger of moving ground.

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n1 "Unstable soil" is defined at 29 C.F.R. § 1926.653(q) as "[e]arth material, other than running, that because of its nature or the influence of related conditions, cannot be depended upon to remain in place without extra support."

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The evidence in this case clearly establishes that the cited excavation was dug in noncemented, predominately sandy soil. A sample of soil taken from the wall of the cited excavation revealed the walls to be composed of brown, fine to medium sand with some shell, and slight traces of clay and silt. Witnesses for both parties described the soil as primarily sandy in composition and no evidence was presented [*14] that the soil was cemented. Under Commission precedent the soil was unstable, could not be depended on to remain in place without support, and, accordingly, presented a danger of moving ground within the meaning of § 1926.651(c). See M.J. Lee Construction Co., supra.

The majority simply relies on Seaward Construction Co., supra, for the proposition that noncompliance with the sloping requirements of Table P-1 is not sufficient to establish a danger from moving ground within the meaning of § 1926.651(c). However, my colleagues ignore the other Commission case law cited above establishing as a matter of law that the unsupported soil in the cited excavation presented a danger of moving ground within the meaning of § 1926.651(c).

The record in this case establishes that the walls of the excavation were not sloped to an appropriate angle of repose to guard against collapse. My. colleagues correctly note that the record does not permit a reliable calculation of the degree of sloping. However, even if the evidence is viewed in a light most favorable to the Respondent, the slope is inadequate. Based upon the more favorable dimensions presented by Pipe-Rite's president [*15] showing the excavation to be a 16 foot square on top, an 8 foot square on the bottom, and 10.5 feet deep, the walls were sloped at a 69 degrees angle. The Secretary's soil expert testified that the appropriate angle of repose for the soil in the excavation was 29 degrees. n2 Table P-1 approximates the angle of repose for compacted sharp sand to be 33 degrees 41' and for well rounded loose sand to be 26 degrees 34'. Clearly, the excavation was not sloped to the appropriate angle of repose.

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n2 29 C.F.R. § 1926.653(b) defines "angle of repose" as "[t]he greatest angle above the horizontal plane at which a material will lie without sliding."

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Seaward Construction Co., supra, on which my colleagues rely, was based on the erroneous conclusion that "[t]he 1926.651 excavation standards neither contain nor refer to these tables [Tables P-1 and P-2] or any other specific requirements for sloping or shoring." 5 BNA OSHC at 1423, 1977-78 CCH OSHD at p. 26,243. However, § 1926.651(g) clearly states that "[a]ll slopes [*16] shall be excavated to at least the angle of repose except for areas where solid rock allows for line drilling or presplitting." Table P-1 is entitled "Approximate Angle of Repose for Sloping of Sides of Excavations." (emphasis added). The table sets forth the angles of repose at which respective soils in the walls of an excavation "will lie without sliding." See note 2, supra. n3 Accordingly, walls of an excavation that do not comport with the table have not been sloped to their required angles of repose and do not comply with the requirements of the excavation standards.

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n3 The Commission has stated that "the angles of repose set forth in Table P-1 represent the maximum safe slopes for the soil classifications listed." Duane Meyer, d/b/a D.T. Construction Co., supra, 7 BNA OSHC at 1563 n. 12, 1979 CCH OSHD at p. 28,793 n. 12.

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The Secretary has established that the excavation was composed of sandy soil that was inadequately sloped and lacked any shoring support structures. n4 Since three employees [*17] were exposed to the danger of moving ground, the Secretary has carried his burden of proof. The Respondent's argument that it used a wellpoint system as a method of protection is without merit. The function of the wellpoints is simply to eliminate the presence of ground water as a contributing factor to soil instability. n5 Wellpoints do not abate the hazard of moving ground and do not constitute equivalent means of protection within the meaning of the cited standard. n6 Respondent's argument that its employees were in the trench for only a short period of time is irrelevant to the existence of the violation. Duration of exposure to a hazard is an appropriate consideration in assessing a penalty but it is not a defense to the underlying violation. See American Bechtel, Inc., 77 OSAHRC 214/A2, 6 BNA OSHC 1246, 1977-78 CCH OSHD P22,466 (No. 11340, 1977).

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n4 The majority correctly notes that there is insufficient evidence to determine the effect of the nearby superimposed loads on the stability of the excavation walls. However, it must be noted that, if there was any effect, it would be to detract from, not add to, the stability of the excavation walls. See § 1926.651(e).

n5 The soil expert testified that because moisture adversely affects soil rigidity, "a well point system or some kind of a pumping system must be used to dry out the area." Hearing transcript at 40. Also see § 1926.651(h) which requires that the angle of repose be flattened where water conditions exist.

n6 According to Mr. Simpson, the lead operator at the sewage treatment plant, "[t]he well point system itself surrounded the hole and didn't affect the hole at all." Hearing transcript at 28.

[*18]

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The citation should be affirmed.