UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 4553
LLOYD C. LOCKREM, INC,
Respondent.

February 24, 1976

DECISION

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

CLEARY, Commissioner:

The decision of Administrative Law Judge Thomas J. Donegan rendered on October 23, 1974, is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter ‘the Act’].

In his decision Judge Donegan ruled that the standards at 29 CFR § 1926.651(c) and 29 CFR § 1926.651(s) were not applicable to the work being performed by respondent at the time of the inspection in this case. Accordingly, the citation issued by the Secretary to respondent alleging violations of those standards was vacated together with the notification of proposed penalty. The Secretary petitioned the Commission for discretionary review, and the petition was granted.

For the reasons that follow we reverse the order of the Judge, and hold that 29 CFR § 1926.651(s) is fully applicable to the trenching activity in issue in this proceeding.[1] We therefore remand this case for further proceedings consistent with this decision.

On September 4, 1973, respondent’s employees were engaged in the installation of an underground concrete sewer line in Helena, Montana. On that date, respondent’s worksite was inspected by an OSHA compliance officer. As a result of this inspection a citation was issued on September 5, 1973, specifying two alleged violations of 29 CFR § 1926.651(c)[2] and one violation of 29 CFR § 1926.652(e).[3] On the same day, an ‘amended citation’ was issued apparently for the purpose of consolidating the two alleged violations of § 1926.651(c) so as to allege a single serious violation of that standard. This amended citation repeated the alleged violation of 29 CFR § 1926.652(e).

The Secretary grouped these two alleged serious violations together for penalty purposes and proposed a penalty of $500. Respondent timely filed a notice of contest as to both the amended citation and the proposed penalty.

On October 2, 1973, the complaint was issued by the Secretary. The complaint stated that it was to constitute an amendment of the amended citation insofar as the applicable standard was therein deemed to be 29 CFR § 1926.651(s)[4] rather than 29 CFR § 1926.652(e) as was originally alleged. When the hearing opened on January 10, 1974, respondent, through its attorney, moved that all allegations in the complaint with reference to a violation of § 1926.651(s) should be stricken and objected to the introduction of any evidence in connection with this alleged violation.

Judge Donegan reserved making a ruling on this matter until his decision on the merits. In his decision he treated the amendment of the citation in the complaint as a motion to amend, and accordingly granted the motion. He then proceeded to vacate the alleged violations of 29 CFR § 1926.651(c) and (s) finding that the ground cavity in question was a ‘trench’ as that term is defined at 29 CFR § 1926.651(n) and that as the cited standards set forth ‘specific excavation requirements’ they could not be applied to an alleged violation involving a ‘trench.’

In order or understand fully the nature of the problem in this case, it is necessary to examine the relevant standards in their appropriate context. The standards involved are found in Subpart P, Part 1926 of the Code of Federal Regulations. This subpart contains occupational safety and health standards applicable to: ‘Excavations, trenching, and shoring.’ It is subdivided into the following subsections:

§ 1926.650 General Protection Requirements.

§ 1926.651 Specific Excavation Requirements.

§ 1926.652 Specific Trenching Requirements.

§ 1926.653 Definitions Applicable to this Subpart.

The standards in this Subpart distinguish between ground cavities that are ‘excavations’ and those that are ‘trenches.’ A discussion of the nature and scope of this distinction is a necessary prerequisite to the resolution of this case.

Section 1926.653(f) defines ‘excavation’ as:

Any manmade cavity or depression in the earth’s surface, including its sides, walls, or faces, formed by earth removal and producing unsupported earth conditions by reasons of the excavation. If installed forms or similar structures reduce the depth-to-width relationship, an excavation may become a trench (emphasis added).

Section 1926.653(n) defines ‘trench’ as:

A narrow excavation made below the surface of the ground. In general, the depth is greater than the width, but the width of a trench is not greater than 15 feet (emphasis added).

Reading the two definitions together, the conclusion is inescapable that the term ‘excavation’ is used in the broad sense and as such includes ‘trenches’ within its scope as a specific type of excavation, or a subclass thereof.

Where a particular type of hazard is addressed by a standard applying to the board class of ‘excavations’ and no corollary standard addressing such hazard specifically applies to ‘trenches,’ the protective provisions of the former will be extended to the latter. See Armor Constr. & Paving Co., No. 10198, BNA 3 OSHC 1204, CCH OSHD para. 19,642 (May 16, 1975) (Cleary, concurring). Indeed, a contrary interpretation would ignore the declared purpose and policy of Congress in passing the Act, i.e., ‘to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.’ 29 U.S.C. § 651.

The particular hazard that § 1926.651(s) is designed to eliminate is that of mobile equipment falling into excavations and causing injury not only to workers in and around the excavation, but also to the operators of such equipment. There is no corollary standard specifically applicable to trenches although it is patently clear that the same dangers exist. We therefore hold that § 1926.651(s) is entirely applicable to those excavations otherwise classified as ‘trenches.’ The Judge’s conclusion to the contrary on this issue is hereby expressly overruled.

Turning to the facts of the present case, the ground cavity into which the sewer line was being placed was approximately 19 feet wide at the top, 8 feet wide at the bottom, 12–14 ½ feet deep and over 50 feet long. The Judge concluded that it was a trench as that term is defined in § 1926.653(n) and we agree.[5] Because of our holding that § 1926.651(s) applies to all excavations, whether or not further classified as ‘trenches,’ however, the inquiry as to the violation cannot end there. Therefore, we are remanding this case for a disposition on the merits.

For the guidance of the parties on remand we note the following: the evidence establishes a prima facie violation of § 1926.651(s); the evidence shows that mobile equipment was operated adjacent to the excavation;[6] that no stop logs or barricades were installed; and that employees in the excavation as well as the operator of the vehicle were exposed to the risk of injury sought to be prevented by this standard.

Also, respondent has asserted that compliance with 29 CFR § 1926.651(s) is not possible due to the nature of the work being performed.[7] We point out, however, that the alleged violation involves a front-end loader backfilling the excavation by dumping the fill over the side of the excavation, and does not involve mobile equipment traveling into and out of the excavation for the purpose of placing fill material therein.

Accordingly, the Judge’s decision vacating the citation for an alleged violation of 29 CFR § 1926.651(s) is hereby reversed. As so modified by this decision, the case is remanded for a disposition on the merits.

It is so ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: FEB 24, 1976

MORAN, Commissioner, Dissenting:

In my opinion Judge Donegan properly vacated the citation. It was his decision that the standard for which respondent was cited was inapplicable to respondent’s work situation. That well-reasoned decision, which is attached hereto as Appendix A, should be affirmed.

The standards contained in 29 C.F.R. § 1926.651 are entitled ‘Specific Excavation Requirements,’ while those in 29 C.F.R. § 1926.652 are entitled ‘Specific Trenching Requirements.’ Although my colleagues correctly find that respondent’s cavity was a trench and that ‘[t]here is no corollary standard specifically applicable to trenches,’ they nevertheless conclude that respondent was in violation of the excavation standard codified at 29 C.F.R. § 1926.651(s). They justify this finding on the ground that since a trench is a type of excavation, the ‘conclusion is inescapable’ that the Secretary of Labor intended the standards in § 1926.651 to apply not only to excavations but to trenches as well.

Although this ‘inescapable conclusion’ escapes me, I must confess that I was not blessed with the omnipotent gift of knowing exactly what the Secretary intended to say when he did not in fact say it. Fortunately for the Secretary, however, my colleagues have been so blessed, and we now know that when the Secretary uses the term ‘Specific Excavation Requirements’ he really means ‘Specific Excavation and Trenching Requirements.’ This is particularly enlightening in view of the fact that there is a separate section dealing with trenching requirements. Although I do not for a moment lack appreciation for my colleagues’ gifts, unfortunately I doubt that the employers of this country, who are responsible for complying with a veritable plethora of standards, possess similar gifts of clairvoyance.

The fact that a trench might be a particular type of excavation does not lend credence to the proposition that the standards are interchangeable. If they were, there would be no need to have two separate subsections at all; in fact, there would be no need to distinguish the two at all. If the Secretary did in fact intend the excavation standards to apply to trenches, the employers of this country are entitled, at the very least, to regulations that make this clear.[8]

The standard for which respondent was cited applies by its very wording to excavations. Since respondent’s cavity is conceded by all to be a trench, it was not bound to observe the requirements for excavations. See Secretary v. Salem-Williamette General Contractors, 9 OSAHRC 227 (1974).

Furthermore, it is improper to return this case to the Judge as he has already determined that there was no violation of the standard even if it was applicable to the cavity. Therefore, it is clear that the remand of this case is an attempt by my colleagues to browbeat the Judge into agreeing with their conclusions. This is particularly unfortunate because it could lead to the affirmance of a violation which is entirely different from the one that was enumerated in the citation.[9]

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 4553
LLOYD C. LOCKREM, INC,
Respondent.

FINAL ORDER DATE: November 22, 1974

DECISION AND ORDER

APPEARANCES:

For the Complainant: James H. Barkley, Attorney Office of the Solicitor U. S. Department of Labor 15444 Federal Building 1961 Stout Street Denver, Colorado 80202

For the Respondent: Dernard E. Longo, Attorney Moulton, Bellingham, Longo & Mather Securities Building—Box 1016 Billings, Montana 59103

Thomas J. Donegan, Judge

STATEMENT OF THE CASE

This is a proceeding pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act.)

The respondent is engaged in the construction business and on September 4, 1973, was maintaining a place of employment and worksite at Cedar Street and Harris in Helena, Montana, for the purpose of installing concrete pipe. This worksite was inspected on September 4, 1973, by Ronald T. Byrd, who was acting in the capacity of an OSHA compliance officer (inspector) of the U. S. Department of Labor pursuant to section 7(c)(1) of the Act.

As a result of this inspection, this proceeding is concerned with an amended[10] citation number one for serious violation issued to the respondent on September 5, 1973, and a notification of proposed penalty of $500 issued on September 6, 1973, for the violations alleged in this citation.

The respondent timely contested amended citation number one for serious violation and the proposed penalty of $500 for these alleged violations.

The descriptions of the alleged violations and the dates of required corrections of these violations as set forth in amended citation number one are as follows:

Item No.

Standard, regulation or section of the Act allegedly violated

Description of alleged violation

Date by which alleged violation must be corrected

29 CFR 1926.651(c) and 29 CFR 1926.652(e)

On September 4, 1973, at approximately 10:45 a.m., south of Cedar Street in Helena, Montana, two employees were working in an excavation 12 feet deep, approximately 19 feet wide and more than 50 feet long with its sides unshored, unsheeted, unbraced, unsloped or otherwise protected. (1)

A Model 950 Caterpillar loader was working about employees dumping gravel in west side of excavation. (1)

At approximately 11:15 a.m., two employees were working in south end of excavation 14–1/2 feet deep, approximately 19 feet wide and more than 50 feet long with its sides unshored, unsheeted, unbraced, unsloped or otherwise protected. (1)’

Immediately upon receipt of this Citation

Serious Citation No. 1 issued on the 5th day of September, 1973, is amended to read as follows:

The standards alleged in this amended citation to have been violated by the respondent on September 4, 1973, prescribe as follows:

‘29 CFR 1926.651(c)

§ 1926.651—Specific Excavation Requirements.

(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.’

‘29 CFR 1926.652(e)

§ 1926.652—Specific Trenching Requirements.

(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.’

The complaint, which was filed on October 2, 1973, states that to the extent the complaint differs from the citation and amended citation issued on September 5, 1973, it constitutes an amendment thereof. It is represented in the complaint that the amendment is needed to clarify the citation and to set forth the applicable standard as 29 CFR 1926.651(s) instead of 29 CFR 1926.652(e).

The description of the alleged violation set forth in item 1 of the amended citation[11] is amended by the description set forth in paragraph IV of the complaint,[12] which description is as follows:

‘29 CFR 1926.651(s)

§ 1926.651—Specific Excavation Requirements.

(s) When mobile equipment is utilized or allowed adjacent to excavations, substantial stop longs or barricades shall be installed. If possible, the grade should be away from the excavation.’

The amended citation, issued on September 5, 1974, can be read to charge the respondent with two violations of 29 CFR 1926.651(c), one violation occurring at 10:45 a.m. at one location in the excavation, and the second violation occurring at 11:15 a.m. at the south end of the excavation (T. 93–110). The amendment in the complaint must be construed as an attempt to clarify the amended citation and therefore it is concluded, and it is so ruled that the respondent is charged, as a result of this amendment, with one violation of 29 CFR 1926.651(c) and one violation of 29 CFR 1926.651(s), a total of two violations, each one of which are alleged to be of a serious nature affecting three employees in the excavation. The complainant groups the two alleged violations for the purpose of proposing a penalty of $500.

The respondent’s answer, filed October 16, 1973, objects to this amendment of the citation in the complaint and denies the allegations set forth as reasons for an amendment.

At the opening of the hearing, the respondent moved that allegations in the complaint of a violation of 29 CFR 1926.651(s) be stricken and objected to the introduction of evidence concerning a motion and the judge reserved a ruling until this decision (T. 4–7).

The amendment of the citation sought in the complaint must be considered with reference to the requirements of The complainant represents that the complaint represents that the amendment is necessary because the respondent was charged in the amended citation with a standard, 29 CFR 1926.652(e), which is not applicable to the evidence which the complainant intends to offer at the hearing.

It is clear that it has been the consistent intention of the complainant to charge the respondent with violations involving an excavation and not a trench. The respondent is equally consistent in maintaining that a trench is involved and not an excavation. The respondent is not taken by surprise or prejudiced from an amendment of the citation, which charges an excavation violation [29 CFR 1926.651(s)] instead of a trenching violation [29 CFR 1926.651(c)]. In this case prejudice to the respondent is not likely to result from the amendment of the citation which clarifies the ambiguity of the citation as to the number of violations charged (T. 125–126).

Accordingly, the complainant’s amendment of the citation in the complaint is considered a motion to amend, and the motion is granted pursuant to Commission Rule 33(a)(3). The respondent’s related motion to strike is denied.

The respondent admits in the answer that the Commission has jurisdiction in this case, that it is a corporation having employees engaged in construction work, and that its business affects commerce.

No affected employees or authorized representatives of affected employees have made an appearance or asserted party status in this proceeding.

The respondent has filed a brief and a reply brief. The complainant has filed a brief.

DISCUSSION AND FINDINGS

The respondent is charged with violations of standards, [29 CFR 1926.651(c) and 29 CFR 1926.651(s)], that set forth specific excavation requirements. In amending the citation in the complaint, the complainant represents that the amendment is needed to set forth the applicable standard, 29 CFR 1926.651(s), (a specific excavation requirement), in place of the standard, 29 CFR 1926.652(e) cited in the citation, (a specific trenching requirement).

Throughout the hearing, the complainant contended that the alleged violations involved an excavation and submitted evidence for the purpose of supporting this contention.

By objecting in the answer to the amendment of the citation and in contending throughout the hearing that the site of the alleged violations was a trench, the respondent has placed in issue the question as to whether the respondent was charged with violations of standards which were not applicable.

In order to resolve this issue it was necessary to consider and weigh evidence submitted by the complainant and respondent concerning the alleged violations of the excavation standards as charged. As a result the hearing was extended beyond the issue of whether the respondent had been properly cited as to violations of applicable standards.

The submission and consideration of this evidence cannot be the basis for concluding that the respondent consented to try the issue of his alleged failure to comply with the standards cited, or that he consented to try the issue of violations of standards concerned with specific trenching requirements with which he was not charged. Amendment of the pleadings to conform to the evidence submitted at the hearing in accordance with rule 15(b) of the Federal Rules of Civil Procedure will not afford due process in this case.

It is concluded from the credible and substantial evidence that the respondent was not in violation of 29 CFR 1926.651(c) as charged because the sides of this excavation were sloped to an approximate angle of repose as set forth in ‘Table P–1’ of the standards and the three employees in this excavation were not exposed to danger from moving ground (T. 49–64, 131, 135–147, 211–281).

It is also concluded from the credible and substantial evidence that the respondent was not in violation of 29 CFR 1926.651(s) although the Caterpillar front-loader was pushing gravel in the excavation and no substantial stop logs or barricades had been installed. This piece of mobile equipment was pushing the gravel in the trench at a distance of approximately eight feet away from the employees in the trench. There is no evidence to support a finding that this piece of equipment caused, or could have caused, the ground in the excavation to move (T. 288–289). There is no evidence to support a finding that it was possible to have the grade away from the excavation. There is no evidence to support a finding that stop logs or barricades could have been installed at a location adjacent to the excavation which would have made it possible to utilize the Caterpillar front-loader for the purpose of pushing gravel in the excavation (exhibit C–3) or for the purpose of backfilling the excavation (exhibits R–5, R–7, R–9).

But the first issue that must be decided in this case is whether or not the respondent was charged with violating standards applicable to the alleged violations.

In determining the issue of whether the site of the alleged violations was an excavation or a trench, it is necessary to apply the definitions set forth in 29 CFR 1926.653.[13]

It is found that the contours of the site of the alleged violations are fairly depicted in respondent’s exhibit 14. On this cross section the dimensions are given as: width at the top 19 feet, width at the bottom 8 feet, and depth 14 1/2 feet.

The inspector’s testimony concerning the depth of the excavation varied from 12 to 15 1/2 feet. He stated the excavation was approximately 19 feet wide and over 50 feet long (T. 11, 78–81). He did not measure the width at the bottom (T. 30–33). The testimony of the inspector is not clear as to the locations of these dimensions, but apparently he was referring to two different locations in the excavation (T. 84). The complainant argues in favor of the acceptance of the inspector’s estimates of the dimensions of the excavation in the absence of measurements (T. 37–38). Although the complainant objects to respondent’s exhibit 14 as not being based on first-hand knowledge, with two of the measurements taken from the complaint and the third from the testimony of Mr. Lockrem; it is concluded that the testimonies of Mr. Lockrem, Mr. Scruton and Mr. Nurse concerning this exhibit are entirely credible (T. 296–297). Mr. Scruton is an experienced engineer who represented the firm retained by the City of Helena, Montana to inspect the project for conformity with the plans and specifications that the firm had prepared (T. 152, exhibit R–1, T. 246). Mr. Nurse is a consulting engineer with extensive experience (T. 209–210). Mr. Lockrem, who has been in the contracting business in Montana for many years, was present during the excavating and placing of pipe in the trench and was present at the site at the time of the inspection on September 4, 1973 (T. 188, 190–193).

Although a trench is defined in the standards as a narrow excavation, it does not follow that a standard which prescribes a specific excavation requirement may be applied to an alleged violation which involves a trench.

There was considerable discussion at the hearing in this case as to whether the restriction of 15 feet in the width of a trench applied at the top or the bottom of the trench. The complainant contended that the 15 feet restriction in width was applied at the top by OSHA at the time of these alleged violations. The attorney for the complainant stated that he understands this has been changed and since the inspection in this case the 15 feet restriction in width is now applied to the bottom of the trench (T. 23–24, 185–186).

In this case this is not an instance where the standards are unenforceably vague because of this lack of specificity in the definition of a trench.

There can be no dispute with a determination that the excavation in this case is a trench, as contended by the respondent, if the width restriction of 15 feet in the trench definition is applied to the bottom of the excavation. The bottom of the excavation was not more than 8 feet wide with vertical sides extending up to an approximate distance of 4 1/2 feet which then sloped so that the width of the excavation was not greater than 19 feet at the top. With the width measured at the bottom, this excavation was also in accord with the definition of a trench of the Secretary of Labor in that the depth, in general, was greater than the width.

The sloping of the vertical sides of a trench above the 4 1/2 feet level, so that the width at the top exceeds 15 feet, does not require that the trench be reclassified as an excavation. The width at the bottom in this example remains the controlling factor.

The Commission has held that the definition of a term can be clarified by the special technical meaning ascribed in a particular industry. Secretary v. Santa Fe Trail Transportation Co., 5 OSAHRC 840 (1973). The standards which are being considered in this case have been promulgated by the Secretary of Labor as subpart P of Part 1926, which is entitled ‘Safety And Health Regulations For Construction.’

The witnesses Bass, Scruton, Lockrem and Nurse have had long experience in the construction industry, particularly with reference to excavations and trenches. Mr. Scruton and Mr. Nurse, because of their considerable experience as consulting engineers in the construction industry, are particularly well qualified to testify as to the meaning the construction industry ascribes to the definition of an excavation and the definition of a trench. Although there was a reference to the ambiguity of the Secretary’s definition they did agree, and testified in substance, that the site of this alleged violation was a trench.

It is concluded and a finding is made that the violations as alleged by the complainant involved a trench and not an excavation.

It is also determined and findings are made that the cited standards, 29 CFR 1926.651(c) and 29 CFR 1926.651(s), which set forth specific excavation requirements, are not applicable to a trench and the respondent has not violated the cited standards.

CONCLUSIONS OF LAW

1. The respondent, Lloyd C. Lockrem, Inc., was at all times material to this proceeding an employer engaged in business affecting interstate commerce within the meaning of section 3 of the Act.

2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the issues in this proceeding as provided in section 10 of the Act.

3. On September 4, 1973, an inspection was made of the respondent’s worksite in Helena, Montana by an authorized employee of the Secretary of Labor in accordance with the requirements of section 8 of the Act.

4. The respondent was not in violation of 29 CFR 1926.651(c) and 29 CFR 1926.651(s), standards promulgated by the Secretary of Labor; and therefore the respondent was not in violation of section 5(a)(2) of the Act on September 4, 1973, as charged in the amended citation and in the complaint.

ORDER

Based on the foregoing, it is ORDERED:

1. That amended citation number 1 for serious violations issued to the respondent on September 5, 1973, be vacated, and that the complaint served on the respondent on October 2, 1973, be dismissed.

2. That the ‘Notification of Proposed Penalty’, issued to the respondent on September 6, 1973, proposing a penalty of $500 for the serious violations alleged in amended citation number 1, be vacated.

Dated: October 23, 1974

Seattle, Washington

THOMAS J. DONEGAN

Judge, OSAHRC

[1] The petition for discretionary review filed by the Secretary did not challenge the vacation of the alleged violation of § 1926.651(c). The direction for review also limited review to the question of the applicability of § 1926.651(s).

[2] That standard reads:

§ 1926.651 Specific Excavation Requirements.

(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.

[3] That standard reads:

§ 1926.652 Specific Trenching Requirements.

[4] That standard reads:

§ 1926.651 Specific Excavation Requirements.

(s) When mobile equipment is utilized or allowed adjacent to excavations, substantial stop logs or barricades shall be installed. If possible, the grade should be away from the excavation.

[5] The Judge correctly concluded that for purposes of the 15 foot width restriction in § 1926.653(n), the measurement should be taken at the bottom of the cavity. As I pointed out in Sheesly and Winters Constr. Co., No. 6824, 18 OSAHRC 856, BNA 3 OSHC 1340, CCH OSHD para. 19,756 (June 24, 1975),

It is important to note, however, that the width of a trench is to be measured at the bottom. Measuring the width at the top could lead to the absurd result whereby a properly sloped trench would become an excavation, subject to the requirements of the excavation rather than trenching standards. 18 OSAHRC 856, 859 n.8.

The Secretary had originally argued that the measurement should be made at the top of the cavity, but in its brief before the Commission it is conceded that the bottom is the correct place for this measurement.

[6] The front wheels of the front-end loader came as close as 1 ½ feet from the edge of the excavation.

[7] Commissioner Cleary is of the view that an assertion that compliance is impossible due to the nature of the work being performed is, at most, an affirmative defense. Brennan v. O.S.H.R.C. & Underhill Constr. Co., 513 F.2d 1032 (2d Cir. 1975).

[8] As the recently appointed Assistant Secretary of Labor for Occupational Safety and Health told the Senate Labor and Public Welfare Committee on November 11, 1975, ‘the goals of the Act can be achieved only if a standard is clearly expressed in a manner which is comprehensible to employers and employees, encourages voluntary compliance, and is legally enforceable.’ (Emphasis added.)

[9] See Secretary v. Amory Cotton Oil Company, OSAHRC Docket No. 10330, January 6, 1976.

[10] The apparent difference between the amended and the original citation is the consolidation of the alleged serious violations under one item in the amended citation. The same violations are alleged as two items in the original citation which also was issued to the respondent on September 5, 1973.

[11] The original citation, which was issued on September 5, 1973, became a nullity as a result of the issuance of the amended citation to the respondent on the same date. There is only one item in the amended citation and the alleged violations are grouped under this one item.

[12] Complainant’s brief; paragraph 1 at page 2.

[13] (f) ‘Excavation’—Any manmade cavity or depression in the earth’s surface, including its sides, walls, or faces, formed by earth removal and producing unsupported earth conditions by reasons of the excavation. If installed forms or similar structures reduce the depth-to-width relationship, an excavation may become a trench.

(n) ‘Trench’—A narrow excavation made below the surface of the ground. In general, the depth is greater than the width, but the width of a trench is not greater than 15 feet.