UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

December 28, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BY THE COMMISSION:

A decision of Review Commission Judge William J. Risteau, dated December 1, 1975, is before this Commission for review pursuant to 29 U.S.C. § 661(i).

Having examined the record in its entirety, the Commission finds that the Judge properly decided the case and adopts his decision which is attached hereto as Appendix A.1 Accordingly, the Judge’s decision is hereby affirmed.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: DEC 28, 1976

CLEARY, Commissioner, DISSENTING:

I respectfully dissent. First of all, the majority fails to rule upon the Secretary’s exceptions to the Administrative Law Judge’s decision, something plainly required under 5 U.S.C. section 557 when the Commission exercises its discretion to review an Administrative Law Judge’s decision.

More importantly, in my opinion the Secretary proved the violations alleged in the citation and complaint and the Judge’s decision vacating the items of the citation alleging noncompliance with the standards at 29 CFR § 1926.652(e)2 and 29 CFR § 1926.651(i)(1)3 should be reversed.

Respondent, a utilities and grading contractor, was engaged in the installation of an underground waterline when its worksite was inspected. As a result of the inspection, respondent was issued a citation alleging a nonserious violation of the Act for failure to comply with the aforementioned standards.4 Respondent contested the citation and a hearing was held.

At the hearing, the compliance officer who had conducted the inspection was unable to appear and testify because of illness. The evidence of record regarding the dimensions of the trench and the general characteristics of the worksite was derived from the testimony of respondent’s president and its foreman.5 Their testimony is discussed infra, so far as is relevant to each of the alleged violations.

I.

Regarding the alleged noncompliance with § 1926.652(e), the Judge held that: (1) the standard applies only to trenches that are five feet or more in depth, and (2) the record does not establish that the involved trench was of the required depth. The majority upholds these conclusions. I believe that each of them is erroneous.

First, my colleagues err in upholding an interpretation of § 1926.652(e) that reads a depth restriction into the standard. The Judge stated:

[T]he cited regulation makes no reference to depth of trenches to which it applies. Since, however, related provisions [29 CFR 1926.652(b) and (c)] cover trenches only 5 feet or more in depth, 29 CFR 1926.652(e), which deals with precautions ‘additional’ to those provided for in the other paragraphs, must have the same depth limitation as they do.

The observation that the cited standard does not specify any depth restriction is correct. I disagree, however, with the conclusion drawn from this fact.

That paragraphs (b) and (c) of the § 1926.652 trenching standards apply to trenches ‘5 feet or more in depth’ and ‘more than 5 feet in depth,’ respectively, does not mandate that a similar depth restriction be read into § 1926.652(e). In fact, other paragraphs of § 1926.652 specify less restrictive depth restrictions, e.g., § 1926.652(a) (‘Trenches less than 5 feet in depth shall also be effectively protected when examination of the ground indicates hazardous ground movement may be expected’) and § 1926.652(h) (‘When employees are required to be in trenches 4 feet deep or more, an adequate means of exit . . . shall be provided’). It is, therefore, reasonable to conclude that where specific depth limitations were intended to apply, they were expressly included in the standards. Inasmuch as no depth limitation appears in § 1926.652(e), it should be concluded that none was meant to apply.6

The error is compounded by an erroneous interpretation of the term ‘additional precautions’ as used in § 1926.652(e). The interpretation upheld by the majority apparently gives meaning to the term only if some precautionary measure such as shoring or sloping is initially required under §§ 1926.652(b) or (c). Again, in my opinion, the standard has been construed too narrowly.

That trenches less than five feet deep pose potential hazards is evident from standards such as §§ 1926.652(a) and (h), supra. Furthermore, as evidenced by the adoption of § 1926.652(e), the Secretary has determined that trenches or excavations pose a greater hazard of collapse when they are dug adjacent to backfilled areas or are subject to vibrations. This increased likelihood of collapse is not limited to trenches that are five feet or more in depth. Therefore, although a trench may be shallower than five feet and would not usually require shoring or bracing, where an increased danger of collapse exists due to the presence of backfill or vibrations, it is required that precautionary measures be taken.

When viewed in this manner, the precautionary measures that § 1926.652(e) requires are, indeed, ‘additional precautions.’ I submit that this approach, and not that adopted by the majority, gives effect to the underlying purposes of the standards and the Act.

Assuming arguendo that the standard does apply only to trenches and excavations that are at least five feet deep, there is persuasive evidence indicating that a portion of the involved trench was of the required depth. On this issue, respondent’s president testified on direct examination by the Secretary as follows:

SECRETARY: Q. How deep was this trench?

RESPONDENT: A. Oh, it was between four and five feet, a little more. In the neighborhood—I didn’t measure it.

SECRETARY: Q. Was it the same depth the entire length?

RESPONDENT: A. No. It got deeper as you go back to the old waterline.

SECRETARY: Q. What was the deepest—what was the depth around the old waterline?

RESPONDENT: A. I would have to guess somewhat near six feet (emphasis added).

This admission provides much probative force for concluding that a portion of the trench was at least 5 feet in depth. Contrary to the Judge’s suggestion, although precise measurements may be highly desirable, their absence does not require dismissal of a citation. As was stated in Stephenson Enterprises, Inc., 4 BNA OSHC 1702, 1976–77 CCH OSHD para. 21,120 (No. 5873, 1976), ‘Estimations of distance based on observations are admissible and may be dispositive in the absence of proof to the contrary. Fed. R. Evid. 701.’

  The record shows that a portion of the trench was dug in a backfilled area and that the trench was subject to vibrations from machinery and traffic. It is undisputed that the trench was neither shored nor braced and there is no question that respondent’s employees had access to this hazardous condition. As illustrated above, the evidence shows that portions of the trench were deeper than 5 feet. Therefore, even under the majority’s narrow view, a violation was established and the citation should be affirmed.

II.

The majority has also affirmed the Judge’s vacation of the citation alleging noncompliance with § 1926.651(i)(1).7 The Judge concluded that this alleged violation also involves a measurable distance and that the evidence of record was inconclusive as to how far the excavated material was stored and retained from the edge of the trench. I believe that the evidence shows that respondent failed to comply with the standard.

The standard requires that ‘excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge’ (emphasis added). Respondent’s foreman testified that a ‘spoils bank’ was located on the east side of the trench. He estimated the spoils bank to be about three feet high and about six to eight feet wide. His testimony regarding its proximity to the edge of the trench was as follows: Direct examination:

SECRETARY: Q. Now, how far from the edge of the trench was the spoils bank?

FOREMAN: A. I don’t know; two feet, probably.

SECRETAR: Q. Could it have been less than two feet?

FOREMAN: A. Some of it could have been.

Cross examination:

RESPONDENT: Q. Now, Mr. Everheart asked you if the spoils bank could have been closer than two feet to the edge of the trench. Could it have been farther back than two feet from the edge of that trench?

FOREMAN: A. The top of it was. You know now you throw it back and it slopes down.

Redirect examination:

SECRETARY: Q. Mr. O’Bannion, you would have, at certain areas you would have on this spoils bank you would have a slope from the spoils bank up to the level? Was that the way it was?

FOREMAN: A. Yes, sir.

SECRETARY: Q. So the lower part of the slope of the spoils bank was on the edge of the trench, wasn’t it?

FOREMAN: A. Not right on the edge, no.

SECRETARY: Q. Right next to the edge?

FOREMAN: A. Yeah.

SECRETARY: Q. Less than two feet?

FOREMAN: A. You could walk along up there (emphasis added).

Furthermore, photographs of the trench were entered into evidence. Regarding these pictures respondent’s soil expert testified as follows on direct examination:

RESPONDENT: Q. Now, on prosecution’s Exhibits C–1 and C–2, you can see what the prosecution claims is a spoils bank on the east side of the trench . . .

Can you determine, from just those pictures, whether or not that is a spoils bank or whether that is loose material?

WITNESS: A. Well, from these pictures, of course, you can’t tell the exact location or height or width of the spoils bank. You can tell there is some loose material at the edge of the ditch. But there is no significant depth to it . . . (emphasis added).

This testimony clearly shows that there was excavated material closer than two feet to the edge of the trench. The actual amount of such material, however, is unclear. The Secretary argues that ‘as long as material is located within two feet of the trench, even though it is an insignificant amount, a violative condition exists.’ I agree. If, however, the amount of excavated material stored closer than two feet to the edge of the trench is so insignificant as to pose a hazard that is merely trifling, the violation should be classified as de minimis. Pana Shoe Corp., 4 BNA OSHC 1635, 1976–77 CCH OSHD para. 21,033 (No. 5656, 1976).

APPENDIX A

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

December 1, 1975

DECISION AND ORDER

Appearances:

William E. Everheart, Esq., of Dallas, Texas, for the Secretary of Labor

Mr. Michael Seney, Association of Oklahoma General Contractors, Tulsa, Oklahoma, for the Respondent

Mr. Kenneth Newman, Oklahoma Municipal Contractors Association, Tulsa, Oklahoma, for the Respondent

Risteau, Judge:

This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter called the Act), in which the respondent contests a citation issued by the complainant pursuant to section 9(a) of the Act. The citation, which was issued on March 4, 1975, alleges that as the result of an inspection on February 11, 1975, of a workplace under the ownership, operation or control of the respondent, located at East 61st Street and Maplewood, Tulsa, Oklahoma, and described as: ‘Installation of water line,’ respondent violated Section 5(a)(2) of the Act in the following manner:

NONSERIOUS VIOLATION8

Item No. Standard

Description of Alleged Violation

2A 29 CFR 1926.651(i)(1)

In excavations which employees were required to enter, excavated or other material was not effectively stored and retained at least 2 feet or more from the edge of the excavation; i.e., the spoil bank located along the east side of the trench.

2b 29 CFR 1926.652(e)

additional precautions by way of shoring and bracing were not taken to prevent slides or cave-ins when excavations or trenches were made in locations adjacent to backfilled excavations, or where excations (sic) are subjected to vibrations from railroad or highway traffic, the operation of machinery, or any other source.

The cited standards provide:

Standard

1926.651(i)(1)

In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.

1926.652(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.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, respondent was notified on March 4, 1975, by J. T. Knorpp, Director of Area 4780, Occupational Safety and Health Administration (OSHA), United States Department of Labor, of the following proposed penalty for the alleged violation:

NO. SERIOUS VIOLATION: Item 2 $110

After the filing of a Notice of Contest, Complaint, and Answer, the case came on for hearing at Tulsa, Oklahoma, on August 15, 1975.

DISCUSSION

On February 11, 1975, employees of respondent were digging a trench and installing an underground water line near the intersection of East 61st Street and Maplewood in Tulsa, Oklahoma. The dimensions of the trench, as given by respondent’s President, who testified for complainant and gave the only evidence on the point, are not entirely clear, since they were not measured and were based on guess or estimate. For discussion purposes it will be considered that the length was approximately 10 to 12 feet; the width varied from 3 to 5 feet at the top and was about 3 feet at the bottom. The depth was ‘in the neighborhood’ of 4 to 5 feet, sloping to ‘somewhat near’ 6 feet (Tr. 17–20).9 The ends of the trench were sloped, that on the deeper end at an angle which would permit entry by walking (Tr. 31).

Item 2b of the Citation

Unlike other provisions of the trenching regulations, which deal with soils having specified physical characteristics,10 29 CFR 1926.652(e) makes no reference to the character of the soil in which the trench is dug, with the exception of a broader reference to adjacent backfilled areas. Accordingly, complainant confined proof of soil character and stability to the fact that the deeper end of the trench was dug in backfill (Tr. 16–17, 19, 33). To complete the prima facie case, complainant adduced testimony that respondent’s employees had worked in the trench (Tr. 21), that the trench walls were not shored or braced (Tr. 37; Ex. C 1–C 2), and that motor vehicles which might create vibrations were operating in the vicinity (Tr. 16, 21–22).

Several difficulties arise in the application of these facts to the alleged violation. First, the cited regulation makes no reference to depth of trenches to which it applies. Since, however, related provisions [29 CFR 1926.652(b) and (c)] cover only trenches 5 feet or more in depth, 29 CFR 1926.652(e), which deals with precautions ‘additional’ to those provided for in the other paragraphs, must have the same depth limitations as they do.

The record here does not, however, establish that the trench under consideration was more than 5 feet deep. All of the ‘estimates’ and ‘guesses’ as to depth, from ‘between four and five feet‘ to ‘somewhat near six feet’ are in a borderline violation range. The normal difficulties in evaluating the validity of subjective observations on such a close question is here compounded by the fact that the floor of the trench was not horizontal and the further fact that the ends sloped into the bottom at different angles. Moreover, the witness judged the depth of the deeper end by the fact that the pipe would have to clear the top of a perpendicular water line laid some years before at a nominal depth of 6 feet. Application of this criterion would appear to involve little more than speculation, particularly when the witness stated that ‘. . . we had to uncover the old water line in order to find out how deep it was’ (Tr. 19).

In like situations the Judges of this Commission have found it appropriate to dismiss charges under the trenching regulations because accurate and objective measurements were not made. See: Secretary v. Hawkins & Dettor, Inc., 6 OSAHRC 502, 507 (1974); Secretary v. Protection Sprinkler Co., 12 OSAHRC 421, 427–428 (1975); Secretary v. Charles Cohen, Inc., 18 OSAHRC 881 (1975). Similar action on Item 2b is warranted here.

Item 2A of the Citation

The regulation cited in this Item again does not refer to the physical characteristics or stability of the soil in which an excavation or trench was dug.114 It was incumbent on complainant, therefore, to prove only that respondent’s employees were required to go beneath ground level and that the material which had been dug out (the spoil bank) was not effectively stored and retained at least 2 feet from the edge of dug out area.

Here again part of this proof deals with a measurable distance, and again complainant has failed to meet his burden. Respondent’s job foreman, called by complainant as a witness, gave the only evidence as to the distance of the spoil bank from the edge of the excavation. He was asked: (Tr. 37)

Q Now, how far from the edge of the trench was the spoil bank?

A I don’t know; two foot, probably.

Q Could it have been less than two foot?

A Some of it could have been.

and again: (Tr. 43)

Q So the lower part of the spoil bank was on the edge of the trench, wasn’t it?

A Not right on the edge, no.

Q Right next to the edge?

A Yeah.

Q Less than two feet?

A You could walk up there.

This testimony, upon which complainant must rely heavily, is inconclusive. Moreover, the photographic evidence (Ex. C 1 and C 2) is similarly inconclusive. Consequently, no violation of Item 2A has been proven.

FINDINGS OF FACT

1. On February 11, 1975, employees of respondent were engaged in the installation of an underground water line near the intersection of East 61st Street and Maplewood, in Tulsa, Oklahoma; the work to be performed included the digging of a trench or excavation.

2. Evidence received at the hearing does not establish that the trench or excavation referred to in Finding 1, above, was more than 5 feet in depth.

3. Evidence received at the hearing does not establish that soil removed from the excavation (the spoil bank) was stored or retained less than 2 feet from the edge of the excavation.

4. Respondent has admitted the facts underlying a nonserious violation of 29 CFR 1926.100(a), as charged in the citation, and the propriety of the proposed $25 penalty.

5. Respondent has admitted that this Commission and its Judges have jurisdiction over the parties and issues raised by the citation.

CONCLUSIONS OF LAW

1. This Commission and its Judges have jurisdiction to hear and decide this case.

2. Respondent was, on February 11, 1975, in nonserious violation of 29 CFR 1926.100(a), a Regulation promulgated by the Secretary of Labor pursuant to the Occupational Safety and Health Act of 1970; a penalty of $25 is proper for such violation.

3. Respondent was not, on February 11, 1975, in violation of 29 CFR 1926.651(i)(1) and 29 CFR 1926.652(e), regulations promulgated by the Secretary under the Act.

ORDER

On the foregoing Findings of fact, Conclusions of Law, and the entire record, it is hereby ORDERED that:

1. Item 1 of the citation issued on March 4, 1975, and the proposed penalty of $25 be AFFIRMED.

2. Items 2A and 2b of the same citation be dismissed and the proposed $110 penalty vacated.

WILLIAM J. RISTEAU

ADMINISTRATIVE LAW JUDGE

December 1, 1975

1 Chairman Barnako does not agree to this attachment.

2 The standards reads:

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.

3 The standard reads:

In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.

4 The citation also alleged a failure to comply with § 1926.100(a). Respondent admitted this violation at the hearing and a $25 penalty was assessed by the Judge.

5 Two other witnesses also testified at the hearing. Respondent called a civil engineer to testify as to the soil characteristics in the area of the worksite. The Secretary called the compliance officer’s supervisor who testified regarding the penalty assessment criteria.

6 It should also be noted that in the definition of the term ‘trench’ appearing at § 1926.653(n), no minimum depth is stated, although a width restriction is set forth. The definition provides:

‘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.

7 See N. 3, supra. Although classified as a ‘specific excavation requirement,’ this standard is also applicable to trenches. Dobson Bros. Constr. Co., 3 BNA OSHC 2035, 1975–76 CCH OSHD para. 20,429 (No. 3847, 1976).

8 At the hearing respondent admitted to Item 1 of the Citation charging a violation of 29 CFR 1926.100(a) for which a penalty of $25 was proposed.

9 Complainant’s brief (P.2) treats this testimony as admission or agreement by respondent that part of the trench was more than 5 feet deep. This position is untenable, in the eyes of the undersigned. The gist of the testimony on the depth question, as discussed in the body of this decision, is that witness did not know or was not sure of the facts. Moreover, the record fails to show that the witness was hostile or not telling the truth.

10 29 CFR 1926.652(b) applies to ‘unstable or soft’ soils; 29 CFR 1926.652(c) covers those which are ‘hard or compact’.

11 Under applicable regulations, [29 CFR 1926.653(f)] a trench is also an excavation; although the language of Items 2A and 2b differs, both Items refer to the same cavity in the earth’s surface.