SECRETARY OF LABOR,
Complainant,

v.

B.G. DANIS COMPANY,
Respondent.

OSHRC Docket No. 80-6933

_DECISION_

Before:  BUCKLEY, Chairman; and CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  The Commission is
an adjudicatory agency, independent of the Department of Labor and the
Occupational Safety and Health Administration ("OSHA").  It was
established to resolve disputes arising out of enforcement actions
brought by the Secretary of Labor under the Act and has no regulatory
functions.  _See_ section 10(c) of the Act, 29 U.S.C. § 659(c).

The issue on review is whether B.G. Danis Company violated the trenching
standard at 29 C.F.R. § 1926.652(b).[[1]] Administrative Law Judge Paul
L. Brady found that a violation was not established and vacated the
citation.  For the reasons stated below, Chairman Buckley and
Commissioner Cleary disagree on whether the judge's decision should be
affirmed. [[2]]

I

A compliance officer from OSHA inspected Danis's excavation of a trench
in Trenton, Ohio, and observed three employees working in the trench. 
He examined the soil in the trench and determined that it was composed
of sand and gravel.  He concluded that the soil was soft and unstable
because it was composed partly of sand and because he saw soil slough
off the trench wall.  On the same day as the OSHA inspection, soil
samples were taken from the trench at Danis's direction by Bowser-Morner
Testing Laboratories.[[3]]  Bowser-Morner's report stated the soil was
composed of sand and gravel with traces of silt, though the percentages
of these components were not stated. [[4]]  Approximately one to two
months after the inspection, Danis arranged to have further sampling
done by Geotechnical Consultants, Inc.  This sampling was done by Daniel
Longo, a professional soils engineer and president of Geotechnical
Consultants.   Longo stated that he attempted "to reconstruct some of
the conditions" that existed during the inspection by using a backhoe to
excavate the soil at the original trench site to a depth of five feet. 
Longo's samples showed that the soil taken 10 feet west of the trench's
center line was 50 percent sand and 50 percent gravel and that soil
taken eight feet east of this line was 50-60 percent sand, 25 percent
gravel and approximately 15 percent silt and clay.

Bowser-Morner and Geotechnical both performed angle of repose tests on
the soil from the area of the excavation.[[5]]  Two samples tested by
Bowser-Morner showed that the soil's angle of repose was between 41 and
45 degrees.  Based on Geotechnical's tests, Longo stated that the angle
of repose was "something like" 51 degrees and that on Table P-1 it would
be between 45 and 63 degrees.  Longo also stated that he had "[n]o
reason to disagree" with the Bowser-Morner report.

During his inspection, the compliance officer measured various
dimensions of the trench without entering it.  To obtain width
estimates, he extended a tape measure across the trench at a location 20
to 30 feet away from where employees were working.  He then estimated
that where the employees were working the trench was 19 1/2 feet wide at
the top and 9 feet wide at the bottom and that the horizontal components
of the slopes of the east and west walls were 6 and 4 1/2 feet respectively.

Danis's foreman, Bobby Slone, disputed the compliance officer's width
measurement, stating that his estimated measurements showed that the
trench was 28 to 30 feet wide at the top.   Employees who had worked in
the trench also disagreed with the compliance officer and contended that
the trench was 5-6 feet wide at the bottom.  The employees who worked in
the trench assisted the backhoe operator in lowering each pipe section
to the completely excavated trench bottom and sealed the end of the
section to the preceding pipe section.  After the pipe section is
installed, the backhoe dumps soil around the pipe to "cradle" it in
position.

The compliance officer determined that the depth of the trench was 9
feet 2 inches from a measurement made by the employees with a depth
stick.  The compliance officer, however, noted that this measurement
would "fluctuate a couple of inches depending on where you're going to
measure it."  Danis's employees agreed that the trench was approximately
nine feet deep.  The compliance officer also measured each trench wall
from the top of the trench to the "toe," _i.e_., the point where the
wall met the bottom of the trench.  These distances were measured with a
tape measure at the part of the trench where employees were working. 
These measurements showed that the sloped east wall was 12 feet 4 inches
from top to "toe" and the west wall was 10 feet 8 inches.

Based on his estimates of the dimensions of the trench made from a
distance of 20-30 feet from where employees were working, the compliance
officer concluded that the slope of the east wall was approximately 56
degrees and that the slope of the west wall was approximately 63
degrees.  In the compliance officer's view, the trench was inadequately
sloped and posed an imminent danger to Danis's employees.  He asked
Danis's supervisor to remove the employees from the trench and slope the
walls to 33 degrees, which he considered appropriate for the soil
involved.  Danis complied with this request.

Employees of Danis working at the trench site testified that the slope
of the trench was not as steep as the compliance officer claimed. 
Danis's project manager, Parrish, who had a degree in civil engineering
and who had studied soil mechanics, testified that the slope was about
45 degrees.  In Parrish's view, the "toe" of each trench wall was
farther from the top of the wall than the compliance officer asserted.  
Parrish also noted that the toe of each trench wall was "rais[ed]" when
soil was returned to the trench to "cradle" the installed pipe.  Based
on his later excavation of the trench site, Longo estimated that the
trench walls were sloped between 45 and 33 degrees.  He also stated that
the slope was approximately 39 degrees but "was not accurately defined."

The record also contains extensive testimony from soil expert Longo and
from Danis's witnesses on the composition of the soil and the stability
of the trench walls.  Longo testified from his examination of the soil
that it was compact sand and gravel and was "very stable".  After
reviewing photographs of the trench, he also stated that the trench
walls were "stable."  Danis's project manager, Parrish, stated that the
material in the trench was "hard and compact" granular soil composed of
sand and gravel.  According to Parrish, the soil was sloped to its angle
of repose which, in his view, was the angle at which "the soil will
support itself."  Danis's foreman, Slone, who had worked in trenches for
15 years in many types of soil, testified that the trench was dug in
undisturbed, "compacted" virgin soil and that it was safe.  Parrish and
Slone also noted that the stability of this trench was increased because
it had been "benched," _i.e_., approximately 3-4 feet of top soil, which
was less stable than the underlying soil, had been removed before the
trench was excavated.  An employee who worked in the trench, Blondell
Goosey, who had 20-years experience in trenching, stated that the trench
had "real good walls" and that he considered it safe.  Parrish, Slone,
and Goosey also testified that vibrations from a tamper being used
nearby knocked a small amount of soil into the trench.  Slone also noted
that sloughing occurred even after the trench was sloped to the angle
requested by the compliance officer.

II

The judge vacated the citation.  He rejected the Secretary's assertion
that _Duane Meyer d/b/a D.T. Construction Co_., 79 OSAHRC 57/D4, 7 BNA
OSHC 1560, 1979 CCH OSHD ¶ 23,742 (No. 16029, 1979), in which the
Commission held that "predominately sandy soils" are presumed to be
"soft or unstable" within the meaning of section 1926.652(b), was
controlling.  The judge determined that, although sand was present in
the soil at the excavation here, the record did not show that this soil
was "predominately sandy."  He concluded that the soil, therefore, could
not be considered "soft or unstable" under the _Duane Meyer_
presumption.   Even if the soil were presumed to be "soft or unstable,"
the judge alternatively determined that the presumption was rebutted by
the testimony of Longo, who, the judge noted, was "the only expert on
soils to testify in this case," and who stated that the soil in the
excavation was "very stable."  The judge further reasoned that, even if
the soil were irrebuttably considered soft or unstable, a violation was
not proven because the recommended angle of repose for the soil in
question "[was] not listed in Table P-1 and it [was] not shown that the
sides of the trench were improperly sloped for the material."  The judge
determined that the soil was compact and cohesive and that the unrefuted
evidence "reveals that a slope with a ratio of approximately 1 to 1 [45
degrees] is adequate for the soil involved."  Although he did not enter
findings as to the dimensions or slope of the trench, he determined that
"[t]he sides of the trench were adequately sloped to protect the
employees working in the trench."

III

On review, the Secretary contends that a violation was proven because
Danis's trench was dug in soft and unstable soil and was inadequately
sloped.  The Secretary cites _Connecticut Natural Gas Corp_., 78 OSAHRC
60/B3, 6 BNA OSHC 1796, 1978 CCH OSHD ¶ 22,874 (No. 13964, 1978), for
the proposition that soils listed in Table P-1 as having an angle of
repose less steep than 63 degrees must be considered soft or unstable
since the slope required for hard and compact soil under section
1926.652(c) is 63 degrees.  Because the angle of repose tests show that
the appropriate angle of repose for the soil in question was between 41
degrees and 50 degrees, the Secretary concludes that the soil must be
considered "soft or unstable" under _Connecticut Natural Gas_. The
Secretary further asserts that the _Duane Meyer_ presumption that
predominately sandy soils, unless cemented, are soft or unstable was not
rebutted because sand was the predominant component of the soil and
because soil with an angle of repose less than 63 degrees must be
considered soft or unstable "as a matter of law."

The Secretary also argues that section 1926.652(b) required a slope of
45 degrees for the walls of Danis's Trench.  According to the Secretary,
the compliance officer's measurements are more accurate than the
measurements advanced by Danis and establish that the trench was not
sloped to this angle.  In the Secretary's view, the judge erred by
failing to explain why he credited the testimony of Danis's witnesses as
to the dimensions and slope of the trench over that of the compliance
officer.  Finally, the Secretary submits that the violation was willful
because Danis failed to slope the trench walls to a less steep angle
after the representative of the Ohio Industrial Commission informed
Danis's foreman that the sloping of the trench walls was inadequate.

Danis argues that the judge's disposition was correct.  The soil in the
trench walls is not listed in Table P-1, since it was not sand but a
mixture of sand, gravel and silt, and one sample showed the presence of
clay.  Therefore, Danis argues, the judge correctly found that the
_Duane Meyer_ presumption does not apply to this soil.  Even if it did,
however, the presumption was rebutted by the expert testimony as to the
angle of repose of the soil samples and the on-the-scene observations of
Danis's experienced employees.  Danis asserts that the trench was not
only sloped adequately for the type of soil, but it was also "benched"
for extra stability.  Danis claims that the compliance officer's
measurements were taken not where its employees were actually working in
the trench but rather were made near the end of the trench in a location
where excavation had not yet been completed.  Therefore, it contends
that the judge correctly rejected the compliance officer's measurements.

IV

Chairman Buckley would affirm the judge's decision.  Section 1926.652(b)
states in part that the "[s]ides of trenches in unstable or soft
material, 5 feet or more in depth, shall be shored, sheeted, braced [or]
sloped . . . to protect the employees working within them."  To prove a
violation of section 1926.652(b), the Secretary therefore must prove
that an employer's trench was dug in "unstable or soft material" and
that it had not been "shored, sheeted, braced [or] sloped . . . to
protect the employees working within [it]."  Neither of these facts was
established.

The Secretary maintains for two reasons that Danis's trench was dug in
"unstable or soft material":  first, the angle, of repose of this soil
was less than 63 degrees and thus "unstable or soft" as "a matter of
law" under _Connecticut Natural Gas_; and second, the soil was
"predominately sandy" and, therefore, presumed to be "unstable or soft"
under _Duane Meyer_.  Chairman Buckley finds both of these arguments are
without merit.  In _Connecticut Natural Gas_, the Commission stated
"that those materials _listed in Table P-1_ as having a less steep angle
of repose [than 63 degrees] must be considered soft or unstable, and are
therefore regulated by § 1926.652(b)."  6 BNA OSHC 1799, 1978 CCH OSHD
at p. 27,668 (emphasis supplied).  The soil in Danis's trench was
composed of sand and gravel in roughly equal proportions with some
silt.  As the judge observed, this material is _not_ listed in Table
P-1. Accordingly, this soil is not unstable or soft as a matter of law
under _Connecticut Natural Gas_.  Moreover, the presumption created in
_Duane Meyer_ that "predominately sandy" soils are soft or unstable is a
rebuttable presumption.  The judge found that this presumption was
rebutted by the testimony of the soil expert Longo.  Chairman Buckley
agrees with this finding and notes that the extensive testimony of
Danis's experienced employees that this trench was stable or safe,
discussed immediately below, is consistent with that of the soil expert
and rebuts any presumption of instability that may be drawn in this case.

The Chairman also finds insufficient evidence that the walls of this
trench were not sloped "to protect the employees working within them" as
required by the standard.  The judge found that "[t]he sides of the
trench were adequately sloped to protect the employees working in the
trench."  This finding is well supported in the record.  Soil expert
Longo testified that the material in the trench was compact and "very
stable."  Danis's project manager, Parrish, an engineer who had studied
soil mechanics, stated that the soil was "hard and compact."  He also
stated that the sides of the trench were sloped to the angle at which
"the soil will support itself."[[6]] Danis employees Slone and Goosey,
both of whom had extensive trenching experience, stated that the trench
was adequately sloped and considered it safe.  The stability of this
trench also was enhanced by the initial "benching" operation, which
involved the removal of 3-4 feet of top soil from the excavation site. 
Indeed, the only evidence that this trench was unsafe was the opinion
testimony of the compliance officer, whose training and experience, when
compared to the witnesses mentioned above, can best be described as
limited.[[7]]   Based on the testimony of Danis's better-trained and
more-experienced witnesses, Chairman Buckley would conclude that the
judge correctly found that this trench met the standard's requirement
than walls be sloped "to protect employees working within them."

The muddled evidence on which the Secretary relies concerning sloping
and angle of repose does not show that the walls were inadequately
sloped.  To prove his case the Secretary must show what the proper angle
of the slope should be for the soil in the trench and that the trench
was not sloped to this angle.  Section 1926.653(b) defines a soil's
"angle of repose" as "[t]he greatest angle above the horizontal plane at
which a material will lie without sliding."  It is clear from the title
of Table P-1, "_Approximate_ Angle Of Repose For Sloping Of Sides Of
Excavations" (emphasis supplied) and from the testimony of the soil
expert, Longo, that any given angle of repose is only an approximation
of the angle at which it will lie without sliding.  It is also clear
from the unrebutted testimony of Longo that the angle of repose test is
"very unsophisticated" and yields only an "approximation" of the angle
of repose.  In fact, as Longo observed, the angle of repose of soil in
its natural state would be 5 to 10% higher than the angle of repose
determined in a lab.  In sum, an angle of repose test yields little more
than a general range of appropriate slopes .[[8]]

This record contains five different estimates of the angle of repose for
the soil in Danis's trench.  During his inspection and later at the
hearing, the compliance officer stated that the walls should have been
sloped to 33 degrees.  On review, the Secretary contends that, "[f]or
purposes of this case the Secretary will assume that a 1:1 [45 degree]
slope would have been adequate."  The Bowser-Morner laboratory angle of
repose tests show that the angle of repose was 41 or 45 degrees and that
this would be 10% higher in the field:  45 to 50 degrees.  Longo stated
that Geotechnical's laboratory results showed that the angle of repose
was approximately 51 degrees, which would be approximately 10% higher in
the field or 56 degrees.  Longo also stated that the angle of repose of
this soil was between 45 and 63 degrees.

The Secretary argues on review that the appropriate angle of repose for
this soil is 45 degrees.  In view of this and the lack of evidence that
the compliance officer tested this soil or was qualified to estimate a
soil's angle of repose from visual observation, the Chairman would
accord no weight to his 33 degree estimate.  The remaining estimates,
which are based on laboratory tests and expert opinion, show that the
angle of repose was in the range of 45 to 63 degrees.   As adjusted for
field conditions, the Bowser-Morner test shows the angle of repose was
45 or 50 degrees.  The Geotechnical test shows that this angle was 56
degrees. Longo's estimate that the angle of repose was between 45 and 63
degrees also stands unrebutted.  Chairman Buckley finds no principled
basis in this record for selecting one of these estimates as the
appropriate angle of repose for the soil in Danis's trench. Given the
state of this record, the only finding that may be entered as to this
soil's angle of repose is that this angle was somewhere in the range of
45 to 63 degrees.

The evidence on the slopes of the trench walls is similarly uncertain. 
The compliance officer made an estimate, based on measurements he took
at the site, that the slope was approximately 63 degrees.[[9]]   Danis's
project manager testified that the slope was approximately 45 degrees,
while Goosey, the pipelayer who was in the trench, testified that the
slope was "a little better than 1:1 [_i.e_., less steep than 45 degrees]
because when the pipes were put in, I could walk right up the side of
the bank.  I never used the ladder."  Longo testified that his tests
determined that the slope was "between 1:1 [45 degrees] and 1-1/2:1 [33
degrees].  There was nothing sharper than 1:1."  Given this disparity in
estimates, Chairman Buckley would not disturb the judge's finding that
the trench was sloped adequately to satisfy even the Secretary's claim
that a 45 degree slope was necessary.

The Secretary's claim of a violation hinges on the testimony of the
compliance officer and on the disputed measurements made by him at the
site.  There is considerable conflict in the record as to the width of
the trench at both top and bottom.  The compliance officer testified
that one spot in the trench was measured as having a depth of 9 feet 2
inches.  It is generally agreed that this trench was approximately 9
feet deep.  The compliance officer testified that the length of the east
wall of the trench from top to toe in one area where the employees
worked was 12 feet 4 inches and that a comparable measurement along the
west wall was 10 feet 8 inches.  By applying trigonometry to these
dimensions, the slope of the east wall is calculated to be 46 degrees
and the slope of the west wall to be 57 degrees.  In the Chairman's
view, the slopes obtained by this trigonometric determination may be
somewhat more reliable than the conflicting figures advanced by the
parties, which are based on guesswork and estimations.   Yet these
trigonometrically-determined slopes are not sufficiently reliable to
support a finding as to the actual slope of Danis's trench on the day of
the inspection.

First, it is clear that if the compliance officer's depth and wall
measurements are taken as correct, the trench would be almost 23 feet
wide at the top and not 19 1/2 feet as the compliance officer claimed. 
The Chairman finds that this internal inconsistency in the Secretary's
figures casts doubt on the accuracy of the compliance officer's
measurements.

Second, to measure or calculate slopes of a trench, one must assume only
the best of circumstances, _i.e_., that the terrain was perfectly level
and that the dimensions of a relatively large trench were measured with
accuracy down to the inch.  Unlike certain material--such as
lumber--mounds of dirt do not lend themselves to precise measurement.  A
failure to align a tape measure precisely at the top of a trench
wall--if such a sharply demarcated point exists--or the presence of a
clod of earth or a stone at the end of the tape measure on the bottom of
the trench could result in a measurement that is inaccurate by several
inches.

Third, the photographic exhibits here clearly show that the bottom of
the trench wall was not sharply defined and it can fairly be said that
measurement of the top to "toe" distance could vary by as much as two
feet depending on what point is considered the "toe" of the trench. 
Indeed, project manager Parrish considered the "toe" of each trench wall
to be farther down the trench wall than the point urged by the Secretary
at the hearing.  Yet, a deviation of eight inches in the compliance
officer's measurement of the height and fifteen inches in his
measurement of the steepest sloped side of the trench would yield a
slope that would be appropriate under the 45 degree angle of repose that
the Secretary deems adequate for this soil.  Given the accumulated
uncertainties in the record and the disputed dimensions of the trench,
Chairman Buckley concludes that a finding that the slope of this trench
exceeded 45 degrees cannot be supported on this record.  The Secretary
has not carried his burden of proving that the actual slope at this site
exceeded his own estimate of a safe angle.

In sum, the Chairman would credit the extensive testimony from
experienced employees that the trench walls were stable and agree with
the judge's holding that the walls of Danis's trench were sloped to
"protect employees working within them," as required by the standard. 
The Chairman further concludes that the citation must be vacated because
the Secretary failed to establish by a preponderance of the evidence
that the walls of the trench were not sloped to the appropriate angle of
repose.  Accordingly, Chairman Buckley would affirm the judge's decision.

Commissioner Cleary would reverse the judge's vacation of the citation,
and would find that the soil in Danis's trench was soft or unstable
within the meaning of section 1926.652(b).  The trenching standard at 29
C.F.R. § 1926.652 compels the conclusion that this soil was soft and
unstable.  Under 29 C.F.R. § 1926.652, soil is classified as either soft
or unstable, 29 C.F.R. § 652(b), or hard and compact, 29 C.F.R. §
652(c).[[10]]  _CCI, Inc_., 80 OSAHRC 127/D4, 9 BNA OSHC 1169, 1173,
1981 CCH OSHD ¶ 25,091, p. 30,993 (No. 76-1228, 1980), _aff'd_, 688 F.2d
88 (10th Cir. 1982).  Since the slope allowed for hard and compact soil
under section 1926.652(c) is 63 degrees, soil with an angle of repose of
less than 63 degrees must be soft or unstable.

The Bowser-Morner test results, which were not questioned by Danis's
soil expert, Longo, show that the angle of repose for the soil in
Danis's trench was between 41 and 45 degrees.  Since the angle of repose
of this soil is less than 63 degrees, the regulatory framework
established by the trenching standard compels the conclusion that is was
unstable.[[11]]  This is borne out by Table P-1. The table states that
the angle of repose for "compacted angular gravel" is 63 degrees and
that the angle of repose for "compacted sharp sand" is 33 degrees.
 Based on its angle of repose, soil composed entirely of "compacted
angular gravel" therefore would be considered "hard or compact."  The
soil in Danis's trench, however, was approximately 50 percent gravel and
50 percent sand with a percentage of sand possibly as high as 60
percent.  Since this soil contained only 50 percent gravel with an equal
if not greater percentage of unstable sand, its angle of repose would be
less than the 63 degree angle considered appropriate for homogeneous
"compacted angular gravel."  Accordingly, Commissioner Cleary would find
that the soil in Danis's trench was "unstable or soft" under the
trenching standard.

Commissioner Cleary considers the testimony of Danis's expert and
employees that the trench was "stable" or safe to be beside the point. 
This testimony amounts to a challenge to the wisdom of the standard,
which the Commission will not decide.  The Commission is not in a
position to re-write the standard.  _See_ _Heath & Stich, Inc_., 80
OSAHRC 65/E12, 8 BNA OSHC 1640, 1643, 1980 CCH OSHD ¶ 24,580, p. 30,152
(No. 14188, 1980)(employer impermissibly challenged wisdom of standard
by arguing that hard and compact soil was "so stable" that trench need
not comply with section 1926.652(c)).  The stability of trenches is not
to be measured on the basis of employees' beliefs.  The cases decided by
this Commission are replete with instances of employee deaths in
trenches they thought to be safe.

Once it is shown that soil is "unstable or soft" within the meaning of
section 1926.652(b), a determination must be made as to whether the
sides were "shored, sheeted, braced, sloped, or otherwise supported by
means of sufficient strength to protect the employees working within
them."  The judge did not specifically determine to what angle the
trench walls were sloped.  Indeed, he never resolved the evidentiary
conflict over the trench's dimensions.[[12]]  In concluding that a
violation was not proven, however, the judge entered the following
conclusion:

Testimony on behalf of [Danis], which is not refuted, reveals that a
slope with a ratio of approximately 1 to 1 [45 degrees] is adequate for
the soil involved.  Thus, improper sloping of the sides of the trench
has not been shown in this case.

In Commissioner Cleary's opinion, the judge's conclusion that "improper
sloping....has not been shown...."cannot be sustained because he did not
determine what the slope of each wall was nor did he explain the basis
for this conclusion.

As Chairman Buckley observes, the slopes of the east and west trench
walls may be calculated using trigonometry.  Commissioner Cleary finds
nothing in this record to suggest that the measurements of the
compliance officer which have been used in making this calculation are
unreliable.  Although Danis's witnesses sharply questioned the
compliance officer's measurement of the trench's width, they did not
take issue with his measurement of the distance of the east and west
walls of this trench nor did they advance contradictory measurements. 
The depth measurement of 9 feet 2 inches also was not disputed and,
indeed, was made by the employees who worked in the trench.  In
calculating the slopes of the trench walls, the proper assumption is
that the depth of this trench was 9 feet 2 inches and not "approximately
9 feet."  Based on the foregoing, the slopes of the east and west walls
may be reliably determined to be 48 and 59 degrees respectively.

To decide whether a violation of section 1926.652(b) was shown, it must
be determined whether sloping of 48 and 59 degrees is appropriate for
soil containing a roughly equal mixture of sand and gravel.  The more
reliable Bowser-Morner angle of repose laboratory tests show that the
angle of repose for this soil is approximately 41 to 45 degrees.  The
judge also found that the appropriate angle of repose was 45 degrees. 
The 48 and 59 degree sloping of the walls of this trench clearly exceeds
this angle of repose.[[13]]

Finally, the applicable standard of proof in Commission proceedings is
the preponderance of the evidence standard.  _Astra_ _Pharmaceutical
Products, Inc_., 81 OSAHRC 79/D10, 9 BNA OSHC 2126, 2131 nn.16 & 17,
1981 CCH OSHD ¶ 25,578, p. 31,901 nn.16 & 17 (No. 78-6247, 1981), _aff'd
in pertinent part and remanded on other grounds_, 681 F.2d 69 (1st Cir.
1982).  A preponderance of evidence is that quantity of proof that
convinces the trier of fact that a fact more likely than not is true. 
_See_ _id_. To conclude that a fact is established by a preponderance of
the evidence, one is "not required to find the facts to an absolute
certainty or even beyond a reasonable doubt, as in a criminal case." 
_Burch v. Reading Co._, 240 F.2d 574, 579 (3d Cir. 1957).  The evidence
shows that it is more likely than not that Danis dug its trench in
unstable soil and that it failed to slope the trench walls to the
appropriate angle of repose.  To conclude otherwise one necessarily must
find that the employees' general assertions as to the safety of the
trench are more reliable than the undisputed measurements made by the
compliance officer.  More significantly, however, such a conclusion may
be reached only by viewing the evidence so skeptically as to require the
Secretary to prove a violation "beyond a reasonable doubt" or to an
"absolute certainty."   This approach is inappropriate in resolving
civil disputes under remedial legislation such as the Occupational
Safety and Health Act.

Under section 12(f) of the Act, 29 U.S.C. § 661(e), official action can
be taken by the Commission with the affirmative vote of at least two
members.  To resolve their impasse, and permit a resolution of this
case, Chairman Buckley and Commissioner Cleary agree to vacate the
direction for review.  _E.g_., _Texaco, Inc_., 80 OSAHRC 74/B1, 8 BNA
OSHC 1758, 1980 CCH OSHD ¶ 24,634 (Nos. 77-3040 & 77-3542, 1980).  The
judge's decision in this case therefore becomes the appealable final
order of the Commission, but is accorded the precedential value of an
unreviewed judge's decision.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  APR 10 1985

------------------------------------------------------------------------


FOOTNOTES:

[[1]] Section 1926.652(b) states as follows:

Sides of trenches in unstable or soft material, 5 feet or more in depth,
shall be shored, sheeted, braced, sloped, or otherwise supported by
means of sufficient strength to protect the employees working within
them.  See Table P-1, P-2 (following paragraph (g) of this section).

Table P-1 is a guideline that suggests the approximate angles of repose
for various types of soil:

Solid rock, shale or cemented sand and gravel - 90º
Compacted angular gravels - 1/2:1 (63º 26')
Average Soils - 1:1 (45º)
Compacted Sharp Sand -1 1/2 :1 (33º 41')
Well rounded loose sand - 2:1 (26º 34')

Table P-1 lists, for certain specified soil types, the ratio of
horizontal feet to which a trench wall should be sloped to each foot of
the wall's depth.  For example, Table P-1 indicates that the approximate
angle of repose for compacted angular gravels is 1/2:1 or approximately
63 degrees.  For soil with an angle of repose of 1/2:1, 1/2 foot of
horizontal distance would be excavated for each foot of depth.  Less
stable compacted sharp sand, which has an angle of repose of 1 1/2:1, or
approximately 33 degrees, would be excavated 1 1/2 feet horizontally for
each foot of depth.

[[2]] As established by the Act, the Commission is composed of three
members.   Section 12(a) of the Act, 29 U.S.C. § 661(a). Currently, the
Commission has two members as a result of a vacancy.

[[3]] Danis had arranged to have the Bowser-Morner sampling done after
the site was visited by a safety consultant from the Ohio Industrial
Commission.  That visit occurred approximately one month before the OSHA
inspection.  The safety consultant told Danis's project manager that the
trench walls should be sloped to approximately 26 degrees to conform
with OSHA's trenching standard.  The safety consultant also supplied
Danis's project manager, Parrish, with a copy of the OSHA trenching
standards. Parrish reviewed the standards and Table P-1 and concluded
that the standard did not apply to Danis's trench.  He arranged,
however, to have the soil sampled ''in case there was any question [as]
to what the slope should be ...."

[[4]] At the hearing, Danis objected to the introduction of the
Bowser-Morner report into the record.  This objection seems to have been
sustained by the judge though the exchange is unclear.  Portions of the
report were read into the record, however, and in post-hearing briefs to
the judge, both Danis and the Secretary relied on the report.  The judge
also relied on the report in his decision.  The record certified to the
Commission by the judge after review was directed contains this report
as Exhibit G-16.  In its brief on review, Danis does not contend that
this report is not properly in the record.  Indeed, it cites the report
in arguing for affirmance of the judge's decision.  In view of the
parties' and judge's reliance on this report and in the absence of any
objection from Danis on review, the Commission has considered this
report as part of the record.

[[5]] An angle of repose test is conducted in a laboratory.  The soil is
first dried to remove moisture then poured through a funnel onto a flat
surface.  The natural angle that soil will attain on the flat surface is
considered the angle of repose.  Longo stated that although this test
was an accepted procedure it was an accepted procedure it was "very
unsophisticated" and yielded an "approximation" of a soil's natural
angle repose.  He explained that the "actual field angle of repose" is
five tested in the laboratory is in a "disturbed" state and because the
removal of moisture from the soil reduces its cohesiveness.

[[6]] Parrish's description of the manner in which the trench was sloped
is entirely consistent with the standard's definition of angle of
repose, _i.e_., "[t]he greatest angle above the horizontal plane at
which a material will lie without sliding."  _See_ 29 C.F.R. § 1926.653(b).

[[7]] The compliance officer previously had inspected 15 excavation
sites.  His training as a compliance officer included two days of
instruction in OSHA's trenching standards.  Before his employment as a
compliance officer, he worked as an intern at OSHA and received
"on-the-job" training in soil recognition from another compliance
officer.  Although he had received an undergraduate degree in "Safety
Management," his course work did not address soils or soil mechanics. 
His only other experience in excavation work consisted of one year's
employment laying sewer lines before and while attending college.

[[8]] The uncertainty is also inherent in the definition of "angle of
repose" in section 1926.653(b).  See F. Yokel & R. Stanevich,
_Development of Draft Construction Safety Standards for Excavations_,
vol. I, p. 58 (NBS/NIOSH, 1983)(recommending deletion of present
definition as "too vague").

[[9]] The Chairman notes that there is reason to doubt the compliance
officer's estimate that the slope was 1/2 to 1, _i.e._, 63 degrees. That
estimate was based on measurements whose accuracy is open to serious
question.  The compliance officer took the measurements at the end of
the trench that was being excavated, where the sloping had not been
completed.  He stood 20-30 feet away from where employees were working
and ''eyeballed" the width of the trench.  Using this technique, he
decided that the trench was 9 feet wide at the bottom.   All Danis's
witnesses, however, testified that the trench was no more than 5 to
6 feet wide.  They stated that not only is there is no reason to take
out more soil than that, but that the soil removed must then be returned
to the trench and compacted to meet specifications which takes time and
slows down the work.  There is therefore a very good reason not to take
out any more soil than necessary.  Given the unanimity of this
testimony, Chairman Buckley finds that the width of the bottom of the
trench was considerably less than the compliance officer's
"measurement."  He therefore questions the accuracy of the compliance
officer's other estimates.

[[10]] The trenching standard, as amplified by Table P-1, provides one
exception to the general rule stated in the text:  solid rock, shale and
cemented sand and gravels are treated as "something other" than "hard or
compact" or "soft and unstable" soil.  They have a 90 degree angle of
repose.  _CCI, Inc_., 9 BNA OSHC at 1173, 1981 CCH OSHD at pp.
30,993-4.  In this case, Danis does not contend that its trench was dug
in solid rock, shale, or cemented sand and gravel.

[[11]] This conclusion also finds support in the testimony of Danis's
soil expert, Longo, who testified that the angle of repose was
approximately 51 degrees.  Longo alternatively stated that the angle of
repose would be in the range between 45 and 63 degrees. Longo's
testimony also shows that a specific measurement of the angle may be
made in a laboratory but that the measurement would be an
"approximation" of the soil's angle of repose in the field. 
Commissioner Cleary agrees that a laboratory-determined angle of repose
would only be an approximation of a soil's natural angle of repose.  He
nevertheless would note that Longo's estimate that the angle of repose
could range between 45 and 63 degrees would allow almost 20 degrees
leeway in sloping.  Such a wide-ranging estimate is of little value in
determining the angle of repose of this soil.  Inasmuch as Longo was
able to more specifically state that the angle of repose was
approximately 51 degrees, Commissioner Cleary would disregard his
alternative opinion that the angle of repose ranged between 45 and 63
degrees.  Although Commissioner Cleary considers the Bowser-Morner
estimate of the angle of repose more reliable because it was based on
sampling done on the day of the inspection, he notes that Longo's more
specific estimate, which was based on sampling done more than one month
after the trench was refilled also tends to show that the angle of
repose was less than 63 degrees and, thus, supports the conclusion that
this soil was unstable.

[[12]] With respect to these disputed dimensions, he stated that
"[d]espite the conflicting testimony as to the width of the trench, the
measurements are not crucial to the decision in this case."

[[13]] The Secretary alleged that the violation was willful.  A
violation is willful if it is committed with intentional disregard of,
or plain indifference to the Act's requirements.  _Kus-Tum Builders,
Inc._, 81 OSAHRC 97/B2, 10 BNA OSHC 1128, 1981 CCH OSHD ¶ 25,738 (No.
76-2644, 1981).   After a question was raised as to the sloping of the
trench by the safety consultant from the Ohio Industrial Commission,
Danis arranged to have the soil tested by Bowser-Morner.  Later, during
the inspection, Danis removed its employees from the trench and sloped
to the angle requested by the compliance officer.  In Commissioner
Cleary's view, Danis's actions do not reflect plain indifference to or
intentional disregard of the standard's requirement or employee safety.