SECRETARY OF LABOR,
Complainant,

v.

AUSTIN ENGINEERING COMPANY, INC.,
Respondent.

OSHRC Docket No. 81-0168

_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. 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).

Austin Engineering Company ("Austin"), a utility construction company,
was issued one citation alleging serious violations of two trenching
standards and another citation charging a nonserious violation of a fire
extinguisher standard. Judge Stanley M. Schwartz affirmed the citation
charging Austin with serious trenching violations and vacated the
citation alleging a fire extinguisher violation. He assessed a penalty
of $50. For the reasons set forth below, we conclude that Austin
violated one of the cited trenching standards and the fire extinguisher
standard, but we are divided on whether the other cited trenching
standard was also violated.[[1]]

I

Austin was in the process of installing a water main in a trench that it
had dug when its worksite was inspected by Roy Moore, a compliance
officer from the Occupational Safety and Health Administration. Austin
was cited for a nonserious violation of 29 C.F.R. § 1926.550(a)(14)(i)
[[2]] for failure to have a fire extinguisher on a truck crane used to
place reinforced concrete pipe in the bottom of the trench. No penalty
was proposed by the Secretary. The compliance officer testified that
during his inspection he examined the cab of the truck crane and found
that there was no fire extinguisher. Austin presented evidence that
there had been fire extinguishers on the truck crane at one time or
another, but they had been stolen. For that reason, fire extinguishers
were kept on pickup trucks, which were "probably 100 feet" from the
truck crane.

Judge Schwartz concluded that the Secretary did not prove that the fire
extinguisher was inaccessible or unavailable. He stated that there was
no evidence that an employee in the truck crane would experience
difficulties in reaching a pickup truck quickly and easily enough to
obtain a fire extinguisher. He determined that the reason given for
keeping fire extinguishers on pickup trucks approximately 100 feet away
from the truck crane was adequate, and he vacated the citation.

We reverse the judge's decision and find a violation. The fire
extinguishers kept by Austin on the pickup trucks located approximately
100 feet from the truck crane at issue were not accessible and available
"at all operator stations or cabs of equipment" as required by section
1926.550(a)(14)(i). See M-CO Equipment Co., 75 OSAHRC 37/C3, 2 BNA OSHC
1660, 1661, 1974-75 CCH OSHD ¶ 19,394 at p. 23,158 (No. 3811, 1975).
Respondent's argument is that employee safety is equally well served by
the presence of accessible fire extinguishers at locations other than
those specified in the standard. Even accepting this as true, we
nevertheless may not vacate the citation because to do so would be an
impermissible intrusion on the Secretary's rulemaking authority. See Van
Raalte Co., 76 OSAHRC 48/B8, 4 BNA OSHC 1151, 1152, 1975-76 CCH OSHD ¶
20,633 at p. 24,698 (No. 5007, 1976) (the Commission lacks the power to
question the wisdom of a standard). The Secretary's intention to require
extinguishers at particular locations is evident from the language of
the standard and is not inconsistent with the statutory purpose of the
Act. Therefore, Austin's contention that the regulation could have been
drafted differently or less arbitrarily without compromising employee
safety must be rejected. See, e.g., Griffin v. Oceanic Contractors,
Inc., 458 U.S. 564, 571 (1982) (effect must be given to literal or usual
meaning of words in statute except in rare cases when literal
application produces a result at odds with the drafter's intention).[[3]]

We may however, consider the impact on employee safety that the
violation will have in assessing a penalty. Based on the considerations
in section 17(j) of the Act, 29 U.S.C. § 666(i), we assess no penalty.

II

The Secretary alleges that Austin committed a serious violation of 29
C.F.R. § 1926.651(i)(1)[[4]] because the spoil pile was within two feet
of the edge of the trench. Excavated material was stored at the top of
the west wall of the trench within two feet of the edge. The compliance
officer stated that during his inspection he observed an employee of
Austin working with the bedding material on the bottom of the trench at
the end of the pipe. He asserted that the condition posed a hazard of
serious injury or death to the employee working in the trench.

Leach, Austin's supervisor, testified that Austin had just opened the
trench to continue work from the preceding day when the compliance
officer began his inspection. He stated that before employees would
gravel or grade the ditch the spoil pile would knocked down. However, he
did not contradict the compliance officer's testimony that one employee
was observable in the trench at the time of the inspection. Moreover, he
admitted that three employees of Austin were working inside the pipe at
the bottom of the trench when the compliance officer was conducting his
inspection. When these employees would leave the pipe, they would be
directly underneath the spoil pile.

We affirm the judge's finding of a violation. It is undisputed that
excavated material was stored within two feet of the edge of the trench
and that employees were working in the trench near the location of the
spoil pile. That evidence is sufficient, to establish the violation.
Based on the considerations in section 17(j) of the Act, 29 U.S.C. §
666(i), we assess a penalty of $25 for this violation.


III

Austin was also cited for committing a serious violation of 29 C.F.R. §
1926.652(c) [[5]] in that it allegedly failed to either shore or
adequately slope the sides if the open trench. The trench was
approximately 12 feet deep, 6 feet wide at the bottom, and 35 to 40 feet
long. It is undisputed that the material comprising the trench walls
from the top down to 3-1/2 feet was hard or compact soil that was
adequately sloped. What is at issue is the composition of the material
below 3-1/2 feet, which was neither sloped nor shored. The Secretary
asserts that it was "hard or compact soil" requiring sloping or shoring,
while Austin asserts that the material was equivalent in stability to
solid rock, shale, or cemented sand and gravel, and did not have to be
sloped or shored.

Compliance officer, Moore used a shovel to take samples of the material
in the east wall of the trench. He took three samples: one each from
depths of 18 inches, 3 feet, and 6 feet. He testified that the sample
taken at a depth of 6 feet was "a gray to white material" that, was a
combination of possibly clay and granular, weathered limestone. Moore
stated that the material below the 6-foot level appeared to be of the
same general kind as that sample. He testified that he found isolated
rocks scattered in the soil but observed no significant layering.

Donald Reaves, a geotechnical engineer who had been manager of the
laboratory where Moore's sample was analyzed, testified that Moore's
sampling method was acceptable and the test methods used to analyze the
sample by the laboratory were generally recognized in the field. He
stated that the tests showed that the 6-foot sample was "silty, sandy
gravel" that could not be classified as solid rock. Reaves also
performed a boring for the Secretary at a location near the trench site
on February 9, 1982, and, one week earlier, assisted in a boring taken
about 100 feet to the north of the trench site. Reaves testified that
there was a reasonable correlation between Moore's sample and some
material found at some levels in the borings taken in February 1982. He
stated that the February 9 boring demonstrated that a significant part
of the trench wall was hard and compact, and that both borings showed
that much of the material in the trench walls consisted of alternate
layers of tan silt (also described as tan weathered limestone) and rock.

Jack Holt, a registered professional engineer specializing in soils,
performed the boring for the Secretary on February 2, 1982, at which
Reaves assisted. According to Dr. Holt, his log of the February 2 boring
was consistent with the results of the February 9 boring discussed by
Reaves. Dr. Holt stated that there are bedding planes throughout the
area of the trench composed of fractured, discontinuous rock overlying
silt layers, which he explained were produced by the chemical weathering
of the rock over time. When asked if he considered a significant portion
of the trench walls to be composed of solid rock, he replied that "solid
rock really doesn't mean anything" because all rocks have air in them
and are porous. He did testify that "rock comprises a significant
portion" of the trench wall with stones 2 to 3 feet thick and 2 to 4
feet long, with a "significant amount of silt in them." He concluded
that the trench was cut in "a very stable formation."

John Crawford, a registered professional engineer, testified concerning
a boring that a drilling crew under his supervision had performed at
Austin's request eleven months after Moore's inspection. Crawford chose
a location approximately 15 feet away from the trench site for the
boring in order to get material near where the trench had been dug, but
not so close as to be in the zone of material that had been disturbed by
the excavating process. Based on his observations while boring and his
viewing of a film made by Austin's vice president,[[6]] Crawford stated
that the formation was "[b]asically . . . solid limestone" and "very
stable rock."

The log prepared by Crawford to document his observations and tests of
the boring that he took showed that from 3-1/2 feet to 5 feet was tan
weathered limestone and from 5 feet to the bottom of the boring at 15
feet was tan limestone with small solution cavities[[7]] that was
slightly fractured. At approximately 10 feet there was a layer of
clay-sand that was only 1/2 to 1 inch thick.

Crawford characterized the material from 3-1/2 feet to 5 feet down as
tan limestone that was somewhat weathered from its undisturbed hard
state but was "still fairly competent" and "usually the next step up
from being solid, hard, resilient rock." He categorized that material as
solid rock, shale or cemented sand and gravel which requires no sloping
under Table P-1 of section 1926.652(c). He considered the tan limestone
from 5 feet to 15 feet down to be solid hard rock which requires no sloping.

In his decision Judge Schwartz concluded that Austin had violated
section 1926.652(c). He found the most probative evidence of the nature
of the material in the trench walls to be Moore's testimony concerning
the samples taken at the time of the inspection. The judge noted that
those samples were the only ones taken of the trench as it actually
existed and that Moore's visual observations were consistent with the
analyses of the samples. He found no basis in the evidence for
concluding that Moore's sampling procedures were improper. Judge
Schwartz therefore concluded that a significant portion of the trench
walls was hard or compact soil that was not adequately sloped.

Commissioner Cleary would affirm Judge Schwartz's decision regarding
this item. He notes that the Commission has held that in order to
establish a prima facie showing the Secretary must prove that the trench
at issue was at least 5 feet deep and 8 feet long, the trench was
neither shored nor sloped appropriately, and a significant part of the
trench wall consisted of hard or compact soil. CCI, Inc., 80 OSAHRC
127/D4, 9 BNA OSHC 1169, 1981 CCH OSHD ¶ 25,091 (No. 76-1228, 1980),
aff'd, 688 F.2d 88 (10th Cir. 1982).

It is undisputed that the formation in which the trench was dug and the
trench walls themselves contained a considerable amount of rock. The
walls were not, however, solid rock, but consisted of rock interlayered
with soil. While a trench whose walls are largely rock might appear to
be stable, there is a very real danger that the walls will collapse if
the rocks are separated by layers of lesser stability. A trench wall is
only as strong as its weakest part. Therefore, a wall containing solid
rock, shale, or cemented sand and gravel interlayered with soil is
considered to be the weaker of the two types of material unless the
areas of soil constitute an insignificant part of the wall. CCI, Inc.,
supra. Commissioner Cleary concludes that the evidence in this case
shows that the trench walls, as they existed at the time of the
inspection, contained significant amounts of material that cannot be
classified as solid rock, shale, or cemented sand and gravel.

Like Judge Schwartz, Commissioner Cleary considers it significant that
the only witness who took samples of the trench material as it existed
at the time of the inspection was Moore. Evidence presented at the
hearing indicated that the composition of soil can vary even a short
distance away. Commissioner Cleary notes that Moore's testimony as to
the trench material at the time of the inspection was corroborated by
Reaves' testimony regarding the results of the tests performed on the
samples taken by Moore, as well as the results of the boring done by a
laboratory almost three months later. More particularly, Moore's
testimony that the trench material was clay and granular weathered
limestone at 6 feet and below is supported by Reaves' testimony that
Moore's 6-foot sample was analyzed as "silty, sandy gravel."

Commission Cleary further notes that the results of the tests on Moore's
samples correlate with the testimony of Reaves and Holt concerning the
borings that they subsequently took. Reaves and Holt agreed that their
borings showed that a significant part of the trench wall was hard and
compact material consisting mostly of alternating layers of silt and
fractured rock. Holt further testified that photographs of the trench as
it existed at the time of inspection showed the same interlaying of silt
and rock as did the boring he analyzed. Commissioner Cleary concludes
that the trench walls at issue contained a significant amount of
material that was not solid rock, shale, or cemented sand and gravel,
and were therefore required to be sloped or shored.[[8]]

Chairman Buckley would reverse the judge's decision and vacate this item
of the citation. Section 1926.652 mandates certain requirements for the
excavation of trenches in different types of soil. Appended to the
standard, and specifically referred to in section 1926.652, is a table
setting forth approximate angles of repose for different types of soil
as a guide for use in determining the appropriate slope for a trench. As
interpreted by the Commission, the standard, when read with the appended
table, provides certain sloping requirements ranging from 2:1 for loose
sand to no slope at all for excavations in solid rock, shale, or
cemented sand and gravel. See, e.g., D.A. & L. Caruso, Inc., 84 OSAHRC
__/__, 11 BNA OSHC 2138, 1984 CCH OSHD ¶ 26,985 (No. 79- 5676, 1984).

Section 652(c) provides that trenches dug in hard and compact soil be
sloped to at least an angle of 1/2:1 or approximately a 63 degree angle.

All parties agree that the first 3-1/2 feet of the trench was composed
of hard and compact soil and that it was properly sloped at an angle of
63 degrees or less. Thus, two of the three samples taken by the
compliance officer were from hard and compact soil, but do not, as the.
judge implied, support a finding that the trench wall below the
3-1/2-foot level required sloping. It is undisputed that the earth below
the 3-1/2-foot level was composed of soil different from and of much
greater stability than the "hard or compact" soil at the upper layer of
the trench. Indeed, the evidence shows that below 3-1/2 feet the trench
was dug in material. equivalent in stability to solid rock, shale, or
cemented sand and gravel requiring no sloping because no cave-in hazard
would be present.

Crawford, Austin's highly qualified expert witness, testified that the
boring he took from an area near the location of the trench showed that
the material below the 3-1/2-foot level was solid rock or its equivalent
in stability. Although the boring showed that there were certain amounts
of material that could not be characterized as the equivalent of solid
rock, the amount of such material was, in Crawford's opinion,
insignificant.[[9]] Crawford stated that the trench was dug in a
geologic formation known as the Edwards Formation. In the general
vicinity or the trench was a rock quarry, also dug in the Edwards
Formation, in which vertical cuts had been made that demonstrated that
the quarry material was highly stable. Other evidence also demonstrates
the rock-like stability of the material in which the trench was dug.
Tommy Leach, Austin's Superintendent, testified that the trench was cut
by blasting and, drilling and the type of rock at the site was
"impossible to dig." He noted that the backhoe at, the site was using a
rock bucket.

Paul Keller, President of Austin and a registered professional engineer,
testified that he visited the trench site on the day after the
inspection and on the day of the filming of Haralson's movie. Attempts
to dig the sides of the trench with a backhoe at those times were
unsuccessful because of the solid rock encountered below the two to
three feet of overburden. He noted that when he had worked before in the
area of the trench he had to "drill" and "shoot" before he could scratch
a trench out with a backhoe. Keller testified that he considered the
trench at issue to have been safe and doubted that Leach could have
sloped the walls any more without blasting them. Keller's testimony
therefore corroborates Crawford's view that the material In which the
trench was dug was the equivalent of solid rock.

The Secretary's witness, Dr. Holt, confirmed that "rock comprises a
significant portion" of the trench wall and that the trench was cut in
"a very stable formation." In Chairman Buckley's view, the evidence
clearly established that below the 3-1/2-foot level the trench was cut
through earth equivalent in stability to solid rock, shale, or cemented
.sand and gravel and did not require sloping. A brief review of the
photographic exhibits in the case amply demonstrates the rock like
stability of the excavation. The Secretary here would require Austin to
slope the sides of a trench so stable that only by blasting could the
sloping be achieved. Such a result serves no purpose under the Act, and
the violation should be vacated.

To resolve our impasse on the merits of this citation item and to permit
the parties to conclude this litigation, we agree to sever the section
1926.652(c) citation item from the remainder of the case and vacate the
direction for review insofar as it applies to this item. 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 concluding that Austin
violated section 1926.652(c) becomes the appealable final order of the
Commission but is accorded the precedential value of an unreviewed
judge's decision.

Accordingly, the judge's decision is affirmed in part and reversed in
part.  We sever the portion of the case alleging that Austin violated
section 1926.652(c), and vacate the direction for review with respect to it.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: FEB 22, 1985

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FOOTNOTES:

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

[[2]] The standard provides that, with regard to cranes and derricks:

An accessible fire extinguisher of 5BC rating, or higher, shall be
available at all operator stations or cabs of equipment.

[[3]] Even assuming the standard does not literally require that a fire
extinguisher be located in the cab of the crane, Commissioner Cleary
would not consider that the fire extinguishers kept by Austin on pickup
trucks located approximately 100 feet from the truck crane at issue were
"accessible" and "available" as required by section 1926.550(a)(14)(i).
See M-CO Equipment Co., supra; National Industrial Constructors, Inc.,
81 OSAHRC 94/A2, 10 BNA OSHC 1081, 1981 CCH OSHD ¶ 25,473 (No. 76-4507,
1981). Trucks are mobile and may not be present at the time that a fire
extinguisher is needed. There is no evidence that the pickup trucks at
issue would always remain in the same place. Moreover, there is nothing
in the record to suggest that a fire extinguisher would be less
susceptible to theft in the cab of a pickup truck than in the cab of a
truck crane.

[[4]]The standard provides:

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.

[[5]] The standard reads in pertinent part:

Sides of trenches in hard or compact soil, including embankments, shall
be shored or otherwise supported when the trench is more than 5 feet in
depth and 8 feet or more in length. In lieu of shoring, the sides of the
trench above the 5-foot level may be sloped to preclude collapse, but
shall not be steeper than a 1-foot rise to each 1/2-foot horizontal.

Appended to section 1926.652, and referred to therein, is Table P-1.
Table P-1 is entitled "Approximate Angle of Repose for Sloping of Sides
of Excavations." "Angle of repose" is defined in section 1926.653(b) as
"[the] greatest angle above the horizontal plane at which a material
will lie without sliding." Table P-1 shows a 90-degree angle of repose
for "Solid Rock, Shale or Cemented Sand and Gravels."

[[6]] Joe Haralson, Austin's vice president, testified concerning
Exhibit R-1, which was a film that he had made two months after the
inspection showing a backhoe with a rock bucket having difficulty trying
to cut through material that had not been blasted. He stated that the
area shown in the film was the location where the trench at issue had
been dug. He said that the backhoe in the film encountered rock below
the 1-1/2 to 2 feet of overburden for the entire length of that cut.

[[7]]Solution cavities are holes eaten in the rock by acid waters that
generally move slowly through the rock by way of solution channels.

[[8]] Even assuming that sloping the trench might present some
difficulty, the option of shoring permitted by the standard does not
present any similar difficulty.

[[9]] Crawford explained that the non-solid material resulted from
lenses, bodies of material that are thin on the edges and thick in the
middle, and solution cavities, and was therefore not arranged in
continuous.layers within the limestone.