“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-4082 ANDY ANDERSON, D\/B\/A ANDY ANDERSON IRRIGATION AND CONSTRUCTION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0April 21, 1978DECISIONBefore: CLEARY, Chairman; and BARNAKO, Commissioner.BY THE COMMISSION.??????????? Adecision of Review Commission Judge Alan M. Wienman is before the Commissionpursuant to a direction for review by former Commissioner Moran issued under ?12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ? 651 etseq. In his decision, Judge Wienman affirmed a single serious violation of 29C.F.R. ? 1926.652(c) and ? 1926.652(h) and assessed a $300 penalty. We affirmthe Judge?s decision, but reduce the penalty to $150.[1]??????????? Respondentwas engaged in installing sewer pipe in a trench measuring approximately 70feet long. The trench varied from 6?8 feet in depth. It was 25 inches wide atthe bottom and between 25 and 33 inches wide at the top. Two OccupationalSafety & Health Administration compliance officers inspected the worksiteon September 1, 1976. Upon arrival, one of the compliance officers presentedhis credentials and inquired who was in charge of the trenching operation.Respondent?s foreman, Mr. Matthies, stated that he was in charge and accompaniedthe compliance officers during the inspection. No attempt was made to contactrespondent?s owner, Mr. Anderson, who testified at the hearing that when he wasnot present at a worksite Matthies was in charge.??????????? Withrespect to the ? 1926.652(c)[2] allegation, complianceofficer Rogers testified that the trench was dug in hard and compact soil, thatthe walls of the trench were vertical and that they had not been shored. Heopined that it was ?highly likely? that the trench could cave in, and that anemployee could be crushed or suffocated were the trench to collapse. Thecompliance officer also testified that there was no ladder or ramp in thetrench providing a means of exit requiring no more than 25 feet of lateraltravel. He stated that this constituted a violation of ? 1926.652(h).[3]??????????? Oneof respondent?s employees, Steffens, testified that he was working in thetrench on the day of the inspection. He was engaged in connecting sections ofpipe at the west end of the trench, a procedure taking approximately 3?5minutes for each connection. No ladders were present in the trench, but theemployee had caved-off a slope at the east end that he walked up to exit thetrench. All of respondent?s witnesses were of the opinion that collapse of thetrench was unlikely. Anderson stated that the trench was dug in hard soil andtestified that there was no ?strong? possibility of collapse.??????????? JudgeWienman held that complainant had complied with the requirements of section8(e) of the Act, 29 U.S.C. ? 657(e).[4] He rejected respondent?sclaim that, by failing to contact Anderson before the inspection began,complainant failed to follow the mandate of section 8(e). The Judge stated thatMatthies was a management representative within the meaning of that section ofthe Act. In addition, he found that respondent had not been prejudiced by theactions of the compliance officers, as Anderson could only have pointed outthat the soil was hard and compact, a fact admitted by complainant. The Judgeheld that respondent had violated ?\u00a01926.652(c) and ? 1926.652(h). Heconcluded that the possibility of a trench collapse was greater than estimatedby respondent?s witnesses, characterized the violation as serious, and assesseda $300 penalty.??????????? Inits submissions on review, respondent takes exception to the Judge?sconclusions that the Secretary complied with section 8(e), that respondentviolated the standards, and that any violation was serious. Respondent alsoargues that the $300 penalty was ?excessive.? Respondent asserts that Andersoncould have provided ?useful information? to the compliance officers had he beencontacted before the inspection. Specifically, respondent claims that Andersonwould have informed the compliance officer of the ?near impossibility? of thetrench collapsing. Respondent also maintains that, although technicalviolations of the standards were present, the trench was safe. Finally,respondent argues that the violation cannot be deemed serious because thepossibility of a trench collapse was small.??????????? Wereject respondent?s contentions and affirm the Judge?s decision. Respondentdoes not claim that its foreman was not in charge of the worksite at the timeof the inspection, only that complainant?s representative should have contactedAnderson. This argument is without merit. Section 8(e) requires only that a?representative of the employer? shall be given an opportunity to accompany theinspector. In Northwestern Insulation Company, Inc., 77 OSAHRC 32\/F3, 5BNA OSHC 1148, 1977?78 CCH OSHD para. 21,614 (No. 12632, 1977), the Commissionheld that a foreman working in a managerial capacity, with no person superiorin authority at the worksite, was a ?representative of the employer? within themeaning of section 8(e) of the Act. Foreman Matthies was a representative ofrespondent inasmuch as he was in charge of the worksite at the time of theinspection.[5]??????????? TheJudge properly found a violation of the standards. The trench was not slopedsufficiently to comply with the requirements of ? 1926.652(c). Examination ofExhibit G?4, which was prepared by the compliance officer after measuring thedimensions of the trench with a steel tape, confirms that respondent wasviolating the standard. The diagram shows, for example, one point in the trenchthat was 8\u20325\u2033 deep, 25\u2033 wide at the bottom, and 33\u2033wide at the top. Compliance with the cited standard would require a width atthe top of 66\u2033. No ladder was present in the trench, and the exit fromthe east end was as much as 70 feet from where the employee was working.??????????? Contraryto respondent?s assertions, the violation was properly classified as serious.Section 17(k) of the Act, 29 U.S.C. ? 666(k), provides that a serious violationshall be deemed to exist if there is a ?substantial probability that death orserious physical harm could result from a condition . . ..? Respondent contendsthat, because the possibility of a trench collapse was slight, the violationcannot be deemed serious. It is well settled, however, that in determining theseriousness of a violation, only the probably result and not the likelihood ofan accident is relevant. Thermo Tech, Inc., 77 OSAHRC 192\/A2, 5 BNA OSHC2044, 1977?78 CCH OSHD para. 22,281 (No. 15381, 1977), appeal filed, No.77?3438 (5th Cir. Dec. 13, 1977); Sun Outdoor Advertising, Inc., 77OSAHRC 35\/E8, 5 BNA OSHC 1159, 1977?78 CCH OSHD para. 21,632 (No. 13334, 1977).The probable result of the trench collapsing on an employee would be crushingor suffocation. The violation was therefore properly classified as serious.??????????? Wefind, however, that the imposition of a $300 penalty is excessive in light ofrespondent?s small size, its previous history of no violations and its goodfaith. Accordingly, we assess a penalty of $150.??????????? It isORDERED that the Judge?s decision be affirmed and the penalty reduced to $150.?FOR THE COMMISSION:?RayH. Darling, Jr.ExecutiveSecretaryDATED:APR 21, 1978\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-4082 ANDY ANDERSON, D\/B\/A ANDY ANDERSON IRRIGATION AND CONSTRUCTION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 March10, 1977\u00a0DECISION & ORDERAPPEARANCES:ROBERT S. BASS, Esq. U.S. Department ofLabor, Office of the Solicitor, Kansas City, Missouri, for the Secretary ofLabor\u00a0RON L. CAMPBELL, Esq., Wallace, Brantley& Shirley, 325 Main Street, Scott City, Kansas, for the Respondent\u00a0Wienman, Judge, OSHRC:STATEMENT OF THE CASE??????????? Thisis a proceeding pursuant to section 10 of the Occupational Safety and HealthAct of 1970 (29 USC 651 et seq., hereafter called the Act) contesting twoCitations issued to Respondent September 9, 1976, under the authority vested inComplainant by section 9(a) of that Act.??????????? CitationNumber 1 alleged a serious violation of occupational safety regulations 29 CFR1926.652(c)[6]and (h)[7] in connection with theexcavation of a trench at 1307 Glen Street, in Scott City, Kansas. A $500penalty was proposed for the alleged serious violation which was described onthe Citation as follows:Item 1A, 29 CFR 1926.652(c)The side(s) of the trench(es) in hard orcompact soil, including embankment(s), were not shored or otherwise supportedwhen the trench was more than 5 feet in depth and more than 8 feet in length:The trench, in which an employee wasinstalling four-inch sewer pipe, located on the west side of the house underconstruction, was not provided with any means of protective shoring.?Item 1B 29 CFR 1926.652(h)Employee(s) were required to be in thetrench(es) which were more than 4 feet deep, and an adequate means of exit,such as a ladder or steps, was not provided, or located so as to require nomore than 25 feet of lateral travel:No means of egress or access provided fromthe trench located on the west side of the house. The trench was more than 5feet in depth and 8 feet in length.\u00a0??????????? CitationNumber 2 alleged a nonserious violation of regulation 29 CFR 1926.100(a)[8]3 for which no penalty wasproposed. The violation was described on the Citation as follows:Employee(s)working where there was a possible danger of head injuries were not protectedby protective helmets:The employeeworking in the trench on the west side of the house, installing four-inch sewerpipe, was exposed to overhead flying objects.\u00a0??????????? Respondentfiled a timely notice contesting the Citations and proposed penalty. AfterComplaint and Answer were filed, a hearing was held in Wichita, Kansas, onJanuary 10, 1977, with both parties present and participating.THE ISSUES??????????? Nojurisdictional matters are in dispute, the parties having pleaded factssufficient to establish that the Respondent is subject to the Act and that theCommission has jurisdiction of the parties and the subject matter. The generalissues to be decided are whether Respondent violated occupational safetyregulations as alleged in the Citations, and if so, what penalty, if any, isappropriate.??????????? Inaddition to disputing the alleged violations, Respondent pleaded oneaffirmative defense in paragraph 3 of its Answer, namely, that the inspectionwas not conducted in accordance with the provisions of section 8(e) of the Actbecause a representative of the employer was not given an opportunity toaccompany the Secretary?s representatives during the inspection.SUMMARY OF THE EVIDENCE AND DISCUSSION??????????? TheAffirmative Defense: The Inspection??????????? OSHACompliance Officer Raymond R. Rogers, Jr., testified that he inspectedRespondent?s worksite at 1307 Glen, Scott City, Kansas, in the company of JohnBrink, a fellow OSHA Compliance Officer (T. 6 8). They were working in theScott City area on September 1, 1976, when they happened by Respondent?sjobsite by chance (T. 26 27). Rogers observed Craig Matthies standing next to abackhoe at the west end of a trench, approached him, and asked him who was incharge of the job. Matthies replied that he was foreman on the job and workedfor Respondent (T. 27 28). Rogers presented his credentials and identifiedhimself to Matthies (T. 8 9). He made no effort to contact Anderson (T. 27).??????????? Carrol?Andy? Anderson testified that he was in his office in Scott City most of theafternoon of September 1, 1976. He stated that he would have liked to have beennotified of the inspection in order to discuss the hardness of the soil and thepossibilities of a cave-in with the OSHA representatives (T. 65 66).??????????? Onthe basis of the foregoing record Respondent?s contention that the ComplianceOfficer had failed to comply with the provisions of section 8(e) isill-founded. Rather, the record establishes that Rogers sought out themanagement representative in charge of the project at the worksite. The statuteimposes no burden on the Secretary to seek out particular individuals or officeholders in the employer?s chain of command, and the Commission has consistentlyheld it sufficient for a working foreman to participate in the inspection asthe employer?s representative. See Secretary v. Northwest InsulationCompany, Inc., CCH OSHD para. 20,295 (No. 12632, 1975); and Secretary v.Heyse Sheet Metal & Roofing Company, Inc., CCH OSHD para. 16,291 (No.681, 1973).??????????? Evenif there was cause to question whether the Compliance Officer had substantiallycomplied with the requirements of section 8(e), there is scant showing ofprejudice by the Respondent. Mr. Anderson indicated he would have pointed outthe soil conditions to the inspectors, but the Citation itself acknowledgesthat the trench was excavated in hard and compact soil.??????????? Insummary, the conduct of the inspection was consonant with section 8(e) and theaffirmative defense fails.??????????? TheAlleged Violations??????????? Thehearing produced no substantial dispute with respect to the operative facts.There was, however, a marked clash of opinion as to the likelihood of acave-in.??????????? ComplianceOfficer Rogers? testimony concerning the dimensions of the excavation wasunrebutted. The trench was approximately 70 71 feet in length running in awesterly direction. On employee, Benny Steffens, was working in the trenchinstalling 4-inch sewer pipe (T. 9 10). Rogers measured the width and depth ofthe trench at several points and recorded the measurements on a diagram (Ex. G4). The depth varied but was measured at 8 feet where Steffens was working andwas 8 feet 5 inches in a nearby point. The width varied from about 2 feet 1inch to about 2 feet 8 inches. The sides were vertical (T. 15).??????????? Thephotographic exhibits depict Steffens, who wore no protective headgear, in abent posture while laboring in the excavation (Ex. G 6, G 7, G 8).??????????? Rogersconsidered the situation so dangerous that he persuaded Matthies to orderSteffens out of the trench (T. 11). There had been no rain in the area for atleast two months and Rogers described the soil as ?rather powdery and extremelydry.? He observed large cracks in the earth surface adjacent to the trench, butno use of shoring material or any sloping of the walls (T. 19). Also there wasno ladder for quick exit, nor any ramp within 25 feet of the point whereSteffens was working (T. 25).??????????? BennySteffens testified that he had been employed by Respondent for approximately 71\/2 months at the time of the inspection. He confirmed that he was making sewerconnections, a job that required at most 10 minutes per connection (T. 41). Hehad caved in the dirt at the east end of the trench for an exit, but had towalk approximately 70 feet when working in the west end (T. 42 43).??????????? Steffensalso confirmed that the ground was very hard and had required a long time todig with a backhoe (T. 47).??????????? CraigMatthies testified that the digging was started on the morning of theinspection; that the soil was very hard and compact; and the digging processtook longer than normal (T. 51). The width of the trench was the width of thebackhoe bucket, about 2 feet more or less (T. 52). The soil was so hard that itripped off near ground level and made the upper two feet of the walls a littlewider (T. 53).??????????? Matthiesstated that he had been in the excavating business for about 5 or 6 years andwas familiar with soil conditions in the area. He did not think the excavationwould cave off (T. 57).?Carrol ?Andy? Anderson had been engaged in theirrigation and construction business for 2 years. Prior to that he had served aterm as sheriff and had been a division supervisor for Kansas-Nebraska NaturalGas Company. Most of his business was concerned with laying irrigation pipesfor farmers at a depth of 54 inches. He had dug about 20 deeper sewer lines forplumbers in Scott City (T. 62).??????????? Andersonsaid he was unaware that OSHA trenching regulations applied to excavations inhard soil and although he had laid miles of line for the Gas Company he hadnever observed a ditch cave in (T. 63).??????????? Hetestified that the previous fall he had opened a 900-foot long excavationnearby at approximately the same depth. The excavation remained open throughthe winter without failing (T. 64). When asked for his opinion as to the hazardthe inspected trench presented, he replied, ?I would not have been afraid tolay down in it and went to sleep.? (T. 64).??????????? Toassess the gravity of the hazard created by the unshored, unsloped trench underthe conditions existing on September 1, 1976, is no easy task. The ComplianceOfficer?s observation that the extremely dry weather conditions had createdcracks and a great probability of a cave-in is entitled too much weight. Alsoentitled to weight, however, are the opinions of Matthies and Anderson, both ofwhom possessed excavating experience in the area.??????????? Therecord contains little data as to the nature of the soil, or its ability toresist stresses after two months without rain. It is elementary that to make asoil mass cohesive and stress resistant, the moisture content should beadequate but not exceedingly high or low.[9] The Compliance Officer?sconcern that a collapse of the trench walls was imminent in view of theextremely dry weather conditions may or may not have been well-founded. Likelythe hazard was somewhat less grave than he calculated, but considerably greaterthan Respondent estimated when he opined that sleeping in the trench would havebeen safe. The conditions clearly established a combined serious violation ofboth 29 CFR 1926.652(c) and (h), and one employee was affected on September 1,1976. Having considered the gravity of the hazard, together with the size, goodfaith, and safety history of the employer as revealed in the record, we find apenalty in the sum of $300 is appropriate for the serious violation.?Also established in the record is the violation of 29CFR 1926.100(a) relating to Steffens? failure to wear protective headgear whileworking in the trench and exposed to possible injury from falling clods. Nopenalty was proposed for the nonserious violation, and none will be assessed.FINDINGS OF FACT??????????? Havingheld a hearing and considered the entire record herein, it is concluded that apreponderance of the reliable, probative, and substantial evidence supports thefollowing findings of fact:??????????? 1.Respondent, Andy Anderson, d\/b\/a Andy Anderson Irrigation & Construction,is a sole proprietorship with principal office and place of business in ScottCity, Kansas, where it is engaged in irrigation and construction work.??????????? 2.Respondent, at all times relevant to this proceedings, employed two employeesat a worksite at 1307 Glen Street, Scott City, Kansas. Respondent used goods,equipment, and material shipped from outside the state of Kansas, and was anemployer engaged in a business affecting commerce within the meaning of section3 (5) of the Act.??????????? 3. OnSeptember 1, 1976, at Respondent?s worksite at 1307 Glen Street, Scott City,Kansas, Respondent failed to shore or otherwise support the sides of a trenchin hard or compact soil which was more than 5 feet in depth and approximately71 feet in length. Respondent also failed to provide an adequate means of exit,such as ladder or steps, to employees required to work in the trench.??????????? 4. OnSeptember 1, 1976, at Respondent?s worksite in Scott City, Kansas, one ofRespondent?s employees was working in the aforesaid trench installing 4-inchsewer pipe without the use of protective helmet and was exposed to possibledanger of head injury from impact of falling objects.CONCLUSIONS OF LAW??????????? 1.Respondent is and at all times material hereto was an employer withint themeaning of section 5(a) of the Act.??????????? 2.Jurisdiction of the parties and the subject matter is conferred upon theOccupational Safety and Health Review Commission by section 10(c) of the Act.??????????? 3. OnSeptember 1, 1976, Respondent was in violation of safety regulations 29 CFR1926.652(c) and (h). The noncompliant conditions constituted a seriousviolation within the meaning of section 17(k) of the Act. Due considerationhaving been given to the evidence of record, it is concluded that a penalty inthe amount of $300 is appropriate.??????????? 4. OnSeptember 1, 1976, Respondent was in violation of safety regulation 29 CFR1926.100(a). It is appropriate that no penalty be assessed for said violation.ORDER??????????? Basedon the above findings of fact and conclusions of law it is hereby ORDERED:??????????? 1.Citation Number 1 for serious violation issued to Respondent September 9, 1976,is affirmed and a civil penalty in the sum of $300 is assessed thereon.??????????? 2.Citation Number 2 issued to Respondent September 9, 1976, is affirmed withoutpenalty.?Alan M. WienmanJudge, OSHRCDate: March 10, 1977[1] Neither party hastaken exception to the Judge?s action affirming a nonserious violation of 29C.F.R. ? 1926.100(a). Accordingly, this item is not before the Commission onreview. See Water Works Installation Corp., 76 OSAHRC 61\/B8, 4 BNA OSHC1339, 1976?77 CCH OSHD para. 20,780 (No. 4136, 1976).[2] ? 1926.652Specific trenching requirements.(c)Sides of trenches in hard or compact soil, including embankments, shall beshored or otherwise supported when the trench is more than 5 feet in depth and8 feet or more in length. In lieu of shoring, the sides of the trench above the5-foot level may be sloped to prevent collapse, but shall not be steeper than a1-foot rise to each ?-foot horizontal . . . .[3] ? 1926.652Specific trenching requirements.(h)When employees are required to be in trenches 4 feet deep or more, an adequatemeans cf exit, such as a ladder or steps, shall be provided and located so asto require no more than 25 feet of lateral travel.[4] 29 U.S.C. ?657(e) provides, in pertinent part, the following:(e)Subject to regulations issued by the Secretary, a representative of theemployer and a representative authorized by his employees shall be given anopportunity to accompany the Secretary or his authorized representative duringthe physical inspection of any workplace under subsection (a) for the purposeof aiding such inspection.[5] In Marshall v.Western Waterproofing Co., Inc., 560 F.2d 947 (8th Cir. 1977), the courtheld that there must be a showing of prejudice to an employer in its ability todefend on the merits of a citation before evidence will be suppressed forfailure to comply with section 8(e). Respondent has not shown such prejudice.[6] Regulation 29 CFR1926.652(c) provides:Sidesof trenches in hard or compact soil, including embankments, shall be shored orotherwise supported when the trench is more than 5 feet in depth and 8 feet ormore in length. In lieu of shoring, the sides of the trench above the 5-footlevel may be sloped to preclude collapse, but shall not be steeper than a1-foot rise to each 1\/2-foot horizontal. When the outside diameter of a pipe isgreater than 6 feet, a bench of 4-foot minimum shall be provided at the toe ofthe sloped portion.[7] Regulation 29 CFR1926.652(h) provides:Whenemployees are required to be in trenches 4 feet deep or more, an adequate meansof exit, such as a ladder or steps, shall be provided and located so as torequire no more than 25 feet of lateral travel.[8] Regulation 29 CFR1926.100(a) provides:Employeesworking in areas where there is a possible danger of head injury from impact,or from falling or flying objects, or from electrical shock and burns, shall beprotected by protective helmets.[9] A stress does notalways produce the same effect on a given soil. The stress-strain relationshipdepends (a) on the character of the soil itself, and (b) on its state at agiven time . . . Clays do not resist stresses in the same way that course sandsdo; clay when wet becomes soft and weak, whereas reasonably dry clay may bevery hard. Excessively dry soils do not resist even the superficial action ofthe wind which in times of drought blows them away from the fields . . .? SoilMechanics, Dimitri P. Krynine, p. 2, McGraw-Hill Book Company, Inc. (1941)?.. . To make a soil mass cohesive, the moisture content should be adequately,but not exceedingly high. If, for instance, a given soil is very cohesive whencontaining 15 per cent of moisture by dry weight, it may be less cohesive whencontaining 5 or 25 per cent of moisture . . . The ?optimum? value of moisturecontent, corresponding to maximum cohesion, should be determined for each soilexperimentally.? supra, p. 173.”