“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 Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of’ the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. Seesection 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 trenchingstandards and another citation charging a nonserious violation of a fireextinguisher standard. Judge Stanley M. Schwartz affirmed the citationcharging Austin with serious trenching violations and vacated thecitation alleging a fire extinguisher violation. He assessed a penaltyof $50. For the reasons set forth below, we conclude that Austinviolated one of the cited trenching standards and the fire extinguisherstandard, but we are divided on whether the other cited trenchingstandard was also violated.[[1]]IAustin was in the process of installing a water main in a trench that ithad dug when its worksite was inspected by Roy Moore, a complianceofficer from the Occupational Safety and Health Administration. Austinwas 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 toplace reinforced concrete pipe in the bottom of the trench. No penaltywas proposed by the Secretary. The compliance officer testified thatduring his inspection he examined the cab of the truck crane and foundthat there was no fire extinguisher. Austin presented evidence thatthere had been fire extinguishers on the truck crane at one time oranother, but they had been stolen. For that reason, fire extinguisherswere kept on pickup trucks, which were \”probably 100 feet\” from thetruck crane.Judge Schwartz concluded that the Secretary did not prove that the fireextinguisher was inaccessible or unavailable. He stated that there wasno evidence that an employee in the truck crane would experiencedifficulties in reaching a pickup truck quickly and easily enough toobtain a fire extinguisher. He determined that the reason given forkeeping fire extinguishers on pickup trucks approximately 100 feet awayfrom the truck crane was adequate, and he vacated the citation.We reverse the judge’s decision and find a violation. The fireextinguishers kept by Austin on the pickup trucks located approximately100 feet from the truck crane at issue were not accessible and available\”at all operator stations or cabs of equipment\” as required by section1926.550(a)(14)(i). See M-CO Equipment Co., 75 OSAHRC 37\/C3, 2 BNA OSHC1660, 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 bythe presence of accessible fire extinguishers at locations other thanthose specified in the standard. Even accepting this as true, wenevertheless may not vacate the citation because to do so would be animpermissible intrusion on the Secretary’s rulemaking authority. See VanRaalte 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 toquestion the wisdom of a standard). The Secretary’s intention to requireextinguishers at particular locations is evident from the language ofthe standard and is not inconsistent with the statutory purpose of theAct. Therefore, Austin’s contention that the regulation could have beendrafted differently or less arbitrarily without compromising employeesafety must be rejected. See, e.g., Griffin v. Oceanic Contractors,Inc., 458 U.S. 564, 571 (1982) (effect must be given to literal or usualmeaning of words in statute except in rare cases when literalapplication produces a result at odds with the drafter’s intention).[[3]]We may however, consider the impact on employee safety that theviolation will have in assessing a penalty. Based on the considerationsin section 17(j) of the Act, 29 U.S.C. ? 666(i), we assess no penalty.IIThe Secretary alleges that Austin committed a serious violation of 29C.F.R. ? 1926.651(i)(1)[[4]] because the spoil pile was within two feetof the edge of the trench. Excavated material was stored at the top ofthe west wall of the trench within two feet of the edge. The complianceofficer stated that during his inspection he observed an employee ofAustin working with the bedding material on the bottom of the trench atthe end of the pipe. He asserted that the condition posed a hazard ofserious injury or death to the employee working in the trench.Leach, Austin’s supervisor, testified that Austin had just opened thetrench to continue work from the preceding day when the complianceofficer began his inspection. He stated that before employees wouldgravel or grade the ditch the spoil pile would knocked down. However, hedid not contradict the compliance officer’s testimony that one employeewas observable in the trench at the time of the inspection. Moreover, headmitted that three employees of Austin were working inside the pipe atthe bottom of the trench when the compliance officer was conducting hisinspection. When these employees would leave the pipe, they would bedirectly underneath the spoil pile.We affirm the judge’s finding of a violation. It is undisputed thatexcavated material was stored within two feet of the edge of the trenchand that employees were working in the trench near the location of thespoil 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.IIIAustin 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 oradequately slope the sides if the open trench. The trench wasapproximately 12 feet deep, 6 feet wide at the bottom, and 35 to 40 feetlong. It is undisputed that the material comprising the trench wallsfrom the top down to 3-1\/2 feet was hard or compact soil that wasadequately sloped. What is at issue is the composition of the materialbelow 3-1\/2 feet, which was neither sloped nor shored. The Secretaryasserts that it was \”hard or compact soil\” requiring sloping or shoring,while Austin asserts that the material was equivalent in stability tosolid rock, shale, or cemented sand and gravel, and did not have to besloped or shored.Compliance officer, Moore used a shovel to take samples of the materialin the east wall of the trench. He took three samples: one each fromdepths of 18 inches, 3 feet, and 6 feet. He testified that the sampletaken at a depth of 6 feet was \”a gray to white material\” that, was acombination of possibly clay and granular, weathered limestone. Moorestated that the material below the 6-foot level appeared to be of thesame general kind as that sample. He testified that he found isolatedrocks scattered in the soil but observed no significant layering.Donald Reaves, a geotechnical engineer who had been manager of thelaboratory where Moore’s sample was analyzed, testified that Moore’ssampling method was acceptable and the test methods used to analyze thesample by the laboratory were generally recognized in the field. Hestated that the tests showed that the 6-foot sample was \”silty, sandygravel\” that could not be classified as solid rock. Reaves alsoperformed a boring for the Secretary at a location near the trench siteon February 9, 1982, and, one week earlier, assisted in a boring takenabout 100 feet to the north of the trench site. Reaves testified thatthere was a reasonable correlation between Moore’s sample and somematerial found at some levels in the borings taken in February 1982. Hestated that the February 9 boring demonstrated that a significant partof the trench wall was hard and compact, and that both borings showedthat much of the material in the trench walls consisted of alternatelayers 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 whichReaves assisted. According to Dr. Holt, his log of the February 2 boringwas consistent with the results of the February 9 boring discussed byReaves. Dr. Holt stated that there are bedding planes throughout thearea of the trench composed of fractured, discontinuous rock overlyingsilt layers, which he explained were produced by the chemical weatheringof the rock over time. When asked if he considered a significant portionof the trench walls to be composed of solid rock, he replied that \”solidrock really doesn’t mean anything\” because all rocks have air in themand are porous. He did testify that \”rock comprises a significantportion\” of the trench wall with stones 2 to 3 feet thick and 2 to 4feet long, with a \”significant amount of silt in them.\” He concludedthat the trench was cut in \”a very stable formation.\”John Crawford, a registered professional engineer, testified concerninga boring that a drilling crew under his supervision had performed atAustin’s request eleven months after Moore’s inspection. Crawford chosea location approximately 15 feet away from the trench site for theboring in order to get material near where the trench had been dug, butnot so close as to be in the zone of material that had been disturbed bythe excavating process. Based on his observations while boring and hisviewing of a film made by Austin’s vice president,[[6]] Crawford statedthat the formation was \”[b]asically . . . solid limestone\” and \”verystable rock.\”The log prepared by Crawford to document his observations and tests ofthe boring that he took showed that from 3-1\/2 feet to 5 feet was tanweathered limestone and from 5 feet to the bottom of the boring at 15feet was tan limestone with small solution cavities[[7]] that wasslightly fractured. At approximately 10 feet there was a layer ofclay-sand that was only 1\/2 to 1 inch thick.Crawford characterized the material from 3-1\/2 feet to 5 feet down astan limestone that was somewhat weathered from its undisturbed hardstate but was \”still fairly competent\” and \”usually the next step upfrom being solid, hard, resilient rock.\” He categorized that material assolid rock, shale or cemented sand and gravel which requires no slopingunder Table P-1 of section 1926.652(c). He considered the tan limestonefrom 5 feet to 15 feet down to be solid hard rock which requires no sloping.In his decision Judge Schwartz concluded that Austin had violatedsection 1926.652(c). He found the most probative evidence of the natureof the material in the trench walls to be Moore’s testimony concerningthe samples taken at the time of the inspection. The judge noted thatthose samples were the only ones taken of the trench as it actuallyexisted and that Moore’s visual observations were consistent with theanalyses of the samples. He found no basis in the evidence forconcluding that Moore’s sampling procedures were improper. JudgeSchwartz therefore concluded that a significant portion of the trenchwalls was hard or compact soil that was not adequately sloped.Commissioner Cleary would affirm Judge Schwartz’s decision regardingthis item. He notes that the Commission has held that in order toestablish a prima facie showing the Secretary must prove that the trenchat issue was at least 5 feet deep and 8 feet long, the trench wasneither shored nor sloped appropriately, and a significant part of thetrench wall consisted of hard or compact soil. CCI, Inc., 80 OSAHRC127\/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 thetrench walls themselves contained a considerable amount of rock. Thewalls were not, however, solid rock, but consisted of rock interlayeredwith soil. While a trench whose walls are largely rock might appear tobe stable, there is a very real danger that the walls will collapse ifthe rocks are separated by layers of lesser stability. A trench wall isonly as strong as its weakest part. Therefore, a wall containing solidrock, shale, or cemented sand and gravel interlayered with soil isconsidered to be the weaker of the two types of material unless theareas of soil constitute an insignificant part of the wall. CCI, Inc.,supra. Commissioner Cleary concludes that the evidence in this caseshows that the trench walls, as they existed at the time of theinspection, contained significant amounts of material that cannot beclassified as solid rock, shale, or cemented sand and gravel.Like Judge Schwartz, Commissioner Cleary considers it significant thatthe only witness who took samples of the trench material as it existedat the time of the inspection was Moore. Evidence presented at thehearing indicated that the composition of soil can vary even a shortdistance away. Commissioner Cleary notes that Moore’s testimony as tothe trench material at the time of the inspection was corroborated byReaves’ testimony regarding the results of the tests performed on thesamples taken by Moore, as well as the results of the boring done by alaboratory almost three months later. More particularly, Moore’stestimony that the trench material was clay and granular weatheredlimestone at 6 feet and below is supported by Reaves’ testimony thatMoore’s 6-foot sample was analyzed as \”silty, sandy gravel.\”Commission Cleary further notes that the results of the tests on Moore’ssamples correlate with the testimony of Reaves and Holt concerning theborings that they subsequently took. Reaves and Holt agreed that theirborings showed that a significant part of the trench wall was hard andcompact material consisting mostly of alternating layers of silt andfractured rock. Holt further testified that photographs of the trench asit existed at the time of inspection showed the same interlaying of siltand rock as did the boring he analyzed. Commissioner Cleary concludesthat the trench walls at issue contained a significant amount ofmaterial 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 itemof the citation. Section 1926.652 mandates certain requirements for theexcavation of trenches in different types of soil. Appended to thestandard, and specifically referred to in section 1926.652, is a tablesetting forth approximate angles of repose for different types of soilas a guide for use in determining the appropriate slope for a trench. Asinterpreted by the Commission, the standard, when read with the appendedtable, provides certain sloping requirements ranging from 2:1 for loosesand to no slope at all for excavations in solid rock, shale, orcemented 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 besloped 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 composedof hard and compact soil and that it was properly sloped at an angle of63 degrees or less. Thus, two of the three samples taken by thecompliance officer were from hard and compact soil, but do not, as the.judge implied, support a finding that the trench wall below the3-1\/2-foot level required sloping. It is undisputed that the earth belowthe 3-1\/2-foot level was composed of soil different from and of muchgreater stability than the \”hard or compact\” soil at the upper layer ofthe trench. Indeed, the evidence shows that below 3-1\/2 feet the trenchwas dug in material. equivalent in stability to solid rock, shale, orcemented sand and gravel requiring no sloping because no cave-in hazardwould be present.Crawford, Austin’s highly qualified expert witness, testified that theboring he took from an area near the location of the trench showed thatthe material below the 3-1\/2-foot level was solid rock or its equivalentin stability. Although the boring showed that there were certain amountsof material that could not be characterized as the equivalent of solidrock, the amount of such material was, in Crawford’s opinion,insignificant.[[9]] Crawford stated that the trench was dug in ageologic formation known as the Edwards Formation. In the generalvicinity or the trench was a rock quarry, also dug in the EdwardsFormation, in which vertical cuts had been made that demonstrated thatthe quarry material was highly stable. Other evidence also demonstratesthe rock-like stability of the material in which the trench was dug.Tommy Leach, Austin’s Superintendent, testified that the trench was cutby 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 arock bucket.Paul Keller, President of Austin and a registered professional engineer,testified that he visited the trench site on the day after theinspection and on the day of the filming of Haralson’s movie. Attemptsto dig the sides of the trench with a backhoe at those times wereunsuccessful because of the solid rock encountered below the two tothree feet of overburden. He noted that when he had worked before in thearea of the trench he had to \”drill\” and \”shoot\” before he could scratcha trench out with a backhoe. Keller testified that he considered thetrench at issue to have been safe and doubted that Leach could havesloped the walls any more without blasting them. Keller’s testimonytherefore corroborates Crawford’s view that the material In which thetrench was dug was the equivalent of solid rock.The Secretary’s witness, Dr. Holt, confirmed that \”rock comprises asignificant portion\” of the trench wall and that the trench was cut in\”a very stable formation.\” In Chairman Buckley’s view, the evidenceclearly established that below the 3-1\/2-foot level the trench was cutthrough earth equivalent in stability to solid rock, shale, or cemented.sand and gravel and did not require sloping. A brief review of thephotographic exhibits in the case amply demonstrates the rock likestability of the excavation. The Secretary here would require Austin toslope the sides of a trench so stable that only by blasting could thesloping be achieved. Such a result serves no purpose under the Act, andthe violation should be vacated.To resolve our impasse on the merits of this citation item and to permitthe parties to conclude this litigation, we agree to sever the section1926.652(c) citation item from the remainder of the case and vacate thedirection 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 Austinviolated section 1926.652(c) becomes the appealable final order of theCommission but is accorded the precedential value of an unreviewedjudge’s decision.Accordingly, the judge’s decision is affirmed in part and reversed inpart. We sever the portion of the case alleging that Austin violatedsection 1926.652(c), and vacate the direction for review with respect to it.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: FEB 22, 1985———————————————————————— FOOTNOTES:[[1]] As established by the Act, the Commission is composed of threemembers. Section 12(a), 29 U.S.C. ? 661(a). Currently, the Commissionhas 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 beavailable at all operator stations or cabs of equipment.[[3]] Even assuming the standard does not literally require that a fireextinguisher be located in the cab of the crane, Commissioner Clearywould not consider that the fire extinguishers kept by Austin on pickuptrucks 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 fireextinguisher is needed. There is no evidence that the pickup trucks atissue would always remain in the same place. Moreover, there is nothingin the record to suggest that a fire extinguisher would be lesssusceptible to theft in the cab of a pickup truck than in the cab of atruck crane.[[4]]The standard provides:In excavations which employees may be required to enter, excavated orother material shall be effectively stored and retained at least 2 feetor more from the edge of the excavation.[[5]] The standard reads in pertinent part:Sides of trenches in hard or compact soil, including embankments, shallbe shored or otherwise supported when the trench is more than 5 feet indepth and 8 feet or more in length. In lieu of shoring, the sides of thetrench above the 5-foot level may be sloped to preclude collapse, butshall 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 Sidesof Excavations.\” \”Angle of repose\” is defined in section 1926.653(b) as\”[the] greatest angle above the horizontal plane at which a materialwill lie without sliding.\” Table P-1 shows a 90-degree angle of reposefor \”Solid Rock, Shale or Cemented Sand and Gravels.\”[[6]] Joe Haralson, Austin’s vice president, testified concerningExhibit R-1, which was a film that he had made two months after theinspection showing a backhoe with a rock bucket having difficulty tryingto cut through material that had not been blasted. He stated that thearea shown in the film was the location where the trench at issue hadbeen dug. He said that the backhoe in the film encountered rock belowthe 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 thatgenerally move slowly through the rock by way of solution channels.[[8]] Even assuming that sloping the trench might present somedifficulty, the option of shoring permitted by the standard does notpresent any similar difficulty.[[9]] Crawford explained that the non-solid material resulted fromlenses, bodies of material that are thin on the edges and thick in themiddle, and solution cavities, and was therefore not arranged incontinuous.layers within the limestone.”