“Docket No. 81-0168 SECRETARY OF LABOR,Complainant,v.AUSTIN ENGINEERING COMPANY, INC.,Respondent.OSHRC Docket No. 81-0168DECISION 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 wasestablished to resolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. See section 10(c) of theAct, 29 U.S.C. ? 659(c).Austin Engineering Company (\”Austin\”), a utility construction company, wasissued one citation alleging serious violations of two trenching standards and anothercitation charging a nonserious violation of a fire extinguisher standard. Judge Stanley M.Schwartz affirmed the citation charging Austin with serious trenching violations andvacated 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 citedtrenching standards and the fire extinguisher standard, but we are divided on whether theother cited trenching standard was also violated.[[1]]IAustin was in the process of installing a water main in a trench that it had dug when itsworksite was inspected by Roy Moore, a compliance officer from the Occupational Safety andHealth 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 toplace reinforced concrete pipe in the bottom of the trench. No penalty was proposed by theSecretary. The compliance officer testified that during his inspection he examined the cabof the truck crane and found that there was no fire extinguisher. Austin presentedevidence 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 wasinaccessible or unavailable. He stated that there was no evidence that an employee in thetruck crane would experience difficulties in reaching a pickup truck quickly and easilyenough to obtain a fire extinguisher. He determined that the reason given for keeping fireextinguishers on pickup trucks approximately 100 feet away from the truck crane wasadequate, and he vacated the citation.We reverse the judge’s decision and find a violation. The fire extinguishers kept byAustin on the pickup trucks located approximately 100 feet from the truck crane at issuewere not accessible and available \”at all operator stations or cabs ofequipment\” as required by section 1926.550(a)(14)(i). See M-CO Equipment Co., 75OSAHRC 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 thepresence of accessible fire extinguishers at locations other than those specified in thestandard. Even accepting this as true, we nevertheless may not vacate the citation becauseto do so would be an impermissible intrusion on the Secretary’s rulemaking authority. SeeVan 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 astandard). The Secretary’s intention to require extinguishers at particular locations isevident from the language of the standard and is not inconsistent with the statutorypurpose of the Act. Therefore, Austin’s contention that the regulation could have beendrafted differently or less arbitrarily without compromising employee safety must berejected. 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 caseswhen 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 inassessing a penalty. Based on the considerations in 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 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 ofthe edge. The compliance officer stated that during his inspection he observed an employeeof Austin working with the bedding material on the bottom of the trench at the end of thepipe. He asserted that the condition posed a hazard of serious injury or death to theemployee working in the trench.Leach, Austin’s supervisor, testified that Austin had just opened the trench to continuework from the preceding day when the compliance officer began his inspection. He statedthat 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 wasobservable in the trench at the time of the inspection. Moreover, he admitted that threeemployees of Austin were working inside the pipe at the bottom of the trench when thecompliance officer was conducting his inspection. When these employees would leave thepipe, they would be directly underneath the spoil pile.We affirm the judge’s finding of a violation. It is undisputed that excavated material wasstored within two feet of the edge of the trench and that employees were working in thetrench near the location of the spoil pile. That evidence is sufficient, to establish theviolation. 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 or adequately slope the sides if the opentrench. The trench was approximately 12 feet deep, 6 feet wide at the bottom, and 35 to 40feet long. It is undisputed that the material comprising the trench walls from the topdown to 3-1\/2 feet was hard or compact soil that was adequately sloped. What is at issueis 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 orshoring, 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 wallof the trench. He took three samples: one each from depths of 18 inches, 3 feet, and 6feet. He testified that the sample taken at a depth of 6 feet was \”a gray to whitematerial\” 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 generalkind as that sample. He testified that he found isolated rocks scattered in the soil butobserved no significant layering. Donald Reaves, a geotechnical engineer who had been manager of the laboratory whereMoore’s sample was analyzed, testified that Moore’s sampling method was acceptable and thetest methods used to analyze the sample by the laboratory were generally recognized in thefield. He stated that the tests showed that the 6-foot sample was \”silty, sandygravel\” that could not be classified as solid rock. Reaves also performed a boringfor the Secretary at a location near the trench site on February 9, 1982, and, one weekearlier, assisted in a boring taken about 100 feet to the north of the trench site. Reavestestified that there was a reasonable correlation between Moore’s sample and some materialfound at some levels in the borings taken in February 1982. He stated that the February 9boring demonstrated that a significant part of the trench wall was hard and compact, andthat both borings showed that much of the material in the trench walls consisted ofalternate layers of tan silt (also described as tan weathered limestone) and rock.Jack Holt, a registered professional engineer specializing in soils, performed the boringfor 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 boringdiscussed by Reaves. Dr. Holt stated that there are bedding planes throughout the area ofthe trench composed of fractured, discontinuous rock overlying silt layers, which heexplained were produced by the chemical weathering of the rock over time. When asked if heconsidered a significant portion of the trench walls to be composed of solid rock, hereplied that \”solid rock really doesn’t mean anything\” because all rocks haveair in them and are porous. He did testify that \”rock comprises a significantportion\” of the trench wall with stones 2 to 3 feet thick and 2 to 4 feet long, witha \”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 adrilling crew under his supervision had performed at Austin’s request eleven months afterMoore’s inspection. Crawford chose a location approximately 15 feet away from the trenchsite for the boring in order to get material near where the trench had been dug, but notso close as to be in the zone of material that had been disturbed by the excavatingprocess. Based on his observations while boring and his viewing of a film made by Austin’svice president,[[6]] Crawford stated that the formation was \”[b]asically . . . solidlimestone\” and \”very stable rock.\”The log prepared by Crawford to document his observations and tests of the boring that hetook showed that from 3-1\/2 feet to 5 feet was tan weathered limestone and from 5 feet tothe 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 thatwas only 1\/2 to 1 inch thick.Crawford characterized the material from 3-1\/2 feet to 5 feet down as tan limestone thatwas somewhat weathered from its undisturbed hard state but was \”still fairlycompetent\” and \”usually the next step up from being solid, hard, resilientrock.\” He categorized that material as solid rock, shale or cemented sand and gravelwhich requires no sloping under Table P-1 of section 1926.652(c). He considered the tanlimestone 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). Hefound the most probative evidence of the nature of the material in the trench walls to beMoore’s testimony concerning the samples taken at the time of the inspection. The judgenoted that those samples were the only ones taken of the trench as it actually existed andthat Moore’s visual observations were consistent with the analyses of the samples. Hefound no basis in the evidence for concluding that Moore’s sampling procedures wereimproper. Judge Schwartz 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 regarding this item. He notesthat the Commission has held that in order to establish a prima facie showing theSecretary 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 thetrench wall consisted of hard or compact soil. CCI, Inc., 80 OSAHRC 127\/D4, 9 BNA OSHC1169, 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 wallsthemselves contained a considerable amount of rock. The walls were not, however, solidrock, but consisted of rock interlayered with soil. While a trench whose walls are largelyrock might appear to be stable, there is a very real danger that the walls will collapseif the rocks are separated by layers of lesser stability. A trench wall is only as strongas its weakest part. Therefore, a wall containing solid rock, shale, or cemented sand andgravel interlayered with soil is considered to be the weaker of the two types of materialunless 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 materialthat cannot be classified as solid rock, shale, or cemented sand and gravel.Like Judge Schwartz, Commissioner Cleary considers it significant that the only witnesswho took samples of the trench material as it existed at the time of the inspection wasMoore. Evidence presented at the hearing indicated that the composition of soil can varyeven a short distance away. Commissioner Cleary notes that Moore’s testimony as to thetrench material at the time of the inspection was corroborated by Reaves’ testimonyregarding the results of the tests performed on the samples taken by Moore, as well as theresults 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 6feet and below is supported by Reaves’ testimony that Moore’s 6-foot sample was analyzedas \”silty, sandy gravel.\”Commission Cleary further notes that the results of the tests on Moore’s samples correlatewith 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 trenchwall was hard and compact material consisting mostly of alternating layers of silt andfractured rock. Holt further testified that photographs of the trench as it existed at thetime of inspection showed the same interlaying of silt and rock as did the boring heanalyzed. Commissioner Cleary concludes that the trench walls at issue contained asignificant amount of material that was not solid rock, shale, or cemented sand andgravel, 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 differenttypes 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 aguide for use in determining the appropriate slope for a trench. As interpreted by theCommission, the standard, when read with the appended table, provides certain slopingrequirements ranging from 2:1 for loose sand to no slope at all for excavations in solidrock, 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 leastan 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 compactsoil and that it was properly sloped at an angle of 63 degrees or less. Thus, two of thethree 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 levelrequired sloping. It is undisputed that the earth below the 3-1\/2-foot level was composedof 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 feetthe trench was dug in material. equivalent in stability to solid rock, shale, or cementedsand 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 froman area near the location of the trench showed that the material below the 3-1\/2-footlevel was solid rock or its equivalent in stability. Although the boring showed that therewere certain amounts of material that could not be characterized as the equivalent ofsolid 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 EdwardsFormation. In the general vicinity or the trench was a rock quarry, also dug in theEdwards Formation, in which vertical cuts had been made that demonstrated that the quarrymaterial was highly stable. Other evidence also demonstrates the rock-like stability ofthe material in which the trench was dug. Tommy Leach, Austin’s Superintendent, testifiedthat 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 rockbucket.Paul Keller, President of Austin and a registered professional engineer, testified that hevisited the trench site on the day after the inspection and on the day of the filming ofHaralson’s movie. Attempts to dig the sides of the trench with a backhoe at those timeswere unsuccessful because of the solid rock encountered below the two to three feet ofoverburden. 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 abackhoe. Keller testified that he considered the trench at issue to have been safe anddoubted that Leach could have sloped the walls any more without blasting them. Keller’stestimony therefore corroborates Crawford’s view that the material In which the trench wasdug was the equivalent of solid rock.The Secretary’s witness, Dr. Holt, confirmed that \”rock comprises a significantportion\” of the trench wall and that the trench was cut in \”a very stableformation.\” In Chairman Buckley’s view, the evidence clearly established that belowthe 3-1\/2-foot level the trench was cut through earth equivalent in stability to solidrock, shale, or cemented .sand and gravel and did not require sloping. A brief review ofthe photographic exhibits in the case amply demonstrates the rock like stability of theexcavation. The Secretary here would require Austin to slope the sides of a trench sostable that only by blasting could the sloping be achieved. Such a result serves nopurpose under the Act, and the violation should be vacated.To resolve our impasse on the merits of this citation item and to permit theparties to conclude this litigation, we agree to sever the section 1926.652(c) citationitem from the remainder of the case and vacate the direction for review insofar as itapplies 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 the Commission but isaccorded the precedential value of an unreviewed judge’s decision.Accordingly, the judge’s decision is affirmed in part and reversed inpart.\u00a0 We sever the portion of the case alleging that Austin violated section1926.652(c), and vacate the direction for review with respect to it.FOR THE COMMISSION RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: FEB 22, 1985\u00a0FOOTNOTES: [[1]] As established by the Act, the Commission is composed of three members. Section12(a), 29 U.S.C. ? 661(a). Currently, the Commission has two members as a result of avacancy.[[2]] The standard provides that, with regard to cranes and derricks:An accessible fire extinguisher of 5BC rating, or higher, shall be available at alloperator stations or cabs of equipment.[[3]] Even assuming the standard does not literally require that a fire extinguisher belocated in the cab of the crane, Commissioner Cleary would not consider that the fireextinguishers kept by Austin on pickup trucks located approximately 100 feet from thetruck crane at issue were \”accessible\” and \”available\” as required bysection 1926.550(a)(14)(i). See M-CO Equipment Co., supra; National IndustrialConstructors, 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 at issue would alwaysremain in the same place. Moreover, there is nothing in the record to suggest that a fireextinguisher would be less susceptible to theft in the cab of a pickup truck than in thecab of a truck crane.[[4]]The standard provides:In excavations which employees may be required to enter, excavated or other material shallbe effectively stored and retained at least 2 feet or more from the edge of theexcavation.[[5]] The standard reads in pertinent part:Sides of 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 or more inlength. In lieu of shoring, the sides of the trench above the 5-foot level may be slopedto preclude collapse, but shall not be steeper than a 1-foot rise to each 1\/2-foothorizontal.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.\” \”Angleof repose\” is defined in section 1926.653(b) as \”[the] greatest angle above thehorizontal plane at which a material will lie without sliding.\” Table P-1 shows a90-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 afilm that he had made two months after the inspection showing a backhoe with a rock buckethaving difficulty trying to cut through material that had not been blasted. He stated thatthe area shown in the film was the location where the trench at issue had been dug. Hesaid that the backhoe in the film encountered rock below the 1-1\/2 to 2 feet of overburdenfor the entire length of that cut.[[7]]Solution cavities are holes eaten in the rock by acid waters that generally moveslowly through the rock by way of solution channels.[[8]] Even assuming that sloping the trench might present some difficulty, the option ofshoring permitted by the standard does not present any similar difficulty.[[9]] Crawford explained that the non-solid material resulted from lenses, bodies ofmaterial that are thin on the edges and thick in the middle, and solution cavities, andwas therefore not arranged in continuous.layers within the limestone.”