“SECRETARY OF LABOR,Complainant,v.B.G. DANIS COMPANY,Respondent.OSHRC Docket No. 80-6933_DECISION_Before: BUCKLEY, Chairman; and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review 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 (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).The issue on review is whether B.G. Danis Company violated the trenchingstandard at 29 C.F.R. ? 1926.652(b).[[1]] Administrative Law Judge PaulL. Brady found that a violation was not established and vacated thecitation. For the reasons stated below, Chairman Buckley andCommissioner Cleary disagree on whether the judge’s decision should beaffirmed. [[2]]IA compliance officer from OSHA inspected Danis’s excavation of a trenchin Trenton, Ohio, and observed three employees working in the trench. He examined the soil in the trench and determined that it was composedof sand and gravel. He concluded that the soil was soft and unstablebecause it was composed partly of sand and because he saw soil sloughoff the trench wall. On the same day as the OSHA inspection, soilsamples were taken from the trench at Danis’s direction by Bowser-MornerTesting Laboratories.[[3]] Bowser-Morner’s report stated the soil wascomposed of sand and gravel with traces of silt, though the percentagesof these components were not stated. [[4]] Approximately one to twomonths after the inspection, Danis arranged to have further samplingdone by Geotechnical Consultants, Inc. This sampling was done by DanielLongo, a professional soils engineer and president of GeotechnicalConsultants. Longo stated that he attempted \”to reconstruct some ofthe conditions\” that existed during the inspection by using a backhoe toexcavate the soil at the original trench site to a depth of five feet. Longo’s samples showed that the soil taken 10 feet west of the trench’scenter line was 50 percent sand and 50 percent gravel and that soiltaken eight feet east of this line was 50-60 percent sand, 25 percentgravel and approximately 15 percent silt and clay.Bowser-Morner and Geotechnical both performed angle of repose tests onthe soil from the area of the excavation.[[5]] Two samples tested byBowser-Morner showed that the soil’s angle of repose was between 41 and45 degrees. Based on Geotechnical’s tests, Longo stated that the angleof repose was \”something like\” 51 degrees and that on Table P-1 it wouldbe between 45 and 63 degrees. Longo also stated that he had \”[n]oreason to disagree\” with the Bowser-Morner report.During his inspection, the compliance officer measured variousdimensions of the trench without entering it. To obtain widthestimates, he extended a tape measure across the trench at a location 20to 30 feet away from where employees were working. He then estimatedthat where the employees were working the trench was 19 1\/2 feet wide atthe top and 9 feet wide at the bottom and that the horizontal componentsof the slopes of the east and west walls were 6 and 4 1\/2 feet respectively.Danis’s foreman, Bobby Slone, disputed the compliance officer’s widthmeasurement, stating that his estimated measurements showed that thetrench was 28 to 30 feet wide at the top. Employees who had worked inthe trench also disagreed with the compliance officer and contended thatthe trench was 5-6 feet wide at the bottom. The employees who worked inthe trench assisted the backhoe operator in lowering each pipe sectionto the completely excavated trench bottom and sealed the end of thesection to the preceding pipe section. After the pipe section isinstalled, the backhoe dumps soil around the pipe to \”cradle\” it inposition.The compliance officer determined that the depth of the trench was 9feet 2 inches from a measurement made by the employees with a depthstick. The compliance officer, however, noted that this measurementwould \”fluctuate a couple of inches depending on where you’re going tomeasure it.\” Danis’s employees agreed that the trench was approximatelynine feet deep. The compliance officer also measured each trench wallfrom the top of the trench to the \”toe,\” _i.e_., the point where thewall met the bottom of the trench. These distances were measured with atape measure at the part of the trench where employees were working. These measurements showed that the sloped east wall was 12 feet 4 inchesfrom top to \”toe\” and the west wall was 10 feet 8 inches.Based on his estimates of the dimensions of the trench made from adistance of 20-30 feet from where employees were working, the complianceofficer concluded that the slope of the east wall was approximately 56degrees and that the slope of the west wall was approximately 63degrees. In the compliance officer’s view, the trench was inadequatelysloped and posed an imminent danger to Danis’s employees. He askedDanis’s supervisor to remove the employees from the trench and slope thewalls to 33 degrees, which he considered appropriate for the soilinvolved. Danis complied with this request.Employees of Danis working at the trench site testified that the slopeof the trench was not as steep as the compliance officer claimed. Danis’s project manager, Parrish, who had a degree in civil engineeringand who had studied soil mechanics, testified that the slope was about45 degrees. In Parrish’s view, the \”toe\” of each trench wall wasfarther from the top of the wall than the compliance officer asserted. Parrish also noted that the toe of each trench wall was \”rais[ed]\” whensoil was returned to the trench to \”cradle\” the installed pipe. Basedon his later excavation of the trench site, Longo estimated that thetrench walls were sloped between 45 and 33 degrees. He also stated thatthe slope was approximately 39 degrees but \”was not accurately defined.\”The record also contains extensive testimony from soil expert Longo andfrom Danis’s witnesses on the composition of the soil and the stabilityof the trench walls. Longo testified from his examination of the soilthat it was compact sand and gravel and was \”very stable\”. Afterreviewing photographs of the trench, he also stated that the trenchwalls were \”stable.\” Danis’s project manager, Parrish, stated that thematerial in the trench was \”hard and compact\” granular soil composed ofsand and gravel. According to Parrish, the soil was sloped to its angleof repose which, in his view, was the angle at which \”the soil willsupport itself.\” Danis’s foreman, Slone, who had worked in trenches for15 years in many types of soil, testified that the trench was dug inundisturbed, \”compacted\” virgin soil and that it was safe. Parrish andSlone also noted that the stability of this trench was increased becauseit had been \”benched,\” _i.e_., approximately 3-4 feet of top soil, whichwas less stable than the underlying soil, had been removed before thetrench was excavated. An employee who worked in the trench, BlondellGoosey, who had 20-years experience in trenching, stated that the trenchhad \”real good walls\” and that he considered it safe. Parrish, Slone,and Goosey also testified that vibrations from a tamper being usednearby knocked a small amount of soil into the trench. Slone also notedthat sloughing occurred even after the trench was sloped to the anglerequested by the compliance officer.IIThe judge vacated the citation. He rejected the Secretary’s assertionthat _Duane Meyer d\/b\/a D.T. Construction Co_., 79 OSAHRC 57\/D4, 7 BNAOSHC 1560, 1979 CCH OSHD ? 23,742 (No. 16029, 1979), in which theCommission held that \”predominately sandy soils\” are presumed to be\”soft or unstable\” within the meaning of section 1926.652(b), wascontrolling. The judge determined that, although sand was present inthe soil at the excavation here, the record did not show that this soilwas \”predominately sandy.\” He concluded that the soil, therefore, couldnot be considered \”soft or unstable\” under the _Duane Meyer_presumption. Even if the soil were presumed to be \”soft or unstable,\”the judge alternatively determined that the presumption was rebutted bythe testimony of Longo, who, the judge noted, was \”the only expert onsoils to testify in this case,\” and who stated that the soil in theexcavation was \”very stable.\” The judge further reasoned that, even ifthe soil were irrebuttably considered soft or unstable, a violation wasnot proven because the recommended angle of repose for the soil inquestion \”[was] not listed in Table P-1 and it [was] not shown that thesides of the trench were improperly sloped for the material.\” The judgedetermined that the soil was compact and cohesive and that the unrefutedevidence \”reveals that a slope with a ratio of approximately 1 to 1 [45degrees] is adequate for the soil involved.\” Although he did not enterfindings as to the dimensions or slope of the trench, he determined that\”[t]he sides of the trench were adequately sloped to protect theemployees working in the trench.\”IIIOn review, the Secretary contends that a violation was proven becauseDanis’s trench was dug in soft and unstable soil and was inadequatelysloped. The Secretary cites _Connecticut Natural Gas Corp_., 78 OSAHRC60\/B3, 6 BNA OSHC 1796, 1978 CCH OSHD ? 22,874 (No. 13964, 1978), forthe proposition that soils listed in Table P-1 as having an angle ofrepose less steep than 63 degrees must be considered soft or unstablesince the slope required for hard and compact soil under section1926.652(c) is 63 degrees. Because the angle of repose tests show thatthe appropriate angle of repose for the soil in question was between 41degrees and 50 degrees, the Secretary concludes that the soil must beconsidered \”soft or unstable\” under _Connecticut Natural Gas_. TheSecretary further asserts that the _Duane Meyer_ presumption thatpredominately sandy soils, unless cemented, are soft or unstable was notrebutted because sand was the predominant component of the soil andbecause soil with an angle of repose less than 63 degrees must beconsidered soft or unstable \”as a matter of law.\”The Secretary also argues that section 1926.652(b) required a slope of45 degrees for the walls of Danis’s Trench. According to the Secretary,the compliance officer’s measurements are more accurate than themeasurements advanced by Danis and establish that the trench was notsloped to this angle. In the Secretary’s view, the judge erred byfailing to explain why he credited the testimony of Danis’s witnesses asto the dimensions and slope of the trench over that of the complianceofficer. Finally, the Secretary submits that the violation was willfulbecause Danis failed to slope the trench walls to a less steep angleafter the representative of the Ohio Industrial Commission informedDanis’s foreman that the sloping of the trench walls was inadequate.Danis argues that the judge’s disposition was correct. The soil in thetrench walls is not listed in Table P-1, since it was not sand but amixture of sand, gravel and silt, and one sample showed the presence ofclay. Therefore, Danis argues, the judge correctly found that the_Duane Meyer_ presumption does not apply to this soil. Even if it did,however, the presumption was rebutted by the expert testimony as to theangle of repose of the soil samples and the on-the-scene observations ofDanis’s experienced employees. Danis asserts that the trench was notonly sloped adequately for the type of soil, but it was also \”benched\”for extra stability. Danis claims that the compliance officer’smeasurements were taken not where its employees were actually working inthe trench but rather were made near the end of the trench in a locationwhere excavation had not yet been completed. Therefore, it contendsthat the judge correctly rejected the compliance officer’s measurements.IVChairman Buckley would affirm the judge’s decision. Section 1926.652(b)states in part that the \”[s]ides of trenches in unstable or softmaterial, 5 feet or more in depth, shall be shored, sheeted, braced [or]sloped . . . to protect the employees working within them.\” To prove aviolation of section 1926.652(b), the Secretary therefore must provethat an employer’s trench was dug in \”unstable or soft material\” andthat it had not been \”shored, sheeted, braced [or] sloped . . . toprotect the employees working within [it].\” Neither of these facts wasestablished.The Secretary maintains for two reasons that Danis’s trench was dug in\”unstable or soft material\”: first, the angle, of repose of this soilwas less than 63 degrees and thus \”unstable or soft\” as \”a matter oflaw\” under _Connecticut Natural Gas_; and second, the soil was\”predominately sandy\” and, therefore, presumed to be \”unstable or soft\”under _Duane Meyer_. Chairman Buckley finds both of these arguments arewithout merit. In _Connecticut Natural Gas_, the Commission stated\”that those materials _listed in Table P-1_ as having a less steep angleof repose [than 63 degrees] must be considered soft or unstable, and aretherefore regulated by ? 1926.652(b).\” 6 BNA OSHC 1799, 1978 CCH OSHDat p. 27,668 (emphasis supplied). The soil in Danis’s trench wascomposed of sand and gravel in roughly equal proportions with somesilt. As the judge observed, this material is _not_ listed in TableP-1. Accordingly, this soil is not unstable or soft as a matter of lawunder _Connecticut Natural Gas_. Moreover, the presumption created in_Duane Meyer_ that \”predominately sandy\” soils are soft or unstable is arebuttable presumption. The judge found that this presumption wasrebutted by the testimony of the soil expert Longo. Chairman Buckleyagrees with this finding and notes that the extensive testimony ofDanis’s experienced employees that this trench was stable or safe,discussed immediately below, is consistent with that of the soil expertand rebuts any presumption of instability that may be drawn in this case.The Chairman also finds insufficient evidence that the walls of thistrench were not sloped \”to protect the employees working within them\” asrequired by the standard. The judge found that \”[t]he sides of thetrench were adequately sloped to protect the employees working in thetrench.\” This finding is well supported in the record. Soil expertLongo testified that the material in the trench was compact and \”verystable.\” Danis’s project manager, Parrish, an engineer who had studiedsoil mechanics, stated that the soil was \”hard and compact.\” He alsostated that the sides of the trench were sloped to the angle at which\”the soil will support itself.\”[[6]] Danis employees Slone and Goosey,both of whom had extensive trenching experience, stated that the trenchwas adequately sloped and considered it safe. The stability of thistrench also was enhanced by the initial \”benching\” operation, whichinvolved the removal of 3-4 feet of top soil from the excavation site. Indeed, the only evidence that this trench was unsafe was the opiniontestimony of the compliance officer, whose training and experience, whencompared to the witnesses mentioned above, can best be described aslimited.[[7]] Based on the testimony of Danis’s better-trained andmore-experienced witnesses, Chairman Buckley would conclude that thejudge correctly found that this trench met the standard’s requirementthan walls be sloped \”to protect employees working within them.\”The muddled evidence on which the Secretary relies concerning slopingand angle of repose does not show that the walls were inadequatelysloped. To prove his case the Secretary must show what the proper angleof the slope should be for the soil in the trench and that the trenchwas not sloped to this angle. Section 1926.653(b) defines a soil’s\”angle of repose\” as \”[t]he greatest angle above the horizontal plane atwhich a material will lie without sliding.\” It is clear from the titleof Table P-1, \”_Approximate_ Angle Of Repose For Sloping Of Sides OfExcavations\” (emphasis supplied) and from the testimony of the soilexpert, Longo, that any given angle of repose is only an approximationof the angle at which it will lie without sliding. It is also clearfrom the unrebutted testimony of Longo that the angle of repose test is\”very unsophisticated\” and yields only an \”approximation\” of the angleof repose. In fact, as Longo observed, the angle of repose of soil inits natural state would be 5 to 10% higher than the angle of reposedetermined in a lab. In sum, an angle of repose test yields little morethan a general range of appropriate slopes .[[8]]This record contains five different estimates of the angle of repose forthe soil in Danis’s trench. During his inspection and later at thehearing, the compliance officer stated that the walls should have beensloped to 33 degrees. On review, the Secretary contends that, \”[f]orpurposes of this case the Secretary will assume that a 1:1 [45 degree]slope would have been adequate.\” The Bowser-Morner laboratory angle ofrepose tests show that the angle of repose was 41 or 45 degrees and thatthis would be 10% higher in the field: 45 to 50 degrees. Longo statedthat Geotechnical’s laboratory results showed that the angle of reposewas approximately 51 degrees, which would be approximately 10% higher inthe field or 56 degrees. Longo also stated that the angle of repose ofthis soil was between 45 and 63 degrees.The Secretary argues on review that the appropriate angle of repose forthis soil is 45 degrees. In view of this and the lack of evidence thatthe compliance officer tested this soil or was qualified to estimate asoil’s angle of repose from visual observation, the Chairman wouldaccord no weight to his 33 degree estimate. The remaining estimates,which are based on laboratory tests and expert opinion, show that theangle of repose was in the range of 45 to 63 degrees. As adjusted forfield conditions, the Bowser-Morner test shows the angle of repose was45 or 50 degrees. The Geotechnical test shows that this angle was 56degrees. Longo’s estimate that the angle of repose was between 45 and 63degrees also stands unrebutted. Chairman Buckley finds no principledbasis in this record for selecting one of these estimates as theappropriate angle of repose for the soil in Danis’s trench. Given thestate of this record, the only finding that may be entered as to thissoil’s angle of repose is that this angle was somewhere in the range of45 to 63 degrees.The evidence on the slopes of the trench walls is similarly uncertain. The compliance officer made an estimate, based on measurements he tookat the site, that the slope was approximately 63 degrees.[[9]] Danis’sproject manager testified that the slope was approximately 45 degrees,while Goosey, the pipelayer who was in the trench, testified that theslope was \”a little better than 1:1 [_i.e_., less steep than 45 degrees]because when the pipes were put in, I could walk right up the side ofthe bank. I never used the ladder.\” Longo testified that his testsdetermined that the slope was \”between 1:1 [45 degrees] and 1-1\/2:1 [33degrees]. There was nothing sharper than 1:1.\” Given this disparity inestimates, Chairman Buckley would not disturb the judge’s finding thatthe trench was sloped adequately to satisfy even the Secretary’s claimthat a 45 degree slope was necessary.The Secretary’s claim of a violation hinges on the testimony of thecompliance officer and on the disputed measurements made by him at thesite. There is considerable conflict in the record as to the width ofthe trench at both top and bottom. The compliance officer testifiedthat one spot in the trench was measured as having a depth of 9 feet 2inches. It is generally agreed that this trench was approximately 9feet deep. The compliance officer testified that the length of the eastwall of the trench from top to toe in one area where the employeesworked was 12 feet 4 inches and that a comparable measurement along thewest wall was 10 feet 8 inches. By applying trigonometry to thesedimensions, the slope of the east wall is calculated to be 46 degreesand the slope of the west wall to be 57 degrees. In the Chairman’sview, the slopes obtained by this trigonometric determination may besomewhat more reliable than the conflicting figures advanced by theparties, which are based on guesswork and estimations. Yet thesetrigonometrically-determined slopes are not sufficiently reliable tosupport a finding as to the actual slope of Danis’s trench on the day ofthe inspection.First, it is clear that if the compliance officer’s depth and wallmeasurements are taken as correct, the trench would be almost 23 feetwide at the top and not 19 1\/2 feet as the compliance officer claimed. The Chairman finds that this internal inconsistency in the Secretary’sfigures casts doubt on the accuracy of the compliance officer’smeasurements.Second, to measure or calculate slopes of a trench, one must assume onlythe best of circumstances, _i.e_., that the terrain was perfectly leveland that the dimensions of a relatively large trench were measured withaccuracy down to the inch. Unlike certain material–such aslumber–mounds of dirt do not lend themselves to precise measurement. Afailure to align a tape measure precisely at the top of a trenchwall–if such a sharply demarcated point exists–or the presence of aclod of earth or a stone at the end of the tape measure on the bottom ofthe trench could result in a measurement that is inaccurate by severalinches.Third, the photographic exhibits here clearly show that the bottom ofthe trench wall was not sharply defined and it can fairly be said thatmeasurement of the top to \”toe\” distance could vary by as much as twofeet depending on what point is considered the \”toe\” of the trench. Indeed, project manager Parrish considered the \”toe\” of each trench wallto be farther down the trench wall than the point urged by the Secretaryat the hearing. Yet, a deviation of eight inches in the complianceofficer’s measurement of the height and fifteen inches in hismeasurement of the steepest sloped side of the trench would yield aslope that would be appropriate under the 45 degree angle of repose thatthe Secretary deems adequate for this soil. Given the accumulateduncertainties in the record and the disputed dimensions of the trench,Chairman Buckley concludes that a finding that the slope of this trenchexceeded 45 degrees cannot be supported on this record. The Secretaryhas not carried his burden of proving that the actual slope at this siteexceeded his own estimate of a safe angle.In sum, the Chairman would credit the extensive testimony fromexperienced employees that the trench walls were stable and agree withthe judge’s holding that the walls of Danis’s trench were sloped to\”protect employees working within them,\” as required by the standard. The Chairman further concludes that the citation must be vacated becausethe Secretary failed to establish by a preponderance of the evidencethat the walls of the trench were not sloped to the appropriate angle ofrepose. Accordingly, Chairman Buckley would affirm the judge’s decision.Commissioner Cleary would reverse the judge’s vacation of the citation,and would find that the soil in Danis’s trench was soft or unstablewithin the meaning of section 1926.652(b). The trenching standard at 29C.F.R. ? 1926.652 compels the conclusion that this soil was soft andunstable. Under 29 C.F.R. ? 1926.652, soil is classified as either softor unstable, 29 C.F.R. ? 652(b), or hard and compact, 29 C.F.R. ?652(c).[[10]] _CCI, Inc_., 80 OSAHRC 127\/D4, 9 BNA OSHC 1169, 1173,1981 CCH OSHD ? 25,091, p. 30,993 (No. 76-1228, 1980), _aff’d_, 688 F.2d88 (10th Cir. 1982). Since the slope allowed for hard and compact soilunder section 1926.652(c) is 63 degrees, soil with an angle of repose ofless than 63 degrees must be soft or unstable.The Bowser-Morner test results, which were not questioned by Danis’ssoil expert, Longo, show that the angle of repose for the soil inDanis’s trench was between 41 and 45 degrees. Since the angle of reposeof this soil is less than 63 degrees, the regulatory frameworkestablished by the trenching standard compels the conclusion that is wasunstable.[[11]] This is borne out by Table P-1. The table states thatthe angle of repose for \”compacted angular gravel\” is 63 degrees andthat the angle of repose for \”compacted sharp sand\” is 33 degrees. Based on its angle of repose, soil composed entirely of \”compactedangular gravel\” therefore would be considered \”hard or compact.\” Thesoil in Danis’s trench, however, was approximately 50 percent gravel and50 percent sand with a percentage of sand possibly as high as 60percent. Since this soil contained only 50 percent gravel with an equalif not greater percentage of unstable sand, its angle of repose would beless than the 63 degree angle considered appropriate for homogeneous\”compacted angular gravel.\” Accordingly, Commissioner Cleary would findthat the soil in Danis’s trench was \”unstable or soft\” under thetrenching standard.Commissioner Cleary considers the testimony of Danis’s expert andemployees that the trench was \”stable\” or safe to be beside the point. This testimony amounts to a challenge to the wisdom of the standard,which the Commission will not decide. The Commission is not in aposition to re-write the standard. _See_ _Heath & Stich, Inc_., 80OSAHRC 65\/E12, 8 BNA OSHC 1640, 1643, 1980 CCH OSHD ? 24,580, p. 30,152(No. 14188, 1980)(employer impermissibly challenged wisdom of standardby arguing that hard and compact soil was \”so stable\” that trench neednot comply with section 1926.652(c)). The stability of trenches is notto be measured on the basis of employees’ beliefs. The cases decided bythis Commission are replete with instances of employee deaths intrenches they thought to be safe.Once it is shown that soil is \”unstable or soft\” within the meaning ofsection 1926.652(b), a determination must be made as to whether thesides were \”shored, sheeted, braced, sloped, or otherwise supported bymeans of sufficient strength to protect the employees working withinthem.\” The judge did not specifically determine to what angle thetrench walls were sloped. Indeed, he never resolved the evidentiaryconflict over the trench’s dimensions.[[12]] In concluding that aviolation was not proven, however, the judge entered the followingconclusion:Testimony on behalf of [Danis], which is not refuted, reveals that aslope with a ratio of approximately 1 to 1 [45 degrees] is adequate forthe soil involved. Thus, improper sloping of the sides of the trenchhas not been shown in this case.In Commissioner Cleary’s opinion, the judge’s conclusion that \”impropersloping….has not been shown….\”cannot be sustained because he did notdetermine what the slope of each wall was nor did he explain the basisfor this conclusion.As Chairman Buckley observes, the slopes of the east and west trenchwalls may be calculated using trigonometry. Commissioner Cleary findsnothing in this record to suggest that the measurements of thecompliance officer which have been used in making this calculation areunreliable. Although Danis’s witnesses sharply questioned thecompliance officer’s measurement of the trench’s width, they did nottake issue with his measurement of the distance of the east and westwalls of this trench nor did they advance contradictory measurements. The depth measurement of 9 feet 2 inches also was not disputed and,indeed, was made by the employees who worked in the trench. Incalculating the slopes of the trench walls, the proper assumption isthat the depth of this trench was 9 feet 2 inches and not \”approximately9 feet.\” Based on the foregoing, the slopes of the east and west wallsmay be reliably determined to be 48 and 59 degrees respectively.To decide whether a violation of section 1926.652(b) was shown, it mustbe determined whether sloping of 48 and 59 degrees is appropriate forsoil containing a roughly equal mixture of sand and gravel. The morereliable Bowser-Morner angle of repose laboratory tests show that theangle of repose for this soil is approximately 41 to 45 degrees. Thejudge also found that the appropriate angle of repose was 45 degrees. The 48 and 59 degree sloping of the walls of this trench clearly exceedsthis angle of repose.[[13]]Finally, the applicable standard of proof in Commission proceedings isthe preponderance of the evidence standard. _Astra_ _PharmaceuticalProducts, Inc_., 81 OSAHRC 79\/D10, 9 BNA OSHC 2126, 2131 nn.16 & 17,1981 CCH OSHD ? 25,578, p. 31,901 nn.16 & 17 (No. 78-6247, 1981), _aff’din pertinent part and remanded on other grounds_, 681 F.2d 69 (1st Cir.1982). A preponderance of evidence is that quantity of proof thatconvinces the trier of fact that a fact more likely than not is true. _See_ _id_. To conclude that a fact is established by a preponderance ofthe evidence, one is \”not required to find the facts to an absolutecertainty or even beyond a reasonable doubt, as in a criminal case.\” _Burch v. Reading Co._, 240 F.2d 574, 579 (3d Cir. 1957). The evidenceshows that it is more likely than not that Danis dug its trench inunstable soil and that it failed to slope the trench walls to theappropriate angle of repose. To conclude otherwise one necessarily mustfind that the employees’ general assertions as to the safety of thetrench are more reliable than the undisputed measurements made by thecompliance officer. More significantly, however, such a conclusion maybe reached only by viewing the evidence so skeptically as to require theSecretary to prove a violation \”beyond a reasonable doubt\” or to an\”absolute certainty.\” This approach is inappropriate in resolvingcivil disputes under remedial legislation such as the OccupationalSafety and Health Act.Under section 12(f) of the Act, 29 U.S.C. ? 661(e), official action canbe taken by the Commission with the affirmative vote of at least twomembers. To resolve their impasse, and permit a resolution of thiscase, Chairman Buckley and Commissioner Cleary agree to vacate thedirection for review. _E.g_., _Texaco, Inc_., 80 OSAHRC 74\/B1, 8 BNAOSHC 1758, 1980 CCH OSHD ? 24,634 (Nos. 77-3040 & 77-3542, 1980). Thejudge’s decision in this case therefore becomes the appealable finalorder of the Commission, but is accorded the precedential value of anunreviewed judge’s decision.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 10 1985————————————————————————FOOTNOTES:[[1]] Section 1926.652(b) states as follows:Sides of trenches in unstable or soft material, 5 feet or more in depth,shall be shored, sheeted, braced, sloped, or otherwise supported bymeans of sufficient strength to protect the employees working withinthem. See Table P-1, P-2 (following paragraph (g) of this section).Table P-1 is a guideline that suggests the approximate angles of reposefor various types of soil:Solid rock, shale or cemented sand and gravel – 90?Compacted angular gravels – 1\/2:1 (63? 26′)Average Soils – 1:1 (45?)Compacted Sharp Sand -1 1\/2 :1 (33? 41′)Well rounded loose sand – 2:1 (26? 34′)Table P-1 lists, for certain specified soil types, the ratio ofhorizontal feet to which a trench wall should be sloped to each foot ofthe wall’s depth. For example, Table P-1 indicates that the approximateangle of repose for compacted angular gravels is 1\/2:1 or approximately63 degrees. For soil with an angle of repose of 1\/2:1, 1\/2 foot ofhorizontal distance would be excavated for each foot of depth. Lessstable compacted sharp sand, which has an angle of repose of 1 1\/2:1, orapproximately 33 degrees, would be excavated 1 1\/2 feet horizontally foreach foot of depth.[[2]] As established by the Act, the Commission is composed of threemembers. Section 12(a) of the Act, 29 U.S.C. ? 661(a). Currently, theCommission has two members as a result of a vacancy.[[3]] Danis had arranged to have the Bowser-Morner sampling done afterthe site was visited by a safety consultant from the Ohio IndustrialCommission. That visit occurred approximately one month before the OSHAinspection. The safety consultant told Danis’s project manager that thetrench walls should be sloped to approximately 26 degrees to conformwith OSHA’s trenching standard. The safety consultant also suppliedDanis’s project manager, Parrish, with a copy of the OSHA trenchingstandards. Parrish reviewed the standards and Table P-1 and concludedthat the standard did not apply to Danis’s trench. He arranged,however, to have the soil sampled ”in case there was any question [as]to what the slope should be ….\”[[4]] At the hearing, Danis objected to the introduction of theBowser-Morner report into the record. This objection seems to have beensustained by the judge though the exchange is unclear. Portions of thereport were read into the record, however, and in post-hearing briefs tothe judge, both Danis and the Secretary relied on the report. The judgealso relied on the report in his decision. The record certified to theCommission by the judge after review was directed contains this reportas Exhibit G-16. In its brief on review, Danis does not contend thatthis report is not properly in the record. Indeed, it cites the reportin arguing for affirmance of the judge’s decision. In view of theparties’ and judge’s reliance on this report and in the absence of anyobjection from Danis on review, the Commission has considered thisreport as part of the record.[[5]] An angle of repose test is conducted in a laboratory. The soil isfirst dried to remove moisture then poured through a funnel onto a flatsurface. The natural angle that soil will attain on the flat surface isconsidered the angle of repose. Longo stated that although this testwas an accepted procedure it was an accepted procedure it was \”veryunsophisticated\” and yielded an \”approximation\” of a soil’s naturalangle repose. He explained that the \”actual field angle of repose\” isfive tested in the laboratory is in a \”disturbed\” state and because theremoval of moisture from the soil reduces its cohesiveness.[[6]] Parrish’s description of the manner in which the trench was slopedis entirely consistent with the standard’s definition of angle ofrepose, _i.e_., \”[t]he greatest angle above the horizontal plane atwhich a material will lie without sliding.\” _See_ 29 C.F.R. ? 1926.653(b).[[7]] The compliance officer previously had inspected 15 excavationsites. His training as a compliance officer included two days ofinstruction in OSHA’s trenching standards. Before his employment as acompliance officer, he worked as an intern at OSHA and received\”on-the-job\” training in soil recognition from another complianceofficer. Although he had received an undergraduate degree in \”SafetyManagement,\” his course work did not address soils or soil mechanics. His only other experience in excavation work consisted of one year’semployment laying sewer lines before and while attending college.[[8]] The uncertainty is also inherent in the definition of \”angle ofrepose\” in section 1926.653(b). See F. Yokel & R. Stanevich,_Development of Draft Construction Safety Standards for Excavations_,vol. I, p. 58 (NBS\/NIOSH, 1983)(recommending deletion of presentdefinition as \”too vague\”).[[9]] The Chairman notes that there is reason to doubt the complianceofficer’s estimate that the slope was 1\/2 to 1, _i.e._, 63 degrees. Thatestimate was based on measurements whose accuracy is open to seriousquestion. The compliance officer took the measurements at the end ofthe trench that was being excavated, where the sloping had not beencompleted. He stood 20-30 feet away from where employees were workingand ”eyeballed\” the width of the trench. Using this technique, hedecided that the trench was 9 feet wide at the bottom. All Danis’switnesses, however, testified that the trench was no more than 5 to6 feet wide. They stated that not only is there is no reason to takeout more soil than that, but that the soil removed must then be returnedto the trench and compacted to meet specifications which takes time andslows down the work. There is therefore a very good reason not to takeout any more soil than necessary. Given the unanimity of thistestimony, Chairman Buckley finds that the width of the bottom of thetrench was considerably less than the compliance officer’s\”measurement.\” He therefore questions the accuracy of the complianceofficer’s other estimates.[[10]] The trenching standard, as amplified by Table P-1, provides oneexception to the general rule stated in the text: solid rock, shale andcemented sand and gravels are treated as \”something other\” than \”hard orcompact\” or \”soft and unstable\” soil. They have a 90 degree angle ofrepose. _CCI, Inc_., 9 BNA OSHC at 1173, 1981 CCH OSHD at pp.30,993-4. In this case, Danis does not contend that its trench was dugin solid rock, shale, or cemented sand and gravel.[[11]] This conclusion also finds support in the testimony of Danis’ssoil expert, Longo, who testified that the angle of repose wasapproximately 51 degrees. Longo alternatively stated that the angle ofrepose would be in the range between 45 and 63 degrees. Longo’stestimony also shows that a specific measurement of the angle may bemade in a laboratory but that the measurement would be an\”approximation\” of the soil’s angle of repose in the field. Commissioner Cleary agrees that a laboratory-determined angle of reposewould only be an approximation of a soil’s natural angle of repose. Henevertheless would note that Longo’s estimate that the angle of reposecould range between 45 and 63 degrees would allow almost 20 degreesleeway in sloping. Such a wide-ranging estimate is of little value indetermining the angle of repose of this soil. Inasmuch as Longo wasable to more specifically state that the angle of repose wasapproximately 51 degrees, Commissioner Cleary would disregard hisalternative opinion that the angle of repose ranged between 45 and 63degrees. Although Commissioner Cleary considers the Bowser-Mornerestimate of the angle of repose more reliable because it was based onsampling done on the day of the inspection, he notes that Longo’s morespecific estimate, which was based on sampling done more than one monthafter the trench was refilled also tends to show that the angle ofrepose was less than 63 degrees and, thus, supports the conclusion thatthis soil was unstable.[[12]] With respect to these disputed dimensions, he stated that\”[d]espite the conflicting testimony as to the width of the trench, themeasurements are not crucial to the decision in this case.\”[[13]] The Secretary alleged that the violation was willful. Aviolation is willful if it is committed with intentional disregard of,or plain indifference to the Act’s requirements. _Kus-Tum Builders,Inc._, 81 OSAHRC 97\/B2, 10 BNA OSHC 1128, 1981 CCH OSHD ? 25,738 (No.76-2644, 1981). After a question was raised as to the sloping of thetrench by the safety consultant from the Ohio Industrial Commission,Danis arranged to have the soil tested by Bowser-Morner. Later, duringthe inspection, Danis removed its employees from the trench and slopedto the angle requested by the compliance officer. In CommissionerCleary’s view, Danis’s actions do not reflect plain indifference to orintentional disregard of the standard’s requirement or employee safety.”