“Docket No. 80-6933 SECRETARY OF LABOR,Complainant,v.B.G. DANIS COMPANY,Respondent.OSHRC Docket No. 80-6933DECISIONBefore:\u00a0 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\”).\u00a0 The Commission is an adjudicatory agency, independentof the Department of Labor and the Occupational Safety and Health Administration(\”OSHA\”).\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions.\u00a0 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 trenching standard at 29C.F.R. ? 1926.652(b).[[1]] Administrative Law Judge Paul L. Brady found that a violationwas not established and vacated the citation.\u00a0 For the reasons stated below, ChairmanBuckley and Commissioner Cleary disagree on whether the judge’s decision should beaffirmed. [[2]]IA compliance officer from OSHA inspected Danis’s excavation of a trench in Trenton, Ohio,and observed three employees working in the trench.\u00a0 He examined the soil in thetrench and determined that it was composed of sand and gravel.\u00a0 He concluded that thesoil was soft and unstable because it was composed partly of sand and because he saw soilslough off the trench wall.\u00a0 On the same day as the OSHA inspection, soil sampleswere taken from the trench at Danis’s direction by Bowser-Morner TestingLaboratories.[[3]]\u00a0 Bowser-Morner’s report stated the soil was composed of sand andgravel with traces of silt, though the percentages of these components were not stated.[[4]]\u00a0 Approximately one to two months after the inspection, Danis arranged to havefurther sampling done by Geotechnical Consultants, Inc.\u00a0 This sampling was done byDaniel Longo, a professional soils engineer and president of Geotechnical Consultants.\u00a0 Longo stated that he attempted \”to reconstruct some of the conditions\”that existed during the inspection by using a backhoe to excavate the soil at the originaltrench site to a depth of five feet.\u00a0 Longo’s samples showed that the soil taken 10feet west of the trench’s center line was 50 percent sand and 50 percent gravel and thatsoil taken eight feet east of this line was 50-60 percent sand, 25 percent gravel andapproximately 15 percent silt and clay.Bowser-Morner and Geotechnical both performed angle of repose tests on the soil from thearea of the excavation.[[5]]\u00a0 Two samples tested by Bowser-Morner showed that thesoil’s angle of repose was between 41 and 45 degrees.\u00a0 Based on Geotechnical’s tests,Longo stated that the angle of repose was \”something like\” 51 degrees and thaton Table P-1 it would be between 45 and 63 degrees.\u00a0 Longo also stated that he had\”[n]o reason to disagree\” with the Bowser-Morner report.During his inspection, the compliance officer measured various dimensions of the trenchwithout entering it.\u00a0 To obtain width estimates, he extended a tape measure acrossthe trench at a location 20 to 30 feet away from where employees were working.\u00a0 Hethen estimated that 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 components of the slopes ofthe east and west walls were 6 and 4 1\/2 feet respectively.Danis’s foreman, Bobby Slone, disputed the compliance officer’s width measurement, statingthat his estimated measurements showed that the trench was 28 to 30 feet wide at the top.\u00a0 Employees who had worked in the trench also disagreed with the compliance officerand contended that the trench was 5-6 feet wide at the bottom.\u00a0 The employees whoworked in the trench assisted the backhoe operator in lowering each pipe section to thecompletely excavated trench bottom and sealed the end of the section to the preceding pipesection.\u00a0 After the pipe section is installed, the backhoe dumps soil around the pipeto \”cradle\” it in position.The compliance officer determined that the depth of the trench was 9 feet 2 inches from ameasurement made by the employees with a depth stick.\u00a0 The compliance officer,however, noted that this measurement would \”fluctuate a couple of inches depending onwhere you’re going to measure it.\”\u00a0 Danis’s employees agreed that the trench wasapproximately nine feet deep.\u00a0 The compliance officer also measured each trench wallfrom the top of the trench to the \”toe,\” i.e., the point where the wallmet the bottom of the trench.\u00a0 These distances were measured with a tape measure atthe part of the trench where employees were working.\u00a0 These measurements showed thatthe sloped east wall was 12 feet 4 inches from top to \”toe\” and the west wallwas 10 feet 8 inches.Based on his estimates of the dimensions of the trench made from a distance of 20-30 feetfrom where employees were working, the compliance officer concluded that the slope of theeast wall was approximately 56 degrees and that the slope of the west wall wasapproximately 63 degrees.\u00a0 In the compliance officer’s view, the trench wasinadequately sloped and posed an imminent danger to Danis’s employees.\u00a0 He askedDanis’s supervisor to remove the employees from the trench and slope the walls to 33degrees, which he considered appropriate for the soil involved.\u00a0 Danis complied withthis request.Employees of Danis working at the trench site testified that the slope of the trench wasnot as steep as the compliance officer claimed.\u00a0 Danis’s project manager, Parrish,who had a degree in civil engineering and who had studied soil mechanics, testified thatthe slope was about 45 degrees.\u00a0 In Parrish’s view, the \”toe\” of eachtrench wall was farther from the top of the wall than the compliance officer asserted.\u00a0 Parrish also noted that the toe of each trench wall was \”rais[ed]\” whensoil was returned to the trench to \”cradle\” the installed pipe.\u00a0 Based onhis later excavation of the trench site, Longo estimated that the trench walls were slopedbetween 45 and 33 degrees.\u00a0 He also stated that the slope was approximately 39degrees but \”was not accurately defined.\”The record also contains extensive testimony from soil expert Longo and from Danis’switnesses on the composition of the soil and the stability of the trench walls.\u00a0Longo testified from his examination of the soil that it was compact sand and graveland was \”very stable\”.\u00a0 After reviewing photographs of the trench, he alsostated that the trench walls were \”stable.\”\u00a0 Danis’s project manager,Parrish, stated that the material in the trench was \”hard and compact\” granularsoil composed of sand and gravel.\u00a0 According to Parrish, the soil was sloped to itsangle of repose which, in his view, was the angle at which \”the soil will supportitself.\”\u00a0 Danis’s foreman, Slone, who had worked in trenches for 15 years inmany types of soil, testified that the trench was dug in undisturbed,\”compacted\” virgin soil and that it was safe.\u00a0 Parrish and Slone also notedthat the stability of this trench was increased because it had been \”benched,\” i.e.,approximately 3-4 feet of top soil, which was less stable than the underlying soil, hadbeen removed before the trench was excavated.\u00a0 An employee who worked in the trench,Blondell Goosey, who had 20-years experience in trenching, stated that the trench had\”real good walls\” and that he considered it safe.\u00a0 Parrish, Slone, andGoosey also testified that vibrations from a tamper being used nearby knocked a smallamount of soil into the trench.\u00a0 Slone also noted that sloughing occurred even afterthe trench was sloped to the angle requested by the compliance officer.IIThe judge vacated the citation.\u00a0 He rejected the Secretary’s assertion that DuaneMeyer d\/b\/a D.T. Construction Co., 79 OSAHRC 57\/D4, 7 BNA OSHC 1560, 1979 CCH OSHD ?23,742 (No. 16029, 1979), in which the Commission held that \”predominately sandysoils\” are presumed to be \”soft or unstable\” within the meaning of section1926.652(b), was controlling.\u00a0 The judge determined that, although sand was presentin the soil at the excavation here, the record did not show that this soil was\”predominately sandy.\”\u00a0 He concluded that the soil, therefore, could not beconsidered \”soft or unstable\” under the Duane Meyer presumption. \u00a0Even if the soil were presumed to be \”soft or unstable,\” the judge alternativelydetermined that the presumption was rebutted by the testimony of Longo, who, the judgenoted, was \”the only expert on soils to testify in this case,\” and who statedthat the soil in the excavation was \”very stable.\”\u00a0 The judge furtherreasoned that, even if the soil were irrebuttably considered soft or unstable, a violationwas not proven because the recommended angle of repose for the soil in question\”[was] not listed in Table P-1 and it [was] not shown that the sides of the trenchwere improperly sloped for the material.\”\u00a0 The judge determined that the soilwas compact and cohesive and that the unrefuted evidence \”reveals that a slope with aratio of approximately 1 to 1 [45 degrees] is adequate for the soil involved.\”\u00a0Although he did not enter findings as to the dimensions or slope of the trench, hedetermined 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 because Danis’s trench wasdug in soft and unstable soil and was inadequately sloped.\u00a0 The Secretary cites ConnecticutNatural Gas Corp., 78 OSAHRC 60\/B3, 6 BNA OSHC 1796, 1978 CCH OSHD ? 22,874 (No.13964, 1978), for the proposition that soils listed in Table P-1 as having an angle ofrepose less steep than 63 degrees must be considered soft or unstable since the sloperequired for hard and compact soil under section 1926.652(c) is 63 degrees.\u00a0 Becausethe angle of repose tests show that the appropriate angle of repose for the soil inquestion was between 41 degrees and 50 degrees, the Secretary concludes that the soil mustbe considered \”soft or unstable\” under Connecticut Natural Gas. TheSecretary further asserts that the Duane Meyer presumption that predominately sandysoils, unless cemented, are soft or unstable was not rebutted because sand was thepredominant component of the soil and because soil with an angle of repose less than 63degrees must be considered soft or unstable \”as a matter of law.\”The Secretary also argues that section 1926.652(b) required a slope of 45 degrees for thewalls of Danis’s Trench.\u00a0 According to the Secretary, the compliance officer’smeasurements are more accurate than the measurements advanced by Danis and establish thatthe trench was not sloped to this angle.\u00a0 In the Secretary’s view, the judge erred byfailing to explain why he credited the testimony of Danis’s witnesses as to the dimensionsand slope of the trench over that of the compliance officer.\u00a0 Finally, the Secretarysubmits that the violation was willful because Danis failed to slope the trench walls to aless steep angle after 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.\u00a0 The soil in the trench wallsis not listed in Table P-1, since it was not sand but a mixture of sand, gravel and silt,and one sample showed the presence of clay.\u00a0 Therefore, Danis argues, the judgecorrectly found that the Duane Meyer presumption does not apply to this soil.\u00a0Even 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 of Danis’sexperienced employees.\u00a0 Danis asserts that the trench was not only sloped adequatelyfor the type of soil, but it was also \”benched\” for extra stability.\u00a0 Danisclaims that the compliance officer’s measurements were taken not where its employees wereactually working in the trench but rather were made near the end of the trench in alocation where excavation had not yet been completed.\u00a0 Therefore, it contends thatthe judge correctly rejected the compliance officer’s measurements.IV Chairman Buckley would affirm the judge’s decision.\u00a0 Section 1926.652(b) states inpart that the \”[s]ides of trenches in unstable or soft material, 5 feet or more indepth, shall be shored, sheeted, braced [or] sloped . . . to protect the employees workingwithin them.\”\u00a0 To prove a violation of section 1926.652(b), the Secretarytherefore must prove that an employer’s trench was dug in \”unstable or softmaterial\” and that it had not been \”shored, sheeted, braced [or] sloped . . . toprotect the employees working within [it].\”\u00a0 Neither of these facts wasestablished.The Secretary maintains for two reasons that Danis’s trench was dug in \”unstable orsoft material\”:\u00a0 first, the angle, of repose of this soil was less than 63degrees and thus \”unstable or soft\” as \”a matter of law\” under ConnecticutNatural Gas; and second, the soil was \”predominately sandy\” and, therefore,presumed to be \”unstable or soft\” under Duane Meyer.\u00a0 ChairmanBuckley finds both of these arguments are without merit.\u00a0 In Connecticut NaturalGas, the Commission stated \”that those materials listed in Table P-1 ashaving a less steep angle of repose [than 63 degrees] must be considered soft or unstable,and are therefore regulated by ? 1926.652(b).\”\u00a0 6 BNA OSHC 1799, 1978 CCH OSHDat p. 27,668 (emphasis supplied).\u00a0 The soil in Danis’s trench was composed of sandand gravel in roughly equal proportions with some silt.\u00a0 As the judge observed, thismaterial is not listed in Table P-1. Accordingly, this soil is not unstable or softas a matter of law under Connecticut Natural Gas.\u00a0 Moreover, the presumptioncreated in Duane Meyer that \”predominately sandy\” soils are soft orunstable is a rebuttable presumption.\u00a0 The judge found that this presumption wasrebutted by the testimony of the soil expert Longo.\u00a0 Chairman Buckley agrees withthis finding and notes that the extensive testimony of Danis’s experienced employees thatthis trench was stable or safe, discussed immediately below, is consistent with that ofthe soil expert and rebuts any presumption of instability that may be drawn in this case.The Chairman also finds insufficient evidence that the walls of this trench were notsloped \”to protect the employees working within them\” as required by thestandard.\u00a0 The judge found that \”[t]he sides of the trench were adequatelysloped to protect the employees working in the trench.\”\u00a0 This finding is wellsupported in the record.\u00a0 Soil expert Longo testified that the material in the trenchwas compact and \”very stable.\”\u00a0 Danis’s project manager, Parrish, anengineer who had studied soil mechanics, stated that the soil was \”hard andcompact.\”\u00a0 He also stated that the sides of the trench were sloped to the angleat which \”the soil will support itself.\”[[6]] Danis employees Slone and Goosey,both of whom had extensive trenching experience, stated that the trench was adequatelysloped and considered it safe.\u00a0 The stability of this trench also was enhanced by theinitial \”benching\” operation, which involved the removal of 3-4 feet of top soilfrom the excavation site.\u00a0 Indeed, the only evidence that this trench was unsafe wasthe opinion testimony of the compliance officer, whose training and experience, whencompared to the witnesses mentioned above, can best be described as limited.[[7]] \u00a0Based on the testimony of Danis’s better-trained and more-experienced witnesses, ChairmanBuckley would conclude that the judge correctly found that this trench met the standard’srequirement than walls be sloped \”to protect employees working within them.\”The muddled evidence on which the Secretary relies concerning sloping and angle of reposedoes not show that the walls were inadequately sloped.\u00a0 To prove his case theSecretary must show what the proper angle of the slope should be for the soil in thetrench and that the trench was not sloped to this angle.\u00a0 Section 1926.653(b) definesa soil’s \”angle of repose\” as \”[t]he greatest angle above the horizontalplane at which a material will lie without sliding.\”\u00a0 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 soil expert, Longo,that any given angle of repose is only an approximation of the angle at which it will liewithout sliding.\u00a0 It is also clear from the unrebutted testimony of Longo that theangle of repose test is \”very unsophisticated\” and yields only an\”approximation\” of the angle of repose.\u00a0 In fact, as Longo observed, theangle of repose of soil in its natural state would be 5 to 10% higher than the angle ofrepose determined in a lab.\u00a0 In sum, an angle of repose test yields little more thana general range of appropriate slopes .[[8]]This record contains five different estimates ofthe angle of repose for the soil in Danis’s trench.\u00a0 During his inspection and laterat the hearing, the compliance officer stated that the walls should have been sloped to 33degrees.\u00a0 On review, the Secretary contends that, \”[f]or purposes of this casethe Secretary will assume that a 1:1 [45 degree] slope would have been adequate.\”\u00a0The Bowser-Morner laboratory angle of repose tests show that the angle of repose was41 or 45 degrees and that this would be 10% higher in the field:\u00a0 45 to 50degrees.\u00a0 Longo stated that Geotechnical’s laboratory results showed that the angleof repose was approximately 51 degrees, which would be approximately 10% higher in thefield or 56 degrees.\u00a0 Longo also stated that the angle of repose of this soil wasbetween 45 and 63 degrees.The Secretary argues on review that theappropriate angle of repose for this soil is 45 degrees.\u00a0 In view of this and thelack of evidence that the compliance officer tested this soil or was qualified to estimatea soil’s angle of repose from visual observation, the Chairman would accord no weight tohis 33 degree estimate.\u00a0 The remaining estimates, which are based on laboratory testsand expert opinion, show that the angle of repose was in the range of 45 to 63 degrees.\u00a0 As adjusted for field conditions, the Bowser-Morner test shows the angle of reposewas 45 or 50 degrees.\u00a0 The Geotechnical test shows that this angle was 56 degrees.Longo’s estimate that the angle of repose was between 45 and 63 degrees also standsunrebutted.\u00a0 Chairman Buckley finds no principled basis in this record for selectingone of these estimates as the appropriate angle of repose for the soil in Danis’s trench.Given the state of this record, the only finding that may be entered as to this soil’sangle of repose is that this angle was somewhere in the range of 45 to 63 degrees.The evidence on the slopes of the trench wallsis similarly uncertain.\u00a0 The compliance officer made an estimate, based onmeasurements he took at the site, that the slope was approximately 63 degrees.[[9]] \u00a0Danis’s project manager testified that the slope was approximately 45 degrees, whileGoosey, the pipelayer who was in the trench, testified that the slope was \”a littlebetter than 1:1 [i.e., less steep than 45 degrees] because when the pipes were putin, I could walk right up the side of the bank.\u00a0 I never used the ladder.\”\u00a0Longo testified that his tests determined that the slope was \”between 1:1 [45degrees] and 1-1\/2:1 [33 degrees].\u00a0 There was nothing sharper than 1:1.\”\u00a0Given this disparity in estimates, Chairman Buckley would not disturb the judge’s findingthat the trench was sloped adequately to satisfy even the Secretary’s claim that a 45degree slope was necessary.The Secretary’s claim of a violation hinges on the testimony of the compliance officer andon the disputed measurements made by him at the site.\u00a0 There is considerable conflictin the record as to the width of the trench at both top and bottom.\u00a0 The complianceofficer testified that one spot in the trench was measured as having a depth of 9 feet 2inches.\u00a0 It is generally agreed that this trench was approximately 9 feet deep.\u00a0The compliance officer testified that the length of the east wall of the trench fromtop to toe in one area where the employees worked was 12 feet 4 inches and that acomparable measurement along the west wall was 10 feet 8 inches.\u00a0 By applyingtrigonometry to these dimensions, the slope of the east wall is calculated to be 46degrees and the slope of the west wall to be 57 degrees.\u00a0 In the Chairman’s view, theslopes obtained by this trigonometric determination may be somewhat more reliable than theconflicting figures advanced by the parties, which are based on guesswork and estimations.\u00a0 Yet these trigonometrically-determined slopes are not sufficiently reliable tosupport a finding as to the actual slope of Danis’s trench on the day of the inspection.First, it is clear that if the complianceofficer’s depth and wall measurements are taken as correct, the trench would be almost 23feet wide at the top and not 19 1\/2 feet as the compliance officer claimed.\u00a0 TheChairman finds that this internal inconsistency in the Secretary’s figures casts doubt onthe accuracy of the compliance officer’s measurements.Second, to measure or calculate slopes of atrench, one must assume only the best of circumstances, i.e., that the terrain wasperfectly level and that the dimensions of a relatively large trench were measured withaccuracy down to the inch.\u00a0 Unlike certain material–such as lumber–mounds of dirtdo not lend themselves to precise measurement.\u00a0 A failure to align a tape measureprecisely at the top of a trench wall–if such a sharply demarcated point exists–or thepresence of a clod of earth or a stone at the end of the tape measure on the bottom of thetrench could result in a measurement that is inaccurate by several inches.Third, the photographic exhibits here clearlyshow that the bottom of the trench wall was not sharply defined and it can fairly be saidthat measurement of the top to \”toe\” distance could vary by as much as two feetdepending on what point is considered the \”toe\” of the trench.\u00a0 Indeed,project manager Parrish considered the \”toe\” of each trench wall to be fartherdown the trench wall than the point urged by the Secretary at the hearing.\u00a0 Yet, adeviation of eight inches in the compliance officer’s measurement of the height andfifteen inches in his measurement of the steepest sloped side of the trench would yield aslope that would be appropriate under the 45 degree angle of repose that the Secretarydeems adequate for this soil.\u00a0 Given the accumulated uncertainties in the record andthe disputed dimensions of the trench, Chairman Buckley concludes that a finding that theslope of this trench exceeded 45 degrees cannot be supported on this record.\u00a0 TheSecretary has 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 extensivetestimony from experienced employees that the trench walls were stable and agree with thejudge’s holding that the walls of Danis’s trench were sloped to \”protect employeesworking within them,\” as required by the standard.\u00a0 The Chairman furtherconcludes that the citation must be vacated because the Secretary failed to establish by apreponderance of the evidence that the walls of the trench were not sloped to theappropriate angle of repose.\u00a0 Accordingly, Chairman Buckley would affirm the judge’sdecision.Commissioner Cleary would reverse the judge’svacation of the citation, and would find that the soil in Danis’s trench was soft orunstable within the meaning of section 1926.652(b).\u00a0 The trenching standard at 29C.F.R. ? 1926.652 compels the conclusion that this soil was soft and unstable.\u00a0Under 29 C.F.R. ? 1926.652, soil is classified as either soft or unstable, 29C.F.R. ? 652(b), or hard and compact, 29 C.F.R. ? 652(c).[[10]]\u00a0 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.2d 88 (10th Cir. 1982).\u00a0 Since the slope allowed for hardand compact soil under 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 notquestioned by Danis’s soil expert, Longo, show that the angle of repose for the soil inDanis’s trench was between 41 and 45 degrees.\u00a0 Since the angle of repose of this soilis less than 63 degrees, the regulatory framework established by the trenching standardcompels the conclusion that is was unstable.[[11]]\u00a0 This is borne out by Table P-1.The table states that the angle of repose for \”compacted angular gravel\” is 63degrees and that the angle of repose for \”compacted sharp sand\” is 33 degrees.\u00a0Based on its angle of repose, soil composed entirely of \”compacted angulargravel\” therefore would be considered \”hard or compact.\”\u00a0 The soil inDanis’s trench, however, was approximately 50 percent gravel and 50 percent sand with apercentage of sand possibly as high as 60 percent.\u00a0 Since this soil contained only 50percent gravel with an equal if not greater percentage of unstable sand, its angle ofrepose would be less than the 63 degree angle considered appropriate for homogeneous\”compacted angular gravel.\”\u00a0 Accordingly, Commissioner Cleary would findthat the soil in Danis’s trench was \”unstable or soft\” under the trenchingstandard.Commissioner Cleary considers the testimony ofDanis’s expert and employees that the trench was \”stable\” or safe to be besidethe point.\u00a0 This testimony amounts to a challenge to the wisdom of the standard,which the Commission will not decide.\u00a0 The Commission is not in a position tore-write the standard.\u00a0 See Heath & Stich, Inc., 80 OSAHRC 65\/E12,8 BNA OSHC 1640, 1643, 1980 CCH OSHD ? 24,580, p. 30,152 (No. 14188, 1980)(employerimpermissibly challenged wisdom of standard by arguing that hard and compact soil was\”so stable\” that trench need not comply with section 1926.652(c)).\u00a0 Thestability of trenches is not to be measured on the basis of employees’ beliefs.\u00a0 Thecases decided by this Commission are replete with instances of employee deaths in trenchesthey thought to be safe.Once it is shown that soil is \”unstable or soft\” within the meaning of section1926.652(b), a determination must be made as to whether the sides were \”shored,sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protectthe employees working within them.\”\u00a0 The judge did not specifically determine towhat angle the trench walls were sloped.\u00a0 Indeed, he never resolved the evidentiaryconflict over the trench’s dimensions.[[12]]\u00a0 In concluding that a violation was notproven, however, the judge entered the following conclusion:Testimony on behalf of [Danis], which is notrefuted, reveals that a slope with a ratio of approximately 1 to 1 [45 degrees] isadequate for the soil involved.\u00a0 Thus, improper sloping of the sides of the trenchhas not been shown in this case.In Commissioner Cleary’s opinion, the judge’sconclusion that \”improper sloping….has not been shown….\”cannot be sustainedbecause he did not determine what the slope of each wall was nor did he explain the basisfor this conclusion.As Chairman Buckley observes, the slopes of theeast and west trench walls may be calculated using trigonometry.\u00a0 Commissioner Clearyfinds nothing in this record to suggest that the measurements of the compliance officerwhich have been used in making this calculation are unreliable.\u00a0 Although Danis’switnesses sharply questioned the compliance officer’s measurement of the trench’s width,they did not take issue with his measurement of the distance of the east and west walls ofthis trench nor did they advance contradictory measurements.\u00a0 The depth measurementof 9 feet 2 inches also was not disputed and, indeed, was made by the employees who workedin the trench.\u00a0 In calculating the slopes of the trench walls, the proper assumptionis that the depth of this trench was 9 feet 2 inches and not \”approximately 9feet.\”\u00a0 Based on the foregoing, the slopes of the east and west walls may bereliably determined to be 48 and 59 degrees respectively.To decide whether a violation of section1926.652(b) was shown, it must be determined whether sloping of 48 and 59 degrees isappropriate for soil containing a roughly equal mixture of sand and gravel.\u00a0 The morereliable Bowser-Morner angle of repose laboratory tests show that the angle of repose forthis soil is approximately 41 to 45 degrees.\u00a0 The judge also found that theappropriate angle of repose was 45 degrees.\u00a0 The 48 and 59 degree sloping of thewalls of this trench clearly exceeds this angle of repose.[[13]]Finally, the applicable standard of proof inCommission proceedings is the preponderance of the evidence standard.\u00a0 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’d in pertinent part andremanded on other grounds, 681 F.2d 69 (1st Cir. 1982).\u00a0 A preponderance ofevidence is that quantity of proof that convinces the trier of fact that a fact morelikely than not is true.\u00a0 See id. To conclude that a fact isestablished by a preponderance of the evidence, one is \”not required to find thefacts to an absolute certainty or even beyond a reasonable doubt, as in a criminalcase.\”\u00a0 Burch v. Reading Co., 240 F.2d 574, 579 (3d Cir. 1957).\u00a0 Theevidence shows that it is more likely than not that Danis dug its trench in unstable soiland that it failed to slope the trench walls to the appropriate angle of repose.\u00a0 Toconclude otherwise one necessarily must find that the employees’ general assertions as tothe safety of the trench are more reliable than the undisputed measurements made by thecompliance officer.\u00a0 More significantly, however, such a conclusion may be reachedonly by viewing the evidence so skeptically as to require the Secretary to prove aviolation \”beyond a reasonable doubt\” or to an \”absolute certainty.\”\u00a0 This approach is inappropriate in resolving civil disputes under remediallegislation such as the Occupational Safety and Health Act.Under section 12(f) of the Act, 29 U.S.C. ?661(e), official action can be taken by the Commission with the affirmative vote of atleast two members.\u00a0 To resolve their impasse, and permit a resolution of this case,Chairman Buckley and Commissioner Cleary agree to vacate the direction for review.\u00a0 E.g.,Texaco, Inc., 80 OSAHRC 74\/B1, 8 BNA OSHC 1758, 1980 CCH OSHD ? 24,634 (Nos.77-3040 & 77-3542, 1980).\u00a0 The judge’s decision in this case therefore becomesthe appealable final order of the Commission, but is accorded the precedential value of anunreviewed judge’s decision.FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary DATED:\u00a0 APR 10 1985FOOTNOTES: [[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 by means of sufficient strength to protectthe employees working within them.\u00a0 See Table P-1, P-2 (following paragraph (g) ofthis section).Table P-1 is a guideline that suggests the approximate angles of repose for various typesof 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 soiltypes, the ratio of horizontal feet to which a trench wall should be sloped to each footof the wall’s depth.\u00a0 For example, Table P-1 indicates that the approximate angle ofrepose for compacted angular gravels is 1\/2:1 or approximately 63 degrees.\u00a0 For soilwith an angle of repose of 1\/2:1, 1\/2 foot of horizontal distance would be excavated foreach foot of depth.\u00a0 Less stable compacted sharp sand, which has an angle of reposeof 1 1\/2:1, or approximately 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 three members. \u00a0Section 12(a) of the Act, 29 U.S.C. ? 661(a). Currently, the Commission has two membersas a result of a vacancy.[[3]] Danis had arranged to have the Bowser-Morner sampling done after the site wasvisited by a safety consultant from the Ohio Industrial Commission.\u00a0 That visitoccurred approximately one month before the OSHA inspection.\u00a0 The safety consultanttold Danis’s project manager that the trench walls should be sloped to approximately 26degrees to conform with OSHA’s trenching standard.\u00a0 The safety consultant alsosupplied Danis’s project manager, Parrish, with a copy of the OSHA trenching standards.Parrish reviewed the standards and Table P-1 and concluded that the standard did not applyto Danis’s trench.\u00a0 He arranged, however, to have the soil sampled ”in case therewas any question [as] to what the slope should be ….\”[[4]] At the hearing, Danis objected to the introduction of the Bowser-Morner report intothe record.\u00a0 This objection seems to have been sustained by the judge though theexchange is unclear.\u00a0 Portions of the report were read into the record, however, andin post-hearing briefs to the judge, both Danis and the Secretary relied on the report.\u00a0The judge also relied on the report in his decision.\u00a0 The record certified tothe Commission by the judge after review was directed contains this report as ExhibitG-16.\u00a0 In its brief on review, Danis does not contend that this report is notproperly in the record.\u00a0 Indeed, it cites the report in arguing for affirmance of thejudge’s decision.\u00a0 In view of the parties’ and judge’s reliance on this report and inthe absence of any objection 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.\u00a0 The soil is first driedto remove moisture then poured through a funnel onto a flat surface.\u00a0 The naturalangle that soil will attain on the flat surface is considered the angle of repose.\u00a0Longo stated that although this test was an accepted procedure it was an acceptedprocedure it was \”very unsophisticated\” and yielded an \”approximation\”of a soil’s natural angle repose.\u00a0 He explained that the \”actual field angle ofrepose\” is five tested in the laboratory is in a \”disturbed\” state andbecause the removal of moisture from the soil reduces its cohesiveness.[[6]] Parrish’s description of the manner inwhich the trench was sloped is entirely consistent with the standard’s definition of angleof repose, i.e., \”[t]he greatest angle above the horizontal plane at which amaterial will lie without sliding.\”\u00a0 See 29 C.F.R. ? 1926.653(b).[[7]] The compliance officer previously hadinspected 15 excavation sites.\u00a0 His training as a compliance officer included twodays of instruction in OSHA’s trenching standards.\u00a0 Before his employment as acompliance officer, he worked as an intern at OSHA and received \”on-the-job\”training in soil recognition from another compliance officer.\u00a0 Although he hadreceived an undergraduate degree in \”Safety Management,\” his course work did notaddress soils or soil mechanics.\u00a0 His only other experience in excavation workconsisted of one year’s employment laying sewer lines before and while attending college.[[8]] The uncertainty is also inherent in thedefinition of \”angle of repose\” in section 1926.653(b).\u00a0 See F. Yokel &R. Stanevich, Development of Draft Construction Safety Standards for Excavations,vol. I, p. 58 (NBS\/NIOSH, 1983)(recommending deletion of present definition as \”toovague\”).[[9]] The Chairman notes that there is reason todoubt the compliance officer’s estimate that the slope was 1\/2 to 1, i.e., 63degrees. That estimate was based on measurements whose accuracy is open to seriousquestion.\u00a0 The compliance officer took the measurements at the end of the trench thatwas being excavated, where the sloping had not been completed.\u00a0 He stood 20-30 feetaway from where employees were working and ”eyeballed\” the width of the trench.\u00a0Using this technique, he decided that the trench was 9 feet wide at the bottom.\u00a0 All Danis’s witnesses, however, testified that the trench was no more than 5 to6 feet wide.\u00a0 They stated that not only is there is no reason to take out more soilthan that, but that the soil removed must then be returned to the trench and compacted tomeet specifications which takes time and slows down the work.\u00a0 There is therefore avery good reason not to take out any more soil than necessary.\u00a0 Given the unanimityof this testimony, Chairman Buckley finds that the width of the bottom of the trench wasconsiderably less than the compliance officer’s \”measurement.\”\u00a0 Hetherefore questions the accuracy of the compliance officer’s other estimates.[[10]] The trenching standard, as amplified by Table P-1, provides one exception to thegeneral rule stated in the text:\u00a0 solid rock, shale and cemented sand and gravels aretreated as \”something other\” than \”hard or compact\” or \”soft andunstable\” soil.\u00a0 They have a 90 degree angle of repose.\u00a0 CCI, Inc.,9 BNA OSHC at 1173, 1981 CCH OSHD at pp. 30,993-4.\u00a0 In this case, Danis does notcontend that its trench was dug in solid rock, shale, or cemented sand and gravel.[[11]] This conclusion also finds support in thetestimony of Danis’s soil expert, Longo, who testified that the angle of repose wasapproximately 51 degrees.\u00a0 Longo alternatively stated that the angle of repose wouldbe in the range between 45 and 63 degrees. Longo’s testimony also shows that a specificmeasurement of the angle may be made in a laboratory but that the measurement would be an\”approximation\” of the soil’s angle of repose in the field.\u00a0 CommissionerCleary agrees that a laboratory-determined angle of repose would only be an approximationof a soil’s natural angle of repose.\u00a0 He nevertheless would note that Longo’sestimate that the angle of repose could range between 45 and 63 degrees would allow almost20 degrees leeway in sloping.\u00a0 Such a wide-ranging estimate is of little value indetermining the angle of repose of this soil.\u00a0 Inasmuch as Longo was able to morespecifically state that the angle of repose was approximately 51 degrees, CommissionerCleary would disregard his alternative opinion that the angle of repose ranged between 45and 63 degrees.\u00a0 Although Commissioner Cleary considers the Bowser-Morner estimate ofthe angle of repose more reliable because it was based on sampling done on the day of theinspection, he notes that Longo’s more specific estimate, which was based on sampling donemore than one month after the trench was refilled also tends to show that the angle ofrepose was less than 63 degrees and, thus, supports the conclusion that this soil wasunstable.[[12]] With respect to these disputeddimensions, he stated that \”[d]espite the conflicting testimony as to the width ofthe trench, the measurements are not crucial to the decision in this case.\”[[13]] The Secretary alleged that the violationwas willful.\u00a0 A violation is willful if it is committed with intentional disregardof, or plain indifference to the Act’s requirements.\u00a0 Kus-Tum Builders, Inc.,81 OSAHRC 97\/B2, 10 BNA OSHC 1128, 1981 CCH OSHD ? 25,738 (No. 76-2644, 1981). \u00a0After a question was raised as to the sloping of the trench by the safety consultant fromthe Ohio Industrial Commission, Danis arranged to have the soil tested byBowser-Morner.\u00a0 Later, during the inspection, Danis removed its employees from thetrench and sloped to the angle requested by the compliance officer.\u00a0 In CommissionerCleary’s view, Danis’s actions do not reflect plain indifference to or intentionaldisregard of the standard’s requirement or employee safety.”