” SECRETARY OF LABOR,Complainant,v.CALANG CORPORATION,Respondent.OSHRC DOCKET NO. 85-0319_DECISION_Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:The basic issue is whether violations by Calang Corporation[[1\/]] of twostandards governing trenches promulgated by the Secretary of Labor(\”Secretary\”) under the Occupational Safety and Health Act, 29 U.S.C. ?651-678 (\”the Act\”), were willful. At the time of the inspection atissue here, 29 C.F.R. ? 1926.652(b) required sloping or otherwisesupporting the sides of trenches more than five feet deep in soft orunstable soil.[[2\/]] The other standard, 29 C.F.R. ? 1926.651(i)(1),required that excavated material be stored at least two feet away fromthe edge of the trench.[[3\/]] We affirm the administrative law judge’sdecision that the violations were willful and assess a combined penaltyof $8,000._Statement of Case_Many of the relevant facts are not disputed by the parties on review. Calang was installing a new sewer line adjacent to an existing one onSt. Simons Island, Georgia, under a contract with local governmentauthorities. On the morning of February 28, 1985, inspector DavidHubert, a compliance officer from the Secretary’s Occupational Safetyand Health Administration (\”OSHA\”), arrived to inspect the worksite. Noexcavating was being done that morning.Compliance officer Hubert picked up a sample of soil from the bucket ofCalang’s front end loader, which was being used in the sewer lineinstallation. The soil sample appeared to him to be \”very loose, runnysand material.\” Hubert then discussed the soil conditions with Calang’spresident, Langford Beckworth, who has had many years’ experience inheavy construction and pipelaying. Hubert testified:I warned him. . . that in excavating in what was apparently sandy soil,that he should use a trench box or slope the soil back at least one toone.[[4\/]]Hubert \”apprised Mr. Beckworth of the requirements in the trenching andexcavation standards\” relevant to the work planned for the afternoon,and of \”various methods that he could use to be in compliance with thestandards.\”Hubert also told Beckworth that morning \”that the spoil [pile] [[5\/]]should be at least two feet from the edge of the trench or excavation\”. Hubert testified that, to his recollection, Beckworth \”said that that’sthe way they always did it,\” pointing to a spoil pile left from theprevious day, which was viewed by the compliance officer to be about 11\/2 feet from the trench wall.Excavation of the trench began after lunch, about 2 p.m. Calang wasconnecting a new length of sewer pipe to the existing pipe.[[6\/]] About 2:30 p.m., Hubert measured the dimensions of the trench where theexposed pipe lay, with the assistance of an employee who was working inthe trench. Using a 12-foot measuring tape, Hubert determined that thetrench was 9 feet deep and that it was 9 feet wide at the top. Based onhis measurements, we conclude that at least one of the trench walls wassloped at an angle of approximately 1\/5:1 (1\/5 foot horizontally forevery foot vertically).[[7\/]] There was no shoring or other trenchprotection in place.Two Calang employees were in the trench from 2:00 p.m. to 3:00 p.m.,although one of them left and returned several times. A third employeestood on the exposed pipe throughout that period.[[8\/]] Beckworthhimself was also in the trench during that period. Hubert furtherobserved that there was a spoil pile, several feet high, right at theedge of the west trench wall, above where two employees were working.After taking the measurements at 2:30 p.m., Hubert again discussed theconditions of the trench with Beckworth. Hubert told him that thetrench walls appeared to be \”nominally vertical.\” Beckworth repliedthat in his opinion they were \”sloped enough.\” Beckworth did not explainwhy. Hubert also pointed out to Beckworth that the spoil pile was atthe edge of the trench. There was no response, and the situation wasnot corrected. Beckworth and the two employees continued working in thetrench. Hubert attempted to get Beckworth to leave the trench so thatthey could discuss the matter further, but Beckworth would not come outof the trench until his work was completed.Hubert also asked Beckworth what the soil type was, pointing to the westwall, about halfway down. Beckworth replied that there was sandy soilin the wall.[[9\/]] Hubert obtained a sample of soil from one side ofthe trench, about 6 feet below ground level. He testified that itcrumbled in his hand and felt like damp sand.Hubert made additional visual measurements about 3:00 p.m. Beckworthwas standing in the trench with two of Calang’s employees, measuring thetrench’s depth with a plumb rod. Hubert testified that Beckworthdeclined to tell him the depth, saying, \”You can see it for yourself.\” Based on Hubert’s visual estimates of the height and width of the trenchwalls, we conclude that they were sloped at only 1\/5:1.[[10\/]]_Legal Analysis_As noted above, the judge found willful violations of both of the citedstandards. Calang no longer contests the existence of the violations. Thus, we turn to whether they were willful.A willful violation is one committed with intentional, knowing orvoluntary disregard for the requirements of the Act, or with plainindifference to employee safety. _E.g., Williams Enterprises Inc._, 13BNA OSHC 1249, 1256-57, 1986-87 CCH OSHD ? 27,893, p. 36,589 (No.85-355, 1987). It is differentiated from other types of violations by a\”heightened awareness — of the illegality of the conduct or conditions– and by a state of mind — conscious disregard or plainindifference.\” _Id_.A finding of willfulness is not justified if an employer has made a goodfaith effort to comply with a standard, even though the employer’sefforts are not entirely effective or complete. _Id_. Also, aviolation is not willful if the employer had a good faith opinion thatthe violative conditions conformed to the requirements of the citedstandard. However, the test of good faith for these purposes is anobjective one — whether the employer’s belief concerning a factualmatter, or concerning the interpretation of a standard, was reasonableunder the circumstances. _Id_. 13 BNA OSHC at 1259, 1986-87 CCH OSHD atp. 36,591.In this case, the evidence establishes that Calang consciouslydisregarded the requirements of the cited standards. To summarize theevidence discussed above, Compliance Officer Hubert informed Beckworthin the morning, before the work began, that the trench sides had to besloped about 1:1, and that the spoil piles had to be 2 feet away fromthe edge of the trench. Hubert testified without contradiction that hewas relating OSHA requirements to Beckworth. After measuring the slopeabout 2:30 p.m., he told Beckworth that the trench walls were \”nominallyvertical.\” Beckworth continued to work in the trench with theemployees, saying he felt the walls were sloped enough. Hubert alsoadvised Beckworth that the spoil pile was at the very edge of the westtrench wall, and there was no response. Furthermore, Beckworth did notmake any effort to relocate the spoil pile.Calang’s basic position is that:Mr. Beckworth reasonably determined that the safety precautions he took,including well-pointing and sloping, were adequate to comply with theAct, to [meet] the safety needs of Calang Corporation’s employees andthat the positioning of his spoil material was not done intentionally toendanger Calang Corporation’s employees.We find, however, that Beckworth could not have reasonably determinedthat his precautions were adequate to comply with the Act. Although hemay not have committed the violations \”intentionally to endanger\” theemployees, he did intentionally ignore OSHA’s requirements after theinspector correctly explained them to him. This intentional disregardof the Act’s requirements constitutes a willful violation of the Act.Furthermore, Calang does not even offer an explanation for its failureto keep the spoil pile two feet away from the trench edge. Nothing inthe record indicates that there was any physical obstruction thatprevented it from locating the spoil pile two feet away. Beckworthresponded with silence when Hubert told him it was at the trench edge. He did not relocate the spoil pile, which was several feet high, evenafter Hubert pointed out the situation. Thus, the conclusion that thespoil pile violation resulted from conscious disregard of the OSHArequirement is inescapable.We further conclude that Calang could not have believed in good faiththat the slope of the trench walls complied with OSHA requirements. The slope of the trench walls was much less than required by the OSHAstandards, even if we accepted Calang’s position on the soilcontent.[[11\/]] The hazards pointed out by Hubert were clearly visibleand easily measurable.The evidence overwhelmingly establishes that at least the top three feetof the trench walls was sand. This being the case, that portion of thetrench would require at least a 1:1 slope under the cited standard. The actual slope, based on the dimensions of the trench, was about1\/5:1. Even Calang’s experienced pipelayer, Harry Hummell, testifiedthat in his opinion the slope was about 1\/3:1. The judge, commenting onthat testimony, stated that \”[a] person as experienced in pipeconstruction as Beckworth was certainly able to make the sameobservation.\”[[12\/]] The inadequacy of the slope was clearly visible,even assuming for purposes of argument that the lower portions of thewalls were \”hardpan,\” as Calang contends.[[13\/]]The inadequacy of the sloping also could have been easily measured. Forexample, the walls were required to be at least 13 1\/2 feet apart at thepoint where Hubert took measurements at 2:30 p.m., because the trenchwas nine feet deep and 6 1\/2 feet wide at a point six feet below thesurface.[[14\/]] However, they were only nine feet apart. Once again,this difference was readily discernible by Beckworth.[[15\/]]As to Calang’s \”good faith efforts\” argument, we note that Calang usedwellpointing (\”de-watering\”) equipment, which lowered the water table to18 feet, thus reducing the possibility of a cave-in due to waterpressure.[[16\/]] Beckworth also testified that the equipment istime-consuming to install, because it amounts to digging a shallow wellat 3-foot intervals, adjacent to the trench.De-watering the trench may have been a useful step. However, Calang’swellpointing efforts were no substitute for properly sloping orsupporting the trench walls, as required under the aforementionedstandards. The Secretary’s expert on the classification of soil types,James Horton, testified without contradiction that wellpointing does notalter the sloping requirements for soil. The good faith effortrequired is an effort to comply _with the cited provisions_. Furthermore, Calang still failed to explain why it took no action onHubert’s warnings about inadequate sloping and the spoil pile.Calang also notes that it purchased two trench boxes prior to the startof the job, at a cost of about $17,700, in addition to one trench box italready had. Beckworth testified that no trench boxes had been used onthe project, and that they could not be used at the time of theinspection because of various restrictions on the width of the trench. Assuming for argument’s sake that the trench boxes could not have beenused, that fact would not excuse Beckworth’s conscious disregard ofalternative safety measures that were required. In fact, Calang’spurchase of trench boxes indicates that it was aware that strong cave-inprotection was required in addition to the wellpointing equipment. Compliance officer Hubert explained to Beckworth numerous alternativemeans of compliance listed in the cited provision, including sloping andshoring. Calang used none of them. As discussed below, it gave noreasonable basis for that failure.Calang asserts that it was unable to provide more sloping, due to anunderground gas line (two inches in diameter) on one side of the trench,and underground cables on the other side. However, even assuming forargument’s sake that further sloping was impossible, shoring was anavailable alternative under the standard, as Hubert explained toBeckworth. If Calang decided (for whatever reason) that it was notgoing to provide adequate sloping, then it was required under thestandard to provide one of the other alternatives such as adequateshoring. Calang’s failure to attempt any shoring negates theconclusion that it acted in reasonable good faith.Standard trench shoring consists basically of paneling (wood beams orthe equivalent) along each side wall, and cross braces that span thewidth of the trench. (Minimum requirements for shoring are given inTable P-2 of the excavation standards, and are expressly incorporated byreference in the cited standard.) The only testimony questioning thefeasibility of shoring was by Glynn County water and sewer inspectorTimothy Ransom. Ransom stated that if shoring were used where the newmanhole was to be placed, \”I don’t see how you could get your digger in,because shoring is cross-grade.\” However, there was no evidence thatshoring would be infeasible toward the opposite end of the trench, or inother areas of the trench where the backhoe was not currently operating.Ransom arguably acknowledged that further protection was feasible whenhe testified that he would have asked for more protection for employeesif the soil had been sandier. Calang has failed to supply a reasonablebasis for its failure to provide at least partial shoring or otherprotection in the trench.We also note that Calang in presenting its case made no attempt to showhow close the utilities were to the trench walls. Calang was requiredunder the excavation standard, 29 C.F.R. ? 1926.651(a), to determinewhether underground utilities would be encountered, and to determinetheir \”exact location\” when approaching them.[[17\/]] Hubert testifiedthat he observed \”no significant utilities\” affecting the area where theemployees were working. So far as the record shows, Calang alone wouldhave access to blueprints or other documents indicating the location ofthose utilities.[[18\/]] Because Calang failed to introduce intoevidence available information that it was required to know, showing howclose the lines were to the trench, its assertion that the utilitiesprecluded further sloping is unsupported by the record. Moreover, weare unable to conclude that Calang had a reasonable belief that furthersloping was precluded due to the presence of utilities.The circumstances here are similar to those in _Donovan v. WilliamsEnterprises, Inc._, 744 F.2d 170, 180 (D.C. Cir. 1984), where the courtheld that:Prior to issuing the citations . . . the Secretary — through hisrepresentative–repeatedly warned [the employer’s] supervisory personnelabout the company’s failure to comply with construction site safetystandards. He also advised those supervisors as to the specific stepsthat the company should take to bring its project into compliance. TheSecretary’s warnings and advice went unheeded and the violationscontinued. These facts alone are sufficient to establish \”intentionaldisregard of\” and \”plain indifference to\” OSHA’s regulations._See also A. C. Dellovade, Inc_., 13 BNA OSHC 1017, 1019-20, 1986-87 CCHOSHD ? 27,786, p. 36,342 (No. 83-1189,1987) (failure to provide safetybelts, and instructions for their use, was willful where OSHA inspectorhad explained means of compliance to employer’s job superintendent,employer was supplied with booklet containing OSHA regulations, and jobsuperintendent was aware of OSHA safety belt requirements); _D. A.& L.Caruso, Inc._, 11 BNA OSHC 2138, 2142, 1984-85 CCH OSHD ? 26,985, p.34,694 (No. 79-5676, 1984) (failure to support trench walls beforeallowing employees to enter trench was willful where employer had beencited previously for violation of same standard, OSHA inspector hadexplained trenching requirements to employer’s engineer about fourmonths before inspection, and its job superintendent knew therequirements and the need for trench support).The judge assessed a combined penalty of $8000 for the two willfulviolations. We agree with the judge’s conclusion that $8000 is an\”appropriate penalty.\” Penalties are to be assessed in light of thegravity of the violation, the employer’s size, good faith and history ofviolations. 29 U.S.C. ? 666(j). The likely consequences of a cave-inwould have been death or serious physical harm for three or fouremployees. Trench cave-ins, which are frequently caused by failure tocomply with the Secretary’s trenching standards, have been for manyyears one of the most severe problems in occupational safety. Inresponse, OSHA established in 1985 a National Emphasis Program forprogrammed safety inspections of trenching and excavation operations. OSHA Instruction CPL 2.69 (September 19, 1985), 1985-86 CCH EmploymentSafety and Health Developments (\”New Developments\”) ? 8664. Consciousdisregard of OSHA trenching requirements warrants a substantial penaltybecause the incidence of cave-ins is high, and the likelihood of deathor severe injury to employees in a collapsing trench is also high.As to Calang’s size, Beckworth testified that the company had \”turnedover around two million dollars of contracts since January [1985],\” a 71\/2 -month period. Calang had previously been cited for an OSHAviolation, which it did not contest.[[19\/]] We have found no objectivegood faith on Calang’s part. Under the Act, the Secretary could haveproposed separate penalties of up to $10,000 for each violation. Acombined penalty of $8,000 is therefore fully justified on the recordbefore us.For the reasons set forth above, we affirm the alleged willfulviolations of 29 C.F.R. ?? 1926.651(i)(1) and 652(b), and we assess acombined penalty of $8,000.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: September 12, 1990————————————————————————SECRETARY OF LABOR,Complainant,v.CALANG CORPORATION, Respondent.OSHRC Docket No. 85-0319APPEARANCES:Daniel A. Caldwell, Esquire, Office of the Solicitor, U. S. Departmentof Labor, Atlanta, Georgia, on behalf of complainantPhilip R. Taylor, Esquire, Brunswick, Georgia, on behalf of respondent_DECISION AND ORDER_Burroughs, Judge: Calang Corporation (\”Calang\”) contests allegedwillful violations of 29 C.F.R. ? 1926.652(b), for failure to shore,sheet, brace, slope or support the walls of a trench, and 29 C.F.R. ?1926.651(i)(1), for failure to store excavated material two feet fromthe edge of an excavation which employees were required to enter. Itfurther contests alleged serious violations of 29 C.F.R. ? 1926.100(a),for failure of employees to wear hard hats while working in a trench,and 29 C.F.R. ? 1926.602(a)(9)(ii), for failure of a front-end loader,which was in use at the trench site, to have a reverse signal alarm.The violations allegedly occurred during an inspection conducted byCompliance Officer David Hubert on February 28, 1985, at a trench sitelocated on St. Simons Island, Georgia. Calang was working under acontract with the Water and Sewer Department of St. Simons Island toinstall a sewer line on a job referred to as the Military Road project.The original notice of contest placed in issue items 2a (29 C.F.R. ?1926.201(a)(4)) and 2b (29 C.F.R. ? 1926.202) of the serious citation. At the commencement of the hearing, the Secretary moved to amend items2a and 2b to classify the alleged violations as other than serious andto vacate the proposed penalty. The motion was granted, and respondentlater withdrew its notice of contest as to these items (Tr. 4-5,56-57). The disposition of these items has been appropriately reflectedin the order issued in this case._Alleged Violation of 29 C.F.R. ? 1926.652(b)_In January 1985, the _Dodge Report_ [[1\/]] for the area in which St.Simons Island is located identified the construction of a sewer line onSt. Simons Island. Compliance Officer David Hubert was assigned toconduct an inspection. On January 26, 1985, he traveled to the site ofthe proposed sewer line but discovered that construction had notcommenced. He proceeded to the St. Simons Water and Sewer DistrictOffice and met with District Manager Ralph Thurston and Tim Ransom, whowas assigned to be an inspector on the project. They identified thearea where the sewer line was to be constructed, and Hubert apprisedthem of the requirements of OSHA’s trenching standards.On February 28, 1985, Hubert returned to St. Simons Island and locatedthe site of the sewer line near the corner of Cater and StewartStreets. When he arrived around 10:10 a.m., a front-end loader wasbeing operated at the site. There was an open trench from the previousday that had a 30-inch sewer pipe installed in it and partiallybackfilled. No excavating had taken place that morning, and none wasbeing done at the time of his arrival. Hubert was advised that LangfordBeckworth, the owner of the company, was the superintendent on the jobbut that he was not at the site. In the absence of Beckworth, Hubertwas advised that Larry Bruce, the backhoe operator, was in charge. After Hubert talked with Bruce for a few minutes, Beckworth arrived atthe site and an opening conference was held with him.During his discussions with Beckworth, Hubert was advised thatexcavating would not commence until after lunch. Hubert informedBeckworth that he would return after lunch to observe the excavationoperations. Prior to going to lunch, Hubert informed Beckworth thatthe soil appeared to be sandy and that he should use a trench box orslope the walls of the trench at least one to one. He advised Beckworthof the trenching and excavation standards, including the fact that thesoil had to be two feet from the edge of the trench.After lunch and until 2:00 p.m., there was no excavating or laying ofpipe at the trench site. The backhoe operator commenced excavatingaround 2:00 p.m., and all other trenching activity resumed. During theexcavating, one of the pipelayers stood on top of the exposed end of thepipe that had been laid the previous day. Beckworth and two otheremployees went into the open trench and remained in the trench forapproximately one hour, although one of the employees went in and out ofthe trench on several occasions. Beckworth was taking measurements ofthe depth at the area where a manhole was to be installed (Tr. 74). While the employees were in the trench, the trench walls were notshored, braced or otherwise supported and a trench box was not in use.Hubert, with the assistance of a Calang employee, used a tape measure totake measurements of the trench at 2:30 p.m. He estimated additionalmeasurements at 3:00 p.m. which were based on the width of the backhoebucket. At 2:30 p.m. the trench was 6 1\/2 feet wide at the point in thetrench directly above the exposed pipe. The width of the top of thetrench at the same area was 9 feet. The trench was 9 feet deep. At3:00 p.m. the trench was 8 feet wide at the bottom, 12 feet wide at thetop, and 10 feet deep. Employees were working in the trench at the timethe measurements were made by Hubert.The cited standard, 29 C.F.R. ? 1926.652(b),[[2\/]] requires that sidesof trenches in unstable or soft materials, five feet or more in depth,be shored, sheeted, braced, sloped or otherwise supported to protectemployees. Calang disputes the determination that the walls of thetrench were composed of soft or unstable material. It submits that thewalls were composed of hard or compact soil. In the context of thiscase, the distinction has little significance. In _CCI, Inc_., 80OSAHRC 127\/D4, 9 BNA OSHC 1169, 1981 CCH OSHD ? 25,091 (No. 76-1228,1980), _aff’d_, 688 F.2d 88 (10th Cir. 1982), the Commission reaffirmedits position in _Connecticut_ _Natural Gas Corp_., 78 OSAHRC 60\/B3, 6BNA OSHC 1796, 1799, 1978 CCH OSHD ? 22,874, at p. 27,668 (No. 13964,1978), that sections 1926.652(b) and (c), read together, informemployers that some protection is required in any trench five feet ormore in depth dug in soil. There is no dispute that the trench was morethan five feet in depth and was dug in soil and not solid rock, shale,or cemented sand and gravel.The preponderance of the evidence fully supports the conclusion that thetrench was excavated in soft and unstable soil. Hubert relied uponseveral factors in reaching his conclusion. He was advised by Thurstonand Ransom that the sewer line was to be laid in sandy soil and throughsome marsh areas (Tr. 27). Hubert was advised by Beckworth at the timeBeckworth was in the trench between 2:00 p.m. and 3:00 p.m. that thetrench wall was sand (Tr. 82). Hubert also observed the texture of thesoil removed from the excavation (Tr. 57-58). In addition, around 2:30p.m. he asked the pipelayer standing on top of the sewer pipe to handhim a handful of soil from the west wall. The pipelayer removed somesoil around the six-foot level and handed it to Hubert. Huberttestified that the chunk of soil crumbled in his hand and felt like dampsand (Tr. 80-81).In preparation of the case for trial, the Secretary obtained theservices of Law Engineering Company to make two exploratory borings inthe area of the trench that was under construction on February 28,1985. The borings were based on representations by Hubert as to thelocation of the trench on that date (Tr. 93-95, 133-134, 149, 152). Hubert was not present at the time the borings were obtained but hadpreviously accompanied an employee of Law Engineering, Ken Bunnel, tothe site and a schematic drawing had been made of the area to show wherethe borings were to be made (Tr. 93-94, 116-117, 132). Using ameasuring tape, Hubert and Bunnel determined the best area to takeundisturbed soil samples on each side of the trench line (Tr. 94).During the hearing, James A. Horton of Law Engineering, who wasqualified as an expert in the classification of soil types (Tr. 130),testified that he was present the day the samples were taken. Standardpenetration samples were taken at depths of 2.5 feet, 3 feet, 5 feet and10 feet (Ex. C-7; Tr. 132-133). Based on tests performed (Ex. C-7),Horton concluded that the soil was soft and unstable (Tr. 142).Beckworth testified that the test borings were made in the trench lineof an old sewer (Tr. 166-167). Ransom also disputed the accuracy of themeasurements from the sewer line under construction at the time of theinspection (Tr. 203-204). Hubert testified that he and Bunnelparalleled the trench line from Cater Street to the manhole installed onthe inspection date (Tr. 94). He stated that he and Bunnel were certainthe markings on the drawings for the text borings were outside thetrench area (Tr. 117). Beckworth’s testimony is negated by Horton’sopinion that the two borings were outside the area of any backfill. Horton’s opinion was based on the stratification of the soil andsupports Hubert’s view that the borings were made outside of anybackfilled areas (Tr. 139). Calang’s evidence is insufficient to rebutthe findings made by Hubert and Horton.While Beckworth and Ransom refer to the soil as hardpan, they bothconcede that the top part of the trench walls was sand. Beckworthqualified his statement that he told Hubert the walls were sand bystating that he was referring to only part of the trench walls. Hetestified that the lower sections of the trench were dug in hardpanmaterial (Tr. 164, 169). Ransom testified that the soil from thefour-foot level of the subgrade to the trench bottom was hardpan (Tr.197). He described hardpan as silt and sand pressed together (Tr.210). He testified that the first two to three feet of the trench wassand (Tr. 206).The Commission has in a number of cases recognized that the ground inwhich a trench is dug may be composed of a number of different types ofsoil. The decisions recognize that a trench wall composed of soils ofdifferent strengths is only as stable as its weakest component. In _W.N. Couch Construction Co._, 76 OSAHRC 44\/A2, 4 BNA OSHC 1054, 1975-76CCH OSHD ? 20,574 (No. 7370, 1976), the Commission stated that if thewalls of a trench contain a significant amount of soft or unstablematerials, the soil as a whole is to be considered soft or unstable andthe trench is governed by the requirements of section 1926.652(b). _See also CCI, Inc_., 80 OSAHRC 127\/D4, 9 BNA OSHC 1169, 1981 CCH OSHD ?25,091 (No. 76-1228, 1980), _aff’d_, 688 F.2d 88 (10th Cir. 1982). Beckworth and Ransom conceded that the top two to four feet of thetrench walls was sand. This is a significant amount of unstable materialand requires a determination be made that the trench was excavated insoft and unstable materials.Hubert, with the assistance of a Calang employee, took measurements ofthe trench at 2:30 p.m. They used a 12-foot measuring tape (Tr.70-71). There were three employees working in the trench at the timethe measurement was made. The trench was 6 1\/2 feet wide at a pointdirectly over the exposed pipe and 9 feet wide at the top at the samearea. The trench was 9 feet deep. It is undisputed and the photographsintroduced as Complainant’s Exhibits 2, 3, 4 and 5 clearly reflect thatthe trench walls were not shored, sheeted, braced or otherwisesupported. The only question is whether the trench was sufficientlysloped to comply with Table P-1 of Subpart P.The measurement of the bottom width at a point directly above theexposed pipe was 6 1\/2 feet. The measurement would have beenapproximately three feet above the bottom of the trench since the pipewas 30 inches in diameter and was sitting on approximately six inches ofgravel (Tr. 80). The photographs (Ex. C-2 thru C-5) reflect that thewalls were primarily vertical up to this point. The width measurementat the bottom is considered accurate. The top width was nine feet andthe depth was nine feet. Table P-1 of Subpart P requires a slope of oneto one for average soils from the bottom of the trench to the top. Theslope for compacted sharp sand and well-rounded loose sand is one and ahalf to one and two to one, respectively. Soil expert Horton testifiedthat the type of soil present in the area of the trench required anangle of repose of not less than one to one (Tr. 143). There was only a2 1\/2-foot slope from the bottom width to the top width. Thephotographs reflect that most of this slope occurs at the top of thetrench. Using the slope most favorable to Calang, _i.e_., one to one,the 2 1\/2-foot slope is insufficient to comply with the requirements of29 C.F.R. ? 1926.652(b), and Table P-1. Harry Hummell, who preparedthe pipe for laying and worked in conjunction with the backhoe operator,testified that the slope was about three to one (Tr. 214). Thephotographs and measurements support a slope close to a three to one. The violation has been established.Calang had a series of well points along the area where the trench waseventually dug. They were pumping water out of the ground in order tolower the water table prior to digging. Contrary to Calang’s argument,well pointing is not a means of complying with ? 1926.652(b). Section1926.652(b) is specific in the types of abatement required to strengthenthe walls of trenches to protect employees working in them. Wellpointing would not alter the type of sloping required by Table P-1 orchange the characterization of the soil. It could be a means ofcompliance with other OSHA standards. For example, ? 1926.651(p)requires that some suitable means be used to prevent water fromaccumulating in an excavation. The well points accomplished this job,and Calang was not cited for any accumulation of water in the trench._Alleged Violation of 29 C.F.R. ? 1926.651(i)(1)_Section 1926.651(i)(1) [[3\/]] requires that excavated material removedfrom a trench in which employees are working be stored or retained atleast two feet from the edge of the excavation. There is no disputeover the fact that three employees were in the bottom of the trench andthat a fourth employee was standing on the end of the sewer laid fromthe previous day. Photographs introduced into evidence as Complainant’sExhibits 2, 4 and 5 show the four employees. Complainant’s Exhibits 2,3 and 5 show excavated materials stored up to the edge of one of thetrench walls while employees are in the trench. The employees are shownin the trench at the location of the excavated material. Huberttestified that he observed the spoil at the edge of the trench wall (Tr.75-76). Ransom conceded that there was some spoil at the edge of thetrench (Tr. 202).Calang argues that the standard is ambiguous in that it does not makeclear as to whether the two-foot distance is to be measured from thecenter of the spoil pile or from the outermost edge of the spoil pile. It points out that the center of the spoil was more than two feet fromthe edge of the trench. This argument must be rejected. The obviousintent of the standard is to prevent any superimposed loads on thetrench wall at a point where the additional weight is likely to cause acollapse. Any soil in the two-foot area would place additional weightand stress on the trench wall. James A. Horton, who was qualified as anexpert, testified that a spoil pile commencing at the very edge of atrench, as in this case, would add an additional load on the trench wall(Tr. 146-148). An interpretation that the standard requires the centerof the spoil pile be two feet from the edge of the excavation would beinconsistent with the objective of preventing additional weight on thetrench wall.In _Austin Engineering Company, Inc_., _ OSAHRC_____, 12 BNA OSHC 1187,1985 CCH OSHD ? 27,189 (No. 80-168, 1985), the Commission held thatundisputed evidence that excavated material was stored within two feetof the edge of the trench and that employees were working in the trenchnear the location of the spoil pile is sufficient to establish aviolation of 29 C.F.R. ? 1926.651(i)(1). The employees in this casewere working in the trench near the location of the spoil pile thatextended up to the edge of the trench wall. The violation has beenestablished._Alleged Violation of 29 C.F.R. ? 1926.100(a)_The Secretary alleges that Calang violated 29 C.F.R. ? 1926.100(a) sincethe employees in the trench were not wearing protective helmets. Thereis no dispute that three of the employees were wearing cloth hats. Thefourth employee in the trench wore no type of hat (Ex. C-2 thru C-5; Tr.61-62, 90). There were no hard hats at the site or in Calang’s warehouse.Section 1926.100(a)[[4\/]] requires employees to wear protective helmetswhen working in areas where there is a possible danger from head injuryfrom impact or from falling objects. The employees were working in thetrench while the backhoe was operating and with spoil up to the edge ofthe excavation. Equipment was also located on the ground above one ofthe trench walls (Ex. C-2 thru C-4). At 2:30 p.m. the trench was ninefeet deep. It was 10 feet deep at 3:00 p.m. There was a possibledanger of head injury from falling objects since equipment or the spoilcould have inadvertently fallen into the trench. The violation has beenestablished.Calang argues that the issue should not be affirmed because Beckworthraised the question as to whether hard hats were required and thatHubert gave an equivocal response. Hubert agreed that Beckworth raisedthe issue and that he advised him that it depended on the exposure (Tr.61, 104). Hubert testified that he informed Beckworth that theemployees in the trench should wear hard hats (Tr. 91). An employercannot escape being cited for an apparent violation by raising the issuebefore the compliance officer brings it to his attention._Alleged Violation of ? 1926.602(a)(9)(ii)_When Hubert arrived at the site, he observed a Caterpillar 950 front-endloader in operation. The front-end loader had three reverse and fourforward gears and was being operated in forward and reverse gears duringthe time of the inspection. It is undisputed that the front-end loaderdid not have a reverse signal alarm.The Secretary argues that the front-end loader had an obstructed view tothe rear and that the absence of a reverse signal alarm was in violationof 29 C.F.R. ? 1926.602(a)(9)(ii).[[5\/]] This standard requiresearthmoving or compacting equipment to have a reverse signal alarm whenthe operator has an obstructed view to the rear or that someone bepresent to signal the operator that it is safe to proceed in reverse. Calang disputes the determination that the operator had an obstructedview to the rear. It further argues that flagmen were at the site tosignal the operator and keep persons from getting in the path of theequipment.The back and engine compartment of the front-end loader is approximately6 1\/2 feet in height. This height is several inches higher than theheight of the normal person. Whenever someone is standing directlybehind and close to the front-end loader, the operator’s view of such aperson would be obstructed. The operator of the front-end loader,William Baxley, conceded this fact during his testimony (Tr. 10,14-15). Calang argues that it would be extremely unlikely that someonewould be so close to the rear of the machine that he would be out of theview of the operator. This argument is based on the fact that theloader was equipped with a large fan in its rear that created a greatdeal of hot exhaust. According to Baxley, the hot exhaust would makeit too uncomfortable to stand near the rear of the loader. The hotexhaust does not alter the fact that an obstructed view does existwhenever a person is close to the rear of the engine.Calang further argues that it had an employee-warning system. Theevidence is undisputed that Calang employed two ladies as flagmen at thesite (Tr. 63). Baxley testified that the company had a foreman andflagman that watched everything (Tr. 17). There was no evidence that aspecific person was assigned to signal for him whenever the front-endloader proceeded in reverse. Baxley’s testimony that flagmen assistedand informed him if someone was to his rear was nebulous andunconvincing (Tr. 17-18). The flagmen’s duties included looking afterthe traffic (Tr. 17). Since the trench was alongside a road, it seemsmore likely that the duties of the flagmen were limited to monitoringtraffic. Hubert observed the operations of the front-end loader andwas forceful in his testimony that no signal person was assigned tomonitor the reverse movements of the equipment (Tr. 45). No such personappears in either of the photographs introduced into evidence asComplainant’s Exhibit 1 and Respondent’s Exhibit A. The violation hasbeen established._Classification of Violations__Willful_The Secretary alleges that the violations of 29 C.F.R. ? 1926.652(b) and29 C.F.R. ? 1926.651(i)(1) were willful. A willful violation is onethat is \”committed with intentional, knowing or voluntary disregard forthe requirements of the Act or with plain indifference to employeesafety.\” _Asbestos Textile Co., Inc._, 84 OSAHRC______ , 12 BNA OSHC1062, 1063, 1984 CCH OSHD ? 27,101 (No. 79-3831, 1984), appeal filed andwithdrawn. The Secretary must establish more than carelessness or alack of diligence in discovering or eliminating a hazard. Where anemployer has made a good faith effort to comply with the standard, awillful violation is not justified even though the employer’s effortsare not entirely effective or complete. _Marmon Group, Inc._, 84 OSAHRC_______, 11 BNA OSHC 2090, 1984 CCH OSHD ? 26,975 (No. 79-5363, 1984),appeal filed and withdrawn.A number of factors have been considered by the Commission in decidingthe issue of willfulness. These factors include not only the evidenceof knowledge or plain indifference but also factors which argue in anemployer’s favor, _e.g_., good faith efforts at compliance. Suchfactors as an employer’s knowledge of the standard, his reason fornoncompliance, good faith efforts made to comply, established proceduresfor compliance, responsibility for compliance, previous violations ofthe same standard, warning from employees or other workers at the site,precautions, if any, taken to protect employees, the isolated acts ofemployees or supervisors, and training of employees are considered inreaching a determination as to whether a violation is willful. _See_,_e.g., Asbestos Textile Co., Inc., supra_; _Marmon Group, Inc_.,_supra_; _D. A & L Caruso, Inc._, 84 OSAHRC __, 11 BNA OSHC 2138, 1984CCH OSHD ? 26,985 (No. 79-5676, 1984); _Mobil Oil Corporation_, 83OSAHRC 47\/B6, 11 BNA OSHC 1700, 1983-1984 CCH OSHD ? 26,699 (No.79-4802, 1983). There must be evidence, apart from establishingknowledge of the hazard, from which it can be reasonably concluded thatthe employer intentionally disregarded or was indifferent to the safetyof the workplace. _Kus-Tum Builders, Inc_., 81 OSAHRC 97\/B2, 10 BNAOSHC 1128, 1981 CCH OSHD ? 25,738 (No. 76-2644, 1981).The record is undisputed that Hubert discussed the trenching standardswith Beckworth prior to the company’s lunch period. He informedBeckworth that the soil appeared to be sandy and that he should use atrench box or slope. When Beckworth informed Hubert that he could notuse a trench box because of utilities in the area, Hubert discussedother options, such as sloping, with him. He specifically advisedBeckworth that sloping should be at least one to one.Although Beckworth was apprised of the trenching standards, includingthe fact that spoil was to be two feet from the edge of the trench, hefailed to comply with the standards. During the afternoon operations,Hubert advised Beckworth, who was in the trench at the time, that thetrench was inadequately sloped. Beckworth’s only reply was that it wassloped enough (Tr. 82- 83). It is clear that Beckworth was plainlyindifferent to the requirements of the trenching standards. He couldnot in good faith have believed that the slope of the trench compliedwith the standard or that the spoil was located two feet from the edgeof the excavation. Harry Hummell, who prepared the pipe for laying andworked in conjunction with the backhoe operator, testified that theoperator was cutting about a three-to-one slope (Tr. 214). A person asexperienced in pipe construction as Beckworth was certainly able to makethe same observation.There was no good faith effort made to comply with the standards. Thetest for determining good faith \”is an objective one, _i.e_., was theemployer’s belief concerning a factual matter or concerning theinterpretation of a standard reasonable under the circumstances.\” _MelJarvis Construction Company, Inc._, 81 OSAHRC 89\/B13, 10 BNA OSHC 1052,1053, 1981 CCH OSHD ? 25,713 (No. 77-2100, 1981). Facts showing that acompliance officer’s advice goes unheeded and violations are committedis \”sufficient to establish ‘intentional disregard of’ and ‘plainindifference to’ OSHA’s regulations.\” _Donovan v. WilliamsEnterprises_, _Inc._, 744 F.2d 170, 180 (D. C. Cir. 1984). Theviolations were willful._Serious_The Secretary classified the violations of 29 C.F.R. ? 1926.100(a) and29 C.F.R. ? 1926.602(a)(9)(ii) as serious within the meaning of section17(k) of the Act.[[6\/]] \”To establish that a violation is ‘serious’ itmust be shown that there is a substantial probability that death orserious physical harm could result from the violative condition and thatthe employer knew or with the exercise of reasonable diligence couldhave known of the presence of the violation.\” _Wisconsin Electric PowerCo._, 76 OSAHRC 134\/B2, 4 BNA OSHC 1783, 1787, 1976-77 CCH OSHD ? 21,234at p. 25,532 (No. 5209, 1976), _aff’d_, 567 F.2d 735 (7th Cir. 1977). The Secretary does not have to establish the likelihood of an accidentbefore a violation can be classified as serious. He \”need only showthat an accident is possible and that such an accident will most likelyresult in serious injury.\” _Communications, Inc_., 79 OSAHRC 61\/A2, 7BNA OSHC 1598, 1602, 1979 CCH OSHD ? 23,759, at p. 28,813 (No. 76-1924,1979), _aff’d_ in an unpublished opinion, No. 79-2148 (D.C. Cir. 1981).Beckworth was aware that employees in the trench were not wearing hardhats and that the front-end loader did not have a reverse signal alarm. The fact that he chose to construe the standards as not being applicableis no defense. As an employer, Calang is charged with theresponsibility of knowing and complying with OSHA standards.Employees were working in close proximity to the front-end loader. Inthe event an employee was struck by the front-end loader, there was asubstantial probability that serious physical harm could have resultedfrom the violative condition. The violation of 29 C.F.R. ?1926.602(a)(9)(ii) was serious.There were four employees in the trench who were not wearing hard hats. The trench was 9 feet deep at 2:30 p.m. and 10 feet deep at 3:00 p.m. The depth of the trench exposed the employees to falling spoil orequipment at the ground surface that might accidentally fall into thetrench. The backhoe was operating while the employees were in thetrench. While it is unlikely that the bucket of the backhoe wouldstrike one of the employees, the likelihood of such an event did exist. The violation of 29 C.F.R. ? 1926.100(a) was serious._Penalty Determinations_While the Secretary proposed a penalty of $8,000 for the willfulviolations of 29 C.F.R. ? 1926.651(i)(1) and 29 C.F.R. ? 1926.652(b),the Commission is the final arbiter in all contested cases. _Secretaryv. OSHRC and Interstate Glass Co_., 487 F.2d 438 (8th Cir. 1973). Undersection 17(j)[[7\/]] of the Act, the Commission is required to find andgive \”due consideration\” to the size of the employer’s business, thegravity of the violation, the good faith of the employer, and thehistory of previous violations in determining the assessment of anappropriate penalty. The gravity of the offense is the principal factorto be considered. _Nacirema_ _Operating Co._, 72 OSAHRC 1\/B10, 1 BNAOSHC 1001, 1971-73 CCH OSHD ? 15,032 (No. 4, 1972).The gravity of the violations were quite severe. Four employees werein the trench for approximately one hour at a depth of nine to tenfeet. Spoil was stored at the edge of the excavation, and equipment(backhoe and front-end loader) was being operated at the site. Becauseof the depth of the trench, a collapse of the trench walls would have inall probability resulted in the death of the three employees who were atthe bottom of the trench. A penalty of $8,000 is assessed for thewillful violations of 29 C.F.R. ? 1926.652(b) and 29 C.F.R. ?1926.651(i)(1).The Secretary proposed a penalty of $400 for the serious violation of 29C.F.R. ? 1926.100(a). Four employees were exposed for an hour to thepossibility of falling hazards or possible impact from the bucket of thebackhoe. A penalty of $400 is assessed for the violation.The Secretary proposed a penalty of $500 for the serious violation of 29C.F.R. ? 1926.602(a)(9)(ii). The front-end loader was being operated atthe site. Employees were in the vicinity. The gravity of the violationis considered low since an unobserved person would have to be in closeproximity to the back of the loader. Since the engine was in the rearand exhausted hot air out the rear, the possibility of an accidentoccurring is considered to have been remote. A penalty of $75 isassessed for the violation._FINDINGS OF FACT_1. Calang Corporation was incorporated in 1979 and has its home officein Baxley, Georgia. (Tr. 180). It is primarily engaged in the businessof sewer and water pipe construction (Tr. 188).2. Calang was awarded a contract by the Water and Sewer Department ofSt. Simons Island, Georgia, to construct a sewer line which was referredto as the Military Road project (Tr.158-159, 190-191, 193).3. After Calang was awarded the contract, it purchased two additionaltrench boxes to go with the one it already had on hand. The trenchboxes were delivered to the project before any work took place(Respondent’s Ex. B; Tr. 161).4. Prior to commencing the project, Calang had approximately $50,000worth of dewatering equipment brought on the project (Tr. 163).5. As a result of a _Dodge Report_, which identified active andanticipated construction projects in a certain area, Compliance OfficerDavid A. Hubert was assigned in January, 1985, to inspect a sewerproject on St. Simons Island, later identified as the Military Roadproject (Tr. 24).6. On January 26, 1985, Hubert went to the site on St. Simons Islandspecified in the _Dodge Report_. He saw no activity. He then went tothe District water and sewer manager’s office for St. Simons Island andhad a discussion with the manager, Ralph Thurston, and an inspector, TimRansom. They identified the area where the sewer pipe was to be laid(Tr. 26, 99, 190-191, 196).7. Hubert was advised by Ransom and Thurston that the trench was to bedug in sandy soil and through some marsh areas (Tr. 27).8. Hubert explained the requirements of OSHA trenching standards toThurston and Ransom (Tr. 28-30, 99, 122, 192, 196). Ransom was to be aninspector on the job (Tr. 99-100).9. Hubert told Thurston and Ransom not to inform Calang that aninspection was scheduled in order not to violate the requirement againstgiving advance notice of an inspection (Tr. 100, 122, 192, 196).10. On February 28, 1985, Hubert returned to St. Simons Island to checkout the project (Tr. 30-31). He located the site around 10:10 a.m. nearthe corner of Cater and Stewart Streets (Tr. 31). A front-end loaderwas operating at the corner of Cater and Stewart Streets (Tr. 31).11. The front-end loader operator, Bill Baxley, informed Hubert thatthe superintendent was Langford Beckworth but that he was not at thesite. In his absence, Baxley informed Hubert that the backhoe operator,Larry Bruce, was in charge (Tr. 32). After Hubert had talked with Brucefor several minutes, Beckworth arrived at the site and an openingconference was conducted with him (Tr. 34).12. When Hubert arrived at the site, no digging had been done that dayby respondent, and there was no activity taking place in the open trenchthat had already been dug. Beckworth informed Hubert that excavatingwould commence after lunch. Hubert returned after lunch to watch theexcavating operation (Tr. 58, 101).13. The trench had been dug and sewer line laid along Stewart Streetalmost to Demere Street at the time Hubert arrived at the site (Tr. 33-34).14. Prior to going to lunch, Hubert informed Beckworth that the soilappeared to be sandy and that he should use a trench box or slope thesoil at least one to one. He advised Beckworth of the trenching andexcavation standards, including the fact that spoil was to be two feetfrom the edge of the trench (Tr. 58-59, 61-62, 101-103, 105-106, 108,118, 125).15. Beckworth informed Hubert that the company had three trench boxes(Tr. 78, 112) but indicated he could not use the trench boxes because ofutilities in the area (Tr. 109, 117). Hubert discussed other options,such as sloping, with him (Tr. 59-61, 117). Hubert advised Beckworththat sloping should be at least one to one (Tr. 117).16. After lunch and until 2:00 p.m., there was no excavating or layingof pipe at the trench site. Around 2:00 p.m. the backhoe operatorcommenced excavating, and other trenching activity resumed (Tr. 64-65,67, 103, 105, 107-108). During the excavating, one of the pipelayersstood on top of an exposed end of the pipe that had been laid theprevious day (Ex. C-2; Tr. 65, 67-68).17. The exposed sewer pipe in the trench was 30 inches in diameter andwas sitting on approximately six inches of gravel (Ex. C-4 thru C-6; Tr.80).18. In addition to the employee standing on the sewer pipe, Beckworthand two other employees of Calang were in the trench. The backhoe wasextending the length of the trench while the employees were in it (Ex.C-2 thru C-5; Tr. 68-69, 73-74, 92, 101). The employees remained in thetrench for approximately one hour (Tr. 69-70). One employee went in andout of the trench a few times, but Beckworth and the other employeeremained in the trench for the entire period of time from approximately2:00 p.m. to 3:00 p.m. (Tr. 69-70, 73).19. During the time the employees were in the trench, the trench wallswere not shored or braced or otherwise supported and a trench box wasnot in use (Ex. C-2 thru C- 5; Tr. 85-86). There was a trench box atthe site (Tr. 65).20. Respondent had a series of well points along the area where thetrench was eventually dug. They were pumping water out of the ground inorder to lower the water table prior to excavating (Tr. 33, 109,125-126, 144, 164, 169). There was a swamp that was contiguous with thesite (Tr. 33).21. Well pointing would not alter the type of sloping required by OSHAor the characterization of the soil (Tr. 144).22. Hubert, with the assistance of a Calang employee, took measurementsof the the trench with a 12-foot measuring tape (Tr. 70-71).23. At 2:30 p.m. the trench was 6 1\/2 feet wide at the point in thetrench that was directly above the exposed pipe. The width at the topat the same area was 9 feet. The trench was 9 feet deep (Ex. C-6; Tr.71-73, 110).24. Three employees, including Beckworth, were in the trench at thetime of the 2:30 p.m. measurements (Tr. 73-74).25. The trench at 3:00 p.m. was 12 feet wide at the top, 8 feet wide atthe bottom, and 10 feet deep (Ex. C-6; Tr. 74, 110).26. The soil in which the trench was dug was loose, damp sandy materialthat was unstable (Ex. C-7; Tr. 57, 81-82, 108, 114-115, 137-138, 141-144).27. A front-end loader and a backhoe were being operated at the site(Respondent’s Ex. A, Ex. C-1, C-5; Tr. 9, 64, 91). The front-end loaderwas operated while employees were in the trench (Tr. 64).28. The spoil removed from the excavation was stored alongside thetrench. It ran up to the edge of the trench wall (Ex. C-4 thru C-6; Tr.75-76, 86, 202).29. Employees at the site wore cloth hats with the name of thecorporation on them (Ex. C-3 thru C-5; Tr. 61-62, 90). There were nohard hats at the site or in Calang’s warehouse. Calang purchased thehats after the inspection and furnished them to employees the next day(Tr. 62, 104, 182).30. During the inspection, Beckworth inquired if it was necessary foremployees to wear hard hats. Hubert advised him that it depended on theexposure of the employee (Tr. 61, 104). Hubert informed Beckworth thatemployees in the trench should be wearing hard hats (Tr. 91).31. Three of the employees in the trench wore cloth hats. A fourthemployee wore no type of hat (Ex. C-2 thru C-5).32. At the time of the inspection, William Baxley, a heavy equipmentoperator, was operating a Caterpillar 950 front-end loader (Respondent’sEx. A; Tr. 9, 16, 40). The loader has three reverse and four forwardgears (Tr. 10). It was being operated in the forward and reverse gearsat the time of the inspection (Tr. 38).33. The front-end loader did not have a reverse signal alarm. It waspurchased without such an alarm (Tr. 15, 17, 45, 187-188, 219, 222).34. Employees were working or standing in close vicinity to thefront-end loader while it was being operated (Respondent’s Ex. A, Ex.C-1; Tr. 38, 40-41). There was also no signal person assisting thebackhoe operator (Tr. 45).35. The back and engine compartment of the front-end loader isapproximately 6 1\/2 feet tall (Tr. 42, 51-52). The view of the driverof a person located directly behind and close to the front-end loader isobstructed (Tr. 10, 14-15).36. When the front-end loader is running, it is difficult for someoneto stand behind it. A fan blows hot air out the rear (Tr. 11, 15).37. The front-end loader has an open cab (Respondent’s Ex. A; Tr. 16). The driver can look behind and would notice anyone unless they were upagainst the back of the machine (Tr. 16).38. There was no person signaling to the driver of the front-end loader(Tr. 45).39. The front-end loader was used to pick up and move the soilexcavated by the backhoe and to return it to the trench during backfilloperations (Tr. 10). At the time Hubert arrived at the site, thefront-end loader was hauling off dirt from the area (Tr. 37).40. On the day of the inspection, Calang employed two flagmen at thesite (Tr. 17-19).41. Calang has no written safety program. Beckworth discusses safetywith employees approximately three times a week (Tr. 36)._CONCLUSIONS OF LAW_1. Calang, at all times material to this proceeding, was engaged in abusiness within the meaning of section 3(5) of the Act.2. Calang, at all times material to this proceeding, was subject to therequirements of the Act and the standards promulgated thereunder. TheCommission has jurisdiction of the parties and of the subject matter.3. On February 28, 1985, Calang was engaged in installing a sewer lineon St. Simons Island. The trench in which the sewer line was being laidwas 6 1\/2 feet in width at the bottom, 9 feet wide at the top, and 9feet deep. The trench walls were not shored, sheeted, braced orotherwise supported. The soil in which the trench was dug was properlyclassified as soft and unstable. The slope of the trench was inadequateto comply with Table P-1 of Subpart P. The trench was in violation of29 C.F.R. ? 1926.652(b). The violation was willful.4. On February 28, 1985, spoil from the excavation was placed on theground at the edge of the excavation in violation of 29 C.F.R.?1926.651(i)(1). The violation was willful.5. A penalty of $8,000 is assessed for the two willful violations.6. On February 28, 1985, four employees were in the trench. None ofthe employees were wearing protective helmets. The failure to wearprotective helmets was in violation of 29 C.F.R. ? 1926.100(a). Theviolation was serious. A penalty of $400 is assessed for the violation.7. On February 28, 1985, a front-end loader was being operated at thesite without a reverse signal alarm or signal person being assigned tomake certain the loader was operated safely. This was a violation of 29C.F.R. ? 1926.602(a)(9)(ii). The violation was serious. A penalty of$75 is assessed for the violation._ORDER_Based upon the foregoing findings of fact and conclusions of law, it isORDERED:(1) That items 1a and 1b of the willful citation issued to Calang onMarch 22, 1985, are affirmed and a penalty of $8,000 assessed for theviolations;(2) That items one and three of the serious citation issued to Calang onMarch 22, 1985, are affirmed and penalties of $400 and $75,respectively, are assessed for the violations;(3) That items 2a and 2b of the serious citation issued to Calang onMarch 22, 1985, are modified in accordance with the terms of settlementto affirm the violations as \”other than serious\”; and(4) No penalties are assessed for the \”other\” affirmed violations.Dated this 13th day of February, 1986JAMES D. BURROUGHSJudgeFOOTNOTES:[[1\/]] Calang has not objected to being named as such, even though itchanged its name to Southern Pipe Contractors, Inc., one month beforethe inspection (according to its president, Langford Beckworth). Beckworth also testified that previously, Calang had done some businessunder the name \”Beckworth Construction Co.\”[[2\/]] That standard provided: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 Tables P-1, P-2 (following paragraph (g) of this section).[[3\/]] That standard provided:In excavations which employees may be required to enter, excavated orother material shall be effectively stored and retained at least 2 feetor more from the edge of the excavation.Since the inspection in this case, the cited standards have beensuperseded by revised standards, 29 C.F.R. Part 1926, SubpartP–Excavations, effective March 5, 1990. 54 Fed. Reg. 45,894, 45,959(1989); 54 Fed. Reg. 53,055 (1989).[[4\/]] A \”one to one\” slope (\”1:1\”) would be a 45? angle — one foot ofhorizontal slope for each foot of vertical slope.[[5\/]] A spoil pile is composed of material excavated in the digging ofa trench.[[6\/]] The new length of pipe would connect with the existing pipe, runto a new manhole, and then reconnect to the existing pipe at anotherpoint. To do this, Calang first had to unearth and plug the pipe. Thenit dug out an area for the new, pre-fabricated manhole.[[7\/]] It was 6 1\/2 feet wide at a point directly above the exposedpipe, which was about 3 feet above the bottom. Thus, the trench wasonly 2 1\/2 feet wider at the top than it was 6 feet below ground level(9 feet wide versus 6 1\/2 feet wide). If the walls were equally steep,each was sloped 1 1\/4 feet horizontally over its 6-foot height, or.208:1 — virtually 1\/5:1. (If the walls were not sloped equally, thenone was sloped at an angle that was even steeper than 1\/5:1).[[8\/]] The pipe was 30 inches in diameter and was sitting on about sixinches of gravel.[[9\/]] Hubert testified that Beckworth replied, \”The whole wall issand. That’s all you’re going to find around here.\” Beckworthadmitted saying \”that there was sandy soil,\” but testified that he wasnot referring to the lower part of the trench. As explained below,Calang argues that that part was \”hardpan.\”[[10\/]] Hubert visually estimated from the plumb rod that the trench was10 feet deep at that point. He also estimated the trench’s width atboth top and bottom, by comparing those dimensions with the width of thebucket of the backhoe used to dig the trench. Hubert understood that thebucket was 4 feet wide. He estimated that the top width was about 3times the bucket’s width (or 12 feet) and that the bottom width wasabout twice the bucket’s width (or 8 feet). Based on these estimates,we conclude that each wall was sloped about 2 feet horizontally, whichmeans each was sloped 1\/5:1. (If the walls were not equally steep, onewall was even steeper than a 1\/5:1 slope.) Beckworth testified that thebackhoe bucket actually was 5 feet wide. Under that assumption, theestimated width would be 15 feet at the top and 10 feet at the bottom. If these estimates are accurate, the trench walls were sloped 1\/4:1.[[11\/]] The judge found that the lower portion of the soil was \”soft orunstable,\” based on expert and other testimony. On review, Calangdisputes that finding, and it specifically criticizes the judge’sreliance on test borings taken by the Secretary that support thatfinding. Calang contends that these tests were not taken at thelocation of the trench and were not adequate to determine the stabilityof the soil. Since the sloping of the trench was clearly inadequateeven if part of the trench was \”hardpan\” as Calang argues, we need notdecide whether the Secretary’s test borings were accurate, or whetherthe lower portion of the soil was \”soft or unstable.\”[[12\/]] Glynn County, Ga., water and sewer inspector Timothy Ransomtestified, \”It would be hard to judge exactly what angle [the walls weresloped]. I would say, maybe, thirty degrees.\” He could only have meant30? from the vertical, or a 60? slope. That slope would be flatter than1\/2:1. Ransom’s very rough estimate is inconsistent with themeasurements, photographs and other evidence. We therefore concludethat Ransom’s very rough estimate is not reasonable in light of therecord evidence, and it is not accepted.[[13\/]] Ransom described \”hardpan\” as follows:hardpan usually is five, maybe six feet, below your sub-grade. It’s avery dense, just compacted soil. It doesn’t have any fines in it atall. It’s hard to well point, but it doesn’t contain any water, so youreally don’t have to well point it, because it will hold its own ifsloped properly. . . . It’s silt and sand. It’s hard and pressed together.If the lower portions were hardpan, they would have to be sloped no moresteeply than 1\/2:1 above the bottom 5 feet of the trench. ? 1926.652(c)(requirements for \”hard or compact soil\”). As discussed above, theactual slope of the walls was 1\/3:1 or steeper. Furthermore, the judgestated that the photographs showed that most of the slope occurred atthe top part of the trench, and neither party disputes this conclusion. Accepting the judge’s view of the photographs, the trench walls belowthe area where the slope was concentrated would have been even steeperthan the figure of 1\/5:1 derived from the trench dimensions alone. Thus, the inadequacy of the slope was readily apparent, even acceptingCalang’s position on the soil content.[[14\/]] The 13 1\/2-foot requirement is arrived at as follows. Threefeet of horizontal sloping was required for the top 3 feet of each wallof the 9-foot-deep trench. Another 1\/2 foot of horizontal sloping ofeach wall would have been required below that, assuming that portion was\”hard or compact,\” as Calang asserts. (No sloping would have beenrequired for the bottom 5 feet, under that assumption.)[[15\/]] County inspector Ransom testified that \”[e]verything I ask[Beckworth] to do, he does . . . . \” Assuming that Ransom, as he stated,had had good working relations with Beckworth, that does not negateBeckworth’s willful disregard of the hazards Hubert pointed out. Thereis no indication that Ransom advised Beckworth that he was in compliancewith either standard, or even spoke to him about the noncomplyingconditions.[[16\/]] Beckworth testified that \”we had approximately $50,000 worth ofde-watering equipment brought on the project.\” However, the invoicefor the equipment, submitted in evidence, states that the equipment wasrented for one month (February 6 to March 5, 1985) for a total of$5,159.44. Also, Calang’s counsel made clear that the invoice was for\”the rental equipment, the invoice on the de-watering.\”[[17\/]] That standard provides:Prior to opening an excavation, _effort shall be made to determinewhether underground installations; i.e., sewer, telephone, water_,_fuel, electric lines, etc., will be encountered_, and if so, where suchunderground installations are located. _When the excavation__approaches the estimated location of such an installation, the exactlocation shall be determined_ and when it is uncovered, proper supportsshall be provided for the existing installation. Utility companiesshall be contacted and advised of proposed work prior to the start ofactual excavation.(emphasis added).[[18\/]] Even if there were no such documents, Calang was aware of wherethe telephone company said its lines ran. Beckworth testified that\”Sure, he [Hubert] couldn’t see them; but if he had got out there beforeexcavation started, the day before, he would have seen the flags wherethe telephone company had located them.\” Yet, Beckworth never indicatedthe distance of those flags, or any other utilities, from the trench.[[19\/]] The Secretary’s counsel handed Beckworth a document he describedas a citation issued to Calang in 1976 for failure to have \”hard hats\”in a trench. Beckworth testified that he considered it a warning, not acitation, because no fine was assessed.[[1\/]] The _Dodge Report_ is a publication which identifies ongoing andanticipated construction projects.[[2\/]] Section 1926.652(b) of 29 C.F.R. provides:(b) Sides of trenches in unstable or soft material, 5 feet or more indepth, shall be shored, sheeted, braced, sloped, or otherwise supportedby means of sufficient strength to protect the employees working withinthem. See Tables P-1, P-2 (following paragraph (g) of this section).[[3\/]] Section 1926.651(i)(1) states:(i)(1) In excavations which employees may be required to enter,excavated or other material shall be effectively stored and retained atleast 2 feet or more from the edge of the excavation.[[4\/]] Section 1926.100(a) states:(a) Employees working in areas where there is a possible danger of headinjury from impact, or from falling or flying objects, or fromelectrical shock and burns, shall be protected by protective helmets.[[5\/]] Section 1926.602(a)(9)(ii) states:(ii) No employer shall permit earthmoving or compacting equipment whichhas an obstructed view to the rear to be used in reverse gear unless theequipment has in operation a reverse signal alarm distinguishable fromthe surrounding noise level or an employee signals that it is safe to do so.[[6\/]] Section 17(k) of the Act provides:(k) For purposes of this section, a serious violation shall be deemed toexist in a place of employment if there is a substantial probabilitythat death or serious physical harm could result from a condition whichexists, or from one or more practices, means, methods, operations, orprocesses which have been adopted or are in use, in such place ofemployment unless the employer did not, and could not with the exerciseof reasonable diligence, know of the presence of the violation.[[7\/]] Section 17(j) of the Act provides:(j) The Commission shall have authority to assess all civil penaltiesprovided in this section, giving due consideration to theappropriateness of the penalty with respect to the size of the businessof the employer being charged, the gravity of the violation, the goodfaith of the employer, and the history of previous violations.”