“Docket No. 85-0319 \u00a0SECRETARY OF LABOR, Complainant, v. CALANG CORPORATION, Respondent.OSHRC DOCKET NO. 85-0319DECISIONBefore:\u00a0 FOULKE, Chairman; MONTOYA andWISEMAN, Commissioners.BY THE COMMISSION:The basic issue is whether violations by CalangCorporation[[1\/]] of two standards governing trenches promulgated by the Secretary ofLabor (\”Secretary\”) under the Occupational Safety and Health Act, 29 U.S.C. ?651-678 (\”the Act\”), were willful.\u00a0 At the time of the inspection at issuehere, 29 C.F.R. ? 1926.652(b) required sloping or otherwise supporting the sides oftrenches more than five feet deep in soft or unstable soil.[[2\/]]\u00a0 The otherstandard, 29 C.F.R. ? 1926.651(i)(1), required that excavated material be stored at leasttwo feet away from the edge of the trench.[[3\/]]\u00a0 We affirm the administrative lawjudge’s decision that the violations were willful and assess a combined penalty of $8,000.Statement of CaseMany of the relevant facts are not disputed bythe parties on review.\u00a0 Calang was installing a new sewer line adjacent to anexisting one on St. Simons Island, Georgia, under a contract with local governmentauthorities.\u00a0 On the morning of February 28, 1985, inspector David Hubert, acompliance officer from the Secretary’s Occupational Safety and Health Administration(\”OSHA\”), arrived to inspect the worksite.\u00a0 No excavating was being donethat morning.Compliance officer Hubert picked up a sample ofsoil from the bucket of Calang’s front end loader, which was being used in the sewer lineinstallation.\u00a0 The soil sample appeared to him to be \”very loose, runny sandmaterial.\”\u00a0 Hubert then discussed the soil conditions with Calang’s president,Langford Beckworth, who has had many years’ experience in heavy construction andpipelaying. Hubert testified:I warned him. . . that in excavating in what wasapparently sandy soil, that he should use a trench box or slope the soil back at least oneto one.[[4\/]]Hubert \”apprised Mr. Beckworth of therequirements in the trenching and excavation standards\” relevant to the work plannedfor the afternoon, and of \”various methods that he could use to be in compliance withthe standards.\”Hubert also told Beckworth that morning\”that the spoil [pile] [[5\/]] should be at least two feet from the edge of the trenchor excavation\”.\u00a0 Hubert testified that, to his recollection, Beckworth\”said that that’s the way they always did it,\” pointing to a spoil pile leftfrom the previous day, which was viewed by the compliance officer to be about 1 1\/2 feetfrom the trench wall.Excavation of the trench began after lunch,about 2 p.m. Calang was connecting a new length of sewer pipe to the existing pipe.[[6\/]]\u00a0 About 2:30 p.m., Hubert measured the dimensions of the trench where the exposedpipe lay, with the assistance of an employee who was working in the trench.\u00a0 Using a12-foot measuring tape, Hubert determined that the trench was 9 feet deep and that it was9 feet wide at the top.\u00a0 Based on his measurements, we conclude that at least one ofthe trench walls was sloped at an angle of approximately 1\/5:1 (1\/5 foot horizontally forevery foot vertically).[[7\/]]\u00a0 There was no shoring or other trench protection inplace.Two Calang employees were in the trench from2:00 p.m. to 3:00 p.m., although one of them left and returned several times.\u00a0 Athird employee stood on the exposed pipe throughout that period.[[8\/]]\u00a0 Beckworthhimself was also in the trench during that period.\u00a0 Hubert further observed thatthere was a spoil pile, several feet high, right at the edge of the west trench wall,above where two employees were working.After taking the measurements at 2:30 p.m.,Hubert again discussed the conditions of the trench with Beckworth.\u00a0 Hubert told himthat the trench walls appeared to be \”nominally vertical.\”\u00a0 Beckworthreplied that in his opinion they were \”sloped enough.\” Beckworth did not explainwhy.\u00a0 Hubert also pointed out to Beckworth that the spoil pile was at the edge of thetrench.\u00a0 There was no response, and the situation was not corrected.\u00a0 Beckworthand the two employees continued working in the trench.\u00a0 Hubert attempted to getBeckworth to leave the trench so that they could discuss the matter further, but Beckworthwould not come out of the trench until his work was completed.Hubert also asked Beckworth what the soil typewas, pointing to the west wall, about halfway down.\u00a0 Beckworth replied that there wassandy soil in the wall.[[9\/]]\u00a0 Hubert obtained a sample of soil from one side of thetrench, about 6 feet below ground level.\u00a0 He testified that it crumbled in his handand felt like damp sand.Hubert made additional visual measurements about3:00 p.m.\u00a0 Beckworth was standing in the trench with two of Calang’s employees,measuring the trench’s depth with a plumb rod.\u00a0 Hubert testified that Beckworthdeclined to tell him the depth, saying, \”You can see it for yourself.\”\u00a0 Based on Hubert’s visual estimates of the height and width of the trench walls, weconclude that they were sloped at only 1\/5:1.[[10\/]]Legal AnalysisAs noted above, the judge found willfulviolations of both of the cited standards.\u00a0 Calang no longer contests the existenceof the violations.\u00a0 Thus, we turn to whether they were willful.A willful violation is one committed withintentional, knowing or voluntary disregard for the requirements of the Act, or with plainindifference to employee safety.\u00a0 E.g., Williams Enterprises Inc., 13 BNA OSHC1249, 1256-57, 1986-87 CCH OSHD ? 27,893, p. 36,589 (No. 85-355, 1987).\u00a0 It isdifferentiated from other types of violations by a \”heightened awareness — of theillegality of the conduct or conditions — and by a state of mind — conscious disregardor plain indifference.\”\u00a0 Id.A finding of willfulness is not justified if anemployer has made a good faith effort to comply with a standard, even though theemployer’s efforts are not entirely effective or complete.\u00a0 Id.\u00a0 Also, aviolation is not willful if the employer had a good faith opinion that the violativeconditions conformed to the requirements of the cited standard.\u00a0 However, the test ofgood faith for these purposes is an objective one — whether the employer’s beliefconcerning a factual matter, or concerning the interpretation of a standard, wasreasonable under the circumstances.\u00a0 Id. 13 BNA OSHC at 1259, 1986-87 CCH OSHDat p. 36,591.In this case, the evidence establishes that Calang consciously disregarded therequirements of the cited standards.\u00a0 To summarize the evidence discussed above,Compliance Officer Hubert informed Beckworth in the morning, before the work began, thatthe trench sides had to be sloped about 1:1, and that the spoil piles had to be 2 feetaway from the edge of the trench.\u00a0 Hubert testified without contradiction that he wasrelating OSHA requirements to Beckworth.\u00a0 After measuring the slope about 2:30 p.m.,he told Beckworth that the trench walls were \”nominally vertical.\”\u00a0 Beckworth continued to work in the trench with the employees, saying he felt thewalls were sloped enough.\u00a0 Hubert also advised Beckworth that the spoil pile was atthe very edge of the west trench wall, and there was no response.\u00a0 Furthermore,Beckworth did not make any effort to relocate the spoil pile.Calang’s basic position is that:Mr. Beckworth reasonably determined that thesafety precautions he took, including well-pointing and sloping, were adequate to complywith the Act, to [meet] the safety needs of Calang Corporation’s employees and that thepositioning of his spoil material was not done intentionally to endanger CalangCorporation’s employees.We find, however, that Beckworth could not havereasonably determined that his precautions were adequate to comply with the Act.\u00a0 Although he may not have committed the violations \”intentionally toendanger\” the employees, he did intentionally ignore OSHA’s requirements after theinspector correctly explained them to him.\u00a0 This intentional disregard of the Act’srequirements constitutes a willful violation of the Act.Furthermore, Calang does not even offer an explanation for its failure to keep the spoilpile two feet away from the trench edge. Nothing in the record indicates that there wasany physical obstruction that prevented it from locating the spoil pile two feet away.Beckworth responded with silence when Hubert told him it was at the trench edge.\u00a0 Hedid not relocate the spoil pile, which was several feet high, even after Hubert pointedout the situation.\u00a0 Thus, the conclusion that the spoil pile violation resulted fromconscious disregard of the OSHA requirement is inescapable.We further conclude that Calang could not havebelieved in good faith that the slope of the trench walls complied with OSHA requirements.\u00a0 The slope of the trench walls was much less than required by the OSHA standards,even if we accepted Calang’s position on the soil content.[[11\/]]\u00a0 The hazardspointed out by Hubert were clearly visible and easily measurable.The evidence overwhelmingly establishes that atleast the top three feet of the trench walls was sand.\u00a0 This being the case, thatportion of the trench would require at least a 1:1 slope under the cited standard.\u00a0 The actual slope, based on the dimensions of the trench, was about 1\/5:1.\u00a0 Even Calang’s experienced pipelayer, Harry Hummell, testified that in his opinionthe slope was about 1\/3:1.\u00a0 The judge, commenting on that testimony, stated that\”[a] person as experienced in pipe construction as Beckworth was certainly able tomake the same observation.\”[[12\/]]\u00a0 The inadequacy of the slope was clearlyvisible, even assuming for purposes of argument that the lower portions of the walls were\”hardpan,\” as Calang contends.[[13\/]]The inadequacy of the sloping also could havebeen easily measured.\u00a0 For example, the walls were required to be at least 13 1\/2feet apart at the point 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 the surface.[[14\/]]\u00a0 However, they were only nine feet apart.\u00a0 Once again, this difference wasreadily discernible by Beckworth.[[15\/]]As to Calang’s \”good faith efforts\”argument, we note that Calang used wellpointing (\”de-watering\”) equipment, whichlowered the water table to 18 feet, thus reducing the possibility of a cave-in due towater pressure.[[16\/]]\u00a0 Beckworth also testified that the equipment is time-consumingto install, because it amounts to digging a shallow well at 3-foot intervals, adjacent tothe trench.De-watering the trench may have been a usefulstep.\u00a0 However, Calang’s wellpointing efforts were no substitute for properly slopingor supporting the trench walls, as required under the aforementioned standards.\u00a0 TheSecretary’s expert on the classification of soil types, James Horton, testified withoutcontradiction that wellpointing does not alter the sloping requirements for soil.\u00a0 The good faith effort required is an effort to comply with the cited provisions.\u00a0 Furthermore, Calang still failed to explain why it took no action on Hubert’swarnings about inadequate sloping and the spoil pile.Calang also notes that it purchased two trenchboxes prior to the start of the job, at a cost of about $17,700, in addition to one trenchbox it already had.\u00a0 Beckworth testified that no trench boxes had been used on theproject, and that they could not be used at the time of the inspection because of variousrestrictions on the width of the trench.\u00a0 Assuming for argument’s sake that thetrench boxes could not have been used, that fact would not excuse Beckworth’s consciousdisregard of alternative safety measures that were required.\u00a0 In fact, Calang’spurchase of trench boxes indicates that it was aware that strong cave-in protection wasrequired in addition to the wellpointing equipment.\u00a0 Compliance officer Hubertexplained to Beckworth numerous alternative means of compliance listed in the citedprovision, including sloping and shoring.\u00a0 Calang used none of them.\u00a0 Asdiscussed below, it gave no reasonable basis for that failure.Calang asserts that it was unable to providemore sloping, due to an underground gas line (two inches in diameter) on one side of thetrench, and underground cables on the other side.\u00a0 However, even assuming forargument’s sake that further sloping was impossible, shoring was an available alternativeunder the standard, as Hubert explained to Beckworth.\u00a0 If Calang decided (forwhatever reason) that it was not going to provide adequate sloping, then it was requiredunder the standard to provide one of the other alternatives such as adequate shoring.\u00a0 Calang’s failure to attempt any shoring negates the conclusion that it acted inreasonable good faith.Standard trench shoring consists basically ofpaneling (wood beams or the equivalent) along each side wall, and cross braces that spanthe width of the trench.\u00a0 (Minimum requirements for shoring are given in Table P-2 ofthe excavation standards, and are expressly incorporated by reference in the citedstandard.)\u00a0 The only testimony questioning the feasibility of shoring was by GlynnCounty water and sewer inspector Timothy Ransom.\u00a0 Ransom stated that if shoring wereused where the new manhole was to be placed, \”I don’t see how you could get yourdigger in, because shoring is cross-grade.\”\u00a0 However, there was no evidence thatshoring would be infeasible toward the opposite end of the trench, or in other areas ofthe trench where the backhoe was not currently operating.Ransom arguably acknowledged that furtherprotection was feasible when he testified that he would have asked for more protection foremployees if the soil had been sandier.\u00a0 Calang has failed to supply a reasonablebasis for its failure to provide at least partial shoring or other protection in thetrench.We also note that Calang in presenting its casemade no attempt to show how close the utilities were to the trench walls.\u00a0 Calang wasrequired under the excavation standard, 29 C.F.R. ? 1926.651(a), to determine whetherunderground utilities would be encountered, and to determine their \”exactlocation\” when approaching them.[[17\/]]\u00a0 Hubert testified that he observed\”no significant utilities\” affecting the area where the employees were working.\u00a0 So far as the record shows, Calang alone would have access to blueprints or otherdocuments indicating the location of those utilities.[[18\/]]\u00a0 Because Calang failedto introduce into evidence available information that it was required to know, showing howclose the lines were to the trench, its assertion that the utilities precluded furthersloping is unsupported by the record.\u00a0 Moreover, we are unable to conclude thatCalang had a reasonable belief that further sloping was precluded due to the presence ofutilities. The circumstances here are similar to those in Donovan v. Williams Enterprises, Inc.,744 F.2d 170, 180 (D.C. Cir. 1984), where the court held that:Prior to issuing the citations . . . theSecretary — through his representative–repeatedly warned [the employer’s] supervisorypersonnel about the company’s failure to comply with construction site safety standards.\u00a0 He also advised those supervisors as to the specific steps that the company shouldtake to bring its project into compliance.\u00a0 The Secretary’s warnings and advice wentunheeded and the violations continued.\u00a0 These facts alone are sufficient to establish\”intentional disregard of\” and \”plain indifference to\” OSHA’sregulations.See also A. C. Dellovade, Inc., 13 BNAOSHC 1017, 1019-20, 1986-87 CCH OSHD ? 27,786, p. 36,342 (No. 83-1189,1987) (failure toprovide safety belts, and instructions for their use, was willful where OSHA inspector hadexplained means of compliance to employer’s job superintendent, employer was supplied withbooklet containing OSHA regulations, and job superintendent was aware of OSHA safety beltrequirements); 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 before allowingemployees to enter trench was willful where employer had been cited previously forviolation of same standard, OSHA inspector had explained trenching requirements toemployer’s engineer about four months before inspection, and its job superintendent knewthe requirements and the need for trench support).The judge assessed a combined penalty of $8000for the two willful violations.\u00a0 We agree with the judge’s conclusion that $8000 isan \”appropriate penalty.\”\u00a0 Penalties are to be assessed in light of thegravity of the violation, the employer’s size, good faith and history of violations.\u00a0 29 U.S.C. ? 666(j).\u00a0 The likely consequences of a cave-in would have beendeath or serious physical harm for three or four employees.\u00a0 Trench cave-ins, whichare frequently caused by failure to comply with the Secretary’s trenching standards, havebeen for many years one of the most severe problems in occupational safety.\u00a0 Inresponse, OSHA established in 1985 a National Emphasis Program for programmed safetyinspections of trenching and excavation operations.\u00a0 OSHA Instruction CPL 2.69(September 19, 1985), 1985-86 CCH Employment Safety and Health Developments (\”NewDevelopments\”) ? 8664. Conscious disregard of OSHA trenching requirements warrants asubstantial penalty because 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 thatthe company had \”turned over around two million dollars of contracts since January[1985],\” a 7 1\/2 -month period.\u00a0 Calang had previously been cited for an OSHAviolation, which it did not contest.[[19\/]]\u00a0 We have found no objective good faith onCalang’s part.\u00a0 Under the Act, the Secretary could have proposed separate penaltiesof up to $10,000 for each violation.\u00a0 A combined penalty of $8,000 is therefore fullyjustified on the record before us.For the reasons set forth above, we affirm thealleged willful violations 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 Montoya CommissionerDonald G. Wiseman CommissionerDated: September 12, 1990SECRETARY OF LABOR, Complainant, v. CALANG CORPORATION, Respondent.OSHRC Docket No. 85-0319APPEARANCES: Daniel A. Caldwell, Esquire, Office of theSolicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf of complainant Philip R. Taylor, Esquire, Brunswick, Georgia, on behalf of respondentDECISION AND ORDERBurroughs, Judge:\u00a0 Calang Corporation(\”Calang\”) contests alleged willful violations of 29 C.F.R. ? 1926.652(b), forfailure 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 from the edge of anexcavation which employees were required to enter.\u00a0 It further contests allegedserious violations of 29 C.F.R. ? 1926.100(a), for failure of employees to wear hard hatswhile working in a trench, and 29 C.F.R. ? 1926.602(a)(9)(ii), for failure of a front-endloader, which was in use at the trench site, to have a reverse signal alarm.The violations allegedly occurred during aninspection conducted by Compliance Officer David Hubert on February 28, 1985, at a trenchsite located on St. Simons Island, Georgia.\u00a0 Calang was working under a contract withthe Water and Sewer Department of St. Simons Island to install a sewer line on a jobreferred to as the Military Road project.The original notice of contest placed in issueitems 2a (29 C.F.R. ? 1926.201(a)(4)) and 2b (29 C.F.R. ? 1926.202) of the seriouscitation.\u00a0 At the commencement of the hearing, the Secretary moved to amend items 2aand 2b to classify the alleged violations as other than serious and to vacate the proposedpenalty.\u00a0 The motion was granted, and respondent later withdrew its notice of contestas to these items (Tr. 4-5, 56-57).\u00a0 The disposition of these items has beenappropriately reflected in 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 sewerline on St. Simons Island.\u00a0 Compliance Officer David Hubert was assigned to conductan inspection.\u00a0 On January 26, 1985, he traveled to the site of the proposed sewerline but discovered that construction had not commenced.\u00a0 He proceeded to the St.Simons Water and Sewer District Office and met with District Manager Ralph Thurston andTim Ransom, who was assigned to be an inspector on the project.\u00a0 They identified thearea where the sewer line was to be constructed, and Hubert apprised them of therequirements of OSHA’s trenching standards.On February 28, 1985, Hubert returned to St.Simons Island and located the site of the sewer line near the corner of Cater and StewartStreets.\u00a0 When he arrived around 10:10 a.m., a front-end loader was being operated atthe site.\u00a0 There was an open trench from the previous day that had a 30-inch sewerpipe installed in it and partially backfilled.\u00a0 No excavating had taken place thatmorning, and none was being done at the time of his arrival.\u00a0 Hubert was advised thatLangford Beckworth, the owner of the company, was the superintendent on the job but thathe was not at the site.\u00a0 In the absence of Beckworth, Hubert was advised that LarryBruce, the backhoe operator, was in charge.\u00a0 After Hubert talked with Bruce for a fewminutes, Beckworth arrived at the site and an opening conference was held with him.During his discussions with Beckworth, Hubertwas advised that excavating would not commence until after lunch.\u00a0 Hubert informedBeckworth that he would return after lunch to observe the excavation operations.\u00a0 Prior to going to lunch, Hubert informed Beckworth that the soil appeared to besandy and that he should use a trench box or slope the walls of the trench at least one toone.\u00a0 He advised Beckworth of the trenching and excavation standards, including thefact that the soil had to be two feet from the edge of the trench.After lunch and until 2:00 p.m., there was noexcavating or laying of pipe at the trench site.\u00a0 The backhoe operator commencedexcavating around 2:00 p.m., and all other trenching activity resumed.\u00a0 During theexcavating, one of the pipelayers stood on top of the exposed end of the pipe that hadbeen laid the previous day.\u00a0 Beckworth and two other employees went into the opentrench and remained in the trench for approximately one hour, although one of theemployees went in and out of the trench on several occasions.\u00a0 Beckworth was takingmeasurements of the depth at the area where a manhole was to be installed (Tr. 74).\u00a0 While the employees were in the trench, the trench walls were not shored, braced orotherwise supported and a trench box was not in use.Hubert, with the assistance of a Calangemployee, used a tape measure to take measurements of the trench at 2:30 p.m.\u00a0 Heestimated additional measurements at 3:00 p.m. which were based on the width of thebackhoe bucket.\u00a0 At 2:30 p.m. the trench was 6 1\/2 feet wide at the point in thetrench directly above the exposed pipe.\u00a0 The width of the top of the trench at thesame area was 9 feet.\u00a0 The trench was 9 feet deep.\u00a0 At 3:00 p.m. the trench was8 feet wide at the bottom, 12 feet wide at the top, and 10 feet deep. Employees wereworking in the trench at the time the measurements were made by Hubert.The cited standard, 29 C.F.R. ?1926.652(b),[[2\/]] requires that sides of trenches in unstable or soft materials, fivefeet or more in depth, be shored, sheeted, braced, sloped or otherwise supported toprotect employees.\u00a0 Calang disputes the determination that the walls of the trenchwere composed of soft or unstable material.\u00a0 It submits that the walls were composedof hard or compact soil.\u00a0 In the context of this case, the distinction has littlesignificance.\u00a0 In 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), the Commissionreaffirmed its 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), thatsections 1926.652(b) and (c), read together, inform employers that some protection isrequired in any trench five feet or more in depth dug in soil.\u00a0 There is no disputethat the trench was more than 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 supportsthe conclusion that the trench was excavated in soft and unstable soil.\u00a0 Hubertrelied upon several factors in reaching his conclusion.\u00a0 He was advised by Thurstonand Ransom that the sewer line was to be laid in sandy soil and through some marsh areas(Tr. 27).\u00a0 Hubert was advised by Beckworth at the time Beckworth was in the trenchbetween 2:00 p.m. and 3:00 p.m. that the trench wall was sand (Tr. 82).\u00a0 Hubert alsoobserved the texture of the soil removed from the excavation (Tr. 57-58).\u00a0 Inaddition, around 2:30 p.m. he asked the pipelayer standing on top of the sewer pipe tohand him a handful of soil from the west wall.\u00a0 The pipelayer removed some soilaround the six-foot level and handed it to Hubert.\u00a0 Hubert testified that the chunkof soil crumbled in his hand and felt like damp sand (Tr. 80-81).In preparation of the case for trial, theSecretary obtained the services of Law Engineering Company to make two exploratory boringsin the area of the trench that was under construction on February 28, 1985.\u00a0 Theborings were based on representations by Hubert as to the location of the trench on thatdate (Tr. 93-95, 133-134, 149, 152).\u00a0 Hubert was not present at the time the boringswere obtained but had previously accompanied an employee of Law Engineering, Ken Bunnel,to the site and a schematic drawing had been made of the area to show where the boringswere to be made (Tr. 93-94, 116-117, 132).\u00a0 Using a measuring tape, Hubert and Bunneldetermined the best area to take undisturbed soil samples on each side of the trench line(Tr. 94).During the hearing, James A. Horton of LawEngineering, who was qualified as an expert in the classification of soil types (Tr. 130),testified that he was present the day the samples were taken.\u00a0 Standard penetrationsamples were taken at depths of 2.5 feet, 3 feet, 5 feet and 10 feet (Ex. C-7; Tr.132-133).\u00a0 Based on tests performed (Ex. C-7), Horton concluded that the soil wassoft and unstable (Tr. 142).Beckworth testified that the test borings weremade in the trench line of an old sewer (Tr. 166-167).\u00a0 Ransom also disputed theaccuracy of the measurements from the sewer line under construction at the time of theinspection (Tr. 203-204).\u00a0 Hubert testified that he and Bunnel paralleled the trenchline from Cater Street to the manhole installed on the inspection date (Tr. 94).\u00a0 Hestated that he and Bunnel were certain the markings on the drawings for the text boringswere outside the trench area (Tr. 117). Beckworth’s testimony is negated by Horton’sopinion that the two borings were outside the area of any backfill.\u00a0 Horton’s opinionwas based on the stratification of the soil and supports Hubert’s view that the boringswere made outside of any backfilled areas (Tr. 139).\u00a0 Calang’s evidence isinsufficient to rebut the findings made by Hubert and Horton. While Beckworth and Ransom refer to the soil ashardpan, they both concede that the top part of the trench walls was sand. Beckworthqualified his statement that he told Hubert the walls were sand by stating that he wasreferring to only part of the trench walls.\u00a0 He testified that the lower sections ofthe trench were dug in hardpan material (Tr. 164, 169).\u00a0 Ransom testified that thesoil from the four-foot level of the subgrade to the trench bottom was hardpan (Tr. 197).\u00a0 He described hardpan as silt and sand pressed together (Tr. 210).\u00a0 Hetestified that the first two to three feet of the trench was sand (Tr. 206).The Commission has in a number of casesrecognized that the ground in which a trench is dug may be composed of a number ofdifferent types of soil.\u00a0 The decisions recognize that a trench wall composed ofsoils of different strengths is only as stable as its weakest component.\u00a0 In W. N.Couch Construction Co., 76 OSAHRC 44\/A2, 4 BNA OSHC 1054, 1975-76 CCH OSHD ? 20,574(No. 7370, 1976), the Commission stated that if the walls of a trench contain asignificant amount of soft or unstable materials, the soil as a whole is to be consideredsoft or unstable and the trench is governed by the requirements of section 1926.652(b).\u00a0 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).\u00a0 Beckworthand Ransom conceded that the top two to four feet of the trench walls was sand. This is asignificant amount of unstable material and requires a determination be made that thetrench was excavated in soft and unstable materials.Hubert, with the assistance of a Calangemployee, took measurements of the trench at 2:30 p.m.\u00a0 They used a 12-foot measuringtape (Tr. 70-71).\u00a0 There were three employees working in the trench at the time themeasurement was made.\u00a0 The trench was 6 1\/2 feet wide at a point directly over theexposed pipe and 9 feet wide at the top at the same area.\u00a0 The trench was 9 feetdeep.\u00a0 It is undisputed and the photographs introduced as Complainant’s Exhibits 2,3, 4 and 5 clearly reflect that the trench walls were not shored, sheeted, braced orotherwise supported.\u00a0 The only question is whether the trench was sufficiently slopedto comply with Table P-1 of Subpart P.The measurement of the bottom width at a pointdirectly above the exposed pipe was 6 1\/2 feet.\u00a0 The measurement would have beenapproximately three feet above the bottom of the trench since the pipe was 30 inches indiameter and was sitting on approximately six inches of gravel (Tr. 80).\u00a0 Thephotographs (Ex. C-2 thru C-5) reflect that the walls were primarily vertical up to thispoint.\u00a0 The width measurement at the bottom is considered accurate.\u00a0 The topwidth was nine feet and the depth was nine feet. Table P-1 of Subpart P requires a slopeof one to one for average soils from the bottom of the trench to the top.\u00a0 The slopefor compacted sharp sand and well-rounded loose sand is one and a half to one and two toone, respectively.\u00a0 Soil expert Horton testified that the type of soil present in thearea of the trench required an angle of repose of not less than one to one (Tr. 143).There was only a 2 1\/2-foot slope from the bottom width to the top width.\u00a0 Thephotographs reflect that most of this slope occurs at the top of the trench.\u00a0 Usingthe slope most favorable to Calang, i.e., one to one, the 2 1\/2-foot slope isinsufficient to comply with the requirements of 29 C.F.R. ? 1926.652(b), and Table P-1.\u00a0 Harry Hummell, who prepared the pipe for laying and worked in conjunction with thebackhoe operator, testified that the slope was about three to one (Tr. 214).\u00a0 Thephotographs and measurements support a slope close to a three to one.\u00a0 The violationhas been established.Calang had a series of well points along thearea where the trench was eventually dug.\u00a0 They were pumping water out of the groundin order to lower the water table prior to digging.\u00a0 Contrary to Calang’s argument,well pointing is not a means of complying with ? 1926.652(b).\u00a0 Section 1926.652(b)is specific in the types of abatement required to strengthen the walls of trenches toprotect employees working in them.\u00a0 Well pointing would not alter the type of slopingrequired by Table P-1 or change the characterization of the soil.\u00a0 It could be ameans of compliance with other OSHA standards.\u00a0 For example, ? 1926.651(p) requiresthat some suitable means be used to prevent water from accumulating in an excavation.\u00a0 The well points accomplished this job, and Calang was not cited for anyaccumulation of water in the trench.Alleged Violation of 29 C.F.R. ? 1926.651(i)(1)Section 1926.651(i)(1) [[3\/]] requires thatexcavated material removed from a trench in which employees are working be stored orretained at least two feet from the edge of the excavation.\u00a0 There is no dispute overthe fact that three employees were in the bottom of the trench and that a fourth employeewas standing on the end of the sewer laid from the previous day.\u00a0 Photographsintroduced into evidence as Complainant’s Exhibits 2, 4 and 5 show the four employees.\u00a0 Complainant’s Exhibits 2, 3 and 5 show excavated materials stored up to the edge ofone of the trench walls while employees are in the trench.\u00a0 The employees are shownin the trench at the location of the excavated material.\u00a0 Hubert testified that heobserved the spoil at the edge of the trench wall (Tr. 75-76). Ransom conceded that therewas some spoil at the edge of the trench (Tr. 202).Calang argues that the standard is ambiguous inthat it does not make clear 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.\u00a0 It points outthat the center of the spoil was more than two feet from the edge of the trench.\u00a0 This argument must be rejected.\u00a0 The obvious intent of the standard is toprevent any superimposed loads on the trench wall at a point where the additional weightis likely to cause a collapse.\u00a0 Any soil in the two-foot area would place additionalweight and stress on the trench wall.\u00a0 James A. Horton, who was qualified as anexpert, testified that a spoil pile commencing at the very edge of a trench, as in thiscase, would add an additional load on the trench wall (Tr. 146-148). An interpretationthat the standard requires the center of the spoil pile be two feet from the edge of theexcavation would be inconsistent 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 Commissionheld that undisputed evidence that excavated material was stored within two feet of theedge of the trench and that employees were working in the trench near the location of thespoil pile is sufficient to establish a violation of 29 C.F.R. ? 1926.651(i)(1).\u00a0 The employees in this case were working in the trench near the location of thespoil pile that extended up to the edge of the trench wall.\u00a0 The violation has beenestablished.Alleged Violation of 29 C.F.R. ? 1926.100(a)The Secretary alleges that Calang violated 29C.F.R. ? 1926.100(a) since the employees in the trench were not wearing protectivehelmets.\u00a0 There is no dispute that three of the employees were wearing cloth hats.\u00a0 The fourth employee in the trench wore no type of hat (Ex. C-2 thru C-5; Tr. 61-62,90).\u00a0 There were no hard hats at the site or in Calang’s warehouse.Section 1926.100(a)[[4\/]] requires employees towear protective helmets when working in areas where there is a possible danger from headinjury from impact or from falling objects.\u00a0 The employees were working in the trenchwhile the backhoe was operating and with spoil up to the edge of the excavation.\u00a0 Equipment was also located on the ground above one of the trench walls (Ex. C-2thru C-4).\u00a0 At 2:30 p.m. the trench was nine feet deep.\u00a0 It was 10 feet deep at3:00 p.m.\u00a0 There was a possible danger of head injury from falling objects sinceequipment or the spoil could have inadvertently fallen into the trench.\u00a0 Theviolation has been established.Calang argues that the issue should not beaffirmed because Beckworth raised the question as to whether hard hats were required andthat Hubert gave an equivocal response.\u00a0 Hubert agreed that Beckworth raised theissue and that he advised him that it depended on the exposure (Tr. 61, 104).\u00a0 Huberttestified that he informed Beckworth that the employees in the trench should wear hardhats (Tr. 91).\u00a0 An employer cannot escape being cited for an apparent violation byraising the issue before the compliance officer brings it to his attention.Alleged Violation of ? 1926.602(a)(9)(ii)When Hubert arrived at the site, he observed aCaterpillar 950 front-end loader in operation.\u00a0 The front-end loader had threereverse and four forward gears and was being operated in forward and reverse gears duringthe time of the inspection.\u00a0 It is undisputed that the front-end loader did not havea reverse signal alarm.The Secretary argues that the front-end loaderhad an obstructed view to the rear and that the absence of a reverse signal alarm was inviolation of 29 C.F.R. ? 1926.602(a)(9)(ii).[[5\/]]\u00a0 This standard requiresearthmoving or compacting equipment to have a reverse signal alarm when the operator hasan obstructed view to the rear or that someone be present to signal the operator that itis safe to proceed in reverse.\u00a0 Calang disputes the determination that the operatorhad an obstructed view to the rear.\u00a0 It further argues that flagmen were at the siteto signal the operator and keep persons from getting in the path of the equipment.The back and engine compartment of the front-endloader is approximately 6 1\/2 feet in height.\u00a0 This height is several inches higherthan the height of the normal person.\u00a0 Whenever someone is standing directly behindand close to the front-end loader, the operator’s view of such a person would beobstructed.\u00a0 The operator of the front-end loader, William Baxley, conceded this factduring his testimony (Tr. 10, 14-15).\u00a0 Calang argues that it would be extremelyunlikely that someone would be so close to the rear of the machine that he would be out ofthe view of the operator.\u00a0 This argument is based on the fact that the loader wasequipped with a large fan in its rear that created a great deal of hot exhaust.\u00a0 According to Baxley, the hot exhaust would make it too uncomfortable to stand nearthe rear of the loader.\u00a0 The hot exhaust does not alter the fact that an obstructedview does exist whenever a person is close to the rear of the engine.Calang further argues that it had anemployee-warning system.\u00a0 The evidence is undisputed that Calang employed two ladiesas flagmen at the site (Tr. 63).\u00a0 Baxley testified that the company had a foreman andflagman that watched everything (Tr. 17).\u00a0 There was no evidence that a specificperson was assigned to signal for him whenever the front-end loader proceeded in reverse.\u00a0 Baxley’s testimony that flagmen assisted and informed him if someone was to hisrear was nebulous and unconvincing (Tr. 17-18).\u00a0 The flagmen’s duties includedlooking after the traffic (Tr. 17).\u00a0 Since the trench was alongside a road, it seemsmore likely that the duties of the flagmen were limited to monitoring traffic.\u00a0 Hubert observed the operations of the front-end loader and was forceful in histestimony that no signal person was assigned to monitor the reverse movements of theequipment (Tr. 45).\u00a0 No such person appears in either of the photographs introducedinto evidence as Complainant’s Exhibit 1 and Respondent’s Exhibit A.\u00a0 The violationhas been established.Classification of Violations WillfulThe Secretary alleges that the violations of 29C.F.R. ? 1926.652(b) and 29 C.F.R. ? 1926.651(i)(1) were willful.\u00a0 A willfulviolation is one that is \”committed with intentional, knowing or voluntary disregardfor the requirements of the Act or with plain indifference to employee safety.\”\u00a0 Asbestos Textile Co., Inc., 84 OSAHRC______ , 12 BNA OSHC 1062, 1063, 1984CCH OSHD ? 27,101 (No. 79-3831, 1984), appeal filed and withdrawn.\u00a0 The Secretarymust establish more than carelessness or a lack of diligence in discovering or eliminatinga hazard.\u00a0 Where an employer has made a good faith effort to comply with thestandard, a willful violation is not justified even though the employer’s efforts are notentirely effective or complete.\u00a0 Marmon Group, Inc., 84 OSAHRC_______, 11 BNA OSHC 2090, 1984 CCH OSHD ? 26,975 (No. 79-5363, 1984), appeal filed andwithdrawn.A number of factors have been considered by theCommission in deciding the issue of willfulness.\u00a0 These factors include not only theevidence of knowledge or plain indifference but also factors which argue in an employer’sfavor, e.g., good faith efforts at compliance.\u00a0 Such factors as an employer’sknowledge of the standard, his reason for noncompliance, good faith efforts made tocomply, established procedures for compliance, responsibility for compliance, previousviolations of the same standard, warning from employees or other workers at the site,precautions, if any, taken to protect employees, the isolated acts of employees orsupervisors, and training of employees are considered in reaching a determination as towhether a violation is willful.\u00a0 See,e.g., Asbestos Textile Co., Inc., supra; Marmon Group, Inc., supra; D.A & L Caruso, Inc., 84 OSAHRC __, 11 BNA OSHC 2138, 1984 CCH OSHD ? 26,985 (No.79-5676, 1984); Mobil Oil Corporation, 83 OSAHRC 47\/B6, 11 BNA OSHC 1700, 1983-1984CCH OSHD ? 26,699 (No. 79-4802, 1983).\u00a0 There must be evidence, apart fromestablishing knowledge of the hazard, from which it can be reasonably concluded that theemployer intentionally disregarded or was indifferent to the safety of the workplace.\u00a0 Kus-Tum Builders, Inc., 81 OSAHRC 97\/B2, 10 BNA OSHC 1128, 1981 CCH OSHD ?25,738 (No. 76-2644, 1981).The record is undisputed that Hubert discussedthe trenching standards with Beckworth prior to the company’s lunch period.\u00a0 Heinformed Beckworth that the soil appeared to be sandy and that he should use a trench boxor slope.\u00a0 When Beckworth informed Hubert that he could not use a trench box becauseof utilities in the area, Hubert discussed other options, such as sloping, with him. Hespecifically advised Beckworth that sloping should be at least one to one.Although Beckworth was apprised of the trenchingstandards, including the fact that spoil was to be two feet from the edge of the trench,he failed to comply with the standards.\u00a0 During the afternoon operations, Hubertadvised Beckworth, who was in the trench at the time, that the trench was inadequatelysloped.\u00a0 Beckworth’s only reply was that it was sloped enough (Tr. 82- 83).\u00a0 Itis clear that Beckworth was plainly indifferent to the requirements of the trenchingstandards.\u00a0 He could not in good faith have believed that the slope of the trenchcomplied with the standard or that the spoil was located two feet from the edge of theexcavation.\u00a0 Harry Hummell, who prepared the pipe for laying and worked inconjunction with the backhoe operator, testified that the operator was cutting about athree-to-one slope (Tr. 214).\u00a0 A person as experienced in pipe construction asBeckworth was certainly able to make the same observation.There was no good faith effort made to complywith the standards.\u00a0 The test for determining good faith \”is an objective one, i.e.,was the employer’s belief concerning a factual matter or concerning the interpretation ofa standard reasonable under the circumstances.\”\u00a0 Mel Jarvis ConstructionCompany, Inc., 81 OSAHRC 89\/B13, 10 BNA OSHC 1052, 1053, 1981 CCH OSHD ? 25,713 (No.77-2100, 1981).\u00a0 Facts showing that a compliance officer’s advice goes unheeded andviolations are committed is \”sufficient to establish ‘intentional disregard of’ and’plain indifference to’ OSHA’s regulations.\”\u00a0 Donovan v. Williams Enterprises,Inc., 744 F.2d 170, 180 (D. C. Cir. 1984).\u00a0 The violations were willful.Serious The Secretary classified the violations of 29C.F.R. ? 1926.100(a) and 29 C.F.R. ? 1926.602(a)(9)(ii) as serious within the meaning ofsection 17(k) of the Act.[[6\/]] \”To establish that a violation is ‘serious’ it mustbe shown that there is a substantial probability that death or serious physical harm couldresult from the violative condition and that the employer knew or with the exercise ofreasonable diligence could have known of the presence of the violation.\”\u00a0 WisconsinElectric Power Co., 76 OSAHRC 134\/B2, 4 BNA OSHC 1783, 1787, 1976-77 CCH OSHD ?21,234 at p. 25,532 (No. 5209, 1976), aff’d, 567 F.2d 735 (7th Cir. 1977).\u00a0 The Secretary does not have to establish the likelihood of an accident before aviolation can be classified as serious.\u00a0 He \”need only show that an accident ispossible and that such an accident will most likely result in serious injury.\”\u00a0 Communications,Inc., 79 OSAHRC 61\/A2, 7 BNA 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 trenchwere not wearing hard hats and that the front-end loader did not have a reverse signalalarm.\u00a0 The fact that he chose to construe the standards as not being applicable isno defense.\u00a0 As an employer, Calang is charged with the responsibility of knowing andcomplying with OSHA standards.Employees were working in close proximity to the front-end loader.\u00a0 In the event anemployee was struck by the front-end loader, there was a substantial probability thatserious physical harm could have resulted from the violative condition.\u00a0 Theviolation of 29 C.F.R. ? 1926.602(a)(9)(ii) was serious.There were four employees in the trench who werenot wearing hard hats.\u00a0 The trench was 9 feet deep at 2:30 p.m. and 10 feet deep at3:00 p.m.\u00a0 The depth of the trench exposed the employees to falling spoil orequipment at the ground surface that might accidentally fall into the trench.\u00a0 Thebackhoe was operating while the employees were in the trench.\u00a0 While it is unlikelythat the bucket of the backhoe would strike one of the employees, the likelihood of suchan event did exist.\u00a0 The violation of 29 C.F.R. ? 1926.100(a) was serious.Penalty DeterminationsWhile the Secretary proposed a penalty of $8,000for the willful violations 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.\u00a0 Secretary v. OSHRCand Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973).\u00a0 Under section17(j)[[7\/]] of the Act, the Commission is required to find and give \”dueconsideration\” to the size of the employer’s business, the gravity of the violation,the good faith of the employer, and the history of previous violations in determining theassessment of an appropriate penalty.\u00a0 The gravity of the offense is the principalfactor to be considered.\u00a0 Nacirema Operating Co., 72 OSAHRC 1\/B10, 1BNA OSHC 1001, 1971-73 CCH OSHD ? 15,032 (No. 4, 1972).The gravity of the violations were quite severe.\u00a0 Four employees were in the trench for approximately one hour at a depth of nine toten feet.\u00a0 Spoil was stored at the edge of the excavation, and equipment (backhoe andfront-end loader) was being operated at the site.\u00a0 Because of the depth of thetrench, a collapse of the trench walls would have in all probability resulted in the deathof the three employees who were at the bottom of the trench.\u00a0 A penalty of $8,000 isassessed for the willful 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 theserious violation of 29 C.F.R. ? 1926.100(a).\u00a0 Four employees were exposed for anhour to the possibility of falling hazards or possible impact from the bucket of thebackhoe.\u00a0 A penalty of $400 is assessed for the violation.The Secretary proposed a penalty of $500 for theserious violation of 29 C.F.R. ? 1926.602(a)(9)(ii).\u00a0 The front-end loader was beingoperated at the site.\u00a0 Employees were in the vicinity.\u00a0 The gravity of theviolation is considered low since an unobserved person would have to be in close proximityto the back of the loader.\u00a0 Since the engine was in the rear and exhausted hot airout the rear, the possibility of an accident occurring is considered to have been remote.\u00a0 A penalty of $75 is assessed for the violation.FINDINGS OF FACT1.\u00a0 Calang Corporation was incorporated in1979 and has its home office in Baxley, Georgia. (Tr. 180).\u00a0 It is primarily engagedin the business of sewer and water pipe construction (Tr. 188).2.\u00a0 Calang was awarded a contract by theWater and Sewer Department of St. Simons Island, Georgia, to construct a sewer line whichwas referred to as the Military Road project (Tr.158-159, 190-191, 193).3.\u00a0 After Calang was awarded the contract,it purchased two additional trench boxes to go with the one it already had on hand.\u00a0 The trench boxes were delivered to the project before any work took place(Respondent’s Ex. B; Tr. 161).4.\u00a0 Prior to commencing the project, Calanghad approximately $50,000 worth of dewatering equipment brought on the project (Tr. 163). 5.\u00a0 As a result of a Dodge Report,which identified active and anticipated construction projects in a certain area,Compliance Officer David A. Hubert was assigned in January, 1985, to inspect a sewerproject on St. Simons Island, later identified as the Military Road project (Tr. 24).6.\u00a0 On January 26, 1985, Hubert went to thesite on St. Simons Island specified in the Dodge Report.\u00a0 He saw no activity.\u00a0 He then went to the District water and sewer manager’s office for St. Simons Islandand had a discussion with the manager, Ralph Thurston, and an inspector, Tim Ransom.\u00a0 They identified the area where the sewer pipe was to be laid (Tr. 26, 99, 190-191,196).7.\u00a0 Hubert was advised by Ransom andThurston that the trench was to be dug in sandy soil and through some marsh areas (Tr.27).8.\u00a0 Hubert explained the requirements ofOSHA trenching standards to Thurston and Ransom (Tr. 28-30, 99, 122, 192, 196). Ransom wasto be an inspector on the job (Tr. 99-100).9.\u00a0 Hubert told Thurston and Ransom not toinform Calang that an inspection was scheduled in order not to violate the requirementagainst giving advance notice of an inspection (Tr. 100, 122, 192, 196).10.\u00a0 On February 28, 1985, Hubert returnedto St. Simons Island to check out the project (Tr. 30-31).\u00a0 He located the sitearound 10:10 a.m. near the corner of Cater and Stewart Streets (Tr. 31).\u00a0 A front-endloader was operating at the corner of Cater and Stewart Streets (Tr. 31).11.\u00a0 The front-end loader operator, BillBaxley, informed Hubert that the superintendent was Langford Beckworth but that he was notat the site.\u00a0 In his absence, Baxley informed Hubert that the backhoe operator, LarryBruce, was in charge (Tr. 32).\u00a0 After Hubert had talked with Bruce for severalminutes, Beckworth arrived at the site and an opening conference was conducted with him(Tr. 34).12.\u00a0 When Hubert arrived at the site, nodigging had been done that day by respondent, and there was no activity taking place inthe open trench that had already been dug.\u00a0 Beckworth informed Hubert that excavatingwould commence after lunch.\u00a0 Hubert returned after lunch to watch the excavatingoperation (Tr. 58, 101).13.\u00a0 The trench had been dug and sewer line laid along Stewart Street almost toDemere Street at the time Hubert arrived at the site (Tr. 33-34).14.\u00a0 Prior to going to lunch, Hubertinformed Beckworth that the soil appeared to be sandy and that he should use a trench boxor slope the soil at least one to one.\u00a0 He advised Beckworth of the trenching andexcavation standards, including the fact that spoil was to be two feet from the edge ofthe trench (Tr. 58-59, 61-62, 101-103, 105-106, 108, 118, 125).15.\u00a0 Beckworth informed Hubert that thecompany had three trench boxes (Tr. 78, 112) but indicated he could not use the trenchboxes because of utilities in the area (Tr. 109, 117).\u00a0 Hubert discussed otheroptions, such as sloping, with him (Tr. 59-61, 117). Hubert advised Beckworth that slopingshould be at least one to one (Tr. 117).16.\u00a0 After lunch and until 2:00 p.m., therewas no excavating or laying of pipe at the trench site.\u00a0 Around 2:00 p.m. the backhoeoperator commenced excavating, and other trenching activity resumed (Tr. 64-65, 67, 103,105, 107-108).\u00a0 During the excavating, one of the pipelayers stood on top of anexposed end of the pipe that had been laid the previous day (Ex. C-2; Tr. 65, 67-68).17.\u00a0 The exposed sewer pipe in the trenchwas 30 inches in diameter and was sitting on approximately six inches of gravel (Ex. C-4thru C-6; Tr. 80).18.\u00a0 In addition to the employee standingon the sewer pipe, Beckworth and two other employees of Calang were in the trench.\u00a0 The backhoe was extending 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 the trench forapproximately one hour (Tr. 69-70).\u00a0 One employee went in and out of the trench a fewtimes, but Beckworth and the other employee remained in the trench for the entire periodof time from approximately 2:00 p.m. to 3:00 p.m. (Tr. 69-70, 73).19.\u00a0 During the time the employees were inthe trench, the trench walls were not shored or braced or otherwise supported and a trenchbox was not in use (Ex. C-2 thru C- 5; Tr. 85-86).\u00a0 There was a trench box at thesite (Tr. 65).20.\u00a0 Respondent had a series of well pointsalong the area where the trench was eventually dug.\u00a0 They were pumping water out ofthe ground in order to lower the water table prior to excavating (Tr. 33, 109, 125-126,144, 164, 169).\u00a0 There was a swamp that was contiguous with the site (Tr. 33).21.\u00a0 Well pointing would not alter the typeof sloping required by OSHA or the characterization of the soil (Tr. 144).22.\u00a0 Hubert, with the assistance of aCalang employee, took measurements of the the trench with a 12-foot measuring tape (Tr.70-71). 23.\u00a0 At 2:30 p.m. the trench was 6 1\/2 feetwide at the point in the trench that was directly above the exposed pipe.\u00a0 The widthat the top at the same area was 9 feet.\u00a0 The trench was 9 feet deep (Ex. C-6; Tr.71-73, 110).24.\u00a0 Three employees, including Beckworth,were in the trench at the time of the 2:30 p.m. measurements (Tr. 73-74).25.\u00a0 The trench at 3:00 p.m. was 12 feetwide at the top, 8 feet wide at the bottom, and 10 feet deep (Ex. C-6; Tr. 74, 110).26.\u00a0 The soil in which the trench was dug was loose, damp sandy material that wasunstable (Ex. C-7; Tr. 57, 81-82, 108, 114-115, 137-138, 141-144).27.\u00a0 A front-end loader and a backhoe werebeing operated at the site (Respondent’s Ex. A, Ex. C-1, C-5; Tr. 9, 64, 91).\u00a0 Thefront-end loader was operated while employees were in the trench (Tr. 64).28.\u00a0 The spoil removed from the excavationwas stored alongside the trench.\u00a0 It ran up to the edge of the trench wall (Ex. C-4thru C-6; Tr. 75-76, 86, 202).29.\u00a0 Employees at the site wore cloth hatswith the name of the corporation on them (Ex. C-3 thru C-5; Tr. 61-62, 90).\u00a0 Therewere no hard hats at the site or in Calang’s warehouse.\u00a0 Calang purchased the hatsafter the inspection and furnished them to employees the next day (Tr. 62, 104, 182).30.\u00a0 During the inspection, Beckworthinquired if it was necessary for employees to wear hard hats.\u00a0 Hubert advised himthat it depended on the exposure of the employee (Tr. 61, 104).\u00a0 Hubert informedBeckworth that employees in the trench should be wearing hard hats (Tr. 91).31.\u00a0 Three of the employees in the trenchwore cloth hats.\u00a0 A fourth employee wore no type of hat (Ex. C-2 thru C-5).32.\u00a0 At the time of the inspection, WilliamBaxley, a heavy equipment operator, was operating a Caterpillar 950 front-end loader(Respondent’s Ex. A; Tr. 9, 16, 40).\u00a0 The loader has three reverse and four forwardgears (Tr. 10).\u00a0 It was being operated in the forward and reverse gears at the timeof the inspection (Tr. 38).33.\u00a0 The front-end loader did not have areverse signal alarm.\u00a0 It was purchased without such an alarm (Tr. 15, 17, 45,187-188, 219, 222).34.\u00a0 Employees were working or standing inclose vicinity to the front-end loader while it was being operated (Respondent’s Ex. A,Ex. C-1; Tr. 38, 40-41).\u00a0 There was also no signal person assisting the backhoeoperator (Tr. 45).35.\u00a0 The back and engine compartment of thefront-end loader is approximately 6 1\/2 feet tall (Tr. 42, 51-52).\u00a0 The view of thedriver of a person located directly behind and close to the front-end loader is obstructed(Tr. 10, 14-15).36.\u00a0 When the front-end loader is running,it is difficult for someone to stand behind it.\u00a0 A fan blows hot air out the rear(Tr. 11, 15).37.\u00a0 The front-end loader has an open cab(Respondent’s Ex. A; Tr. 16).\u00a0 The driver can look behind and would notice anyoneunless they were up against the back of the machine (Tr. 16).38.\u00a0 There was no person signaling to thedriver of the front-end loader (Tr. 45).39.\u00a0\u00a0 The front-end loader was used topick up and move the soil excavated by the backhoe and to return it to the trench duringbackfill operations (Tr. 10).\u00a0 At the time Hubert arrived at the site, the front-endloader was hauling off dirt from the area (Tr. 37).40.\u00a0 On the day of the inspection, Calangemployed two flagmen at the site (Tr. 17-19).41.\u00a0 Calang has no written safety program.\u00a0 Beckworth discusses safety withemployees approximately three times a week (Tr. 36).CONCLUSIONS OF LAW1.\u00a0 Calang, at all times material to thisproceeding, was engaged in a business within the meaning of section 3(5) of the Act.2.\u00a0 Calang, at all times material to thisproceeding, was subject to the requirements of the Act and the standards promulgatedthereunder.\u00a0 The Commission has jurisdiction of the parties and of the subjectmatter.3.\u00a0 On February 28, 1985, Calang wasengaged in installing a sewer line on St. Simons Island.\u00a0 The trench in which thesewer line was being laid was 6 1\/2 feet in width at the bottom, 9 feet wide at the top,and 9 feet deep.\u00a0 The trench walls were not shored, sheeted, braced or otherwisesupported.\u00a0 The soil in which the trench was dug was properly classified as soft andunstable.\u00a0 The slope of the trench was inadequate to comply with Table P-1 of SubpartP.\u00a0 The trench was in violation of 29 C.F.R. ? 1926.652(b).\u00a0 The violation waswillful.4.\u00a0 On February 28, 1985, spoil from theexcavation was placed on the ground at the edge of the excavation in violation of 29C.F.R. ?1926.651(i)(1).\u00a0 The violation was willful.5.\u00a0 A penalty of $8,000 is assessed for thetwo willful violations. 6.\u00a0 On February 28, 1985, four employeeswere in the trench.\u00a0 None of the employees were wearing protective helmets.\u00a0 Thefailure to wear protective helmets was in violation of 29 C.F.R. ? 1926.100(a).\u00a0 Theviolation was serious.\u00a0 A penalty of $400 is assessed for the violation.7.\u00a0 On February 28, 1985, a front-end loader was being operated at the site without areverse signal alarm or signal person being assigned to make certain the loader wasoperated safely.\u00a0 This was a violation of 29 C.F.R. ? 1926.602(a)(9)(ii).\u00a0 Theviolation was serious.\u00a0 A penalty of $75 is assessed for the violation.ORDER Based upon the foregoing findings of fact andconclusions of law, it is ORDERED:(1) That items 1a and 1b of the willful citationissued to Calang on March 22, 1985, are affirmed and a penalty of $8,000 assessed for theviolations;(2) That items one and three of the seriouscitation issued to Calang on March 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 citationissued to Calang on March 22, 1985, are modified in accordance with the terms ofsettlement to 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 it changed its name toSouthern Pipe Contractors, Inc., one month before the inspection (according to itspresident, Langford Beckworth).\u00a0 Beckworth also testified that previously, Calang haddone some business under 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 supportedby means of sufficient strength to protect the employees working within them.\u00a0 SeeTables P-1, P-2 (following paragraph (g) of this section).[[3\/]] That standard provided:In excavations which employees may be requiredto enter, excavated or other material shall be effectively stored and retained at least 2feet or more from the edge of the excavation.Since the inspection in this case, the citedstandards have been superseded by revised standards, 29 C.F.R. Part 1926, SubpartP–Excavations, effective March 5, 1990.\u00a0 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 of horizontal slope for each foot ofvertical slope.[[5\/]] A spoil pile is composed of materialexcavated in the digging of a trench.[[6\/]] The new length of pipe would connect withthe existing pipe, run to a new manhole, and then reconnect to the existing pipe atanother point.\u00a0 To do this, Calang first had to unearth and plug the pipe.\u00a0 Thenit dug out an area for the new, pre-fabricated manhole.[[7\/]] It was 6 1\/2 feet wide at a pointdirectly above the exposed pipe, which was about 3 feet above the bottom.\u00a0 Thus, thetrench was only 2 1\/2 feet wider at the top than it was 6 feet below ground level (9 feetwide versus 6 1\/2 feet wide).\u00a0 If the walls were equally steep, each was sloped 1 1\/4feet horizontally over its 6-foot height, or .208:1 — virtually 1\/5:1.\u00a0 (If thewalls were not sloped equally, then one was sloped at an angle that was even steeper than1\/5:1). [[8\/]] The pipe was 30 inches in diameter andwas sitting on about six inches of gravel.[[9\/]] Hubert testified that Beckworth replied,\”The whole wall is sand.\u00a0 That’s all you’re going to find around here.\”\u00a0 Beckworth admitted saying \”that there was sandy soil,\” but testified thathe was not referring to the lower part of the trench.\u00a0 As explained below, Calangargues that that part was \”hardpan.\”[[10\/]] Hubert visually estimated from the plumbrod that the trench was 10 feet deep at that point.\u00a0 He also estimated the trench’swidth at both top and bottom, by comparing those dimensions with the width of the bucketof the backhoe used to dig the trench. Hubert understood that the bucket was 4 feet wide.\u00a0 He estimated that the top width was about 3 times the bucket’s width (or 12 feet)and that the bottom width was about twice the bucket’s width (or 8 feet).\u00a0 Based onthese estimates, we conclude that each wall was sloped about 2 feet horizontally, whichmeans each was sloped 1\/5:1.\u00a0 (If the walls were not equally steep, one wall was evensteeper than a 1\/5:1 slope.)\u00a0 Beckworth testified that the backhoe bucket actuallywas 5 feet wide.\u00a0 Under that assumption, the estimated width would be 15 feet at thetop and 10 feet at the bottom.\u00a0 If these estimates are accurate, the trench wallswere sloped 1\/4:1.[[11\/]] The judge found that the lower portionof the soil was \”soft or unstable,\” based on expert and other testimony.\u00a0 On review, Calang disputes that finding, and it specifically criticizes the judge’sreliance on test borings taken by the Secretary that support that finding.\u00a0 Calangcontends that these tests were not taken at the location of the trench and were notadequate to determine the stability of the soil.\u00a0 Since the sloping of the trench wasclearly inadequate even if part of the trench was \”hardpan\” as Calang argues, weneed not decide whether the Secretary’s test borings were accurate, or whether the lowerportion of the soil was \”soft or unstable.\”[[12\/]] Glynn County, Ga., water and sewerinspector Timothy Ransom testified, \”It would be hard to judge exactly what angle[the walls were sloped].\u00a0 I would say, maybe, thirty degrees.\”\u00a0 He couldonly have meant 30? from the vertical, or a 60? slope.\u00a0 That slope would be flatterthan 1\/2:1.\u00a0 Ransom’s very rough estimate is inconsistent with the measurements,photographs and other evidence.\u00a0 We therefore conclude that Ransom’s very roughestimate is not reasonable in light of the record evidence, and it is not accepted.[[13\/]] Ransom described \”hardpan\” asfollows:hardpan usually is five, maybe six feet, belowyour sub-grade.\u00a0 It’s a very dense, just compacted soil.\u00a0 It doesn’t have anyfines in it at all.\u00a0 It’s hard to well point, but it doesn’t contain any water, soyou really don’t have to well point it, because it will hold its own if sloped properly. .. . It’s silt and sand.\u00a0 It’s hard and pressed together.If the lower portions were hardpan, they wouldhave to be sloped no more steeply than 1\/2:1 above the bottom 5 feet of the trench. ?1926.652(c) (requirements for \”hard or compact soil\”).\u00a0 As discussed above,the actual slope of the walls was 1\/3:1 or steeper. Furthermore, the judge stated that thephotographs showed that most of the slope occurred at the top part of the trench, andneither party disputes this conclusion.\u00a0 Accepting the judge’s view of thephotographs, the trench walls below the area where the slope was concentrated would havebeen even steeper than the figure of 1\/5:1 derived from the trench dimensions alone.\u00a0 Thus, the inadequacy of the slope was readily apparent, even accepting Calang’sposition on the soil content.[[14\/]] The 13 1\/2-foot requirement is arrivedat as follows.\u00a0 Three feet of horizontal sloping was required for the top 3 feet ofeach wall of the 9-foot-deep trench.\u00a0 Another 1\/2 foot of horizontal sloping of eachwall would have been required below that, assuming that portion was \”hard orcompact,\” as Calang asserts.\u00a0 (No sloping would have been required for thebottom 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.\u00a0 There is noindication that Ransom advised Beckworth that he was in compliance with either standard,or even spoke to him about the noncomplying conditions.[[16\/]] Beckworth testified that \”we hadapproximately $50,000 worth of de-watering equipment brought on the project.\”\u00a0 However, the invoice for the equipment, submitted in evidence, states that theequipment was rented for one month (February 6 to March 5, 1985) for a total of $5,159.44.\u00a0 Also, Calang’s counsel made clear that the invoice was for \”the rentalequipment, the invoice on the de-watering.\”[[17\/]] That standard provides:Prior to opening an excavation, effort shallbe made to determine whether underground installations; i.e., sewer, telephone, water,fuel, electric lines, etc., will be encountered, and if so, where such undergroundinstallations are located.\u00a0 When the excavation approaches the estimatedlocation of such an installation, the exact location shall be determined and when itis uncovered, proper supports shall be provided for the existing installation.\u00a0 Utility companies shall be contacted and advised of proposed work prior to thestart of actual excavation.(emphasis added).[[18\/]] Even if there were no such documents,Calang was aware of where the telephone company said its lines ran.\u00a0 Beckworthtestified that \”Sure, he [Hubert] couldn’t see them; but if he had got out therebefore excavation started, the day before, he would have seen the flags where thetelephone company had located them.\”\u00a0 Yet, Beckworth never indicated thedistance of those flags, or any other utilities, from the trench.[[19\/]] The Secretary’s counsel handed Beckwortha document he described as a citation issued to Calang in 1976 for failure to have\”hard hats\” in a trench.\u00a0 Beckworth testified that he considered it awarning, not a citation, because no fine was assessed.[[1\/]] The Dodge Report is a publicationwhich identifies ongoing and anticipated construction projects.[[2\/]] Section 1926.652(b) of 29 C.F.R.provides:(b) Sides of trenches in unstable or softmaterial, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwisesupported by means of sufficient strength to protect the employees working within them.\u00a0 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 berequired 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 apossible danger of head injury 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 orcompacting equipment which has an obstructed view to the rear to be used in reverse gearunless the equipment has in operation a reverse signal alarm distinguishable from thesurrounding 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 seriousviolation shall be deemed to exist in a place of employment if there is a substantialprobability that death or serious physical harm could result from a condition whichexists, or from one or more practices, means, methods, operations, or processes which havebeen adopted or are in use, in such place of employment unless the employer did not, andcould not with the exercise of reasonable diligence, know of the presence of theviolation.[[7\/]] Section 17(j) of the Act provides:(j) The Commission shall have authority toassess all civil penalties provided in this section, giving due consideration to theappropriateness of the penalty with respect to the size of the business of the employerbeing charged, the gravity of the violation, the good faith of the employer, and thehistory of previous violations.”