“SECRETARY OF LABOR,Complainant,v.D.A. & L. CARUSO, INC.,Respondent.OSHRC Docket No. 79-5676_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).The case involves the Secretary of Labor’s (\”Secretary\”) allegation thatD.A. & L. Caruso, Inc. (\”Caruso\”) committed a willful violation of thestandard at 29 C.F.R. ? 1926.652(c)[[1]] by failing to shore orotherwise support the sides of a trench dug in hard or compact soil. Administrative Law Judge Joseph Chalk, finding that the Secretary hadfailed to prove that the sides of the trench were located in hard orcompact soil, vacated the citation. The Commission reverses the judge,finds a willful violation, affirms the citation, and assesses a $3000penalty.[[2]]IOn August 16, 1979, Caruso was constructing a storm sewer pipeline inProspect Park, Pennsylvania. The work included excavating a trench forthe 48-inch pipe, pouring stones onto the trench floor to make a levelbed, placing the pipe onto the stones, and connecting the pipe to theadjoining pipe segment. The pertinent portion of the trench ran downthe middle of Darby Crescent Road and was about 8 feet wide at the top,12 to 15 feet deep, and about 50 feet long. One side of the trench wasvertical and the other was slightly sloped near the top of the trench. An existing 12-inch sewer pipe in a backfilled area ran along theunsloped wall of the trench and parallel to that wall about 3 feet belowthe road surface.At about 11:00 a.m., three OSHA compliance officers arrived at thetrench site in response to complaints that employees had been working inan unshored trench. Compliance officer Buchanan testified that when hearrived there were no employees in the trench. He observed water in thebottom of the trench and that \”portions of the side of the trench was[sic] falling over [\”fluffing\”] into the water,. . . . at the bottom ofthe trench.\” Buchanan testified that he interviewed employees Cullenand Sterling, who told him that they had been working in the trench thatmorning prior to his arrival. Buchanan testified that he conferred withCaruso’s on-site superintendent, Nenna, who told him that Nenna wasaware of the OSHA trenching standards and admitted the trench shouldhave been shored or protected. Nenna told him that as a result ofcomplaints by the union field representative he had ordered that atrench box be brought to the site prior to the inspection. Thecompliance officer did not make any tests of the type of soil in the trench.Cullen, a laborer, testified that he had been in the trench for about anhour on the morning of August 16. He also testified that on August 15the soil in the trench had given way and employee Sterling, who was inthe trench at the time, had to jump inside the sewer pipe to avoid thefalling soil. The soil that fell covered part of the entrance to thepipe and Cullen had to descend into the trench to dig Sterling out. Later that same day, Cullen was in the trench when the backhoe operatorshouted at him to get out and the trench \”caved in while I was downthere.\” Cullen escaped injury. Cullen testified that on the morning ofAugust 16 the trench was in the same condition that it had been onAugust 15 except that some backfilling had been done.Union local field representative Freeman, who had worked intermittentlyon trenching projects for about four years, testified that he went tothe jobsite on August 16 and was taken to the trench by Cullen. Twoemployees were then at work in the trench pumping out water. Freemantestified that he called the employees out of the trench, told projectsuperintendent Nenna that the trench was unsafe, and that Nenna repliedthat he would take care of it. Freeman testified that the trench wasbuilt beside an existing sewer line that ran alongside the trench, aboutthree feet below the road surface. Water was \”seeping\” in a \”slow flow\”downward from a joint in the existing sewer line. Freeman did notconduct any soil tests but visually examined the soil and saw that thevertical side of the trench above the existing sewer pipe contained fillsoil and that the soil beneath the sewer pipe was clay, some of whichhad fallen away from that side of the trench.Nenna testified that he was at the jobsite every day and had the chanceto observe the soil they were digging in. He testified that the soilmaterial they were encountering on the project consisted of sandy claysand rock. When the job reached Darby Crescent road, the rock was aboutsix feet down from the top of the trench. As the work progressed, rockwas encountered at increasingly lower levels. Nenna acknowledged thatby the time of the inspection the rock had disappeared or was at thelower part of the pipe being laid and the balance of the soil materialwas sandy clay. At this same time Caruso was unable to continue toslope the trench wall as a result of the close proximity of the existingsewer line. As a result, arrangements were being made on August 15 tobring in the trench box that had been used earlier in the project. Nenna testified that he had been informed the night before theinspection that part of the trench wall had collapsed while Sterling wasin the trench. He had been told that the backhoe had knocked some dirtoff the wall while it was being used to slope the wall. On the basis ofhis examination of the soil in the trench, Nenna, who had experiencewith projects in which thousands of feet of pipes were laid, testifiedthat it was stable.Caruso called Kondner, a registered professional engineer, as an expertwitness. He testified that he visited Caruso’s jobsite in earlyOctober, 1979, after the area had been backfilled. He requested soilborings and the borings were put down in July, 1980. Kondner testifiedthat boring B-1 was taken about forty feet east of the original trenchopening and boring B-2 was taken about thirty feet off the center lineof the original trench opening. The borings were taken at some distancefrom the site of the trench because he wanted the borings to be clear ofunderground utility lines and backfilled soil.Boring B-1 revealed that the top portion of the earth at that site wascomposed of five feet of very stiff sandy clay. The clay was underlainby weathered gneiss (rock) down to about 15-1\/2 feet deep. Boring B-2revealed a top portion of about 3-1\/2 feet of very stiff sandy clay withsome silt and below that weathered gneiss rock down to about 15-1\/2feet. Kondner testified that the sandy clay was very dense, very hard,and very stable, and was safe enough for a vertical trench wall. Hetestified that, with reference to Table P-1 of section 1926.652, [[3]]the gneiss in the soil samples was very similar to shale and that theshear strength of the soil in the soil samples would be equivalent toTable P-1’s \”Solid Rock, Shale or Cemented Sand and Gravels\” category. \”In fact,\” Kondner testified, \”this [sample] material would be muchbetter than cemented sand and gravel.\” Kondner testified that althoughthe borings did not duplicate the conditions in the trench with respectto water on the trench bottom, the water in the trench was a very minorcircumstance and would not have weakened the trench.Caruso’s general manager, Crandall, testified that prior to thecommencement of the project, of which this trench was just a small part,test borings were taken of the soil to be encountered. The soil testedwas a sandy gravel clay material and weathered gneiss. After thoseborings had been made Caruso used a backhoe to excavate in various areasof the project to check further on the type of soil. The materialexcavated with the backhoe was very similar to the soil taken in theearlier borings. The record does not indicate where the materialexcavated with the backhoe or the pre-commencement borings were taken inrelation to the cited trench. Crandall testified that he had viewed thetrench in this case and had observed the water in it. He \”felt we had astable condition.\”IIJudge Chalk vacated the section 1926.652(c) citation. He stated that,under Table P-1, the sides of trenches composed of solid rock, shale orcemented sand or gravel, unlike hard or compact soil, require noprotection and that the soil in this trench was equivalent to shale andcemented sands and gravel. The judge credited Kondner’s testimony thatthe test borings consisted of soil with a composition identical instability to shale and cemented sand and gravel and that the trenchwalls consisted of material similar to that in the test borings,although Kondner never examined the material in the trench walls. Thejudge also credited Kondner’s opinion that the backfill material in thevertical trench side and the water in one side and the bottom of thetrench would not affect the stability of the trench. The judgeconcluded that the Secretary’s evidence was not sufficient to establishthat the sides of the trench consisted of hard or compact soil. Thejudge acknowledged the fact that portions of the trench wall hadcollapsed into the trench on two occasions, but attributed this to theoperation of a backhoe. This conclusion was based on Nenna’s account ofwhat he was told about the incident, since Nenna was not present whenthe walls collapsed.The Secretary petitioned for review of the judge’s decision and reviewwas granted on whether the judge erred in vacating the citation on theground that the Secretary failed to establish that the sides of thetrench were located in hard or compact soil.IIIThe Secretary argues on review that section 1926.652(c) requires atrench to be shored, sloped, or otherwise protected regardless of soilstability, unless the trench falls within one of the limited exceptionsin Table P-1 which accompanies the trenching standards. The Secretarycontends that if a significant part of the material of a trench is soilthe trench must be supported under section 1926.652(c) even if someportion of the trench wall is rock. The Secretary argues that the soilin the trench was not safe, as evidenced by the testimony of employeeCullen, who witnessed the trench walls cave in. The Secretary pointsout that the wall of the unsloped side of the trench contained backfilland suggests that this is a further indication that the trench wasunsafe. The Secretary next argues that the evidence demonstratesCaruso’s violation of the standard was willful because Caruso acted withan intentional disregard of the requirements of section 1926.652(c). The Secretary contends that Nenna knew that the trench was dug in clay,knew that the trench had vertical walls, and admitted to complianceofficer Buchanan that the trench needed protective measures.Caruso did not file a brief on review.IVThe Commission concludes that a violation has been established becausethe trench was dug in soil which is required by section 1926.652(c) tobe \”shored or otherwise supported when the trench is more than 5 feet indepth and 8 feet or more in length.\” Caruso essentially based itsdefense on testimony which attempted to show that the clay, weatheredrock, and backfill in the trench were as stable as solid rock, shale, orcemented sand and gravels, the materials referred to in Table P-1 ofsection 1926.652 which do not require sloping or other protectivemeasures. _See_, _e.g._, _Frank Irey Jr., Inc._, 77 OSAHRC 192\/F11, 5BNA OSHC 2030, 1977-78 CCH OSHD ? 22,283 (No. 701, 1977). However, therecord does not support Caruso’s argument that the soil in which thetrench was dug was as stable as solid rock, shale, or cemented sand andgravel. We find, as a matter of fact, that a preponderance of theevidence establishes that the soil was not stable.Nenna, the person with the greatest degree of experience with soilcharacteristics who actually viewed the soil on the day of theinspection, testified that the soil was sandy clay with, perhaps, someweathered rock at the bottom of the trench. A portion of the trenchwall contained backfill. This description is different from that of theconditions found at the test boring sites. Moreover, Nenna admitted tothe compliance officer that the trench needed to be supported and, infact, made arrangements to bring in a trench box on the day prior to theinspection. Cullen testified that the trench wall had caved in twicethe day before the inspection while an employee was in the trench, andthat Cullen had to dig the other employee out. Freeman testified thatwater was seeping into the trench from a joint in the adjacent sewerline. We find this evidence decisive, in view of the scarcely relevantand unpersuasive testimony of Caruso’s expert witness, Kondner. Hissoil samples were taken from areas at least 30 feet from where thetrench was dug and do not reflect the unstable soil conditions in thewalls of the trench as established by the testimony of Nenna, Cullen andFreeman.The Commission further determines that Caruso committed a willfulviolation of the cited standard. A violation is willful if it iscommitted with either an intentional disregard of, or plain indifferenceto, the Act’s requirements. _See_, _e.g_., _S. Zara and Sons__Contracting Co_., 82 OSAHRC 5\/C9, 10 BNA OSHC 1334, 1982 CCH OSHD ?25,892 (No. 78-2125, 1982), _aff’d_, No. 82-4050 (2d Cir. Sept. 17, 1982).Caruso had been previously cited for violation of the same standard andwas therefore familiar with the standard’s requirements. Further, anOSHA compliance officer had explained the provisions of the trenchingstandards to Caruso’s engineer, McCabe, about four months prior to theinspection in the course of inspecting another unprotected Carusotrench. McCabe was the engineer on the project involved in this case. Nenna, Caruso’s superintendent on this project, had been superintendentof construction jobs in which many thousands of feet of pipe had beenplaced. Nenna was at the jobsite every day. He knew the OSHA trenchingstandards, and that the trench wall could no longer be sloped asbefore. Further, Nenna had been told that the trench had collapsed onAugust 15 while Sterling was in the trench and recognized by that datethat trench support was needed, yet Nenna permitted employees to go backinto the trench on August 16 without any protection. These facts amplydemonstrate that Caruso either intentionally disregarded the terms ofthe cited standard or was plainly indifferent to them.The Commission assesses a $3000 penalty. The gravity of the violationwas moderately high because the trench was 12-15 feet deep and couldhave seriously injured employees if it had collapsed. Caruso’s goodfaith and history are downgraded because this was a willful violationand Caruso had previously violated the same standard. Caruso is a smallemployer; its stipulated average number of employees was 20.Accordingly, the Commission finds a willful violation of the standard atsection 1926.652(c), affirms the citation, and assesses a $3000 penalty.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: JUL 20 1984ROWLAND, Chairman, dissenting:In this case the Secretary alleged a violation of 29 C.F.R. ?1926.652(c), which requires that the walls of a trench dug in soilcharacterized as \”hard or compact\” be supported or alternatively slopedto a specified degree. The administrative law judge concluded that thesoil was not hard or compact within the meaning of the cited standardbecause the evidence demonstrated that the materials comprising thetrench walls was equivalent in stability to solid rock, shale, orcemented sand and gravel, which, as a table accompanying the standardrecognizes, can stand vertically without additional support or sloping. Thus, the judge essentially determined that the cited standard does notapply to the conditions in question. The majority reverses the judgebased on its view that the evidence does not support the judge’s findingregarding the stability of the trench walls. I respectfully dissent.There is no dispute on the record regarding the composition of thetrench walls. Freeman, the only witness for the Secretary who describedthe soil type, characterized it as clay. Although he took no soilsamples, his testimony is not inconsistent with that of Caruso’switnesses, all of whom indicated that the soil included sand and claywith a layer of rock at some but not all locations. However, neitherFreeman nor compliance officer Buchanan were shown to have anyparticular expertise with regard to determining soil stability. Thus,Freeman indicated only that he has had prior experience with trenchexcavation work; the record does not show the duration of thisexperience or the specific type of work Freeman had performed. At thetime in question here, Freeman was a field representative for the union;it does not appear he was present on the jobsite on a daily basis. Similarly, Buchanan had been a compliance officer for less than a yearand had previously been employed as an inspector for a housing authorityand as a fire inspector. Caruso, on the other hand, presented thetestimony not only of Nenna, who had extensive experience withexcavations for sewer lines, but of two highly qualifiedengineers–Kondner, admitted as an expert, and Crandall, a civilengineer with prior experience in soil inspection and testing. Nenna’sopinion that the clay was like rock was based upon his familiarity withthe trench on a daily basis. Nenna specifically testified that thetrench was left open at night and on weekends without any indications ofcollapse. Crandall’s opinion similarly was based on observations aswell as on actual tests. Finally, while Kondner did not view the trenchduring the time it was open, he was shown the photographs taken by thecompliance officers. Testifying from these photographs, he described inconsiderable detail how characteristics of the trench walls reflected inthe photographs supported his conclusion that the soil had the shearstrength of solid rock, shale or cemented gravel. In Kondner’s opinionthe sandy clay was \”very dense and very hard material, very stablematerial.\” He opined that the soil was safe enough for a verticaltrench wall.Despite the weight of Caruso’s evidence, the majority finds theSecretary’s evidence \”decisive\” and the testimony of Kondner\”unpersuasive\” and \”scarcely relevant.\” In my view, in reaching theseconclusions the majority misinterprets the record, and its reason fornot crediting Kondner’s testimony is unsupportable. Thus, the majorityerroneously states that Nenna did not consider the trench walls to bestable whereas all of Nenna’s testimony indicates directly to thecontrary. The majority relies on Buchanan’s testimony of a statementmade to him by Nenna regarding a need for protecting employees andefforts made by Nenna to obtain a trench box on the day prior to theinspection. The majority neglects to mention that Nenna specificallytestified that he did not agree with the compliance officer that thetrench was unsafe[[1]] and that the purpose of securing the trench boxon August 15 was to protect the existing sewer line from being brokenduring the excavation. Similarly, the majority finds the trench not tohave the stability of solid rock or cemented material based on Freeman’stestimony of a source of water in the trench without explaining why itchooses to discredit Kondner’s opinion that moisture from this sourcewould not appreciably weaken the trench walls.[[2]] The majority alsostates no reasons for its implicit rejection of the judge’s finding thatthe loss of soil from the trench walls described by Cullen was due tooperation of the backhoe despite Nenna’s testimony that the backhoe wasin the process of excavating the trench during the incident involvingemployee Sterling[[3]] and despite Kondner’s testimony of situations inwhich the operation of a backhoe can pull material out of the side of atrench dug in material of the type in question here.Finally, the majority clearly errs in concluding that Kondner’s soilsamples did not accurately reflect the conditions of the trench becausethey were taken in an area away from the exact location where the trenchhad been dug and because they showed a different soil composition thanthat to which Nenna testified. The latter conclusion presumably isbased on the fact that the soil samples did not show any backfill, [[4]]since in all other respects the soil samples show the same materials towhich Nenna testified. The record, however, plainly demonstrates thatbackfill was not present in the soil samples simply because Kondnerelected to take samples in undisturbed soil. Furthermore, Kondner’ssamples otherwise were consistent with the description of the trenchmaterial given by the other witnesses in the case as well as with thesamples described by Crandall, which were taken along the projected lineof the trench. Kondner also related his opinion regarding thestability of the trench to the physical characteristics of the trench asshown in the Secretary’s photographs. Considering Kondner’squalifications, the basis for his opinion and the reasoning with whichhis opinion is supported, and the overall consistency of the testimony,his opinion is clearly entitled to weight. _See_ _Horvitz Co_., 84OSAHRC , 11 BNA OSHC 1881, 1883, 1984 CCH OSHD ? 26,847, p. 34,388 (No.81-992, 1984) (dissenting opinion). Accordingly, the judge properlydetermined that the trench walls were composed of materials equivalentin stability to those materials which are not required under thestandards to have additional support or sloping.In _Wright & Lopez, Inc_., 81 OSAHRC 92\/D10, 10 BNA OSHC 1108, 1981 CCHOSHD ? 25,728 (No. 76-256, 1981), the Commission affirmed a judge’sdecision that the list of materials not requiring sloping in Table P-1was exclusive and that an employer would be required to slope the wallsof a trench dug in another material not specified in the tableregardless whether that material was shown to have the same stabilitycharacteristics as those expressly excluded. The Commission reasonedthat to conclude otherwise would be to question \”the wisdom of thestandard.\” I did not participate in this decision.In my view, _Wright & Lopez_ was wrongly decided. \”Hard compact\” soilis defined at section 1926.653(h) as \”all earth materials not classifiedas running or unstable.\” Section 1926.653(q) defines \”unstable soil\” as\”earth material, other than running, that because of its nature or theinfluence of related conditions, cannot be depended upon to remain inplace without extra support . . .\” \”Running\” as used in thesedefinitions is not itself defined. Read literally, these definitionswould indicate that all trench materials would have to come within oneof three categories, \”hard compact,\” \”unstable,\” or \”running.\” Sincesubstantive provisions of the trench standards require a degree ofsloping or other means of support for both hard or compact soil andunstable soil, and since presumably \”running\” soil also would requiresupport, [[5]] applying these definitions to the provisions for trenchprotection would lead to the conclusion that all trenches would have tobe sloped or otherwise supported regardless of the nature of thematerial comprising the trench walls. Such a conclusion, however, wouldbe directly contrary to Table P-1, as well as to the definition of\”angle of repose,\” [[6]] both of which indicate that some trenches,depending upon the nature of the material in which they are excavated,may not require any sloping whatever. [[7]] Since the definitions arenot totally consistent with the overall scheme of the standards, Iconclude that it would be improper to apply the definition of \”hardcompact soil\” strictly in determining what is meant by the phrase \”hardor compact soil\” appearing in section 1926.652(c). There are no otherprovisions which may be used to give guidance as to what is meant by\”hard or compact\” except the language of section 1926.652(c) allowingtrenches to be \”sloped to preclude collapse\” and the table anddefinition previously discussed regarding the concept of an \”angle ofrepose.\” Since section 1926.652(c) specifies a maximum slope of 1\/2 to1, or 63 degrees, I would conclude that to the extent the term \”hard orcompact\” can be defined, it is limited to those materials which cannotstand at a steeper angle without support. Accordingly, I agree with thejudge’s decision that section 1926.652(c) cannot be consideredapplicable to trenches dug in materials having an angle of repose, ormaximum slope, greater than 63 degrees. Since the evidence in this caseestablished that the trench in question was dug in such material, thejudge’s decision should be affirmed.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] The standard at section 1926.652(c) provides:? 1926.652 _Specific trenching requirements._* * *(c) Sides of trenches in hard or compact soil, including embankments,shall be shored or otherwise supported when the trench is more than 5feet in depth and 8 feet or more in length. In lieu of shoring, thesides of the trench above the 5-foot level may be sloped to precludecollapse, but shall not be steeper than a 1-foot rise to each 1\/2-foothorizontal. When the outside diameter of a pipe is greater than 6 feet,a bench of 4-foot minimum shall be provided at the toe of the slopedportion.[[2]] The citation for a willful violation of section 1926.652(c) read:The side(s) of the trench(es) in hard or compact soil, includingembankment(s), were not shored or otherwise supported when the trenchwas more than 5 feet in depth and more than 8 feet in length:a) Darby Crescent Road, Prospect Park, Pennsylvania 19076 — trench usedfor sanitary storm sewer measuring approximately thirteen feet deep andfifty feet long (observed 8\/16\/79).An $8000 penalty was proposed.[[3]] Table P-1 is entitled \”Approximate Angle of Repose for Sloping ofSides of Excavations.\” Section 1926.653(b) defines \”Angle of repose\” as\”The greatest angle above the horizontal plane at which a material willlie without sliding.\” Table P-1 shows a 90 degree angle of repose for\”Solid Rock, Shale or Cemented Sand and Gravels.\”[[1]] This testimony refers to a conversation Nenna had with anothercompliance officer regarding a different portion of the trench which isnot in issue in the case now before us. The judge’s decision, however,indicates that he did not consider Buchanan’s testimony that Nennaadmitted the trench was unsafe to be credible. Since Nenna’s overalltestimony clearly demonstrates that he considered the trench in issue tobe safe, the evidence supports the judge’s credibility finding.[[2]] The majority fails to note that Freeman’s testimony regarding thesource of the moisture may itself be inadequate. As previouslyindicated, Freeman was not present at the jobsite on a daily basis. Nenna, who was, stated that the water in the trench was caused by abreak in an existing storm sewer pipe located beneath the base of thetrench as well as by the high water table in the area. Kondner, whenasked to testify regarding the effect of water entering the trench,explained that water coming through the loose gravel bedding of thetrench would not weaken the trench and did not indicate any generalground water condition. In his words, this water \”would have [a] veryinsignificant effect upon the cohesion.\”[[3]] While as the majority indicates Nenna based his description ofwhat had occurred on information given him by the job foreman, it isclear that he considered the foreman’s statements reliable because heknew that the backhoe would have been in the process of removingmaterial from the trench at this time. Cullen also described anotherincident, which Nennadid not specifically address, when soil fell while he was present in thetrench. However, it appears the backhoe was in operation during thisoccasion as well.[[4]] It is not clear from the majority’s opinion whether it regards thepresence of backfill as diminishing the stability of the trench walls. The record indicates that the utility lines alongside the trench hadbeen installed about 20 years earlier. According to Kondner, backfillfor excavations of that age were subject to very stringent compactioncriteria and specifications. Considering the degree of originalcompaction, the length of time the backfill had been in place and theweight of traffic passing by on the roadway, Kondner stated that therewas \”absolutely no question\” that the backfill material itself \”wouldhave reached total stability and shear strength.\”In this regard, I note that the Secretary contends that the Commissionpresumes that backfilled areas are inherently less stable than virginsoil, citing _Wright & Lopez, Inc_., 81 OSAHRC 92\/D10, 10 BNA OSHC 1108,1981 CCH OSHD ? 25,728 (No. 76-256, 1981) and _Boh Bros. Constr. Co_.,76 OSAHRC 142\/A2, 4 BNA OSHC 1879, 1976-77 CCH OSHD ? 21,336 (No. 7184,1976)._Wright & Lopez_ is distinguishable because there was no evidence inthat case demonstrating the stability of the fill and thus theCommission had no occasion to consider whether backfill should beregarded as a less stable material in all situations. _Boh Bros._consisted of three separate opinions; only Commissioner Cleary relied onthe presence of backfill in deciding the case. In contrast, Commissionprecedent clearly recognizes that backfill will not be presumed topresent a hazard when there is specific evidence in a particular casedemonstrating the rigidity and strength of the backfill. _See_ _SeawardConstr. Co_., 77 OSAHRC 75\/C5, 5 BNA OSHC 1422, 1977-78 CCH OSHD ?21,803 (No. 8684, 1977); _Shane, Inc_., 77 OSAHRC 37\/E11, 5 BNA OSHC1217, 1977-78 CCH OSHD ? 21,694 (No. 13136, 1977).[[5]] The standard at issue in this case dealing with hard or compactsoil is quoted in note 1 of the lead opinion. Section 1926.652(b)requires that trenches in \”unstable or soft material\” be sloped orotherwise supported and refers to Table P-1. That table, as note 3 ofthe lead opinion indicates, is concerned with the maximum angle at whicha particular type of trench material will remain in place withoutmoving. Using normal definitions of the term \”running\” one would haveto conclude that \”running\” soil, that is, soil in motion, is notproperly sloped and therefore requires some other means of support.[[6]] See note 3 of the lead opinion.[[7]] The Commission has said, and I agree, that Table P-1 is onlyillustrative. _Seaward Constr. Co_., _supra_, note 4. _See Pipe-Rite__Utilities Ltd_., 82 OSAHRC 3\/B1, 10 BNA OSHC 1289, 1982 CCH OSHD ?25,877 (No. 79-234, 1982). This is not to suggest, however, that thetable cannot be used as a guide in determining the meaning of thesubstantive standards.”