“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 3847 DOBSON BROTHERS CONSTRUCTION CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 18,1976DECISIONBEFORE BARNAKO,Chairman; MORAN and CLEARY, Commissioners.BY THECOMMISSION:Thedecision of Administrative Law Judge Paul E. Dixon, dated October 22, 1974, isbefore this Commission for review pursuant to section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ? 651 et seq. [hereinafter ?theAct?]. Judge Dixon concluded that the Secretary of Labor failed to carry hisburden of proof that respondent employer, Dobson Brothers Construction Company,was constructing a trench in soft or unstable material without adequatesafeguards in violation of 29 CFR ? 1926.652(b).[1]Judge Dixon did hold respondent in repeated violation of the Act for notcomplying with the standard published in 29 CFR ?\u00a01926.651(i)(1)[2]barring the storing of excavated material within two feet of the edge of atrench. The Judge assessed a penalty of $1,000 for this violation.??????????? Commissioner Moran directed reviewon November 14, 1974, on the following two issues:(1)Did the Judge give due consideration to ?gravity? in assessing the penalty inthis case.(2)Did the Judge err in basing his penalty assessment on section 17(a) of the Act.Reviewwas further directed by Commissioner Moran on January 7, 1975, on the followingadditional issue:Didthe Judge err in applying a ?specific Excavation Requirement,? 29 C.F.R.?\u00a01926.651(i)(1), to a ?trench??Theseissues have been fully briefed by the parties. In addition, the Secretary ofLabor has briefed objections to the Judge?s decision that were specified in hispetition for review before the full Commission. In this regard, the Secretaryhas urged that the trench was dug in unstable or soft material, within themeaning of safety standard 29 CFR ? 1926.652(b).TheCommission has examined the record in light of the issues directed for reviewand the position of the Secretary on the ? 1926.652(b) issue. The Commissionfinds that the Judge properly decided the case and adopts his decision with thefollowing amplification and penalty adjustment.TheSecretary argues at some length that the Judge should have found respondentfailed to comply with 29 CFR ? 1926.652(b). The issue of compliance comes downto a battle of the parties? experts. We agree with the Judge?s assessment oftheir evidence for the reasons stated on pages 43 and 44 of his opinion.Issue(1) of the November 1974 direction invited submissions on the issue of whetherthe Judge gave due consideration to ?gravity? (as that term is used in section17(j) of the Act) in assessing the penalty in this case. While Judge Dixon doesnot use the word ?gravity? in reaching his decision to assess a penalty of $1,000for the spoil pile violation, it is clear that he did consider the evidenceadduced concerning the spoil pile. Indeed, this is implicit from his resolutionof the disputed factual question as to the dimensions of the spoil pile.Duringthe course of his discussion of the spoil pile, the Judge not only resolved theissue of the height and weight of the spoil pile, he also discussed the natureof the hazard represented by the pile. Thus, at page 46 of the slip opinion,the Judge draws the following conclusion:A spoil pile of thismass and consistency represents a hazard, in that should the spoil pilegive way or slide with workmen within the trench, even though utilizing atrench box, there would be substantial probability that death or seriousphysical injury could result (emphasis added).\u00a0Fromthis statement, as well as the discussion surrounding the resolution of thedimensions of the spoil pile, it is clear that Judge Dixon considered thegravity of the hazard represented by the pile.Issue(2) of the November 1974 direction invited submissions on the issue of whetherthe Judge erred in basing his penalty assessment on section 17(a) of the Act.The Judge acted properly in this regard inasmuch as respondent had a finalorder outstanding against it for non-compliance with spoil pile standard.Subsequent violations of a standard are generally classified as ?repeated?violations.[3] See, Todd ShipyardsCorp., No. 12510, BNA ?? OSHC ??, CCH E.S.H.G. para. ___ (1975).Admittedly, respondent established that the first spoil pile violation was anaberration in a long and effective safety program. That fact, however, isconsidered in the assessment of a proper penalty; it does not affect thecharacterization of a violation.Respondent?ssize was stipulated at 125 employees. The ?gravity? of the violation asdiscussed by Judge Dixon is set forth above. The Judge notes respondent?songoing safety program and past history. He notes that this history ismitigated by its facts. In light of all these factors, he assessed a $1,000penalty.Whilethe penalty was equal to half of that proposed by the Secretary for both partsof the repeated serious violation, the Act clearly authorizes Judge Dixon toassess the $1,000 amount. We have, however, reviewed the facts surrounding boththe original and subsequent violation and conclude, in light of respondent?spersuasively argued discussion of its good faith, that the assessed penaltymerits a further reduction to $500 on the strength of that factor.TheJanuary 1975 direction invited submissions on whether a ?Specific ExcavationRequirement? in 29 CFR ? 1926.651(i)(1) was properly applied to a ?trench.? Toanswer this question, it need only be noted that Subpart P of Title 29, Code ofFederal Regulations, is titled ?Excavations, Trenching, and Shoring.?Subparagraph (n) of ? 1926.653, Definitions applicable to this subpart, definesthe word ?trench,? in pertinent part, as ?[a] narrow excavation . . .?(emphasis added). We conclude, in light of this definition, the purposes of theAct, and in the absence of any specific requirements relating to ?spoil piles?in ? 1926.652, that the excavation requirement to set spoil piles back two feetalso applies to the subclass of excavation called ?trenches.? See, D.Federico Co., Inc., No. 4395, BNA ?? OSHC ??, CCH E.S.H.G. para. ___(1975).Accordingly,it is ORDERED that the decision of Judge Dixon, as modified by this opinion, isaffirmed.?FOR THECOMMISSION:?William S.McLaughlinExecutiveSecretaryDated: FEB 18,1976?MORAN,Commissioner, Concurring in Part, Dissenting in Part:Ido not believe that a violation based on noncompliance with 29 C.F.R. ?1926.651(i)(1) can be sustained on the record before us.TheJudge found that the ?respondent?s employees had excavated a trench.? A trenchis defined as follows in 29 C.F.R. ? 1926.653(n):?Anarrow excavation made below the surface of the ground. In general the depth isgreater than the width, but the width of a trench is not greater than 15 feet.??Thegovernment inspector testified that the trench was approximately 30 feet long,15 feet deep, 14 feet wide at the top, and four feet wide at the bottom. Therewas a slight conflict of evidence as to the trench?s depth and width at thetop. The respondent?s safety director testified that the depth was between 13and 14 feet. Another witness, a registered engineer who appeared for therespondent, determined that the trench was about 14 feet deep and about 17 feetwide at the top.Ifind that the evidence supports the Judge?s conclusion that the cavity was atrench. However, the alleged violation cannot be affirmed because the standardallegedly violated does not pertain to trenches. See Secretary v.Salem-Willamette General Contractors, 9 OSAHRC 227 (1974).Thestandards contained in 29 C.F.R. ? 1926.651 apply to excavations. Since therequirements for trenches are separately provided for in 29 C.F.R. ? 1926.652which does not contain a provision in regard to the storage of materialsadjacent to trenches, the citation should be vacated.Iam also compelled to take issue with the following assertion in the foregoingopinion:?Subsequentviolations of a standard are generally classified as ?repeated? violations. SeeTodd Shipyards Corp. . . ..? (Footnote omitted.)Infootnote 3 to this ?ruling,? Mr. Barnako states that he doesn?t agree with thisrule but he is going along with it because ?he considers himself bound by the Commission?sprecedents . . . on this issue.? (Emphasis supplied.) If there are anyCommission precedents which stand for the proposition stated in theabove-quoted text to which footnote 3 pertains, I am unaware of them.Certainly, that precedent is not established by any of the cases cited in themajority opinion. My examination of the case law on this point reveals only theindividual views of Mr. Cleary favoring a rule so classifying violations as?repeated.?Thedisposition of one of the charges in Secretary v. Todd Shipyards Corporation,OSAHRC Docket No. 12510, December 22, 1975, on a one-to-one split demonstratesthat there has been no majority agreement on this matter. Chairman Barnakodisqualified himself from participating in the decision in that case, andCommissioner Cleary and myself were in disagreement as to what constitutes arepeated violation. The Judge?s conclusion that one of the charges was not arepeated violation was affirmed because Commissioner Cleary and I were indisagreement as to the correctness of that holding. Concerning that charge,Commissioner Cleary stated in his opinion that he considered our decisionthereon ?to lack precedential value.?[4]I contend, as I did in Todd Shipyards, that our prior decision in Secretaryv. Bethlehem Steel Corporation, 20 OSAHRC 227 (1975), requires proof thatthe ?violative conditions? in the prior and subsequent citation must be?substantially the same? in order to establish a repeated violation. Mostcertainly I did not join in any statement in Todd Shipyards or Bethlehem Steelthat could reasonably be construed as meaning that ?[s]ubsequent violations ofa standard are generally classified as ?repeated? violations.?Furthermore,my colleagues have misconstrued our decision in Secretary v. GeneralElectric Company, Inc., 17 OSAHRC 49 (1975), in their all-encompassingpronouncement of a rule for establishing repeated violations. That caseinvolved violations within different divisions of General Electric?sSchenectady facility. We agreed there with the Judge?s conclusion that the sameviolations at ?like activities in one geographical location are to beconsidered? repeated. 17 OSAHRC at 65?66. However, I know of no decision ofthis Commission that adopts this decision?s worldwide, or even nationwide,theory of recidivist liability.Oneother comment is pertinent to the question of following Commission precedent.The majority?s discussion of whether the Judge considered the gravity of theoffense in making the penalty assessment makes it clear that his considerationfocused only on the seriousness of the violation.[5]The Commission does have precedent on this point. As we noted in one of ourearliest decisions, Secretary v. Nacirema Operating Company, Inc., 1OSAHRC 33, 36 (1972):?Oneshould not . . . confuse the categories for classifying violations (degree ofhazard) with the criteria to be considered in assessing penalties.??Since both the majority and dissenting decisions in this case referseveral times to Judge Dixon?s decision, the full text of the same isincorporated herein by reference and attached hereto as Appendix A.\u00a0\u00a0?UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 3847 DOBSON BROTHERS CONSTRUCTION CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: November 21,1974\u00a0APPEARING ON BEHALF OFCOMPLAINANT:DONALD McCOY, ESQ., and SUE ANNWOLFF, ESQ., U.S. Department of Labor, office of the Solicitor, 911 WalnutStreet, Kansas City, Missouri.\u00a0APPEARING ON BEHALF OFRESPONDENT:BRUCE WRIGHT, ESQ., Cline,Williams, Wright, Johnson & Oldfather, 1900 First National Bank Building,Lincoln, Nebraska.?JURISDICTIONThisis an action under section 10(c) of the Occupational Safety and Health Act of1970, 29 USC 651 et seq. (hereinafter referred to as the Act), contesting acitation for repeated violations issued by complainant on July 11, 1973,following an inspection of respondent?s worksite on July 6, 1973, whererespondent was engaged in laying pipe in a trenching operation.Timelynotice of contest was made by respondent, and complaint was filed on the 9thday of August, 1973, with answer filed on August 24, 1973, bringing the case toissue. Complainant withdrew paragraph V of his complaint for other-than-seriousviolation of 29 CFR 1926.602(a)(9)(ii) (erroneously cited as 29 CFR1926.601(b)(4)), on the basis of lack of evidence to support the allegation.STIPULATIONSAND ADMISSIONSThehereinafter stipulations and admissions were entered into be the parties:1. Respondent isengaged in commerce and is an employer within the meaning of the Act.2. Respondenthas approximately 125 employees.3. Respondenthad been cited previously for a serious violation, which was not contested.4. Respondentdoes a gross volume of business in the amount of seven million dollarsannually.5. Respondent isengaged in construction, paving, excavation and installation of sewer pipes.THECITATIONRespondentwas charged with repeated violation in Citation 2, item 1 (part (a)), of 29 CFR1926.652(b) (approximately 50 yards west of South 40th Street and StonecliffDrive, Lincoln, Nebraska): ?The faces of the trench were not braced or shored,nor laid back to a stable slope. Nor did the low trench box offer protection tothe employees from the hazard of moving earth or cave-ins.?Inpart (b) of Item 1, respondent was charged with repeated violation of 29 CFR1926.651(i)(1) (approximately 50 years west of South 40th Street and StonecliffDrive, Lincoln, Nebraska): ?Excavated material was stored on the edge of theeast face of the excavation, was not retained, and thus created a hazard frommoving earth.?Immediateabatement periods were set, and a proposed penalty for the repeat violation(citation 2, item 1) of $2,000.00 was assessed. It was further alleged that theconditions combined to form a situation that can cause serious physical harm ordeath. The alleged violations in the citation were cited from the FederalRegister dated December 16, 1972, Volume 37, Number 243, part II, Regulationsfor Construction.THESTANDARDS?29 CFR 1926.652(b)Specific trenching requirements.\u00a0(b) Sides oftrenches in unstable or soft material, 5 feet or more in depth, shall beshored, sheeted, braced, sloped, or otherwise supported by means of sufficientstrength to protect the employees working within them. See Tables P?1, P?2(following paragraph (g) of this section).? See the above-mentioned Tablesbelow and on the next page.\u00a0?29 CFR1926.651(i)(1) Specific excavation requirements.?(i)(1) Inexcavations which employees may be required to enter, excavated or othermaterial shall be effectively stored and retained at least 2 feet or more fromthe edge of the excavation.?\u00a0\u00a0? THEEVIDENCEMr.Jeff Spahn, compliance officer for the U.S. Department of Labor, OccupationalSafety and Health Administration, inspection respondent?s worksite on July 6,1973, where respondent was engaged in laying approximately 1,200 feet of 8-inchsewer line. About one-third of the project had been completed.Mr.Spahn observed a trenching operation in an uphill configuration runningapproximately due north and due south, which he measured to be approximately 15feet deep by 30 feet long and 14 feet wide at the edge, measured at the southedge of the excavation where the backhoe was digging (T. 9). He observed fouremployees engaged in laying 8-inch sewer pipe and estimated the west face ofthe trench as near vertical, nearly 80 degrees; the south face, where thedigging was being accomplished, as vertical; and, the east face atapproximately a 65 degree angle with no shoring or sloping, which he felt wasinadequate to protect employees from cave-ins or moving earth.Heobserved a spoil pile on the east side of the trench that was approximately 15feet high, and made the observation that the soil composition seemed to befairly soft and quite damp, as there had been fairly heavy rains in thepreceding two-week period (T. 10).Therewas a steel trench box in the bottom of the trench approximately 4 feet high by12 feet in length and approximately 4 feet wide. Just to the north was analuminum ladder or steel ladder for egress, and employees were engaged inactivities both inside and outside the steel box. The spoil pile was notsecured and was piled to the edge of the trench, with a small amount of dirttricking into the trench. At an area between the south end of the trench boxand the vertical face of the south face there was an area which appeared cavedor undercut approximately 8 to 10 inches. (T. 11?12)Mr.Spahn prepared a cross-section of the trench as he observed it (Exhibit G?1),indicating the bottom of the trench to be 4 feet wide (within which was a4-foot high trench box), with a 14-foot width at the top of the trench, andwith an 80 degree angle on the west face and a 60 to 65 degree angle commencingat the trench box on the east face, with the spoil pile at the edge of the eastwall of the trench.Theheight of the trench was established from ground level to the bottom asapproximately 14 to 15 feet by inquiry of the superintendent and the countingof ladder rungs of the ladder within the trench (T. 13?14).ByExhibit G?2, a sketch prepared by the compliance officer, the trench isindicated to be 33 feet in length, 14 feet wide, within which is located atrench box 4 feet high and 12 feet long, with a trench base width of 4 feet;the sketch indicates the trench to be 15 feet deep, with a spoil pile on theeast edge of the trench approximately 15 feet high.Atthe north end of the trench a caterpillar is depicted backfilling the trench,and at the south end of the trench a Bantam backhoe is indicated by position.Duringthe inspection, the compliance officer observed employees outside the trenchbox and between the backfill area, which would be indicative of the north endof the trench where a ladder was placed. The spoil was piled parallel to thetrench box, so that if there had been slippage of the spoil it would have goneinto the trench box. The compliance officer noted four people in the trench boxat one time or another during his inspection. (T. 16)ExhibitG?3 was identified by the compliance officer, indicating the photo was takenfrom the north looking south, representing the spoil pile on the left of thephoto, three faces of the trench, and illustrating the height of the spoil pilewhich he approximated to be 15 feet.ExhibitG?4 indicates the west face on the right of the photograph on which a ladder isleaning, and also indicates the spoil pile.ExhibitG?5 demonstrates the angle of the west face and the height of the spoil pile.ExhibitG?6 was taken from upon the spoil pile in a northwestern direction,demonstrating placement of ladder in trench box and configuration of thetrench.ExhibitG?7 was taken from in front of the backhoe looking south, demonstrating theangle of the west face of the trench and the backfilling operation.ExhibitG?8 was taken from the south side of the trench, demonstrating the verticalface of the south face of the trench.ExhibitG?9, similar to Exhibit G?7, was taken in a northerly direction, demonstratingthe angle of the trench faces.ExhibitG?10 was taken from atop the spoil pile on the east side of the trench,demonstrating general characteristics of the soil and the spoil pile?s locationalong the trench.ExhibitG?11 was taken from atop the spoil pile, with a different angle, demonstratinghow the soil was stored, with the west face in the background.ExhibitG?11 demonstrates, in the lower half of the picture, the spoil pile,representing the loose nature of the soil, with the observation of thecompliance officer that it was quite damp and that there was some movement inthe soil along the entire spoil pile.ExhibitG?12 is a photograph of an employee coming out of the trench and demonstratesthe face of the west face of the trench.ExhibitG?13 was taken from north to south, demonstrating exposure of employees at thebottom of the trench and general configuration of the trench, with two peoplewith white hats at the midpoint of the photograph, and also demonstrating theheight of the spoil pile.ExhibitG?14 was taken from the south end looking north, demonstrating vertical face ofthe south trench, a small undercut or caved area, which in the complianceofficer?s opinion increased the hazard of cave-in.ExhibitG?15 was taken at a northeasterly angel, demonstrating the operation of thecaterpillar and some of the spoil pile.ExhibitG?16 was taken looking to the north, demonstrating the west face, the ladder,the backfilling being performed, and indicating the west face was deeper inconfiguration than the east face of the trench.Mr.Spahn conversed with Mr. Dobson and pointed out what he felt to be the steepnature of the west side, the east side, and the vertical nature of the southface and the undercut. He indicated to Mr. Dobson that he thought the trenchwas dangerous, and that unless Mr. Dobson took immediate steps to abate thathe, the compliance officer, would seek relief through the courts under theimminent danger provisions.Hefound Mr. Dobson very cooperative, and Mr. Dobson gave assurances of immediateabatement. Mr. Spahn felt that the hazard presented was moving earth andcave-in, which is generally a fatal-type accident or could involve variousserious injuries.Referringto his Penalty Assessment Sheet (Exhibit G?17), the apparent violation of 29CFR 1926.652(b) carried an unadjusted penalty of $1,000.00, with the factors ofgood faith, size and history being taken into account, with no adjustment forgood faith on the basis of a prior inspection having been made for the sametype of alleged violation. There was also no adjustment made for size due torespondent?s number of employees, and due to the fact that this was a secondinspection where the alleged violations were almost the same as the first. Thecompliance officer felt it was a repeated-type violation which would have amultiplying factor of two, with a proposed penalty of $2,000.00.Uponcross-examination, it was developed that Mr. Spahn had a certificate in higheraccounting, but none in engineering, and had a work history involved in thesafety program with the food products industry, but no experience with soilanalysis. He had had one month of training at the OSHA Training Institute inChicago, and his experience was gained in the 19 months he had worked in doinginspections for OSHA.Hewas not familiar with the technical typing of the soil at the time of theinspection, but later learned it to be Peorian loess; nor did Mr. Spahn haveany soil analysis made prior to issuance of the citation (T. 34).Ithas been Mr. Spahn?s experience and understanding that Peorian loess is fairlysoft-type material. It was Mr. Spahn?s observation that the soil appeared to besoft, very moist, and unstable, but not to a scientific certainty. (T. 35)Hesaw no evidence of failure of the trench, either in front or in back or on topof the trench box, other than the undercut within the trench and soil tricklingfrom the spoil pile. He noted that the density of the spoil was such that hesank into it a considerable amount, and referred to a number of prior trenchingand excavation inspections and soil analyses conducted by the Corps ofEnginners which generally were of loess material, none of which could beregarded as hard material. (T. 37)Mr.Spahn was of the opinion that hard material had about 4,000 pounds of shearstrength, but as to the difference between hard and soft material he could nottestify with certainty (T. 37).Mr.Spahn utilized a steel tape measure in his measurements with the help of one ofthe employees, measuring the length, the width, and counting the ladder rungs,and conferred with employer?s representative in terms of depth. He did notenter the trench; nor did he measure the height of the spoil pile.Therewas also a stick in the trench that showed depth and cut, and upon inquiry ofthe employer representative he was advised that the depth was 14 to 15 feet (T.41).Hismeasurements of the angles of the slope on the sides of the trench were basedon an ?eyeball? type approach, with Mr. Spahn taking the position that the westface was around 80 degrees and the south face was vertical.WhileMr. Dobson did not specifically object to Mr. Spahn?s observation, there was aquestion of whether Mr. Dobson was merely being cooperative with the complianceofficer rather than being in agreement with his observations (T. 44).Mr.Spahn acknowledged that there was no written criteria from which he coulddetermine a stability or unstability of the soil when he examines the trench,but referred to the standards. He based his judgment on a number ofexcavations, inspections of excavations, and various soil analyses that he hadpersonally seen, and which analyses indicated the soil was of a generally soft,unstable nature.Mr.Spahn felt further that even had the soil been hard that the faces of thetrench were not laid back sufficiently where there is a requirement ofone-half-to-one, in that he felt there was one vertical face and one nearvertical face (T. 46).Mr.Spahn did not feel that a backhoe of necessity had to dig a vertical face, butrather that it could be backed up and the excavation done at an angle.Referringto Exhibit G?3, it was Mr. Spahn?s estimate that the angle of repose of thespoil pile was 60 to 65 degrees going up and about the same angle as the eastface of the trench. Mr. Spahn took most of his pictures standing and could notsay the angle of the camera in terms of degrees. (T. 52)Mr.Spahn discussed the previously-admitted trenching violation of respondent andmade a comparison, in that in the original violation there was one employeeexposed, with more employees the second time, and that the depth of the cut wasconsiderably deeper on the second violation than the first. He also felt therewere additional factors, in that a caterpillar was operating on the secondoperation, the spoil pile was much higher, and there was vibration from thebackhoe itself, which was a crawler type. (T. 57)Thefirst violation involved digging in a backfilled area, which was not the casein the second inspection.Mr.Spahn determined from the respondent?s safety director, Mr. Aspedon, thatrespondent had a safety program, which was taken into account in considerationof the first violation (T. 61).Mr.Spahn felt the trench could have been safe if it had been laid back on aone-to-one basis, which would meet the minimum of the standards.Mr.Spahn took a small portion of soil for identification purposes, but not have itidentified prior to the citation; nor were any tests run on it prior to thecitation.Mr.Spahn reiterated that the angle of the spoil slope was 60 to 65 degrees; or,about the same angle as the east face of the trench and pretty much the samesize as the trench, being 14 feet wide, although he did not measure the spoilpile.Mr.Spahn has seen many soil report analyses of trenches in the Omaha and Lincolnareas, which were pretty uniform as to the type of soil being loess-typematerial; further, that the soil was soft and unstable (T. 66?67).Mr.Spahn identified Exhibit G?19 as a photograph of the original violationoccurring some two weeks prior to the inspection involved in the case in chief.ExhibitG?20 was introduced, demonstrating the previous violation and that the penaltywas paid without contest (T. 71).Mr.Robert C. Dobson, vice president of respondent, appeared on behalf ofrespondent and expressed a company concern with regard to the safety of itsemployees going back to the mid-1960?s, working in conjunction with theirinsurance company and holding meetings with their superintendents, giving themconsultation on safety practices. Respondent has had an active program forapproximately 12 or 15 years. (T. 76)Mr.Dobson explained the original citation and penalty paid by respondent as aresult of an asphalting contract with the University of Nebraska and with alast minute job order change during the course of the construction for adrainage inlet, which was undertaken by his asphalting crew who had no experiencein trenching.Respondenthad no actual knowledge of the trenching operation until after the citation hadbeen issued, and explained the violation as an inadvertent violation that wouldhave been avoided had the managing officers of the company known that a trenchwas going to be open. Because of this unauthorized action on part of theirasphalt superintendent, respondent felt it had been in error and paid theproposed penalty and instituted company policies to prevent the recurrencethereof, so that their normal trenching crew would do any excavation over 5feet deep after consultation with the respondent?s safety officer. (T. 71?81)After the Occupational Safety and Health Act went into effect, respondent spent$5,700.00 in 1971, $52,263.00 in 1972, and to the point in time of hearing in1970 an amount of $19,000.00 toward compliance with OSHA standards.Mr.Dobson also makes a practice of frequently reviewing the operations at jobsitesfor OSHA compliance. With respect to the spoil pile, he had visited the jobsitethat morning and it was at least 2 feet back from the edge of the trench and incompliance; he was surprised that it was not in compliance at the time of thecompliance officer?s inspection. The spoil pile had also been set back the dayprevious.Mr.Dobson felt it was a safe trench and did not see any evidence of actual trenchfailure; nor was there any injury to anyone working the trench. He received nocomplaints with respect to falling materials and noted that usually two peoplework within the trench in laying sewer pipe, although it is possible that therewould be four. (T. 82?85)Mr.Dobson expressed his efforts at cooperating and not arguing with the complianceofficer, although he was surprised that the spoil pile had inadvertently gottenclose to the trench.Mr.Dobson thought the 60 degree angle of repose on the east face might be fairlyaccurate, but felt that as to the west slope it was about a 60 degree angle,less than 80 (T. 87), although he did not know the exact angle.Mr.Dobson holds an Engineering Degree and ventured the opinion that you cannotaccurately estimate the slopes of a trench on an ?eyeball? basis, unlessmeasurements and calculations are made (T. 88).Byway of abatement, Mr. Dobson ordered the project shut down, fenced the site,purchased a higher trench box, and brought in a bigger machine to perform theremainder of the project, in conformity with the compliance officer?sinterpretation with which he disagreed.Whenthe trench was reopened, it was laid back to a one-to-one slope, and the spoilpile was moved back 2 feet from the trench (T. 89). It was Mr. Dobson?simpression that the compliance officer had measured at the south end of thetrench where the backhoe was in operation, which of necessity would create anarrow portion at its tracks.Hedescribed a normal trenching operation of a backhoe as breaking the earth andthen digging in its deepest portion, whereat in the bottom the trench box wouldgo, then backing up the machine making the next cut and finishing out thesloping (T. 90?91).Thetrenching had been underway approximately a week and was reviewed on a dailybasis.Therespondent has been in the trenching business in Nebraska since 1910 or 1911,the primary function being that of trenching and laying of sewer pipe. Itoperates with experienced personnel, and its superintendent has been with thecompany 50 years, doing nothing but pipe work for the last 15 or 20 years,along with supervision.Withinthe last 10 years, there had been no deaths as a result of a trench failure orserious injuries resulting from a collapse of a trench (T. 92?93).Asoil engineer, Mr. Charles Anson of Western Laboratories, went to the jobsitethat afternoon where the conditions were the same, and from Mr. Dobson?s viewof the trench on the day of the inspection he felt it was entirely safe with nodanger of collapse or probability of danger to individuals working on thetrench (T. 94?97).Mr.Dobson either uses a trench box or shoring, depending upon soil conditions, whichis based upon his judgment through experience and the stability of the soil. Heuses shoring in clay and he has used a trench box in clay soil; this is basedupon what the dirt looks like when the job is started (T. 98?100).?The determination of the composition of thesoil is based upon ?eyeballing? it (T. 101).Respondent?sinstructions to its trenching men is to use one-half-to-one in what theyconsider stable soil above the trench box (T. 107?108).Mr.Dobson reiterated that although the spoil pile had previously been 2 feet backfrom the trench, at the time of the inspection is was not 2 feet back (T. 108).He issued a verbal reprimand as a result of this infraction.Inconnection with the commencement of the trench, Mr. Dobson and hissuperintendent talked it over and determined that they would use a trench boxand slope at least one-half-to-one away from the box, judging the soil to bestable. It was Mr. Dobson?s judgment that the west slope of the trench was morethan 60 degrees, but less than 80 degrees. (T. 109) He did not know in hisjudgment if it was more than 65 degrees (T. 110).Theessential judgment is one of ?eyeballing?, and in connection with respondent?strench he did not know the exact angle and estimated from 60 to 65 degrees,conceding it possibly could have been as much as 80 degrees (T. 111). Mr.Dobson?s judgment as to sloping was made with the assistance of a supervisorwith some 50 years experience in trenching and working with soils (T. 113),with the object in mind of stability and safety.Heand his supervisor were satisfied that the one-half-to-one sloping was adequatein the present case (T. 114).Byway of illustration, Mr. Dobson was given the hypothesis of a trench 4 feetwide across the bottom by 14 feet across the top and 14 feet deep, with a slopeof 60 degrees, in order to estimate the slope, which resulted in a calculationby Mr. Dobson of a 60 degree slope on one side, 14 feet deep, with a 5-foot box(T. 119?120).Mr.Dobson agreed that the sides of the trench were not equally sloped and feltthat one side was sloped to within just 10 degrees of the other side (T. 120);he knew from being at the site that the west slope was steeper than the eastslope (T. 121).Mr.Aries Aspedon, safety director for respondent, was called and he identifiedrespondent?s Exhibit R?1 as a memorandum to all superintendents and describedhis job as familiarizing himself with OSHA regulations and putting therespondent in compliance. He has attended the OSHA Training Institute inChicago, taken the instructor?s course, attended 30 hours for being aninstructor in safety construction, attended the International Safety Academy inMacon, Georgia, the shoring school in Dallas, Texas, and numerous seminars. (T.123) Exhibit R?2 was identified as his radification of appointment by thecompany. Mr. Aspedon?s duties involved frequent job inspections, meetings withforemen and superintendents, and teaching of the 10-hour safety course to theforemen, along with on-the-job instruction and seminars which were held five orsix times a year.Hevisits every jobsite at least once every two weeks, and the jobs in thevicinity of Lincoln more often.Heidentified Exhibit R?3 as instructions to employees which are given to each andevery employee, which procedure was commenced prior to the citation.ExhibitR?4 was identified as an in-depth safety program which was initiated in Januaryof 1973, in connection with a seminar with all supervisory personnel.ExhibitR?5 is identified as the charts for angles of repose and shoring out of theFederal Register with emphasis on shoring, which was issued to respondent?ssupervisory personnel.Mr.Aspedon had visited the jobsite two days prior to the inspection and observedat that time the spoils pile set back 2 feet, and in an examination of thetrench noted that the sides of the trench were sloped with a trenching box inplace (T. 130). Mr. Aspedon is not a soil engineer, but considering the depthsof the cut, location of the trench, the length of time the trench was going tobe open, and other factors, he felt the trench complied with OSHA standards andwas in compact soil, and that one-half-to-one slope was sufficient to complywith the regulations (T. 131).Mr.Aspedon went on to make the observation that he did not observe any apparentfaults in the trench or areas where dirt had collapsed or signs of dirtcollapsed; nor had he received any reports of same or of injury (T. 132).Mr.Aspedon testified that the trench was 13 feet, 99\/100ths inches betweenstations 500 and 650, with the stake running from 13.03 to 13.99 feet (T. 133).Hedetermined the spoil pile to be approximately 8 feet high (T. 134). Mr. Aspedonand supervisors determined what soil is stable and not stable, based upon theirexperience, and Mr. Aspedon finds it difficult to make determinations as towhat constitutes hard, compact or soft and unstable soil (T. 135). He does notfeel there is adequate definition contained in the standards.Mr.Aspedon found it difficult to make a determination of what was unstable or softmaterial, referring to the standard 29 CFR 1926.653(q) where ?unstable soil? isdefined as:?Unstablesoil??Earth material, other than running, that because of its nature or theinfluence of related conditions, cannot be depended upon to remain in placewithout extra support, such as would be furnished by a system of shoring.? (T.143)\u00a0Mr.Aspedon made a determination that the soil was compact because there was nocracking, shifting or sloughing off (T. 145).Mr.Aspedon?s judgment as to the spoil pile being 8 feet high was based upon?eyeballing? it (T. 150).Mr.Charles Anson, graduate of the University of Nebraska in 1950, with a Bachelorof Science Degree in Soil Engineering, a registered engineer, and having beenengaged in the specialty of soil mechanics for nearly 20 years, appeared onbehalf of respondent. Eighty percent of his work is performed in the State ofNebraska. He expressed familiarity with the soil conditions which generallyprevail within Lancaster and Lincoln Counties, and also familiarity with theOSHA standards.Heexpressed difficulty in understanding the standards, in that he felt some ofthe definitions were erroneous, such as the definition of ?slope? and thedefinition of the term ?hard and compact soil? (T. 164).Itwas his observation that the soil at the trench site would not be soft andwould not be hard, but would be somewhere in between (T. 165).Henoted that you could take an undisturbed sample of soil in question anddetermine in the laboratory whether it is hard, soft or somewhere in between.He noted as to whether the soil was stable or unstable that a soft materialcould be cut to a stable slope, and that a hard material could also be cut to astable slope, feeling that the terms ?stable soil? or ?unstable soil? are vagueand relative. (T. 167)Hefelt the stability of soil is a question of under what conditions the materialis found, the slope, moisture contents, and all other factors that go intodetermining whether a slope in fact is stable (T. 167).Henoted there was a mathematical computation developed by soil engineers todetermine a unit of measure as a factor of safety regarding slope failure; thesafety factor being computed from various samples and assumptions (T. 168).Mr.Anson went to the trench site the day of the inspection and measured the widthof the trench at the trench box as 17 feet in the finished portion of thetrench; the depth a proximately 14 feet, measured a little ahead of the trenchbox.Hereturned to the site on July 19 after the trench had been filled in, made atest boring, and took undisturbed samples adjacent to the trench at depths of 31\/2 to 5 feet and at 9 to 10 1\/2 feet below existing grade.Hisobservation of the spoil pile was based on ?eyeballing?, which he estimated atone-and-a-half-to-one on the side toward the trench, and arrived at a height of8 feet for slope stability analysis; although he could not honestly say whatthe highest point of the spoil pile was (T. 169?171). He felt there was nopossibility that it was 15 feet high.Atthe laboratory, he performed a triaxial compression test to determine theshearing strength of the soil at conditions similar to those found in thefield, using confining pressures of 5, 15 and 25 pounds per square inch. Hethen determined the cohesiveness of the soil, described as the angle of eternalfriction, and the cohesion intercept of the soil.Hedirected one of his associates, Mr. Stephen Nickel, to actually make thedeterminations relative to minimum safety factors, which he reviewed andapproved; he arrived at a conclusion that the loessian material was earthmaterial, which under the influence of related conditions could be dependedupon to remain in place without extra support (T. 173?175).Mr.Anson considered it stable soil as opposed to unstable soil, referring to theterms defined in section 1926.653(q) of the standards (T. 176).Byexclusion, he defined the soil as ?hard and compact? under the correspondingdefinition, utilizing subparagraph (h):?Hard compactsoil??All earth materials not classified as running or unstable.? (T. 176)?Referringto specific requirements in section 1926.652(b) and Table P?1, he felt that (b)for unstable materials did not apply, but that (c) would apply (T. 177). At thepoint where he measured at the trench site, the trench box was 4 feet high, andfrom that point to the top Mr. Anson measured .7:1. Referring to Exhibit R?6,prepared by Mr. Nickel, Mr. Anson agreed with the opinions and conclusionsreached. Mr. Anson gave the opinion that there was no substantial probabilityof trench failure of the trench in question and a very little probability of areasonably foreseeable probability of trench failure. (T. 178?180)Ona cross-examination, Mr. Anson defined ?hard soil?: ?Hard, compact soil is allearth material not classified as running or unstable.? It was not unstable, sohe considered it to be hard. (T. 182)Referringto Unified Soil Classification Systems Manual of the U.S. Army EngineersExperiment Station Corps, ?consistency of clay soil is related to theunconfined, compressive strength in tons per square foot?, and ?hard? is ?anunconfined, compressive strength, greater than 4 tons per square foot? (T.183).Mr.Anson did not run unconfined compression tests on any of the samples, but madehis determination from triaxial compression test data. He agreed that the soilwas substantially less than 400 pounds per square foot, noting the sample fromthe 3 1\/2-foot depth to be approximately 1,700 pounds per square foot inunconfined, compressive strength, and noticed that by doing a triaxialcompressive test rather than an unconfined compressive test the value wouldhave to be reduced and it would take less pressure to cause failure of a givensoil in an unconfined test. (T. 183?185)Onesample had 610 pounds per square foot as a cohesive interception with theunconfined compressive strength approximately double the cohesion, which wouldbe equal to an unconfined compression strength of 1,220, except for Mr. Anson?sfeeling this was not a Phi-O soil, which represents the angle of internalfriction. The Phi value was used in arriving at the test results.Mr.Anson was referred to a paper he had prepared, Shallow Excavations withUnsupported Slopes, which he explained as its purpose to evaluate somewhat thevariability of the shearing strength of the Peorian loessian soils in theLincoln area, wherein he was referred to the reference that the unconfinedcompressive strength serves a more probative value in evaluating slopes and thestability of slopes.Hecharacterized the soil at the jobsite as silty clay.Withreference to his paper, he defined ?soft? (as used in his paper) as havingunconfined compressive strength in a range of .25 to .50 tons per square footor 500 to 1,000 pounds per square foot, and referring to his previous findingof a 610 value, which referred to cohesion intercept, this would convert intoan unconfined compressive strength of a value of 1,220, which would reflectmedium consistency, and referring to the table in the Corps of Engineers Manualwould be the next category above ?soft?, with two further categories of?stiff?, ?very stiff? and ?hard? (T. 181?198).Referringback to his estimations of the spoil pile and the trench, it was Mr. Anson?sopinion that the one-and-a-half-to-one slope was in reference to the spoil bankon the east side of the trench, a 0.7:1 was the side slopes of the trenchexcavation above the trench box (T. 208).Withrespect to the uniformity of the .7:1 figure, Mr. Anson noted that he did nottake exact measurements and was sure there was some variation in the slope onthe other side that he did not consider to be very substantial at the trenchbox (T. 209).Mr.Anson?s assumption of .7:1 slope was made by measuring the width across the topof the ditch and measuring the width at the bottom of the ditch, the verticalportion where the box was located. He was informed of the measurement of 38inches of width at the bottom and then measured the depth from the surface ofthe ground down to the top of the box, subtracted the width of the trench boxfrom a total width divided by two, resulting in the horizontal distancecompared to the depth from the surface of the ground down to the top of thetrench box.Mr.Anson agreed that if the two sides were not uniform in slope, his method ofcomputation would not give an accurate answer, but merely an average of the twosides (T. 213).Mr.Anson went on to describe the Q, R and S tests in performing the triaxial testand a further discussion of the Phi values, along with the saturation factorsof the silty clay material; wherein, Mr. Anson arrived at a safety factor inexcess of 2.0 in one analysis. Further, if the analysis had been done by themethod used in his paper, he would have had a lower factor of safety bydisregarding friction (T. 221).Mr.Anson agreed that the size and shape of the spoil pile would be significant inarriving at the calculations of the factor of safety, in that it was a load onone side of the trench being analyzed, and if the spoil pile in fact was 15feet high, as testified to by the compliance officer, it would be highlyunstable (T. 224).Indescribing the factor of safety, the figure I would be a point of incipientfailure if the analysis was 100 percent correct along with the data, and thefactor of 2.0 would reflect practically no chance of failure at all, with thefactor of safety being a measure of stability of slopes (T. 227?228), with Mr.Anson willing to go to a factor of as low as 1.5 for a trenching operation,such as in question, with good data; although with the factors he has had inthis case he would not go below 1.5 (T. 229).Mr.Anson was of the opinion that the definitions given by the Corps of Engineerswere wholly inapplicable to the definitions contained in the OSHA standards andwere different (T. 230?231). The method used by Mr. Anson in his article(Exhibit G?21) was an attempt to determine safe excavated slopes in localmaterials based on test date he had in his files from previous jobs, asimplified procedure to be done at minimum cost, which he considered to be veryconservative, and with the safety factors higher than what he indicated in hispaper, as opposed to making a precise test wherein he would use the triaxialcompression test.Hefelt the use of the Phi factor and the calculation of the safety factor wasjustified because it was a significant percentage in the strength of the soil(T. 233?235).Mr.Anson gave the opinion that a safety factor of 1.5 was adequate for thecircumstances of the trench in question, based upon his testing of undisturbedsamples.Withregard to the spoil pile alongside the trench, Mr. Anson ventured the opinionthat the spoil was approximately 8 feet high by 25 feet in distance from thetrench, representing 16 cubic yards or 15,400 pounds per linear foot (T. 236).Mr.Stephen Nickel was called on behalf of respondent. He identified respondent?sExhibit No. 7 as the original report issued on the trench on the 30th of July,noting that test data was developed from the triaxial testing method andassumptions as to moisture content and selection of pressure. He described theQ, R and S tests and the idea behind the tests to duplicate as nearly aspossible the conditions obtained at the particular location.Hefelt a consolidated, undrained test at relatively low confining pressures wouldduplicate the conditions with respect to the trench, and that the degree ofaccuracy of any particular test is based on how well the material was sampledand how closely the test conditions were controlled.Heused the consolidated, undrained relatively low confining pressure test, andreferring to the samples of July 19, he did not expect the saturation to varygreatly in 10 or 12 days. He felt a safety factor of 1.5 as a miminum safetyfactor and reasonable. In his report, he used a minimum safety factor of 2.0because of a pinch on time and short-type method of analysis.Withinformation furnished him, he calculated the west face of the ditch, with thetrench box in place, as a .7:1 slope from above the trench box to the top ofthe trench, 10 feet high, and a safety factor of 4.9.Thewest face of the trench, with the trench box not in place, was a 10-foot slopeat .7:1 over a 4-foot vertical slope by approximately balancing the areas oneither side of this .4:1 slope, resulting in the .4:1 slope with a height of 14feet, and a safety factor of 3.3.Theeast face of the ditch, with the spoil bank above it and with the trench boxand the spoil bank, was measured by Mr. Anson as 1.5:1 slope, 8 feet high. Thecompound slope then was approximated by uniform slope of .8:1, 18 feet highwith a safety factor of 2.2.Theeast face of the trench, with the spoil bank and trench box not in place, acompound slope, was approximated by .55 to 1 uniform slope, 22 feet high and asafety factor of 1.7.Thenutilizing a computer program in lieu of the short solution, Mr. Nickeldescribed the results of the recomputations in Exhibit No. 6 and establishedthe minimum safety factor at 1.5. This resulted in the original safety factorsin the original report being raised from 1.7 to 2.19, and then in the finalanalysis it would appear that the minimum allowable safety factor would be 1.5.Referringto Exhibits G?9 and G?5, Mr. Nickel gave an opinion, by making a reference tothe latter, that the slope measured .7 to 1 and within the one-half-to-onesafety factor required for hard and compact soil (T. 253?254). Based upon hisreview of the test results and his analysis, he considered the trench safe.Mr.Nickel gave the opinion that the trench was not of unstable soil, as defined in29 CFR 1926.653(q).Hefelt there was no other choice than to define the soil as hard, compact soil,as set forth in paragraph (h) of that section (T. 255); further, that there wasnot a substantial probability that the trench would fail.Mr.Nickel has a bachelor?s Degree in Civil Engineering from the University ofNebraska obtained in 1967, and a Master?s Degree in Civil Engineering, with aspecialty in Soil Mechanics obtained in 1972, with five years experience as asoils foundation engineer with a Kansas highway commission. He is a member ofthe American Society of Civil Engineers and has a license to practiceengineering in Kansas with a license pending in Nebraska (T. 258). Mr. Nickelagrees that the computer results contained a number of assumptions andadditions to concrete data, and that variations of the values of theassumptions could have affected the answer he received from his computerresults.Mr.Nickel acknowledged that silty clays, such as were at the trench site, areknown to have faults and to fail along lines which run vertical from thesurface or parallel to the sides of the trench, and that the three test methodshe utilized assume that there were no cracks in the soil mass that wasconsidered (T. 260?272).Mr.Nickel expressed familiarity with loessian soil typical of Lincoln, Nebraska,describing the material as wind-deposited with its consistency in differentlocations, based upon the source of the wind-blown deposit. He felt aconsiderable quantity of the density in the Lincoln area tended to be higherthan that of true loessian soil and that the loessian soil in the Lincoln areais not as susceptible to collapse or as sensitive as other loessian soils; hefurther understands that the Lincoln loessian soil has a somewhat higher claycontent and is possibly higher in plasticity. These characteristics would tendto increase the shear strength and make it more stable. (T. 338?346) Heconcluded that it doesn?t matter what test you run, because with a partiallysaturated soil the material is going to end up consolidated or nearly so, andthere would be some consolidation during the test even if a Q test was run.Appearingon behalf of complainant was Mr. Charley Flagg, soils engineer for the U.S.Army Corps of Engineers. He has been with the Corps approximately 15 years, hasa Bachelor of Science Degree in Civil Engineering and has spent six monthsstudying under Dr. Casagrande at Harvard. He belongs to a number ofprofessional organizations, and during his work experience spent 12 years asdesign engineer for levees, large dams, earth-filled dams, earth structures andmilitary design of excavations of all kinds.Mr.Flagg was in attendance during the portions of the respondent?s experttestimony, and prior to the hearing had reviewed data performed by WesternLaboratories in evaluating the safety factors of the trench in question.Hehad some doubts as to validity of respondent?s Exhibit ??, based upon amechanical analysis being only as good as the information put into it.Hedescribed the Q test, consisting of unconsolidated, undrained testing, and theR test, where air and water are allowed to escape, as compared to conditions inthe field where material is at rest condition with major and minor principalstresses, designated as Major Sigma 1 and Minor Sigma 3 (with Sigma 1 acting ina vertical direction and Sigma 3 in a horizontal direction), noting that when atrench is excavated that the soil back from the trench is in a disturbed state,in that air is replacing soil, permitting a stress releasing, and that adecrease in density may have taken place by the actual operation of excavatingthe trench (T. 290?296).Inhis own testing, Mr. Flagg uses an unconsolidated, undrained test.Ifa sample is allowed to consolidate, to increase its density, the material gainsstrength, so that an R test would give a higher strength than a Q test and youwould get higher factors of safety with an R test than with a Q test (T. 299).Hefelt that normally in the field of soil mechanics the assumed values used byrespondent in Exhibit R?6 would never be used to the magnitude they were usedin said Exhibit, in that loessian material is sensitive and its undisturbedstrength is much higher than its disturbed strength, which has less strengththan in the undisturbed strength (T. 300).Hehas found the sensitivity in the loessian material to vary anywhere from threeto four or up to six in the Omaha and Lincoln area, and increasing the soilpile from 8 feet to 9 feet or higher would decrease the factor of safetybecause of more stress in the driving portion of the failure (T. 301).Regardingthe test sample taken on July 13, with moisture content between 27 and 29percent, it was Mr. Flagg?s opinion that the moisture content could changebetween July 6 and July 13, due to the loess having a phenomenon of greatvertical permeability, in that water entering the soil migrates downward quirerapidly to the water table which in turn would affect the moisture content andwould affect a soil analysis.Referringto the result of 86 percent saturated and the draining of the water by the typeof testing which Mr. Flagg did not feel was a true R test, if the water wasthere and saturated at the time or nearly saturated, he felt there would be alower strength than what was determined on the test (T. 303).Mr.Flagg felt that if the respondent?s expert programmed the same assumptions intothe computer that was used in the chart analysis, there would be somereservations about the validity of the computer and the chart analysis.Mr.Flagg mainly disagreed with the strength parameters used and the way thestrength parameters were developed, feeling that they did not apply to theconditions existing at the trench.InMr. Flagg?s opinion, in the Omaha and Lincoln area they found on a saturated ornearly saturated specimen that a Q strength or horizontal envelope for thewater content approaching 30 percent for the plasticity existing in theloessial materials, that a Phi value of between .25 tons per square foot and.35 tons per square foot was a valid strength, which would result in a factorof safety under civil engineering terms as a 1.0 plus, a little bit better thanfailure at a .35 factor of safety. He came up with a .35 ton per square footcohesion intercept, with a factor of safety of about 1.2 to 1.3, and on theseresults testified that he would not walk into the trench, nor would he allowanyone into the trench (T. 306).Basedupon the hypothesis that the trench was 14 feet deep, that it was vertical tothe 4-foot height, and that in fact it was laid back on an angle ofone-half-to-one above the 4-foot height, and based on the information he had asto the other conditions, it was his opinion that the trench was nearing failure.Byexplanation, he based his conclusion upon what he knew about the area at theslopes, by the use of the trench box which can allow a buildup of stresses bymovement, in that if the trench box is moved it releases its confinement and afailure can occur behind it quite easily, and based upon the testimony thatpeople would have to get out of the trench box and step behind it to go up aladder (T. 307).Mr.Flagg further noted a phenomena of the loessian materials known as the collapsephenomena, and utilizing the densities given in the testimony and the watercontents if saturation were to take place from rainfall, noting that loess hasan ability to decrease in height rapidly by adding surcharge and moisture in acompounding action. By way of illustration, if moisture were to exist byrainfall and then applying a spoil pile load upon it, there is the phenomena ofcollapse, which is recognized in loessial material.Byillustration, he referred to case histories of silos in Nebraska fallingbecause of rainfall of 2 inches over a period of a week (T. 308).Mr.Flagg compared the standards 29 CFR 1926.652(b) and (c), with respect to theuse of the words ?soft or unstable? versus ?hard or compact?, noting that inthe field of soil mechanics the terminology is soft, medium, firm, stiff andhard. Inasmuch as a layman is not familiar with the adjectives of soilmechanics, he felt the only thing to do was to describe two limiting conditionsof soft and hard, so that a man digging a trench would know that the soil wassoft or hard. He gave the illustration that if a soil is soft it is soft, andhard soil is something that you can?t indent if you want to; further, that softis that value given if material appears not to be hard then it must be soft,and by hard he explained he meant that he could not force it or move it. Hefurther offered the opinion that the standard provided a reasonable guide to alayman as to how he should operate in hard or soft soil. (T. 309?310)Referringto the standards, it was Mr. Flagg?s opinion that the trench was excavated insoft soil, based upon respondent?s own testing.Oncross-examination, Mr. Flagg was referred to section 1926.653(q), referring tothe definition of unstable soil as being earth material, other than running,that because of its nature or the influence of related conditions, cannot bedepended upon to remain in place without extra support, such as would befurnished by a system of shoring. He was also referred to the descriptivelanguage of the regulation of ?soft and unstable?, noting that soft was notdefined in the standards but that under section 1926.653(h) ?hard compact? soilwas defined as all earth materials not classified as running or unstable.Mr.Flagg felt that the important factor in evaluating soil is experience temperedwith sound engineering judgment. While Mr. Flagg had been involved in loessialmaterials for the past 15 years, he had never been involved in an actualtrenching project in Lincoln. His discussion of strength parameters was basedon his knowledge of loessial soil aid a great deal of test data.Mr.Flagg did not, of his own knowledge and experience, know whether the loessialsoils in Lincoln have any different properties than you would expect to find ina true loessial soils.Mr.Flagg did not run any test on soil samples from the trench itself, although hedid look at a disturbed sample brought by the inspector.Itwas Mr. Flagg?s opinion that whether in constructing a trench or building adam, that an undisturbed column of earth should be taken and tested. Mr. Flaggagreed that reasonably qualified experts in soil mechanics do reasonably differas to the propriety of using Philias a factor in calculating strengthparameters, but not as to the use of the Q or R test.Mr.Flagg noted there were two types of loessial materials, one the Loveland andthe other Peoprian, and without X-ray deflection testing it would be difficultto tell the difference, but they are not treated differently in building a dam?? in digging a trench.Basedupon the testimony he heard at the hearing, Mr. Flagg gave the opinion that a14-foot deep trench in loessian soil should have been laid back on a one-on-oneslope from the top of the trench box.Referringto the standard 29 CFR 1926.652(c), which applies to hard and compact soil, henoted that the sides of the trench above the 5-foot level may be sloped topreclude collapse, but shall not be steeper than a 1-foot rise to each 1\/2-foothorizontal. Mr. Flagg was of the opinion, as he referred to the standard, thatin hard and compact soil in order to slope it to preclude collapse you may haveto slope it more than one-half-to-one.Inreferring to the standard 29 CFR 1926.652(c), Mr. Flagg noted that the standardpermits and suggests initially that the shoring, sheeting or bracing precludecollapse, and if there is no shoring, sheeting or bracing, the only questionremaining is was it sloped to preclude collapse; and, that in dealing with theloessian material and the evidence he heard, he felt the trench should have beenshored by temporary shoring of some fashion.THEISSUESWhetheror not respondent was in violation of 29 CFR 1926.652(b) and 29 CFR1926.651(i)(1) depends on disposition of the following factors:1.Was respondent engaged in digging a trench 5 feet or more in depth.2.Were the sides of the trench in unstable or soft material, and thereforerequired to be shored, sheeted, braced, sloped or otherwise protected by meansof sufficient strength to protect the employees working within it.3.Were or had employees been working on the trench under the aforesaidcircumstances.4.Did the respondent adequately slope the sides of the trench in accordance withthe approximate angles of repose established by Table P?1 of the aforementionedstandard.5.Did the respondent store excavated material within 2 feet of the edge of thetrench, in violation of 29 CFR 1926.651(i)(1).6.Was respondent in repeated violation of 29 CFR 1926.652(b) and 29 CFR1926.651(i)(1) within the meaning of section 17(a) of the Act.7.What would be an appropriate penalty if violations are found.DISCUSSIONIssue1: The preponderance of the credible evidence establishes that throughout thetestimony the trench in question was in excess of 5 feet; this determined bythe measurements of the compliance officer of the trench being approximately 14feet deep (T. 9), the testimony of respondent?s safety director, Mr. Aspedon,of 13 feet, 99\/100ths inches, 13 feet and 3\/100ths inches (T. 133; 149), andMr. Charles Anson, respondent?s expert witness (T. 169), where he rounded offthe depth to 14 feet.Issue2: The issue of whether or not the sides of the trench were in unstable or softmaterial, the gravamen of complainant?s citation, was hotly contested.Therefore,it must be determined whether or not the complainant carried his burden ofproof to demonstrate that the soil was either unstable or soft to sustain hischarge.Mr.Spahn, the compliance officer, based upon his senses, his visual observation,and a number of trenching inspections in eastern Nebraska, made a judgment thatthe soil was Peorian loess and was of a generally soft unstable nature. Mr.Spahn?s observations and judgments were made upon his experiences as a layman.He has had no technical training in soil analysis.Mr.Flagg, complainant?s expert, based his testimony upon the test findings ofWestern Laboratories and his experience in the field of soil mechanics,interpreted the standards 29 CFR 1926.652(b) and (c) that the standardsreasonably set up only two classifications of soil, namely, hard or soft. Hefurther, based upon his analyses of Western Laboratories testing and based uponhis experience and general knowledge of Peorian and Loveland loessial soil,testified that the trench was excavated in soft soil, although he did no independenttesting of his own of any soil sample, and agreed that reasonably qualifiedexperts in soil mechanics do have reasonable differences as to the propriety ofusing the Phi factor in calculating strength.Bothexpert witnesses noted that in the field of soil mechanics there were fivevariable grades of soil?soft, medium, firm, stiff and hard (T. 198; 309).Respondent?ssoils experts, Mr. Anson and Mr. Nickel, had a different view of the soil atthe test site which was subject to laboratory analysis by Mr. Nickel andconcurred in by Mr. Anson.Mr.Anson felt that the soil at the trench site would not be soft and would not behard, but would be somewhere in between (T. 165). His judgments were made basedupon a test boring made at 3 1\/2 to 5 feet and at 9 to 10 1\/2 feet below gradeadjacent to the trench, some 13 days after the inspection.Aswas the case with Mr. Flagg, Mr. Anson referred to the Unified SoilClassification System?s definitions of soil, and based upon his actual testresults conducted by Western Laboratories, concluded that the soil at thetrench site in question was medium, rather than soft consistency.Bothcomplainant?s expert and respondent?s expert agreed that neither the UnifiedSoil Classification System nor the Tezghi and Pect Systems were contained orincorporated into the applicable standards.BothMr. Anson and Mr. Nickel testified, based on their actual measurements, soiltests and computations, that the soil was not unstable as that term is used anddefined in 29 CFR 1926.653(q) of the standards, but to the contrary, was hardand compact.Byway of reference, ?hard compact soil? in the standard 29 CFR 1926.653(h) isdefined as ?all earth materials not classified as running or unstable?.Further,by the same standard, in subsection (q) ?unstable soil? is defined as ?earthmaterial, other than running, that because of its nature or the influence ofrelated conditions, cannot be depended upon to remain in place without extrasupport, such as would be furnished by a system of shoring?.Respondentwas cited for violation of 29 CFR 1926.652(b), which as a predicate to anyalleged violation establishes that the soil within which it was constructingits trench must be either unstable or soft. This criterion must be establishedbefore applying the next criterion, namely, the approximate angle of repose asincorporated by Table P?1.Themost probative evidence is that of scientific laboratory testing, which isspecific and is controlling over that of casual observation and use of thesenses, and that of general specialized knowledge such as that possessed by Mr.Flagg, who in his testimony acknowledged that there were variables in thesensitivity of loessian materials of three to six in the Omaha and Lincolnarea.Further,Mr. Flagg?s objection to the respondent utilizing the Phi angle for anundrained test was not prudent. Mr. Nickel testified that his studies of theloessial soil in the Lincoln area and that found at the location of the trenchin question tended to have higher density, a higher clay content and greaterplasticity than true loessial soil, and because of the foregoingcharacteristics it was found to have an increased Phi value or shear strengthand therefore more stable under given conditions that the typical loessiansoil.[6]Itmust be concluded that the Secretary failed in his burden of proof inestablishing that the trench was constructed in unstable or soft material inviolation of 29 CFR 1926.652(b). The preponderance of the credible andprobative evidence leads to the conclusion that given the applicable definitioncontained within the standard that the soil in question was ?hard, compactsoil?. It follows that the citation and proposed penalty for the aforesaidviolation must be vacated.Issue3: The evidence is undisputed that there were two to four employees workingwithin the trench at the time of the inspection.Issue4: The specific evidence must take precedence over the general evidence, andexact measurements must take priority over so-called ?eyeballing? estimateswith respect to the angles of repose. Respondent was not cited for being inviolation of 29 CFR 1926.652(c) pertaining to hard and compact soil, whichwould require sloping not steeper than a 1-foot rise to each 1-foot horizontal.However, inasmuch as specific evidence was given and exact measurements weretaken in connection with respondent?s defense to the charge of violation of 29CFR 1926.651(i)(1), namely, that the angle of repose in combination with thesloping of the spoils pile served as an effective storage or retaining factorin connection with the spoils pile citation.Therewas no contradiction of the compliance officer?s observation that the disturbedearth piled alongside and up to the edge of the trench was soft with a slighttrickle observed into the trench. The compliance officer made no measure of theangle of repose of the trench itself above the trench box, but made anestimation based upon his experience in inspecting trenches that the west faceof the trench was nearly 80 degrees and the east face of the trench wasapproximately 65 degrees.Whilethe trench was certainly not a model of symmetry, the respondent?s actualmeasurements made by a qualified soils engineer the day of the inspectionshowed the angle of the two slopes in question to have been calculated to be atleast in a ratio of .7 feet horizontal for each foot vertical rise.Issue5: The preponderance of the credible evidence establishes that throughout thetestimony the respondent had excavated material stored within 2 feet of the edgeof the trench in violation of 29 CFR 1926.651(i)(1).Again,the evidence was in conflict as to the height of the spoil pile, with Mr. Spahnmaking an eyeball estimation that the spoil pile was 15 feet high, which wascontested by respondent?s witnesses who were of the opinion the spoil pile wasapproximately 8 feet in height.Respondenttakes the position that the sloping of the spoil pile served as an effectivestorage or retaining thereof.ThisWriter cannot agree with respondent. The evidence demonstrated that the spoilpile was loose with some trickling into the trench, and by respondent?s ownexpert witness, Mr. Anson, expert witness testimony was given that the spoilpile, even from respondent?s viewpoint, was 8 feet high by 25 feet in distancefrom the trench, representing 16 cubic yards or 15,400 pounds per linear foot.Aspoil pile of this mass and consistency represents a hazard, in that should thespoil pile give way or slide with workmen within the trench, even thoughutilizing a trench box, there would be substantial probability that death orserious physical injury could result. (See Secretary v. Standard Glass &Supply Co., 2 OSAHRC 585 (1973).) Further, the finding that respondent hadnot contested a previous citation for the same violation, constitutes a repeatviolation within the meaning of section 17(a) of the Act.Anassessment of the criterion of section 17(a) establishes that a respondent thatrepeatedly violates the requirements of section 5 of the Act or any standard,rule or order promulgated pursuant to section 6 of the Act or regulations . . .may An assessed a civil penalty of not more than $10,000.00 for each violation.Theevidence is clear and undisputed that respondent has an on-going safety programand that the citation previously issued and not contested by respondent wasbased upon the factual circumstance of an unauthorized act undertaken by one ofrespondent?s supervisory personnel. Respondent has since taken correctiveaction after having accepted full responsibility for this unauthorized act byits employee. It is felt that this is a mitigating circumstance. In weighingthe evidence of respondent?s repeated violation, it is felt that a penalty of$1,000.00 is appropriate.FINDINGS OF FACT1.Respondent, Dobson Brothers Construction Co., is a general contractor with itsprincipal offices at 1220 ?J? Street, Lincoln, Nebraska.2.Respondent is engaged in commerce and is an employer within the meaning of theAct.3.Respondent has approximately 125 employees.4.Respondent has been cited previously for a serious violation, which was notcontested.5.Respondent does a gross volume of business in the amount of seven milliondollars annually.6.Respondent is engaged in construction, paving, excavation and installation ofsewer pipes.??????????? 7. On July 6, 1973, employees ofDobson Brothers were engaged in the installation of sewer pipe at aconstruction site located approximately 50 yards west of South 40th Street andStonecliff Drive in Lincoln, Nebraska.8.In connection with said installation, at the foregoing location, respondent?semployees had excavated a trench at said location lying on a general north andsouth line, which trench at all material points was 14 feet in depth and 17feet in width.9.Said trench was not constructed in soft or unstable soil, as that term isdefined in 29 CFR 1926.653(q).10.Respondent had two to four employees working within the trench at the time ofthe compliance officer?s inspection.11.The east and west faces of the trench in question were sloped from a depth of 4feet at an angle of repose which was at least .7 feet horizontal to each 1-footvertical with a 4-foot metal trench box in place and being used in the bottomof the trench.12.Respondent had a spoil pile of a minimum height of 8 feet by 25 feet,representing 16 cubic yards or 15,400 pounds per linear foot leading up to theedge of the trench.13.This spoil pile presented a hazard of slippage or giving way which would haveendangered the workmen within the trench.14.The sloping of the soil pile, due to its disturbed state and looseness was inviolation of 29 CFR 1926.651(i)(1), in that it was not effectively stored andretained at least 2 Feet or more from the edge of the excavation.15.Respondent was in repeated violation of 29 CFR 1926.651(i)(1).CONCLUSIONSOF LAW1.Complainant failed to sustain his burden of proof by the preponderance of theprobative and credible evidence that respondent was in violation of 29 CFR1926.651(b).2.Complainant, by the preponderance of the probative and credible evidencesustained his burden of proof as to respondent being in violation of 29 CFR1926.651(i)(1).3.Respondent was in repeated violation of 29 CFR 1926.651(i)(1).ORDERBasedupon the foregoing findings of fact and conclusions of law, it is herebyORDERED that:1.The citation for the repeated violation of 29 CFR 1926.652(b) and the proposedpenalty therefor, be vacated.2.The citation for the repeated violation of 29 CFR 1926.651(i)(1) be affirmed,and a penalty of $1,000.00 be assessed.?Paul E. DixonJudge, OSAHRCDated: October22, 1974[1]29 CFR ? 1926.652(b) provides the following:Sides of trenches inunstable or soft material, 5 feet or more in depth, shall be shored, sheeted,braced, sloped, or otherwise supported by means of sufficient strength toprotect the employees working within them.\u00a0[2]29 CFR ? 1926.651(i)(1) provides the following:In excavations whichemployees may be required to enter, excavated or other material shall beeffectively stored and retained at least 2 feet or more from the edge of theexcavation.[3]Chairman Barnako is of the opinion that a subsequent violation of a standard isnot in itself sufficient to establish a repeat violation. In his view, conductsimilar to that required to establish a willful violation is necessary.However, he considers himself bound by the Commission?s precedents in theabsence of a change in the majority rule on this issue.Bethlehem Steel Corp., 20OSAHRC 227, 3 OSHC 1520, OSHD para. 19,996 (1975); General Electric Co.,17 OSAHRC 49, 3 OSHC 1031, OSHD para. 19,567 (1975); Todd Shipyards Corp.,Dkt. 12510, 3 OSHC 1813, OSHD para. 20,237 (1975). [4]Nevertheless, both Mr. Cleary and Mr. Barnako now cite it as precedent. This isreminiscent of Winston Churchill?s comment on Stanley Baldwin?s policies in his1936 book While England Slept:?Decided only to beundecided, resolved to be irresolute, adamant for drift, solid for fluidity,all-powerful to be impotent.?\u00a0[5]Conveniently omitted from the quotation taken from the Judge?s discussion ofthe spoil pile is his citation to our decision in Secretary v. Standard Glass& Supply Co., 2 OSAHRC 1488 (1973) which was concerned only with whether aviolation should be classified as ?serious? or nonserious. [6]An excellent discussion of the difficulty encountered regarding the lack ofclarity of this standard is contained in Secretary v. M. A. Swatek & Co.,OSAHRC DOCKET No. 3699 (June 28, 1974). Decision by: J. Paul Brenton, Judge.”