“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4553 \u00a0 LLOYD C. LOCKREM, INC, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 24, 1976?DECISION?Before BARNAKO, Chairman; MORAN andCLEARY, Commissioners.CLEARY, Commissioner:Thedecision of Administrative Law Judge Thomas J. Donegan rendered on October 23,1974, is before the Commission for review pursuant to section 12(j) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651 et seq.[hereinafter ?the Act?].Inhis decision Judge Donegan ruled that the standards at 29 CFR ? 1926.651(c) and29 CFR ? 1926.651(s) were not applicable to the work being performed byrespondent at the time of the inspection in this case. Accordingly, thecitation issued by the Secretary to respondent alleging violations of thosestandards was vacated together with the notification of proposed penalty. TheSecretary petitioned the Commission for discretionary review, and the petitionwas granted.Forthe reasons that follow we reverse the order of the Judge, and hold that 29 CFR?\u00a01926.651(s) is fully applicable to the trenching activity in issue inthis proceeding.[1] We therefore remand thiscase for further proceedings consistent with this decision.OnSeptember 4, 1973, respondent?s employees were engaged in the installation ofan underground concrete sewer line in Helena, Montana. On that date,respondent?s worksite was inspected by an OSHA compliance officer. As a resultof this inspection a citation was issued on September 5, 1973, specifying twoalleged violations of 29 CFR ? 1926.651(c)[2]and one violation of 29 CFR ? 1926.652(e).[3]On the same day, an ?amended citation? was issued apparently for the purpose ofconsolidating the two alleged violations of ? 1926.651(c) so as to allege a singleserious violation of that standard. This amended citation repeated the allegedviolation of 29 CFR ? 1926.652(e).TheSecretary grouped these two alleged serious violations together for penaltypurposes and proposed a penalty of $500. Respondent timely filed a notice ofcontest as to both the amended citation and the proposed penalty.OnOctober 2, 1973, the complaint was issued by the Secretary. The complaintstated that it was to constitute an amendment of the amended citation insofaras the applicable standard was therein deemed to be 29 CFR ? 1926.651(s)[4]rather than 29 CFR ? 1926.652(e) as was originally alleged. When the hearingopened on January 10, 1974, respondent, through its attorney, moved that allallegations in the complaint with reference to a violation of ? 1926.651(s)should be stricken and objected to the introduction of any evidence inconnection with this alleged violation.JudgeDonegan reserved making a ruling on this matter until his decision on themerits. In his decision he treated the amendment of the citation in thecomplaint as a motion to amend, and accordingly granted the motion. He thenproceeded to vacate the alleged violations of 29 CFR ? 1926.651(c) and (s)finding that the ground cavity in question was a ?trench? as that term isdefined at 29 CFR ? 1926.651(n) and that as the cited standards set forth?specific excavation requirements? they could not be applied to an allegedviolation involving a ?trench.?Inorder or understand fully the nature of the problem in this case, it isnecessary to examine the relevant standards in their appropriate context. Thestandards involved are found in Subpart P, Part 1926 of the Code of FederalRegulations. This subpart contains occupational safety and health standardsapplicable to: ?Excavations, trenching, and shoring.? It is subdivided into thefollowing subsections:? 1926.650General Protection Requirements.?? 1926.651Specific Excavation Requirements.?? 1926.652Specific Trenching Requirements.?? 1926.653Definitions Applicable to this Subpart.\u00a0Thestandards in this Subpart distinguish between ground cavities that are?excavations? and those that are ?trenches.? A discussion of the nature andscope of this distinction is a necessary prerequisite to the resolution of thiscase.Section1926.653(f) defines ?excavation? as:Any manmadecavity or depression in the earth?s surface, including its sides, walls, orfaces, formed by earth removal and producing unsupported earth conditions byreasons of the excavation. If installed forms or similar structures reduce thedepth-to-width relationship, an excavation may become a trench (emphasisadded).?Section1926.653(n) defines ?trench? as:A narrowexcavation 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(emphasis added).?Readingthe two definitions together, the conclusion is inescapable that the term?excavation? is used in the broad sense and as such includes ?trenches? withinits scope as a specific type of excavation, or a subclass thereof.??????????? Where a particular type of hazard isaddressed by a standard applying to the board class of ?excavations? and nocorollary standard addressing such hazard specifically applies to ?trenches,?the protective provisions of the former will be extended to the latter. See ArmorConstr. & Paving Co., No. 10198, BNA 3 OSHC 1204, CCH OSHD para. 19,642(May 16, 1975) (Cleary, concurring). Indeed, a contrary interpretation wouldignore the declared purpose and policy of Congress in passing the Act, i.e.,?to assure so far as possible every working man and woman in the Nation safeand healthful working conditions.? 29 U.S.C. ? 651.Theparticular hazard that ? 1926.651(s) is designed to eliminate is that of mobileequipment falling into excavations and causing injury not only to workers inand around the excavation, but also to the operators of such equipment. Thereis no corollary standard specifically applicable to trenches although it ispatently clear that the same dangers exist. We therefore hold that ? 1926.651(s)is entirely applicable to those excavations otherwise classified as ?trenches.?The Judge?s conclusion to the contrary on this issue is hereby expresslyoverruled.??????????? Turning to the facts of the presentcase, the ground cavity into which the sewer line was being placed wasapproximately 19 feet wide at the top, 8 feet wide at the bottom, 12?14 ? feetdeep and over 50 feet long. The Judge concluded that it was a trench as thatterm is defined in ?\u00a01926.653(n) and we agree.[5]Because of our holding that ? 1926.651(s) applies to all excavations, whetheror not further classified as ?trenches,? however, the inquiry as to theviolation cannot end there. Therefore, we are remanding this case for adisposition on the merits.Forthe guidance of the parties on remand we note the following: the evidenceestablishes a prima facie violation of ? 1926.651(s); the evidence shows thatmobile equipment was operated adjacent to the excavation;[6]that no stop logs or barricades were installed; and that employees in theexcavation as well as the operator of the vehicle were exposed to the risk ofinjury sought to be prevented by this standard.Also,respondent has asserted that compliance with 29 CFR ? 1926.651(s) is notpossible due to the nature of the work being performed.[7]We point out, however, that the alleged violation involves a front-end loaderbackfilling the excavation by dumping the fill over the side of the excavation,and does not involve mobile equipment traveling into and out of the excavationfor the purpose of placing fill material therein.Accordingly,the Judge?s decision vacating the citation for an alleged violation of 29 CFR ?1926.651(s) is hereby reversed. As so modified by this decision, the case isremanded for a disposition on the merits.?It is so ORDERED.?FOR THECOMMISSION:?William S.McLaughlinExecutiveSecretaryDATED: FEB 24,1976?MORAN,Commissioner, Dissenting:Inmy opinion Judge Donegan properly vacated the citation. It was his decisionthat the standard for which respondent was cited was inapplicable torespondent?s work situation. That well-reasoned decision, which is attachedhereto as Appendix A, should be affirmed.Thestandards contained in 29 C.F.R. ? 1926.651 are entitled ?Specific ExcavationRequirements,? while those in 29 C.F.R. ? 1926.652 are entitled ?SpecificTrenching Requirements.? Although my colleagues correctly find thatrespondent?s cavity was a trench and that ?[t]here is no corollary standardspecifically applicable to trenches,? they nevertheless conclude that respondentwas in violation of the excavation standard codified at 29 C.F.R. ?\u00a01926.651(s).They justify this finding on the ground that since a trench is a type ofexcavation, the ?conclusion is inescapable? that the Secretary of Laborintended the standards in ? 1926.651 to apply not only to excavations but totrenches as well.Althoughthis ?inescapable conclusion? escapes me, I must confess that I was not blessedwith the omnipotent gift of knowing exactly what the Secretary intended to saywhen he did not in fact say it. Fortunately for the Secretary, however, mycolleagues have been so blessed, and we now know that when the Secretary usesthe term ?Specific Excavation Requirements? he really means ?SpecificExcavation and Trenching Requirements.? This is particularly enlightening inview of the fact that there is a separate section dealing with trenchingrequirements. Although I do not for a moment lack appreciation for mycolleagues? gifts, unfortunately I doubt that the employers of this country,who are responsible for complying with a veritable plethora of standards,possess similar gifts of clairvoyance.Thefact that a trench might be a particular type of excavation does not lendcredence to the proposition that the standards are interchangeable. If theywere, there would be no need to have two separate subsections at all; in fact,there would be no need to distinguish the two at all. If the Secretary did infact intend the excavation standards to apply to trenches, the employers ofthis country are entitled, at the very least, to regulations that make thisclear.[8]Thestandard for which respondent was cited applies by its very wording toexcavations. Since respondent?s cavity is conceded by all to be a trench, itwas not bound to observe the requirements for excavations. See Secretary v.Salem-Williamette General Contractors, 9 OSAHRC 227 (1974).Furthermore,it is improper to return this case to the Judge as he has already determinedthat there was no violation of the standard even if it was applicable to thecavity. Therefore, it is clear that the remand of this case is an attempt by mycolleagues to browbeat the Judge into agreeing with their conclusions. This isparticularly unfortunate because it could lead to the affirmance of a violationwhich is entirely different from the one that was enumerated in the citation.[9]\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4553 \u00a0 LLOYD C. LOCKREM, INC, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: November 22, 1974?DECISION AND ORDER?APPEARANCES:For the Complainant: James H. Barkley, Attorney Office ofthe Solicitor U. S. Department of Labor 15444 Federal Building 1961 StoutStreet Denver, Colorado 80202\u00a0For the Respondent: Dernard E. Longo, Attorney Moulton,Bellingham, Longo & Mather Securities Building?Box 1016 Billings, Montana59103\u00a0Thomas J.Donegan, JudgeSTATEMENTOF THE CASEThisis a proceeding pursuant to section 10(c) of the Occupational Safety and HealthAct of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to asthe Act.)Therespondent is engaged in the construction business and on September 4, 1973,was maintaining a place of employment and worksite at Cedar Street and Harrisin Helena, Montana, for the purpose of installing concrete pipe. This worksitewas inspected on September 4, 1973, by Ronald T. Byrd, who was acting in thecapacity of an OSHA compliance officer (inspector) of the U. S. Department ofLabor pursuant to section 7(c)(1) of the Act.Asa result of this inspection, this proceeding is concerned with an amended[10]citation number one for serious violation issued to the respondent on September5, 1973, and a notification of proposed penalty of $500 issued on September 6,1973, for the violations alleged in this citation.Therespondent timely contested amended citation number one for serious violationand the proposed penalty of $500 for these alleged violations.Thedescriptions of the alleged violations and the dates of required corrections ofthese violations as set forth in amended citation number one are as follows: Item No. Standard, regulation or section of the Act allegedly violated Description of alleged violation Date by which alleged violation must be corrected 1 29 CFR 1926.651(c) and 29 CFR 1926.652(e) On September 4, 1973, at approximately 10:45 a.m., south of Cedar Street in Helena, Montana, two employees were working in an excavation 12 feet deep, approximately 19 feet wide and more than 50 feet long with its sides unshored, unsheeted, unbraced, unsloped or otherwise protected. (1) ? A Model 950 Caterpillar loader was working about employees dumping gravel in west side of excavation. (1) ? At approximately 11:15 a.m., two employees were working in south end of excavation 14?1\/2 feet deep, approximately 19 feet wide and more than 50 feet long with its sides unshored, unsheeted, unbraced, unsloped or otherwise protected. (1)? \u00a0 Immediately upon receipt of this Citation \u00a0Serious CitationNo. 1 issued on the 5th day of September, 1973, is amended to read as follows:Thestandards alleged in this amended citation to have been violated by therespondent on September 4, 1973, prescribe as follows:? ?29 CFR 1926.651(c)? ? 1926.651?SpecificExcavation Requirements.?(c) The walls andfaces of all excavations in which employees are exposed to danger from movingground shall be guarded by a shoring system, sloping of the ground, or someother equivalent means.???29 CFR 1926.652(e)\u00a0? 1926.652?SpecificTrenching Requirements.?(e) Additionalprecautions by way of shoring and bracing shall be taken to prevent slides orcave-ins when excavations or trenches are made in locations adjacent tobackfilled excavations, or where excavations are subjected to vibrations fromrailroad or highway traffic, the operation of machinery, or any other source.??Thecomplaint, which was filed on October 2, 1973, states that to the extent thecomplaint differs from the citation and amended citation issued on September 5,1973, it constitutes an amendment thereof. It is represented in the complaintthat the amendment is needed to clarify the citation and to set forth theapplicable standard as 29 CFR 1926.651(s) instead of 29 CFR 1926.652(e).Thedescription of the alleged violation set forth in item 1 of the amendedcitation[11] is amended by thedescription set forth in paragraph IV of the complaint,[12]which description is as follows:? ?29 CFR 1926.651(s)? ? 1926.651?SpecificExcavation Requirements.?(s) When mobileequipment is utilized or allowed adjacent to excavations, substantial stoplongs or barricades shall be installed. If possible, the grade should be awayfrom the excavation.??Theamended citation, issued on September 5, 1974, can be read to charge therespondent with two violations of 29 CFR 1926.651(c), one violation occurringat 10:45 a.m. at one location in the excavation, and the second violationoccurring at 11:15 a.m. at the south end of the excavation (T. 93?110). Theamendment in the complaint must be construed as an attempt to clarify theamended citation and therefore it is concluded, and it is so ruled that therespondent is charged, as a result of this amendment, with one violation of 29CFR 1926.651(c) and one violation of 29 CFR 1926.651(s), a total of twoviolations, each one of which are alleged to be of a serious nature affectingthree employees in the excavation. The complainant groups the two allegedviolations for the purpose of proposing a penalty of $500.Therespondent?s answer, filed October 16, 1973, objects to this amendment of thecitation in the complaint and denies the allegations set forth as reasons foran amendment.Atthe opening of the hearing, the respondent moved that allegations in thecomplaint of a violation of 29 CFR 1926.651(s) be stricken and objected to theintroduction of evidence concerning a motion and the judge reserved a rulinguntil this decision (T. 4?7).Theamendment of the citation sought in the complaint must be considered withreference to the requirements of The complainant represents that the complaintrepresents that the amendment is necessary because the respondent was chargedin the amended citation with a standard, 29 CFR 1926.652(e), which is notapplicable to the evidence which the complainant intends to offer at thehearing.Itis clear that it has been the consistent intention of the complainant to chargethe respondent with violations involving an excavation and not a trench. Therespondent is equally consistent in maintaining that a trench is involved andnot an excavation. The respondent is not taken by surprise or prejudiced froman amendment of the citation, which charges an excavation violation [29 CFR1926.651(s)] instead of a trenching violation [29 CFR 1926.651(c)]. In thiscase prejudice to the respondent is not likely to result from the amendment ofthe citation which clarifies the ambiguity of the citation as to the number ofviolations charged (T. 125?126).Accordingly,the complainant?s amendment of the citation in the complaint is considered amotion to amend, and the motion is granted pursuant to Commission Rule33(a)(3). The respondent?s related motion to strike is denied.Therespondent admits in the answer that the Commission has jurisdiction in thiscase, that it is a corporation having employees engaged in construction work,and that its business affects commerce.Noaffected employees or authorized representatives of affected employees havemade an appearance or asserted party status in this proceeding.Therespondent has filed a brief and a reply brief. The complainant has filed abrief.DISCUSSIONAND FINDINGSTherespondent is charged with violations of standards, [29 CFR 1926.651(c) and 29CFR 1926.651(s)], that set forth specific excavation requirements. In amendingthe citation in the complaint, the complainant represents that the amendment isneeded to set forth the applicable standard, 29 CFR 1926.651(s), (a specificexcavation requirement), in place of the standard, 29 CFR 1926.652(e) cited inthe citation, (a specific trenching requirement).Throughoutthe hearing, the complainant contended that the alleged violations involved anexcavation and submitted evidence for the purpose of supporting thiscontention.Byobjecting in the answer to the amendment of the citation and in contendingthroughout the hearing that the site of the alleged violations was a trench,the respondent has placed in issue the question as to whether the respondentwas charged with violations of standards which were not applicable.Inorder to resolve this issue it was necessary to consider and weigh evidencesubmitted by the complainant and respondent concerning the alleged violationsof the excavation standards as charged. As a result the hearing was extendedbeyond the issue of whether the respondent had been properly cited as toviolations of applicable standards.Thesubmission and consideration of this evidence cannot be the basis forconcluding that the respondent consented to try the issue of his allegedfailure to comply with the standards cited, or that he consented to try theissue of violations of standards concerned with specific trenching requirementswith which he was not charged. Amendment of the pleadings to conform to theevidence submitted at the hearing in accordance with rule 15(b) of the FederalRules of Civil Procedure will not afford due process in this case.Itis concluded from the credible and substantial evidence that the respondent wasnot in violation of 29 CFR 1926.651(c) as charged because the sides of thisexcavation were sloped to an approximate angle of repose as set forth in ?TableP?1? of the standards and the three employees in this excavation were notexposed to danger from moving ground (T. 49?64, 131, 135?147, 211?281).Itis also concluded from the credible and substantial evidence that therespondent was not in violation of 29 CFR 1926.651(s) although the Caterpillarfront-loader was pushing gravel in the excavation and no substantial stop logsor barricades had been installed. This piece of mobile equipment was pushingthe gravel in the trench at a distance of approximately eight feet away fromthe employees in the trench. There is no evidence to support a finding thatthis piece of equipment caused, or could have caused, the ground in theexcavation to move (T. 288?289). There is no evidence to support a finding thatit was possible to have the grade away from the excavation. There is no evidenceto support a finding that stop logs or barricades could have been installed ata location adjacent to the excavation which would have made it possible toutilize the Caterpillar front-loader for the purpose of pushing gravel in theexcavation (exhibit C?3) or for the purpose of backfilling the excavation(exhibits R?5, R?7, R?9).Butthe first issue that must be decided in this case is whether or not therespondent was charged with violating standards applicable to the allegedviolations.Indetermining the issue of whether the site of the alleged violations was anexcavation or a trench, it is necessary to apply the definitions set forth in29 CFR 1926.653.[13]Itis found that the contours of the site of the alleged violations are fairlydepicted in respondent?s exhibit 14. On this cross section the dimensions aregiven as: width at the top 19 feet, width at the bottom 8 feet, and depth 141\/2 feet.Theinspector?s testimony concerning the depth of the excavation varied from 12 to15 1\/2 feet. He stated the excavation was approximately 19 feet wide and over50 feet long (T. 11, 78?81). He did not measure the width at the bottom (T.30?33). The testimony of the inspector is not clear as to the locations ofthese dimensions, but apparently he was referring to two different locations inthe excavation (T. 84). The complainant argues in favor of the acceptance ofthe inspector?s estimates of the dimensions of the excavation in the absence ofmeasurements (T. 37?38). Although the complainant objects to respondent?sexhibit 14 as not being based on first-hand knowledge, with two of themeasurements taken from the complaint and the third from the testimony of Mr.Lockrem; it is concluded that the testimonies of Mr. Lockrem, Mr. Scruton andMr. Nurse concerning this exhibit are entirely credible (T. 296?297). Mr.Scruton is an experienced engineer who represented the firm retained by theCity of Helena, Montana to inspect the project for conformity with the plansand specifications that the firm had prepared (T. 152, exhibit R?1, T. 246).Mr. Nurse is a consulting engineer with extensive experience (T. 209?210). Mr.Lockrem, who has been in the contracting business in Montana for many years,was present during the excavating and placing of pipe in the trench and was presentat the site at the time of the inspection on September 4, 1973 (T. 188,190?193).Althougha trench is defined in the standards as a narrow excavation, it does not followthat a standard which prescribes a specific excavation requirement may beapplied to an alleged violation which involves a trench.Therewas considerable discussion at the hearing in this case as to whether therestriction of 15 feet in the width of a trench applied at the top or thebottom of the trench. The complainant contended that the 15 feet restriction inwidth was applied at the top by OSHA at the time of these alleged violations.The attorney for the complainant stated that he understands this has beenchanged and since the inspection in this case the 15 feet restriction in widthis now applied to the bottom of the trench (T. 23?24, 185?186).Inthis case this is not an instance where the standards are unenforceably vaguebecause of this lack of specificity in the definition of a trench.Therecan be no dispute with a determination that the excavation in this case is atrench, as contended by the respondent, if the width restriction of 15 feet inthe trench definition is applied to the bottom of the excavation. The bottom ofthe excavation was not more than 8 feet wide with vertical sides extending upto an approximate distance of 4 1\/2 feet which then sloped so that the width ofthe excavation was not greater than 19 feet at the top. With the width measuredat the bottom, this excavation was also in accord with the definition of atrench of the Secretary of Labor in that the depth, in general, was greaterthan the width.Thesloping of the vertical sides of a trench above the 4 1\/2 feet level, so thatthe width at the top exceeds 15 feet, does not require that the trench bereclassified as an excavation. The width at the bottom in this example remainsthe controlling factor.TheCommission has held that the definition of a term can be clarified by thespecial technical meaning ascribed in a particular industry. Secretary v.Santa Fe Trail Transportation Co., 5 OSAHRC 840 (1973). The standards whichare being considered in this case have been promulgated by the Secretary ofLabor as subpart P of Part 1926, which is entitled ?Safety And HealthRegulations For Construction.?Thewitnesses Bass, Scruton, Lockrem and Nurse have had long experience in theconstruction industry, particularly with reference to excavations and trenches.Mr. Scruton and Mr. Nurse, because of their considerable experience asconsulting engineers in the construction industry, are particularly wellqualified to testify as to the meaning the construction industry ascribes tothe definition of an excavation and the definition of a trench. Although therewas a reference to the ambiguity of the Secretary?s definition they did agree,and testified in substance, that the site of this alleged violation was atrench.Itis concluded and a finding is made that the violations as alleged by thecomplainant involved a trench and not an excavation.Itis also determined and findings are made that the cited standards, 29 CFR1926.651(c) and 29 CFR 1926.651(s), which set forth specific excavationrequirements, are not applicable to a trench and the respondent has notviolated the cited standards.CONCLUSIONSOF LAW1.The respondent, Lloyd C. Lockrem, Inc., was at all times material to thisproceeding an employer engaged in business affecting interstate commerce withinthe meaning of section 3 of the Act.2.The Occupational Safety and Health Review Commission has jurisdiction over theparties and the issues in this proceeding as provided in section 10 of the Act.3.On September 4, 1973, an inspection was made of the respondent?s worksite inHelena, Montana by an authorized employee of the Secretary of Labor in accordancewith the requirements of section 8 of the Act.4.The respondent was not in violation of 29 CFR 1926.651(c) and 29 CFR1926.651(s), standards promulgated by the Secretary of Labor; and therefore therespondent was not in violation of section 5(a)(2) of the Act on September 4,1973, as charged in the amended citation and in the complaint.ORDERBasedon the foregoing, it is ORDERED:1.That amended citation number 1 for serious violations issued to the respondenton September 5, 1973, be vacated, and that the complaint served on therespondent on October 2, 1973, be dismissed.2.That the ?Notification of Proposed Penalty?, issued to the respondent onSeptember 6, 1973, proposing a penalty of $500 for the serious violationsalleged in amended citation number 1, be vacated.?Dated: October23, 1974Seattle,Washington?THOMAS J.DONEGANJudge, OSAHRC\u00a0[1]The petition for discretionary review filed by the Secretary did not challengethe vacation of the alleged violation of ? 1926.651(c). The direction forreview also limited review to the question of the applicability of ?1926.651(s).[2] That standard reads:? 1926.651 SpecificExcavation Requirements.(c) The walls andfaces of all excavations in which employees are exposed to danger from moving groundshall be guarded by a shoring system, sloping of the ground, or some otherequivalent means.\u00a0[3] That standard reads:? 1926.652 SpecificTrenching Requirements.(e) Additionalprecautions by way of shoring and bracing shall be taken to prevent slides orcave-ins when excavations or trenches are made in locations adjacent tobackfilled excavations, or where excavations are subjected to vibrations fromrailroad or highway traffic, the operation of machinery, or any other source.\u00a0[4] That standard reads:? 1926.651 SpecificExcavation Requirements.(s) When mobileequipment is utilized or allowed adjacent to excavations, substantial stop logsor barricades shall be installed. If possible, the grade should be away fromthe excavation.[5]The Judge correctly concluded that for purposes of the 15 foot widthrestriction in ?\u00a01926.653(n), the measurement should be taken at thebottom of the cavity. As I pointed out in Sheesly and Winters Constr. Co.,No. 6824, 18 OSAHRC 856, BNA 3 OSHC 1340, CCH OSHD para. 19,756 (June 24,1975),It is important tonote, however, that the width of a trench is to be measured at the bottom.Measuring the width at the top could lead to the absurd result whereby aproperly sloped trench would become an excavation, subject to the requirementsof the excavation rather than trenching standards. 18 OSAHRC 856, 859 n.8.The Secretary had originally argued that the measurement should be madeat the top of the cavity, but in its brief before the Commission it is concededthat the bottom is the correct place for this measurement.\u00a0[6] The front wheels of thefront-end loader came as close as 1 ? feet from the edge of the excavation.[7] Commissioner Cleary is ofthe view that an assertion that compliance is impossible due to the nature ofthe work being performed is, at most, an affirmative defense. Brennan v.O.S.H.R.C. & Underhill Constr. Co., 513 F.2d 1032 (2d Cir. 1975).[8]As the recently appointed Assistant Secretary of Labor for Occupational Safetyand Health told the Senate Labor and Public Welfare Committee on November 11,1975, ?the goals of the Act can be achieved only if a standard is clearlyexpressed in a manner which is comprehensible to employers and employees,encourages voluntary compliance, and is legally enforceable.? (Emphasis added.)\u00a0[9] See Secretary v. AmoryCotton Oil Company, OSAHRC Docket No. 10330, January 6, 1976. [10]The apparent difference between the amended and the original citation is theconsolidation of the alleged serious violations under one item in the amendedcitation. The same violations are alleged as two items in the original citationwhich also was issued to the respondent on September 5, 1973.[11]The original citation, which was issued on September 5, 1973, became a nullityas a result of the issuance of the amended citation to the respondent on thesame date. There is only one item in the amended citation and the allegedviolations are grouped under this one item.\u00a0[12]Complainant?s brief; paragraph 1 at page 2.[13]??? (f) ?Excavation??Any manmade cavity ordepression in the earth?s surface, including its sides, walls, or faces, formedby earth removal and producing unsupported earth conditions by reasons of theexcavation. If installed forms or similar structures reduce the depth-to-widthrelationship, an excavation may become a trench.(n) ?Trench??Anarrow excavation made below the surface of the ground. In general, the depthis greater than the width, but the width of a trench is not greater than 15feet.”