“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77?383 \u00a0 MARTIN & MARTIN FOUNDATION DRILLING CONTRACTORS, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 December 17, 1981DECISIONBefore: ROWLAND, Chairman; CLEARY and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge Harold O. Bullis is before the Commissionfor review pursuant to section 12(j), 29 U.S.C. ? 661(i), of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?). Judge Bullisvacated that part of a citation issued by the Secretary of Labor (?theSecretary?) alleging that Respondent, Martin and Martin Foundation DrillingContractors, Inc. (?Martin?), violated section 5(a)(2) of the Act, 29 U.S.C. ?654(a)(2), by failing to comply with the standard at 29 C.F.R. ?1926.800(h)(3)(i).[1]In response to the Secretary?s petition for discretionary review, CommissionerCottine directed review but limited review to consideration of the judge?sdisposition of this alleged violation. At issue is whether the vertical wallsof a pier hole[2]must be shored in accordance with the cited standard, which is published in 29C.F.R. Part 1926, Subpart S?Tunnels and Shafts, Caissons, Cofferdams, andCompressed Air. An ancillary question is whether the Commission should grantthe Secretary?s motion?made in his petition for discretionary review?to amendthe pleadings under Rule 15(b) of the Federal Rules of Civil Procedure toconform to the evidence presented. For the reasons set forth below, we affirmthe judge?s decision to vacate the citation on the ground that the standards inSubpart S are not applicable to the cited condition and we deny the Secretary?smotion to amend.I??????????? Martindrills foundations for highway bridges, commercial buildings and other largestructures. On the date of the alleged violations, Martin was in the process ofdrilling a pier hold for a highway overpass near Edinburg, Texas, as part of aTexas Highway Department construction project. Martin?s equipment at theworksite included a truck crane and an auger (a corkscrew-like drillingapparatus). Martin?s crew consisted of three laborers, the auger operator andthe foreman\/crane operator. The crew drilled a hole 50 feet deep and 30 inchesin diameter and then installed steel casing in the hole to a depth of between31 and 32 feet.[3]One of the laborers, Paul Elliott, was sent into the hole so that he couldrecover a shovel that had been dropped by a co-worker. Elliott was lowered intothe hole while standing on chains that had been affixed to the bottom of areinforcing cage. The cage, in turn, was suspended from a hook at the end ofthe crane?s cable. The primary purpose of the reinforcing cage was to supportthe cement pier that would be created when the hole was filled with concrete.When, after an undetermined period of time, Elliott failed to respond to shoutsfrom the surface, several co-workers attempted to rescue him, but they weredriven back out of the hole by dizziness and difficulty in breathing. Later,Elliott was raised unconscious from the hole by crane and never regainedconsciousness. The record indicates that he died as a result of asphyxiation.??????????? AnOccupational Safety and Health Administration (?OSHA?) compliance officerconducted an inspection of the worksite the next day, and the Secretarysubsequently issued Martin a citation alleging several violations of the Act,including the charge that Martin had not provided steel casing in the hole inaccordance with the standard at 29 C.F.R. ?\u00a01926.800(h)(3)(i). Followingthe hearing, Judge Bullis issued his decision in which he determined thatSubpart S, including the cited standard, does not apply to the pier hole inquestion, but that 29 C.F.R. Part 1926, Subpart p?Excavations, Shoring andTrenching, does apply. Therefore, he proceeded to consider whether Martin hadtaken the necessary precautions required under Subpart P with respect to casingthe hole. Based on his determination that Martin had complied with theapplicable requirements, he vacated that part of the citation.??????????? Withrespect to the applicability of Subpart S, Judge Bullis first focused upon thereference in section 1926.800(h)(3)(i) to ?small diameter shafts whichemployees are required to enter.? In his view, this language suggests shaftsdesigned for employees to use in traveling to an underground place of work,such as a mine. The judge noted, though, that Martin?s pier holes are notdesigned for employees to enter and that employees enter only 10 to 15 percentof the holes, in order to clean out dirt that may have been dislodged by thedrill or, as in the situation that led to fatality, to retrieve droppedequipment. Because ?shaft? is not defined in Subpart S, the judge resorted toWebster?s Third New International Dictionary, but he was unable to find adefinition that was descriptive of Martin?s operation. The judge found moreapplicable the definition of ?excavation,? at 29 C.F.R. ? 1926.653(f), as ?anymanmade cavity or depression in the earth?s surface? and the reference, at 29C.F.R. ? 1926.651(i), to ?excavations which employees may be required to enter?(emphasis added). Moreover, the judge noted that Subpart P, at 29 C.F.R. ?\u00a01926.652(f),in setting forth the casing requirements for bell-bottom pier holes, prescribescasing down to the top of the bell.[4] He further observed thatif Subpart S governed the cited condition then, according to section1926.800(h)(3)(ii),[5]casing would be required for the full depth of the hole and for one for aboveground level. Accordingly, he concluded, the Secretary?s position would lead tothe illogical result that under Subpart S casing requirements for non-belledpier holes would be more stringent than those for bell-bottom pier holes, whichby their nature are more prone to caving. In addition, the judge reasoned thatbecause Subpart P covers a specific type of pier hole?bell-bottom?then it mustalso embrace general requirements for all pier holes.II??????????? Onreview, the Secretary makes three challenges to Judge Bullis? conclusion thatSubpart P rather than Subpart S applies here. First, the Secretary insists thata pier hole is ?a vertical or inclined opening of uniform and limited crosssection? and, therefore, a ?shaft? as defined in Webster?s for all relevantpurposes. Second, the Secretary argues that the distinction between shafts thatemployees ?are? required to enter and those that they ?may be? required toenter is superfluous because Martin?s employees were in fact required to enterthese holes on occasion to clean them out or to retrieve equipment. Third, theSecretary charges that the judge?s characterization of a pier hole as a cavityor depression in the earth?s surface is a ?significant distortion for purposesof utilizing Subpart P.? Indeed, the Secretary rejects the judge?s conclusionthat Subpart P was intended to cover all pier holes, because it specificallyrefers only to bell-bottom pier holes.??????????? TheSecretary further argues that, even if Subpart P were applicable here, heestablished Martin?s noncompliance with Subpart P because there is nosubstantial difference concerning casing requirements between the two subparts.Here, it is not disputed that the pier hole was cased only to a depth of 31 or32 feet. Therefore, 18 to 19 feet of the hole was not cased. In addition, theevidence shows that the soil was jointed, not solid. Thus, the deceasedemployee was exposed to a hazard and a violation was established under eithersubpart. Accordingly, the Secretary moves under Rule 15(b) of the Federal Rulesof Civil Procedure to amend the citation and complaint in order to allege, inthe alternative, noncompliance with 29 C.F.R. ? 1926.652(f), note 4 supra.[6]III??????????? Weconclude, based upon our reading of Subpart S as a whole, that the standardsthere are intended to cover more permanent and larger excavations, such as minetunnels and shafts, than the pier hole at issue here. For example, the subpart,titled ?Tunnels and Shafts, Caissons, Cofferdams and Compressed Air,? includesprovisions regarding ladders, stairways, check-in and check-out systems foremployees, ventilation doors, posting of signs and storage of gasolineunderground.[7]These provisions clearly indicate that Subpart S contemplates subterraneanpassageways specifically designed for work and transit. Here, the pier holesare specifically designed as receptacles for concrete. Protection againstcaving hazards in tunnels and shafts must be of a more permanent nature andcapable of withstanding extended periods of stress because they remain open forlong periods of time and are more frequently used. In contrast, pier holes areopen for a short period of time and employees infrequently enter these holes.Consequently, employee exposure is of limited duration and the requisiteprotective measures are correspondingly temporary. In our view the judgecorrectly concluded that the protective requirements imposed by Subpart S arenot applicable to the pier hole in question. Accordingly, we affirm JudgeBullis? vacation of the citation insofar as it alleged noncompliance with thestandard at 29 C.F.R. ? 1926.800(h)(3)(i).??????????? Turningto the issue of the Secretary?s attempt, first made in his petition for review,to amend his citation pursuant to Rule 15(b) of the Federal Rules of CivilProcedure,[8] we conclude that thestandard the Secretary seeks to allege in the alternative, section 1926.652(f),is not applicable to pier holes. Indeed, the Secretary himself argues that thesection refers specifically only to ?bell-bottom pier holes,? but is silent asto ?pier holes.? The natural inference to be drawn from the language of thestandard is that the standard was not intended to cover all pier holes, onlybell-bottom pier holes, and we so hold.[9] See Marshall v. Gibson?sProducts, Inc. of Plano, 584 F.2d 668 (5th Cir. 1978).??????????? Accordingly,we deny the Secretary?s motion to amend under Rule 15(b) of the Federal Rulesof Civil Procedure and we affirm the judge?s decision to vacate the citationinsofar as it alleges Respondent?s failure to comply with the standard at 29C.F.R. ? 1926.800(h)(3)(i).?IT IS SO ORDERED.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: DEC 17, 1981\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77?383 \u00a0 MARTIN & MARTIN FOUNDATION DRILLING CONTRACTORS, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 April 10, 1978Appearances:Robert F. Maris, Esq. Dallas, TexasAttorney for the Complainant\u00a0David Fielding, Esq. Fort Worth, TexasAttorney for the Respondent\u00a0DECISION AND ORDERBULLIS, Judge:??????????? As aresult of a fatal accident on December 27, 1976, at its work site nearEdinburg, Texas, Martin & Martin Foundation Drilling Contractors, Inc.,(Martin) was inspected by representatives from the Occupational Safety andHealth Administration. Following the inspection Martin was issued a citationcharging three serious violations of the Occupational Safety and Health Act of1970, 29 USC ? 651, et seq. (the Act).??????????? Thefirst violation charged that Martin failed to comply with the provisions of 29CFR 1926.550(b)(2) by lowering one of its employees in a pier hole or shaftwhile riding the load of a truck crane.[10]??????????? Thesecond violation alleged that Martin failed to comply with safety standardsrequiring the testing of the air before an employee was placed in the pier holeor shaft.[11]??????????? Thethird violation charged Martin with failing to case the pier hole or shaft asrequired by 29 CFR 1926.800(h)(3)(i) before its employee entered the shaft orpier hole.[12]??????????? Martincontested all three of the alleged violations including the proposed penalties.In addition to denying the existence of the alleged violations, Martincontended that the first violation should be dismissed on the basis that thecitation and complaint are vague and do not describe the violation withsufficient particularity to enable it to defend against the charge. Martinfurther contended that the citation should be dismissed on the ground that itwas not issued with reasonable promptness, and that the Secretary actedimproperly in charging the first and third violations for the reason there isno causal connection between those violations and the fatal accident formingthe basis for the Secretary?s inspection.??????????? Jurisdictionis not in issue. Martin has admitted that it is an employer engaged in abusiness affecting commerce within the meaning of the Act.??????????? Thefirst and third alleged violations are vacated. The second violation isamended, and, as amended, is affirmed. A penalty of $900.00 is assessed.??????????? Onthe day of the fatal accident Martin, a subcontractor, had a crew of five menengaged in drilling pier holes for an overpass on a highway project nearEdinburg, Texas. One of the crew members dropped a shovel into a pier hole 50 feetdeep and 30 inches in diameter. The hole had been cased with steel to a depthof between 31 and 32 feet. In order to retrieve the shovel, one of the workmen,Paul Elliott, was lowered into the hole by means of a truck crane shown inExhibits C?1 and C?2. Elliott stood on a chain affixed to the bottom of areinforcing cage, 26 inches in diameter, consisting of four vertical steel barsapproximately 20 inches apart with horizontal steel rings four feet apart, asshown in Exhibits C?3, C?5, and C?6. The cage used was one of several on thesite for the purpose of being placed in the pier holes to provide reinforcementfor concrete later poured in the holes. The cage, with Mr. Elliott standing onthe chain affixed to the bottom, was lowered into the hole by the truck crane.(The above facts were stipulated into the record at the commencement of thehearing. Tr.12?15)??????????? Sometimeafter he was lowered into the hole, the other members of the crew could get noresponse from Elliott. Three other members of the crew, including the foreman,made efforts to climb down the cage to Elliott but all had to turn back becauseof difficulty in breathing and because they became lightheaded or dizzy (Tr.75,76, 85). One of the crew members got within 10 or 15 feet of Mr. Elliott.(Tr.95) After about 30 minutes Elliott was brought up, unconscious, by the samemeans he was lowered into the hole (Tr.96).??????????? Theday following the accident Roger Frazier, a compliance officer with theOccupational Safety and Health Administration, conducted an investigation(Tr.102). At the time of his investigation the hole where the accident occurredhad been filled with cement. Frazier, however, conducted tests of the air in anewly drilled hole about ten feet away from the filled-in-hole and discoveredit to be deficient in oxygen (Tr.111, 113). He also determined that Martin hadnot tested the air for contaminants or for oxygen deficiency prior to loweringElliott into the hole. Nor did Martin have any equipment on site for testingeither the quality or quantity of air in the pier holes (Tr.150). Exhibit C?8is a chart showing the results of the tests conducted by Frazier.??????????? Martinhad cased the hole in question with steel to a depth of 31 to 32 feet,believing it to be sufficient to eliminate caving. In reaching this conclusionMartin relied on penetrometer tests conducted in test holes drilled at the siteto determine the consistency of the soil (Tr.189, 190).??????????? M.F.Martin, president of Martin, and John B. Watson, president of Watson,Incorporated, a manufacturer of drilling equipment, both testified it wasindustry practice to case pier holes to depths indicated by penetrometer teststo be sufficient to hold out earth and hydrostatic pressures (Tr.22, 23, 28,29, 189, 190, 197, 198). Watson had been engaged in the drilling constructionbusiness from 1947 to 1973, and in 1971 and 1972 had served as president of theDrilling Contractors Association, an international organization formed toestablish standards and to advance the industry of drill pier construction. Histestimony, in essence, was that casing is put into the pier hole down tonon-caving material and the hole is then excavated through the casing to adepth required by the design engineer to support the designed loan (Tr.22).Both he and Mr. Martin were of the view that if the pier hole was cased to thebottom it would lessen side shear and adversely affect the bearing capacity ofthe pier (Tr.24, 25, 199). This view was supported by John Breeding, anindustrial hygienist and safety engineer, who served as a compliance officerwith the Occupational Safety and Health Administration for two years in 1974and 1975 (Tr. 161, 162). Mr. Breeding also stated it was OSHA?s practice torequire casing to firm and stable soil (Tr.161).??????????? Martin,Watson, and Breeding were all of the opinion that casing to depths sufficientto keep out earth and hydrostatic pressures was sufficient to allow a man toenter the pier hole with safety (Tr.39, 40, 161, 198). Neither complianceofficer Frazier nor Charles G. Flagg, a soil and foundation engineer with theCorps of Engineers, agreed that reliance on penetrometer tests is a safepractice. Frazier pointed out that the material in the hole, based uponinformation from the test holes, was jointed and not solid and was prone toslipping (Tr.130?132). Flagg also pointed out that, according to informationfrom the test holes, the material was jointed and that Corps of Engineersregulations prohibited the placing of a man in the hole without casing to solidrock. His view was that while penetrometer tests indicate the consistency ofthe soil mass, a determination whether it will cave cannot necessarily bedetermined by such readings (Tr. 209?212).??????????? Oncross-examination Mr. Frazier agreed that riding the cage lowered by the truckcrane had nothing to do with the fatal accident he investigated and stated thathe would not have recommended a citation for riding the crane load had a bettercage been used (Tr.128, 139). The danger, in his opinion, was not from the useof the crane to lower a person into the hole, but from the possibility offalling out of the cage or getting a part of the body?an arm, leg, orhead?caught as it was lowered (Tr.105, 146, 147). All witnesses agreed thatthere were no commerically manufactured devices for lowering a man into a pierhole and that contractors generally fabricate their own devices (Tr.33, 165,208). Mr. Flagg testified that if a man is lowered into a pier hole, it shouldbe done by use of a boatswain?s chair with another life support line attached(Tr.206). Mr. Martin testified that in a hole more than 20 feet deep the use ofa truck crane was a safer device for lowering a man into the hole than a handwinch (Tr.193). He also stated that it was only necessary to place a man inabout 10 to 15 percent of the pier holes for the purpose of cleaning out loosedebris that may have fallen in during the drilling operation (Tr.195). Mr.Breeding testified that it was OSHA?s practice to issue citations for riding acrane load only in above ground operations (Tr. 164).??????????? Inits answer and in a motion to dismiss, Martin contended that the citation wasnot issued with reasonable promptness and must, therefore, be dismissed. Theinspection occurred between December 28th and 30th, 1976. The citation wasissued on January 11, 1977. While section 9(a) of the Act requires that acitation be issued ?with reasonable promptness? after an inspection, theCommission has ruled that a reasonable delay, in itself, is not sufficientgrounds to vacate a citation. A showing must also be made that the delay inissuing the citation has caused some prejudice in defendant against thecharges. Secretary of Labor v. ParConstruction Co., Inc., 76 OSAHRC 133\/Bll, BNA 4 OSHC 1779, CCH 1976?77OSHD ?21,216 (No. 11092, 1976). Martin has made no showing of prejudice. Therecord contains no evidence showing that the 12 day delay in issuing thecitation in any way affected Martin?s ability to investigate the charges or todefend itself.??????????? Martinalso contends that the first alleged violation (Item 1) should be dismissed onthe ground that the complaint and citation did not set forth the nature of theviolation with the particularity required by section 9(a) of the Act that,because of the vagueness of the allegations, he was not sufficiently apprisedof the nature of the violations so that he could properly defend against thecharges.??????????? TheSecretary?s complaint sets forth only the language of the regulation, andthrough an obvious typographical error, cited a non-existent subsection, (n),rather than subsection (b). The complaint also failed to specify the particularsection of the applicable ANSI standard. The citation, however, although notspecifying the particular section of the ANSI standard, set forth the violationas follows:On 12\/27\/76 at about 12:45 p.m. anemployee was lowered slightly more than 40 feet below ground level in pier holeor shaft while riding the load (reinforcing basket) being suspended and loweredby employer?s McElroy-Roland Truck Crane SN 794 1421 operated by an employer?semployee.????????????? Thepurpose of pleadings, as well as the particularity requirement of section 9(a),is to put the employer on notice as to the alleged violation. Secretary v. Gannett Corp., 4 OSHRC1383, BNA 4 OSHC 1383, CCH 1976?77, OSHD ?20, 915 (No. 6352, 1976).??????????? Thecitation clearly informed Martin that the vice it was charged with was loweringan employee into a pier hole by use of a truck crane. Nonetheless, that allegedviolation will be vacated. Not because the citation did not set forth the chargewith particularity, but because the Secretary has failed to prove the violationcharged.??????????? Theapplicable ANSI standard prohibits the operation of a crane while anyone is onthe load or hook. The obvious unsafe practice that standard was intended toguard against is that of an employee borrowing or hitching a ride on a craneload or hook to save himself the trouble of reaching his destination by moretedious, albeit safer, means. Here, the employee was not hitching a ride on theload or hook. He was the designed load, the purpose of which was to lower himinto the pier hole. No other method was available to place the employee in thehole, nor did the Secretary suggest a different or safer mechanism as thesource of power for lowering the employee. The compliance officer testifiedthat the hazard was not from the use of the crane to lower the employee intothe hole, but from the device?the reinforcing cage?in which the employee rode.The same hazard would have been present regardless of the mechanism used forlowering the cage.??????????? TheANSI standard, according to the testimony of the compliance officer, does notproscribe the use of a crane to lower a person into a pier hole, as was donehere, where a cage specifically constructed for that purpose is used. He, aswell as other witnesses, agreed that there are no commercially manufactureddevices for this purpose and that contractors must fabricate their own cages.Because the device fabricated by Martin was deemed unsafe, a citation wasissued that was totally unrelated to the hazardous condition. Such practiceshould not be tolerated and flies directly in the face of Commission dictum in National Realty and Construction Company,Inc., 72 OSAHRC 9\/A2, BNA 1 OSHC 1049, CCH 1971?73 OSHD ?15,188 (No. 85,1972).??????????? If thecage used here were deemed unsafe Martin should have been charged for thatviolation. If no specific safety standards were applicable, the general dutyclause, Section 5(a)(1) of the Act, could have been used. That, of course,would have required the Secretary to prove a recognized hazard, a burden notrequired when citing a specific standard where the existence of a hazard ispresumed. Such burden may have been difficult to carry here, but thatdifficulty does not justify the filing of a charge unrelated to the violationfound.??????????? Thethird alleged violation must also be vacated. A careful examination of theConstruction Standards requires the conclusion that Subpart S dealing with?Tunnels and Shafts, Caissons, Cofferdams and Compressed Air? is not applicableto Martin?s operation.??????????? First,the use of the term ?shaft? raises some doubt that Subpart S is applicable. Nodefinition of ?shaft? is contained in Subpart S. Nor is there a definitiondescriptive of Martin?s operation contained in Webster?s Third New International Dictionary under the term?shaft?. The only definition in Webster under ?shaft? pertaining to excavationsis ?4: Any of various long hollow structures: as a(1): a vertical or inclinedopening of uniform and limited cross section made for finding or mining ore,raising water, or ventilating underground workings?compare ADIT (2): a passageresembling a mine shaft in structure or function (as in a cave or a pyramid)?.??????????? Secondly,language contained in the cited standard, 29 CFR 1926.800(h)(3)(i), enhancesthe doubt that Subpart S applied. It speaks of ?small diameter shafts, whichemployees are required to enter, . ..? (emphasis added). Such language would normally have reference to shaftsdesigned for employees to enter in traveling to a place of work such as a mineor other underground structure, an interpretation consonant with Webster?sdefinition. Compare this language to language contained in 1926.651(i) underSubpart P of the Construction Standards dealing with ?Excavations, Trenching,and Shoring?, referring to excavations which ?employees may be required to enter? (emphasis added). The terminology ?may berequired to enter? is much more descriptive of Martin?s excavations than is thelanguage contained in the cited standard. Martin?s pier holes were not designedfor employees to enter, and only 10 to 15 percent were in fact entered in orderto clean out dirt that may have been left by the drilling operation, or, ashere, to retrieve a shovel dropped in the hole.??????????? Furtherexamination of Subpart P makes it clear that this is the Subpart intended tocover Martin?s type of operation, not Subpart S. Subpart P defines the term?excavation? as ?any man made cavity or depression in the earth?s surface, . ..?, clearly descriptive of Martin?s operation. The witnesses generally referredto Martin?s operation as the drilling of pier holes. Subpart P, in 29 CFR1926.652(f), sets forth the casing requirements to protect employees enteringbell-bottom pier holes, requiring such pier holes to be cased to the top of thebell.??????????? TheSubpart S requirements, if applicable, would require Martin?s pier holes to becased to the full depth of the hole and extend one foot above ground. It doesnot seem logical that casing requirements for non-belled pier holes wereintended to be more stringent than for belled holes, which, by their nature,are more prone to caving. Since Subpart P specifically covers the casingrequirements for bell-bottom pier holes, logic would suggest that therequirements for all pier holes are covered by that Subpart and that Subpart Srefers only to the type of shaft under the usual definition as contained inWebster. Such an interpretation finds support from the testimony of Mr.Breeding, a former OSHA compliance officer, who indicated that was theinterpretation explained to him when employed by OSHA (Tr. 182?3).??????????? SubpartP contains provisions requiring support for the protection of employees who maybe required to enter excavations such as here. For example, 29 CFR 1926.651(c)requires the ?walls and faces of all excavations in which employees are exposedto danger from moving ground? to be guarded by a shoring system or otherequivalent means. Subsection (k) requires support systems in excavations morethan 20 feet deep to be designed by a qualified person.??????????? Theevidence indicates Martin took the necessary precautions required by Subpart Pto afford protection to his employees. The hole was cased to 31 or 32 feet, adepth sufficient, in Martin?s view, based on penetrometer tests to protect thehole from caving and from hydrostatic pressures. That position was supported bythe former president of the Drilling Contractors Association and by a formerOSHA compliance officer. While the inspecting officer and a soil and foundationengineer with the Corps of Engineers did not agree that casing to 31 or 32 feetwas sufficient to assure protection to an employee entering the hole, neitherwas aware of any injuries caused by caving in a hole such as the present one.The preponderance of evidence shows the hole to be safe from caving and at thesame time provide the greatest possible load bearing capacity to the pier.??????????? Aviolation of the Act for failing to test the air in the pier hole forcontaminants or oxygen deficiency prior to placing employee Elliott in the holeis found. While the standards cited are contained in Subpart S, and, as pointedout above, are not applicable to the excavations here, similar air testingrequirements are contained in Subpart P and the citation and complaint areamended, sua sponte, to allege a violation of the Act for failing to complywith 29 CFR 1926.651(v).[13]??????????? Noprejudice will result to Martin by this amendment. It does not in any waychange the theory upon which the case was tried. The citation charged a failureto test the quality of the air in the pier hole and a failure to test the airfor oxygen deficiency. The amended citation likewise requires the air in theexcavation to be tested where oxygen deficiency or gaseous conditions arepossible. Martin did not contend that any tests were conducted for eithercontaminants or oxygen deficiency.??????????? Thepossibility of gaseous conditions or oxygen deficiency indicating a need fortesting the air before placing a man in pier holes is clearly shown by theevidence. Not only did the three employees who attempted to go down the hole torescue Elliott experience difficulty in breathing, tests conducted by the complianceofficer the next day in a hole nearby showed an oxygen deficiency. Of even moreimportance is the testimony of Mr. Watson, the former president of the DrillingContractors Association and a person with considerable experience in drillingpier holes, who stated that while the presence of noxious substances or oxygendeficiency is not a common occurrence, it occurs frequently enough so thatthose in the industry are aware of it (Tr.51?52). He himself had been in holeswhere oxygen was deficient and had smelled noxious gases in drilled holes.??????????? Awarenessby those in the industry that the presence of gaseous conditions or oxygendeficiency can occur in drilled pier holes requires compliance with the amendedstandard. Clearly that was not done and a finding that the Act was violatedmust be found.??????????? Afinding must also be made that the violation was serious. To establish aserious violation it is not necessary to show that an accident is likely tooccur because of the violation. It need only be shown that should an accidentoccur as a result of the violation, the probable result would be death orserious bodily injury. Secretary of Laborv. Wisconsin Electric Power Co., 76 OSAHRC 134\/A9, BNA 4 OSHC 1783, CCH1976?77 OSHD ?21,234 (No. 5209, 1976). The result here is clear evidence thatthe violation was serious.??????????? TheSecretary proposed a penalty of $900.00 for the violation found. At thecommencement of the hearing the parties stipulated that the proposed penaltieswould be reasonable and appropriate if the violations were found (Tr.11). Uponbeing informed that such a stipulation would not necessarily bind theCommission, the stipulation was withdrawn.??????????? Whilethe determination of an appropriate penalty is a function of the ReviewCommission under the Act, the Commission has held that where the parties haveagreed on the appropriateness of a proposed penalty and no affected employeesor their representatives have objected to the agreed penalty, and it is notrepugnant to the purposes of the Act, the Commission will refrain fromexercising its right to make a de novo penalty assessment. Secretary v.Thorleif Larson and Son, Inc., 74 OSAHRC 74\/C8, BNA 2 OSHC 1256, CCH 1971?73OSHD ?14,460 (No. 370, 1974).??????????? Eventhough the stipulation that the proposed penalty was appropriate was withdrawn,the suggested penalty was supported by the testimony of the compliance officer.There is nothing in the record indicating it to be repugnant to the purposes ofthe Act nor was any evidence offered suggesting the proposed penalty to beinappropriate. Accordingly, the proposed penalty of $900.00 is found to beappropriate for the serious violation proved.??????????? Fromthe entire record the following Findings of Fact and Conclusions of Law aremade:FINDINGS OF FACT??????????? 1.Martin is an employer engaged in a business affecting interstate commerce.??????????? 2. OnDecember 27, 1976, near Edinburg, Texas, one of Martin?s employees was loweredinto a pier hole by means of a truck crane while inside a reinforcing cage. Theemployee was not riding the load or hook of the crane but was part of thedesigned load.??????????? 3.The pier hole excavated by Martin was cased with steel to a depth of 31 to 32feet. The casing was sufficient to protect the pier hole from caving and thehole was safe for an employee to enter.??????????? 4. OnDecember 27, 1976, near Edinburg, Texas, Martin did not test the air in a pierhole for oxygen deficiency or contaminants before placing an employee in thehole. Martin did not have any equipment at its work site for testing thequality or quantity of air in the pier hole.??????????? 5. Apenalty of $900.00 is appropriate for the above violation.CONCLUSIONS OF LAW??????????? 1.The Commission has jurisdiction of the parties and subject matter of theseproceedings.??????????? 2. OnDecember 27, 1976, Martin was not in violation of the Act for failure to complywith 29 CFR 1926.550(b)(2).??????????? 3. OnDecember 27, 1976, Martin was not in violation of the Act for failure to complywith 29 CFR 1926.800(h)(3)(i).??????????? 4. OnDecember 27, 1976, Martin was in serious violation of the Act for failure tocomply with 29 CFR 1926.651(v).??????????? Fromthe foregoing Findings of Fact and Conclusions of Law it is ORDERED:??????????? 1.Item 1 of Citation 1 is vacated.??????????? 2.Item 2 of Citation 1 is amended to allege a violation of the Act for failure tocomply with 29 CFR 1926.651(v). As amended, Item 2 is affirmed and a penalty of$900.00 is assessed.??????????? 3.Item 3 of Citation 1 is vacated.??HAROLD O. BULLISAdministrative Law JudgeDated: April 10, 1978[1] The standard at29 C.F.R. ? 1926.800(h)(3)(i) provides:?1926.800 Tunnels and shafts.(h)Ground support?(3)Shafts. (i) Small diameter shafts, which employees are required to enter, shallbe provided with a steel casing, concrete pipe, timber, or other material ofrequired strength to support the surrounding earth.[2] ?Pier hole? isnot defined in the Secretary?s standards. The term describes a hole that isdrilled in the earth and then filled with concrete in order to form a verticalsupporting member?a pier?similar to a pillar, but underground.[3] ?Casing? is notdefined in the Secretary?s standards. The term refers to a method of lining theinside of a hole with material of sufficient strength to prevent sloughing orcaving of the walls.[4] The standard at29 C.F.R. ? 1926.652(f) states in pertinent part:Employees entering bell-bottom pierholes shall be protected by the installation of a removable-type casing ofsufficient strength to resist shifting of the surrounding earth. Such temporaryprotection shall be provided for the full depth of that part of each pier holewhich is above the bell.[5] The standard at29 C.F.R. ? 1926.800(h)(3)(ii) provides:Thecasing and bracing shall be provided the full depth of the shaft, or at least 5feet into solid rock if possible, and shall extend at least 1 foot above groundlevel.[6] The Secretary?smotion to amend is made in a footnote in his petition for review. There, theSecretary quotes a portion of ? 1926.652(f) that requires that:Alifeline, suitable for instant rescue and securely fastened to a shoulderharness, shall be worn by each employee entering the shafts. This lifelineshall be individually manned and separate from any line used to removematerials excavated from the bell footing.The Secretary argues that, if thisstandard were applicable, then Martin would additionally be in violation forfailure to provide an adequate lifeline. Accordingly, it is not clear whetherthe attempted amendment is based on the failure to case fully, the failure toprovide a lifeline, or both. Nevertheless, for the reasons set forth infra, the Commission need not make thisdetermination.[7] See the standards at 29 C.F.R. ??1926.800(a)(3), (a)(6), (c)(2)(ii), (e)(1)(ii), and (e)(1)(v).[8] Fed. R. Civ. P.15(b) reads as follows:Whenissues not raised by the pleadings are tried by express or implied consent ofthe parties, they shall be treated in all respects as if they had been raisedin the pleadings. Such amendment of the pleadings as may be necessary to causethem to conform to the evidence and to raise these issues may be made uponmotion of any party at any time, even after judgment; but failure so to amenddoes not affect the result of the trial of these issues. If evidence isobjected to at the trial on the ground that it is not within the issues made bythe pleadings, the court may allow the pleadings to be amended and shall do sofreely when the presentation of the merits of the action will be subservedthereby and the objecting party fails to satisfy the court that the admissionof such evidence would prejudice him in maintaining his action or defense uponthe merits. The court may grant a continuance to enable the objecting party tomeet such evidence.[9] The Commissionneed not decide whether another section of Subpart P or the ?general dutyclause,? i.e., section 5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1), may governpier holes because all issues relevant to these sections were not tried and anamendment on review is therefore not appropriate. See Mississippi Power & Light Co., 79 OSAHRC 109\/D12, 7 BNAOSHC 2036, 1980 CCH OSHD ?24,146 (No. 76?2044, 1979).[10] 29 CFR1926.550(b)(2) reads: ?All crawler, truck, or locomotive cranes in use shallmeet the applicable requirements for design, inspection, construction, testing,maintenance and operation as prescribed in the ANSI B30.5?1968, Safety Code forCrawler, Locomotive and Truck Cranes.?ANSI ? 5?3.2.3.(e) reads: ?Theoperator shall not hoist, lower, swing, or travel while anyone is on the loador hook.?[11] 29 CFR 1926.800(c)(1)(i)reads: ?Instruments shall be provided to test the atmosphere quantitatively forcarbon monoxide, nitrogen dioxide, flammable or toxic gases, dusts, mists, andfumes that occur in the tunnel or shaft. Tests shall be conducted as frequentlyas necessary to assure that the required quality and quantity of air ismaintained. A record of all tests shall be maintained and be kept available.?29 CFR 1926.800(c)(1)(ii) reads:?Field-type oxygen analyzers, or other suitable devices, shall be used to testfor oxygen deficiency.?[12] 29 CFR1926.800(h)(3)(i) reads: ?Small diameter shafts, which employees are requiredto enter, shall be provided with a steel casing, concrete pipe, timber, orother material of required strength to support the surrounding earth.?[13] 29 CFR1926.651(v) reads: ?In locations where oxygen deficiency or gaseous conditionsare possible, air in the excavation shall be tested. Controls, as set forth inSubparts D and E of this part, shall be established to assure acceptableatmospheric conditions. When flammable gases are present, adequate ventilationshall be provided or sources of ignition shall be eliminated. Attendedemergency rescue equipment, such as breathing apparatus, a safety harness andline, basket stretcher, etc., shall be readily available where adverseatmospheric conditions may exist or develop in an excavation.?”