“\ufeff\t\tMILLER CONSTRUCTION COMPANY, OSHRC DOCKET NO. 12750\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0; margin-bottom:0; font-family:Calibri; font-size:11pt; color:WindowText; } p { font-family:Calibri; font-size:11pt; } p.style_Normal { } span.style_DefaultParagraphFont { } table.style_TableNormal { } table.style_TableGrid { } p.style_FootnoteText { line-height:1; font-size:10pt; } .style_FootnoteText span { } span.style_FootnoteTextChar { font-size:10pt; } .style_FootnoteTextChar span { } span.style_FootnoteReference { position:relative;font-size:0.58em; bottom: 1ex;} .style_FootnoteReference span { position:relative;font-size:0.58em; bottom: 1ex;} p.style_Header { line-height:1; } span.style_HeaderChar { } p.style_Footer { line-height:1; } span.style_FooterChar { } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:96px;margin-top:96px;margin-bottom:96px;margin-right:96px;} div.basic { width:16.51cm;height:22.86cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Complainant,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t v.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOSHRC DOCKET NO.\t\t\t\t\t\t\t\t\t12750\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMILLER CONSTRUCTION COMPANY,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Respondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tDecember 28, 1976\t\t\t\t\t\t\t\t\t\tDECISION\t\t\t\t\t\t\t\t\t\tBEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.\t\t\t\t\t\t\t\t\t\tBY THE COMMISSION:\t\t\t\t\t\t\t\t\t\tA decision of Review Commission Judge William J.\t\t\t\t\t\tRisteau, dated December 1, 1975, is before this Commission for review pursuant to 29 U.S.C. \u00a7 661(i).\t\t\t\t\t\t\t\t\t\tHaving examined the record in its entirety, the Commission finds that the Judge properly decided the case and adopts his decision which is attached hereto as Appendix A.1\t\t\t\t\t\tAccordingly, the Judge\u2019s decision is hereby affirmed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOR THE COMMISSION:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWilliam S. McLaughlin\t\t\t\t\t\t\t\t\t\tExecutive Secretary\t\t\t\t\t\t\t\t\t\tDATED: DEC 28, 1976\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCLEARY, Commissioner, DISSENTING:\t\t\t\t\t\t\t\t\t\tI respectfully dissent.\t\t\t\t\t\tFirst of all, the majority fails to rule upon the Secretary\u2019s exceptions to the Administrative Law Judge\u2019s decision, something plainly required under 5\t\t\t\t\t\tU.S.C. section 557 when the Commission exercises its discretion to review an Administrative Law Judge\u2019s decision.\t\t\t\t\t\t\t\t\t\tMore importantly, in my opinion the Secretary proved the violations alleged in the citation and complaint and the Judge\u2019s decision vacating the items of the citation alleging noncompliance with the standards at 29 CFR \u00a7 1926.652(e)2\t\t\t\t\t\tand 29 CFR \u00a7 1926.651(i)(1)3\t\t\t\t\t\tshould be reversed.\t\t\t\t\t\t\t\t\t\tRespondent, a utilities and grading contractor, was engaged in the installation of an underground waterline when its worksite was inspected. As a result of the inspection, respondent was issued a citation alleging a nonserious violation of the Act for failure to comply with the\t\t\t\t\t\taforementioned standards.4\t\t\t\t\t\tRespondent contested the citation and a hearing was held.\t\t\t\t\t\t\t\t\t\tAt the hearing, the compliance officer who had conducted the inspection was unable to appear and testify because of illness. The evidence of record regarding the dimensions of the trench and the general characteristics of the worksite was derived from the testimony of respondent\u2019s president and its foreman.5\t\t\t\t\t\tTheir testimony is discussed infra, so far as is relevant to each of the alleged violations.\t\t\t\t\t\t\t\t\t\tI.\t\t\t\t\t\t\t\t\t\tRegarding the alleged noncompliance with \u00a7 1926.652(e), the Judge held that: (1) the standard applies only to trenches that are five feet or more in depth, and (2) the record does not establish that the involved trench was of the required depth. The majority upholds these conclusions. I believe that each of them is erroneous.\t\t\t\t\t\t\t\t\t\tFirst, my colleagues err in upholding an interpretation of \u00a7 1926.652(e) that reads a depth restriction into the standard. The Judge stated:\t\t\t\t\t\t\t\t\t\t[T]he cited regulation makes no reference to depth of trenches to which it applies. Since, however, related provisions [29 CFR 1926.652(b) and (c)] cover trenches only 5 feet or more in depth, 29 CFR 1926.652(e), which deals with precautions \u2018additional\u2019 to those provided for in the other paragraphs, must have the same depth limitation as they do.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe observation that the cited standard does not specify any depth restriction is correct. I disagree, however, with the conclusion drawn from this fact.\t\t\t\t\t\t\t\t\t\tThat paragraphs (b) and (c) of the \u00a7 1926.652 trenching standards apply to trenches \u20185 feet or more in depth\u2019 and \u2018more than 5 feet in depth,\u2019 respectively, does not mandate that a similar depth restriction be read into \u00a7 1926.652(e). In fact, other paragraphs of \u00a7 1926.652 specify less restrictive depth restrictions, e.g., \u00a7 1926.652(a) (\u2018Trenches less than 5 feet in depth shall also be effectively protected when examination of the ground indicates hazardous ground movement may be expected\u2019) and \u00a7 1926.652(h) (\u2018When employees are required to be in trenches 4 feet deep or more, an adequate means of exit . . . shall be provided\u2019). It is, therefore, reasonable to conclude that where specific depth limitations were intended to apply, they were expressly included in the standards. Inasmuch as no depth limitation appears in \u00a7 1926.652(e), it should be concluded that none was meant to apply.6\t\t\t\t\t\t\t\t\t\tThe error is compounded by an erroneous interpretation of the term \u2018additional precautions\u2019 as used in \u00a7 1926.652(e). The interpretation upheld by the majority apparently gives meaning to the term only if some precautionary measure such as\t\t\t\t\t\tshoring\t\t\t\t\t\tor sloping is initially required under \u00a7\u00a7 1926.652(b) or (c). Again, in my opinion, the standard has been construed too narrowly.\t\t\t\t\t\t\t\t\t\tThat trenches less than five feet deep pose potential hazards is evident from standards such as \u00a7\u00a7 1926.652(a) and (h),\t\t\t\t\t\tsupra. Furthermore, as evidenced by the adoption of \u00a7\u00a01926.652(e), the Secretary has determined that trenches or excavations pose a greater hazard of collapse when they are dug adjacent to backfilled areas or are subject to vibrations. This\t\t\t\t\t\tincreased likelihood of collapse is not limited to trenches that are five feet or more in depth. Therefore, although a trench may be shallower than five feet and would not usually require shoring or bracing, where an increased danger of collapse exists due to the presence of backfill or vibrations, it is required that precautionary measures be taken.\t\t\t\t\t\t\t\t\t\tWhen viewed in this manner, the precautionary measures that \u00a7 1926.652(e) requires are, indeed, \u2018additional precautions.\u2019 I submit that this approach, and not that adopted by the majority, gives effect to the underlying purposes of the standards and the Act.\t\t\t\t\t\t\t\t\t\tAssuming arguendo that the standard does apply only to trenches and excavations that are at least five feet deep, there is persuasive evidence indicating that a portion of the involved trench was of the required depth. On this issue, respondent\u2019s president testified on direct examination by the Secretary as follows:\t\t\t\t\t\t\t\t\t\tSECRETARY: Q. How deep was this trench?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRESPONDENT: A. Oh, it was between four and five feet, a little more. In the neighborhood\u2014I didn\u2019t measure it.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY: Q. Was it the same depth the entire length?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRESPONDENT: A. No. It got deeper as you go back to the old waterline.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY: Q. What was the deepest\u2014what was the depth around the old waterline?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRESPONDENT: A.\t\t\t\t\t\tI would have to guess somewhat near six feet\t\t\t\t\t\t(emphasis added).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThis admission provides much probative force for concluding that a portion of the trench was at least 5 feet in depth. Contrary to the Judge\u2019s suggestion, although precise measurements may be highly desirable, their absence does not require dismissal of a citation. As was stated in\t\t\t\t\t\tStephenson Enterprises, Inc., 4 BNA OSHC 1702, 1976\u201377 CCH OSHD para. 21,120 (No. 5873, 1976), \u2018Estimations of distance based on observations are admissible and may be dispositive in the absence of proof to the contrary. Fed. R.\t\t\t\t\t\tEvid. 701.\u2019\t\t\t\t\t\t\t\t\t\t\u00a0\u00a0The record shows that a portion of the trench was dug in a backfilled area and that the trench was subject to vibrations from machinery and traffic. It is undisputed that the trench was neither shored nor braced and there is no question that respondent\u2019s employees had access to this hazardous condition. As illustrated above, the evidence shows that portions of the trench were\t\t\t\t\t\tdeeper than 5 feet. Therefore, even under the majority\u2019s narrow view, a violation was\t\t\t\t\t\testablished\t\t\t\t\t\tand the citation should be affirmed.\t\t\t\t\t\t\t\t\t\tII.\t\t\t\t\t\t\t\t\t\tThe majority has also affirmed the Judge\u2019s vacation of the citation alleging noncompliance with \u00a7 1926.651(i)(1).7\t\t\t\t\t\tThe Judge concluded that this alleged violation also involves a measurable distance and that the evidence of record was inconclusive as to how far the excavated material was stored and retained from the edge of the trench. I believe that the evidence shows that respondent failed to comply with the standard.\t\t\t\t\t\t\t\t\t\tThe standard requires that \u2018excavated or other material shall be\t\t\t\t\t\teffectively\t\t\t\t\t\tstored and retained\t\t\t\t\t\tat least\t\t\t\t\t\t2 feet or more from the edge\u2019 (emphasis added). Respondent\u2019s foreman testified that a \u2018spoils bank\u2019 was located on the east side of the trench. He estimated the spoils bank to be about three feet high and about six to eight feet wide. His testimony regarding its proximity to the edge of the trench was as follows: Direct examination:\t\t\t\t\t\t\t\t\t\tSECRETARY: Q. Now, how far from the edge of the trench was the spoils bank?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOREMAN: A. I don\u2019t know; two feet, probably.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETAR: Q. Could it have been less than two feet?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOREMAN: A.\t\t\t\t\t\tSome of it could have been.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCross examination:\t\t\t\t\t\t\t\t\t\tRESPONDENT: Q. Now, Mr.\t\t\t\t\t\tEverheart\t\t\t\t\t\tasked you if the spoils bank could have been closer than two feet to the edge of the trench. Could it have been farther back than two feet from the edge of that trench?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOREMAN: A. The top of it was. You know now you throw it back and it slopes down.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRedirect examination:\t\t\t\t\t\t\t\t\t\tSECRETARY: Q. Mr.\t\t\t\t\t\tO\u2019Bannion, you would have, at certain areas you would have on\t\t\t\t\t\tthis spoils\t\t\t\t\t\tbank you would have a slope from the spoils bank up to the level? Was that the way it was?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOREMAN: A. Yes, sir.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY: Q.\t\t\t\t\t\tSo\t\t\t\t\t\tthe lower part of the slope of the spoils bank was on the edge of the trench, wasn\u2019t it?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOREMAN: A. Not right on the edge, no.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY: Q.\t\t\t\t\t\tRight next to the edge?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOREMAN: A. Yeah.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY: Q. Less than two feet?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOREMAN: A. You could walk along up there (emphasis added).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFurthermore, photographs of the trench were entered into evidence. Regarding these pictures respondent\u2019s soil expert testified as follows on direct examination:\t\t\t\t\t\t\t\t\t\tRESPONDENT: Q. Now, on prosecution\u2019s Exhibits C\u20131 and C\u20132, you can see what the prosecution claims is a spoils bank on the east side of the trench . . .\t\t\t\t\t\t\t\t\t\tCan you determine, from just those pictures,\t\t\t\t\t\twhether or not\t\t\t\t\t\tthat is a spoils bank or whether that is loose material?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWITNESS: A. Well, from these pictures, of course, you can\u2019t tell the exact location or height or width of the spoils bank.\t\t\t\t\t\tYou can tell there is some loose material at the edge of the ditch.\t\t\t\t\t\tBut there is no significant depth to it . . . (emphasis added).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThis testimony clearly shows that there was excavated material closer than two feet to the edge of the trench. The actual amount of such material, however, is unclear. The Secretary argues that \u2018as long as material is located within two feet of the trench, even though it is an insignificant amount, a violative condition exists.\u2019 I agree. If, however, the amount of excavated material stored closer than two feet to the edge of the trench is so insignificant as to pose a hazard that is merely trifling, the violation should be classified as de minimis. Pana Shoe Corp., 4 BNA OSHC 1635, 1976\u201377 CCH OSHD para. 21,033 (No. 5656, 1976).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAPPENDIX A\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Complainant,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t v.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOSHRC DOCKET NO.\t\t\t\t\t\t\t\t\t12750\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMILLER CONSTRUCTION COMPANY,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Respondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tDecember 1, 1975\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDECISION AND ORDER\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAppearances:\t\t\t\t\t\t\t\t\t\tWilliam E.\t\t\t\t\t\tEverheart, Esq., of Dallas, Texas, for the Secretary of Labor\t\t\t\t\t\t\t\t\t\tMr. Michael\t\t\t\t\t\tSeney, Association of Oklahoma General Contractors, Tulsa, Oklahoma, for the Respondent\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tMr. Kenneth Newman, Oklahoma Municipal Contractors Association, Tulsa, Oklahoma, for the Respondent\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tRisteau, Judge:\t\t\t\t\t\t\t\t\t\tThis is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter called the Act), in which the respondent contests a citation issued by the complainant pursuant to section 9(a) of the Act. The citation, which was issued on March 4, 1975, alleges that as the result of an inspection on February 11, 1975, of a workplace under the ownership, operation or control of the respondent, located at East 61st Street and Maplewood, Tulsa, Oklahoma, and described as: \u2018Installation of water line,\u2019 respondent violated Section 5(a)(2) of the Act in the following manner:\t\t\t\t\t\t\t\t\t\tNONSERIOUS VIOLATION8\t\t\t\t\t\t\t\t\t\tItem No. Standard\t\t\t\t\t\t\t\t\t\tDescription of Alleged Violation\t\t\t\t\t\t\t\t\t\t2A 29 CFR 1926.651(i)(1)\t\t\t\t\t\t\t\t\t\tIn excavations which employees were required to enter, excavated or other material was not effectively stored and retained at least 2 feet or more from the edge of the excavation; i.e., the spoil bank located along the east side of the trench.\t\t\t\t\t\t\t\t\t\t2b 29 CFR 1926.652(e)\t\t\t\t\t\t\t\t\t\tadditional precautions by way of shoring and bracing were not taken to prevent slides or cave-ins when excavations or trenches were made in locations adjacent to backfilled excavations, or where\t\t\t\t\t\texcations\t\t\t\t\t\t(sic) are subjected to vibrations from railroad or highway traffic, the operation of machinery, or any other source.\t\t\t\t\t\t\t\t\t\tThe cited standards provide:\t\t\t\t\t\t\t\t\t\tStandard\t\t\t\t\t\t\t\t\t\t1926.651(i)(1)\t\t\t\t\t\t\t\t\t\tIn excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1926.652(e)\t\t\t\t\t\t\t\t\t\tAdditional precautions by way of shoring and bracing shall be taken to prevent slides or cave-ins when excavations or trenches are made in locations adjacent to backfilled excavations, or where excavations are subjected to vibrations from railroad or highway traffic, the operation of machinery, or any other source.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tPursuant to the enforcement procedure set forth in Section 10(a) of the Act, respondent was notified on March 4, 1975, by J. T.\t\t\t\t\t\tKnorpp, Director of Area 4780, Occupational Safety and Health Administration (OSHA), United States Department of Labor, of the following proposed penalty for the alleged violation:\t\t\t\t\t\t\t\t\t\tNO. SERIOUS VIOLATION: Item 2 $110\t\t\t\t\t\t\t\t\t\tAfter the filing of a Notice of Contest, Complaint, and Answer, the case came on for hearing at Tulsa, Oklahoma, on August 15, 1975.\t\t\t\t\t\t\t\t\t\tDISCUSSION\t\t\t\t\t\t\t\t\t\tOn February 11, 1975, employees of respondent were digging a trench and installing an underground water line near the intersection of East 61st Street and Maplewood in Tulsa, Oklahoma. The dimensions of the trench, as given by respondent\u2019s President, who testified for complainant and gave the only evidence on the point, are not entirely clear, since they were not\t\t\t\t\t\tmeasured and were based on guess or estimate. For discussion purposes it will be considered that the length was approximately 10 to 12 feet; the width varied from 3 to 5 feet at the top and was about 3 feet at the bottom. The depth was \u2018in the neighborhood\u2019 of 4 to 5 feet, sloping to \u2018somewhat near\u2019 6 feet (Tr. 17\u201320).9\t\t\t\t\t\tThe ends of the trench were sloped, that on the deeper end at an angle which would permit entry by walking (Tr. 31).\t\t\t\t\t\t\t\t\t\tItem 2b of the Citation\t\t\t\t\t\t\t\t\t\tUnlike other provisions of the trenching regulations, which deal with soils having specified physical characteristics,10\t\t\t\t\t\t29 CFR 1926.652(e) makes no reference to the character of the soil in which the trench is dug,\t\t\t\t\t\twith the exception of\t\t\t\t\t\ta broader reference to adjacent backfilled areas. Accordingly, complainant confined proof of soil character and stability to the fact that the deeper end of the trench was dug in backfill (Tr. 16\u201317, 19, 33). To complete the prima facie case, complainant adduced testimony that respondent\u2019s employees had worked in the trench (Tr. 21), that the trench walls were not shored or braced (Tr. 37; Ex. C 1\u2013C 2), and that motor vehicles which might create vibrations were operating in the vicinity (Tr. 16, 21\u201322).\t\t\t\t\t\t\t\t\t\tSeveral difficulties arise in the application of these facts to the alleged violation. First, the cited regulation makes no reference to depth of trenches to which it applies. Since, however, related provisions [29 CFR 1926.652(b) and (c)] cover only trenches 5 feet or more in depth, 29 CFR 1926.652(e), which deals with precautions \u2018additional\u2019 to those provided for in the other paragraphs, must have the same depth limitations as they do.\t\t\t\t\t\t\t\t\t\tThe record here does not, however, establish that the trench under consideration was more than 5 feet deep. All of the \u2018estimates\u2019 and \u2018guesses\u2019 as to depth, from \u2018between four and five\t\t\t\t\t\tfeet\u2018 to\t\t\t\t\t\t\u2018somewhat near six feet\u2019 are in a borderline violation range. The normal difficulties in evaluating the validity of subjective observations on such a close question is here compounded by the fact that the floor of the trench was not horizontal and the further fact that the ends sloped into the bottom at different angles. Moreover, the witness judged the depth of the deeper end by the fact that the pipe would have to clear the top of a perpendicular water line laid some years\t\t\t\t\t\tbefore at a nominal depth of 6 feet. Application of this criterion would appear to involve little more than speculation, particularly when the witness stated that \u2018. . . we had to uncover the old water line in order to find out how deep it was\u2019 (Tr. 19).\t\t\t\t\t\t\t\t\t\tIn like situations the Judges of this Commission have found it appropriate to dismiss charges under the trenching regulations because accurate and objective measurements were not made. See:\t\t\t\t\t\tSecretary v. Hawkins &\t\t\t\t\t\tDettor, Inc., 6 OSAHRC 502, 507 (1974);\t\t\t\t\t\tSecretary v. Protection Sprinkler Co., 12 OSAHRC 421, 427\u2013428 (1975);\t\t\t\t\t\tSecretary v. Charles Cohen, Inc.,\t\t\t\t\t\t18 OSAHRC 881 (1975). Similar action on Item 2b is warranted here.\t\t\t\t\t\t\t\t\t\tItem 2A of the Citation\t\t\t\t\t\t\t\t\t\tThe regulation cited in this Item again does not refer to the physical characteristics or stability of the soil in which an excavation or trench was dug.114 It was incumbent on complainant, therefore, to prove only that respondent\u2019s employees were required to go beneath ground level and that the material which had been dug out (the spoil bank) was not effectively stored and retained at least 2 feet from the edge of dug out area.\t\t\t\t\t\t\t\t\t\tHere again part of this proof deals with a measurable distance, and again complainant has failed to meet his burden. Respondent\u2019s job foreman, called by complainant as a witness, gave the only evidence as to the distance of the spoil bank from the edge of the excavation. He was asked: (Tr. 37)\t\t\t\t\t\t\t\t\t\tQ Now, how far from the edge of the trench was the spoil bank?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA I don\u2019t know; two foot, probably.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ Could it have been less than two foot?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA Some of it could have been.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tand again: (Tr. 43)\t\t\t\t\t\t\t\t\t\tQ So the lower part of the spoil bank was on the edge of the trench, wasn\u2019t it?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA Not right on the edge, no.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ Right next to the edge?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA Yeah.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ Less than two feet?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA You could walk up there.\t\t\t\t\t\t\t\t\t\tThis testimony, upon which complainant must rely heavily, is inconclusive. Moreover, the photographic evidence (Ex. C 1 and C 2) is similarly inconclusive. Consequently, no violation of Item 2A has been proven.\t\t\t\t\t\t\t\t\t\tFINDINGS OF FACT\t\t\t\t\t\t\t\t\t\t1. On February 11, 1975, employees of respondent were engaged in the installation of an underground water line near the intersection of East 61st Street and Maplewood, in Tulsa, Oklahoma; the work to be performed included the digging of a trench or excavation.\t\t\t\t\t\t\t\t\t\t2. Evidence received at the hearing does not establish that the trench or excavation referred to in Finding 1, above, was more than 5 feet in depth.\t\t\t\t\t\t\t\t\t\t3. Evidence received at the hearing does not establish that soil removed from the excavation (the spoil bank) was stored or retained less than 2 feet from the edge of the excavation.\t\t\t\t\t\t\t\t\t\t4. Respondent has admitted the facts underlying a nonserious violation of 29 CFR 1926.100(a), as charged in the citation, and the propriety of the proposed $25 penalty.\t\t\t\t\t\t\t\t\t\t5. Respondent has admitted that this Commission and its Judges have jurisdiction over the parties and issues raised by the citation.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCONCLUSIONS OF LAW\t\t\t\t\t\t\t\t\t\t1. This Commission and its Judges have jurisdiction to hear and decide this case.\t\t\t\t\t\t\t\t\t\t2. Respondent was, on February 11, 1975, in nonserious violation of 29 CFR 1926.100(a), a Regulation promulgated by the Secretary of Labor pursuant to the Occupational Safety and Health Act of 1970; a penalty of $25 is proper for such violation.\t\t\t\t\t\t\t\t\t\t3. Respondent was not, on February 11, 1975, in violation of 29 CFR 1926.651(i)(1) and 29 CFR 1926.652(e), regulations promulgated by the Secretary under the Act.\t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\tOn the foregoing Findings of fact, Conclusions of Law, and the entire record, it is hereby ORDERED that:\t\t\t\t\t\t\t\t\t\t1. Item 1 of the citation issued on March 4, 1975, and the proposed penalty of $25 be AFFIRMED.\t\t\t\t\t\t\t\t\t\t2. Items 2A and 2b of the same citation be dismissed and the proposed $110 penalty vacated.\t\t\t\t\t\t\t\t\t\tWILLIAM J. RISTEAU\t\t\t\t\t\t\t\t\t\tADMINISTRATIVE LAW JUDGE\t\t\t\t\t\t\t\t\t\tDecember 1, 1975\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\” \t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1 \t\t\t\t\tChairman\t\t\t\t\t\tBarnako\t\t\t\t\t\tdoes not agree to this attachment.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2 \t\t\t\t\tThe standards\t\t\t\t\t\treads:\t\t\t\t\t\t\t\t\t\tAdditional precautions by way of shoring and bracing shall be taken to prevent slides or cave-ins when excavations or trenches are made in locations adjacent to backfilled excavations, or where excavations are subjected to vibrations from railroad or highway traffic, the operation of machinery, or any other source.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3 \t\t\t\t\tThe standard reads:\t\t\t\t\t\t\t\t\t\tIn excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4 \t\t\t\t\tThe citation also alleged a failure to comply with \u00a7 1926.100(a). Respondent admitted this violation at the hearing and a $25 penalty was assessed by the Judge.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t5 \t\t\t\t\tTwo other witnesses also testified at the hearing. Respondent called a civil engineer to testify as to the soil characteristics in the area of the worksite. The Secretary called the compliance officer\u2019s supervisor who testified regarding the penalty assessment criteria.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t6 \t\t\t\t\tIt should also be noted that in the definition of the term \u2018trench\u2019 appearing at \u00a7 1926.653(n), no minimum depth is stated, although a width restriction is set forth. The definition provides:\t\t\t\t\t\t\t\t\t\t\u2018Trench\u2019\u2014A narrow excavation made below the surface of the ground. In general, the depth is greater than the width, but the width of a trench is not greater than 15 feet.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t7 \t\t\t\t\tSee N. 3,\t\t\t\t\t\tsupra. Although classified as a \u2018specific excavation requirement,\u2019 this standard is also applicable to trenches.\t\t\t\t\t\tDobson Bros. Constr. Co., 3 BNA OSHC 2035, 1975\u201376 CCH OSHD para. 20,429 (No. 3847, 1976).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t8 \t\t\t\t\tAt the hearing respondent admitted to Item 1 of the Citation charging a violation of 29 CFR 1926.100(a) for which a penalty of $25 was proposed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t9 \t\t\t\t\tComplainant\u2019s brief (P.2) treats this testimony as admission or agreement by respondent that part of the trench was more than 5 feet deep. This position is untenable, in the eyes of the undersigned. The gist of the testimony on the depth question, as discussed in the body of this decision, is that witness did not know or was not sure of the facts. Moreover, the record fails to show that the witness was hostile or not telling the truth.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t10 \t\t\t\t\t29 CFR 1926.652(b) applies to \u2018unstable or soft\u2019 soils; 29 CFR 1926.652(c) covers those which are \u2018hard or compact\u2019.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t11 Under applicable regulations, [29 CFR 1926.653(f)] a trench is also an excavation; although the language of Items 2A and 2b differs, both Items refer to the same cavity in the earth\u2019s surface.\t\t\t”