“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78?2125 \u00a0 S. ZARA & SONS CONTRACTING CO., INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January 29, 1982DECISIONBefore:CLEARY and COTTINE, Commissioners.*BYTHE COMMISSION:??????????? Adecision of Administrative Law Judge Jerome C. Ditore 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 Ditoremodified the Secretary?s amended citation which alleged that Respondent(?Zara?) had committed a willful and repeated violation of the Act for failingto comply with the standard at 29 C.F.R. ? 1926.651(c).[1] The judge concluded thatthe violation was repeated but not willful in nature, and he assessed a $3,000penalty. Commissioner Cleary directed review of the judge?s decision.[2] We conclude that the judgeerred in failing to find the violation willful in nature, and we assess a$5,000 penalty.I.??????????? Thecitation was issued after an employee of Zara was killed on March 24, 1978 inthe collapse of a manhole excavation in which he had been working. Thisexcavation was part of an extensive project for the installation of a sewerline which Zara was constructing for Nassau County, New York. The project hadcommenced in December 1977 and was still continuing at the time of the hearingin this case.[3]It was under the management of a county engineer. The county engineer alsoserved as project engineer and in that position supervised at least 20inspectors whose responsibility was to ensure that work was done according tospecifications. The specifications, which were contractual requirements imposedon the contractor, included a requirement that any excavation deeper than fivefeet be sheeted ?as required? to protect employees and that trenches beadequately shored and securely braced or sheeted where required. Thespecifications permitted the use of a trench box to support an excavation lessthan 18 feet deep. However, trench boxes were not used in excavations havingexposed utility lines that could be struck by the trench box as it was loweredinto the excavation.[4] Zara instructed itsemployees that in instances where a trench box was not used the excavation mustbe sloped. The foreman at the worksite where the fatal accident occurred,Benasutti, testified that he had been instructed to slope all four sides of anexcavation to an angle of 45 degrees.??????????? Accordingto Ploska, the inspector assigned to monitor Benasutti?s work, Benasutti normallyused a trench box except where its use would not be practical due to thepresence of utility lines. Prior to the accident, Benasutti consistently used atrench box. However, on the day before the accident, Benasutti encountered gasand water service lines as well as a curve in the road. Benasutti believed thatuse of a trench box in the vicinity of the utility lines would be hazardous andthat the road curvature would impede installation of a box. Therefore, hedecided to slope the excavation as an alternative to using the trench box.However, despite Benasutti?s understanding of Zara?s safety rule, he failed toslope the approximately 17-foot deep excavation to a 45-degree angle.[5] Nor did he shore orotherwise support the excavation against collapse. The excavation caved inearly the next day.??????????? Benasutti?ssupervisor, job superintendent DiPaolo, previously had been contacted by acounty officer concerning inadequately protected excavations. Dreyer, one ofthe county engineers supervising inspectors on the Zara project, testified thatfrom inception of the contract until the day of the fatal accident, he made?just about? daily visits to Zara?s worksites and had approximately five to tenconversations with either DiPaolo or his foreman regarding their failure to usean available trench box. On these occasions he advised DiPaolo or the foremanthat without a trench box the excavation was hazardous. On December 22, 1977,he gave DiPaolo a written notice ordering Zara to use a trench box in anyexcavation deeper than six feet. This order was issued following Dreyer?sobservation of a trench, approximately 8 to 12 feet deep, without a box. Therecord does not indicate whether any of the excavations which Dreyer consideredhazardous occurred at worksites under Benasutti?s control.[6]??????????? OnMarch 23, 1978, the day before the fatal accident at Benasutti?s worksite, atrench at a worksite under the control of another foreman, Palumbo, collapsed.One of Zara?s employees who was in the trench at a depth of 10 to 12 feet wasslightly injured. The trench, which at that time was crossed by an exposed andactive gas line, was not protected by either shoring or a trench box. Duringthe morning before the cave-in as well as on prior days, Gallagher, the countyinspector at the site, had repeatedly instructed Palumbo to use a trench boxthat was available at the site. According to Gallagher, Palumbo stated that atrench box was not ?necessary.? Gallagher further testified that after theaccident Palumbo began using the trench box where its use was ?feasible.???????????? TheZara project at issue in this case was the first sewer project on which Dreyerhad worked as a supervising engineer for the county. Similarly, Gallagher hadnever previously worked as a construction inspector. Ploska had no experiencein construction work prior to his assignment as inspector on the Zara project.Neither Dreyer, Gallagher, nor Ploska had any familiarity with the Secretary?strench and excavation standards, nor had they received any formal safetytraining. On the other hand, Zara?s general superintendent, Tomasetti, had beenassociated with Zara for eight years and had prior experience in sewerconstruction. He had received safety training from the gas utility, Long IslandLighting Company (?LILCO?), and the county and state departments of labor. Healso had completed the Secretary?s safety course in trenching and excavation.??????????? Tomasettipreviously had served as Zara?s safety director and in this capacity, in 1974or 1975, initiated Zara?s safety program. The program included written safetyrules and provided for the discussion of safety matters at annual generalmeetings of all company employees and at job meetings at construction siteswith foremen and superintendents monthly or ?as necessary.? Superintendents andassistant superintendents also were required periodically to inspect and make awritten report on the safety and health conditions at worksites. Tomasetti madeweekly or monthly inspections of all worksites accompanied by representativesof Zara?s insurance carrier. According to Tomasetti, he discussed theSecretary?s standards regarding sloping and shoring with foremen andsuperintendents and instructed them to use a trench box where practical andotherwise to slope. In Tomasetti?s opinion, a trench box would be impracticalin excavations where utility lines existed because of the possibility of damageto utility lines.??????????? Zara?ssafety director, Trotter, was hired on May 31, 1977 to establish an internalinsurance department and to continue implementation of the existing safetyprogram. After his employment with Zara commenced, he took a course given bythe county in trenching and excavation. This course was attended by 40 ofZara?s foremen and superintendents. He and approximately 35 of Zara?s employeesalso took LILCO?s safety course. At the time of the hearing in this case,Trotter was attending a course in occupational safety and health standards atHofstra University.??????????? OnOctober 28, 1977, Trotter first met with Zara?s employees involved in trenchand excavation work to discuss the Secretary?s standards. According to Trotter,employees were generally instructed to use a trench box and customarily did so.If a box could not to be used, foremen were instructed to excavate to theproper angle of repose. Shoring equipment was available at the request of aforeman. Trotter and a representative of Zara?s insurance department alsoconducted daily inspections of field sites. If an infraction of a safety rulewas observed, it was photographed, brought to the attention of the employees,and discussed with the superintendent.[7] Trotter arrived at thesite here approximately five to ten minutes after the accident. At that timeBenasutti told him that the excavation had been sloped in compliance with thestandards.??????????? Duringthe past four years, Buckley, the business agent for the laborers? union,visited Zara?s worksites three to five times. He noted that trench boxes orother shoring devices were always used where there was no danger of damaging autility line. Similarly, the shop steward for Zara?s operating engineers,Huber, who made daily visits to Zara?s worksites, had never seen Zara fail touse a box where he felt one should have been used. He also had seen excavationssloped where no box was in use. On the other hand, Papa, a county engineer incharge of a Zara sewer project in progress at the time of the hearing andinvolved with Zara sewer projects since 1970, testified that on a few occasionsZara had failed to use a trench box in an excavation where Papa felt one shouldhave been used. In each instance, Zara?s superintendent would install a trenchbox when told to do so by Papa.??????????? Finally,the record shows that during a five year period preceding the issuance of thecitation here, Zara committed seven violations of standards pertaining to theshoring or sloping of trenches and excavations.[8]II.??????????? JudgeDitore determined that Zara was aware of the requirements of the Act and hadmaintained a safety program including the issuance of ?general? safetyinstructions and the provision of equipment for protecting employees intrenches and excavations. However, the judge found substantial deficiencies inthe safety program, particularly with regard to the adequacy of the safetyinstructions. In the judge?s view, employees were not specifically trained torecognize hazards that might be encountered at a worksite or in the methods ofprotecting against those hazards. Although safety responsibility was delegatedto foremen and depended on the exercise of their judgement, Zara failed to givethem detailed training on proper sloping or sloping methods. Employees receivedno training regarding soil conditions. Noting that Benasutti understood thatthe proper angle of slope was 45 degrees, the judge concluded that thisinstruction was insufficient considering the ?myriad? conditions that may existat an excavation site.??????????? Nevertheless,the judge found that these deficiencies in Zara?s safety program did notconstitute either an intentional or reckless disregard of, or plain indifferenceto, the requirements of the excavation and trench standards. He further foundthat Benasutti previously had used a trench box but could not continue to do soat the worksite in question because of interference from gas and water lines.Accordingly, he concluded that the violation was not shown to be willful innature as alleged.III.??????????? Onreview, the Secretary contends that the judge erred in failing to find theviolation willful. According to the Secretary, Zara had knowledge not only ofthe requirements of the Act but also of the need to improve its safety programas a result of the prior citations for substantially similar violations and therepeated warnings by the local inspectors that its employees were notadequately protected. The Secretary points out that the judge found numerousinadequacies in Zara?s safety program and contends that, contrary to thejudge?s conclusion, a finding of willfulness is not precluded by the existenceof a general safety program and the provision of safety equipment for someoperations. In the Secretary?s view, the facts establish either an intentionalor reckless disregard of, or plain indifference to, the requirements of theAct. Finally, the Secretary asserts that in the light of all the circumstances,including prior violations and warnings, the gravity of the violation, andZara?s size, the maximum penalty of $10,000 is appropriate.[9]??????????? Zaraargues that the judge?s decision is supported by a preponderance of theevidence and should be affirmed. In support of its argument, Zara asserts thatBenasutti decided in good faith to slope the excavation rather than endangeremployees by using a trench box in the vicinity of utility service lines. Zaraemphasizes that Benasutti had consistently used the trench box at this worksiteuntil it was removed on this occasion. In Zara?s view, the judge properlyconcluded that Benasutti?s actions did not constitute an intentional orreckless disregard of, or plain indifference to, the requirements of thestandard.??????????? Zaraalso disputes the significance of the prior violations of the trench andexcavation standards and the warnings by county personnel. According to Zara,the prior violations, which one exception, concern a standard different thanthe one at issue in this case and involved situations of substantial compliancewith the shoring requirements rather than a complete absence of protectivemeasures. As to the warnings by the county officers, Zara contends that theirtestimony should not be credited because they had not been adequately trained.Zara further contends that its safety officers, Tomasetti and Trotter, werebetter trained and qualified than the county personnel. Zara also submits thatimprovements in its safety program, implemented after the occurrence of theprior violations, demonstrate Zara?s commitment to employee safety and itsintention to comply fully with the requirements of the Act.IV??????????? Aviolation is willful in character if it was committed ?with either anintentional disregard of or plain indifference to the Act?s requirements.? Mel Jarvis Construction Co., 81 OSAHRC89\/B13, 10 BNA OSHC 1052, 1981 CCH OSHD ? 25,713 (No. 77?2100, 1981) (?Mel Jarvis?). However, as stated in MelJarvis, a violation is not willful if an employer has a good faith opinion thatthe violative conditions conformed to the requirement of the standard. The testof an employer?s good faith, for the purpose of determining willfulness, is anobjective one, i.e., was the employer?s belief concerning a factual matter orconcerning the interpretation of a standard, reasonable under thecircumstances. See Western WaterproofingCo. v. Marshall, 576 F.2d 139 (8th Cir. 1978), cert. denied, 439 U. S. 965 (1978).??????????? Thestandard contained at section 1926.651(c) required Zara to slope, shore orprovide equivalent means of protection in excavations where employees wereexposed to danger from moving ground. Under Commissioner Cleary?s view, thefactors set forth in section 1926.651(e)[10] must be evaluated todetermine the proper angle of repose for sloping a particular excavation.Commissioner Cleary concludes that an employer, reading section 1926.651(c)together with section 1926.651(e), could reasonably determine that a safetyrule, predesignating the angle of repose in all excavations, was inadequate.Zara?s safety rule required a 45 degree angle of repose in all excavationswhere a trench box was not used. Zara was aware that trench boxes could not beused in all excavations and that sloping was alternatively required. Zara didnot instruct its employees to consider and apply the factors contained insection 1926.651(e) to determine the proper angle of repose. As a result, insloping the excavation in question, Benasutti was unable to evaluate factorswhich affected the excavation?s stability. The evidence also shows that Zarafailed to instruct its employees in the methods by which a particular degree ofsloping might be achieved. Zara?s safety rule also failed to provide forshoring excavations in which a trench box was not used and where sloping wasimpracticable. Judge Ditore determined that Zara?s sloping instruction wasinsufficient considering the ?myriad? conditions that may exist at anexcavation site. Based upon the foregoing rationale, Commissioner Cleary agreeswith the judge?s finding that Zara?s safety rule failed to reasonably implementthe cited standard?s requirements in excavations where a trench box was notused.??????????? CommissionerCottine concurs in this result on different grounds. Section 1926.651(g)requires that ?[a]ll slopes shall be excavated to at least the angle ofrepose.? ?Angle of repose? is defined at section 1926.653 as ?[t]he greatestangle above the horizontal plane at which a material will lie without sliding.?Table P?1, accompanying the trenching and excavation standards, is entitled?Approximate Angle of Repose for Sloping of Sides of Excavation.? It sets forththe maximum safe slopes for the soil compositions listed.[11] Duane Meyer, d\/b\/a D.T. Construction Co., 79 OSAHRC 57\/D4, 7 BNAOSHC 1560, 1561, n. 12, 1979 CCH OSHD ?23,742 at p. 28,793 n. 12 (No. 16029,1979). In Commissioner Cottine?s view, walls of an excavation that do notcomport with the angles of repose set forth in the table for the type of soilinvolved are not adequately guarded to prevent collapse and do not comply withthe requirements of the excavation standards. Pipe-Rite Utilities Ltd., Inc., OSHRC Docket No. 79?234 (Jan. 28,1982) (Cottine, Commissioner, dissenting). Furthermore, sections 1926.651(e)and (h)[12] require that additionalfactors affecting the stability of the soil be considered when determining thedegree of sloping necessary to guard against collapse.??????????? Zara?ssafety rule requiring a 45 degree slope for all excavations in which a trenchbox is not used fails to take into consideration either the nature of the soilor other factors affecting its stability.[13] Accordingly, CommissionerCottine agrees that the judge properly found Zara?s safety rule to beinadequate.??????????? Wenote further that Zara had been involved in the installation of sewer lines inNassau County for five years prior to the fatal accident and during that periodinstalled approximately two million feet of sewer line. Certain of Zara?ssupervisory personnel received specialized training in trenching and excavationwhich, in some cases, included instruction from the Secretary. Prior to theaccident, Zara had violated not only the standard at issue here but alsorelated trenching standards.[14] Despite its extensiveprior involvement in excavation, the training of its supervisors, and the factthat it had notice of the sloping and shoring requirements of section1926.651(c) and related trenching standards from several prior citations, Zarafailed to insure compliance with the cited standard in excavations where atrench box was not used. Zara?s failure to take positive steps to insurecompliance with the sloping and shoring requirements of the cited standarddemonstrates at least a plain indifference to the standard and employee safety.Mel Jarvis, supra; Georgia Electric Co.v. Marshall, 595 F.2d 309 (5th Cir. 1979).??????????? Weare not persuaded by Zara?s argument that the precautions, allegedly taken ingood faith by Benasutti, preclude a finding of willfulness here. Because of theinadequacy of Zara?s instructions, it was impossible for Benasutti to determinethe proper angle of repose in the excavation where the accident occurred. Wefind that his belief that the excavation was sloped in compliance which thestandard was not reasonable and, thus, not held in good faith. See Western Waterproofing Co. v. Marshall,supra.[15]Accordingly, we reverse the judge and affirm a willful violation.V??????????? Wenow turn to the assessment of an appropriate penalty. Considering the factorscontained in section 17(j) of the Act, 29 U.S.C. ? 661(i), we find that, inview of the resultant fatality, the gravity of the violation is high. Wefurther note that Zara is a large employer with a history of violations oftrench and excavation standards. With respect to good faith, we find that,although Zara failed to implement the requirements of the cited standard, goodfaith efforts were expended in establishing a safety program and trainingcertain supervisory personnel. In view of these efforts, we cannot agree withthe Secretary?s assertion that a $10,000 penalty is warranted in this case. Onbalance, we find a $5,000 penalty is appropriate.??????????? Accordingly,the citation alleging a willful and repeated violation of the standardcontained at 29 C.F.R. ? 1926.651(c) is affirmed. A $5,000 penalty is assessed.?SO ORDERED.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: JAN 29, 1982\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78?2125 \u00a0 S. ZARA & SONS CONTRACTING CO., INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 March 12, 1979Appearances:Francis V. LaRuffa, Regional SolicitorUnited States Department of Labor1515 Broadway, Room 3555 New York, NewYork 10036Attorney for Complainant by James A. Magenheimer,Esq., of Counsel\u00a0Erwin Popkin, Esq.Suite 302, IBM Building 1399 FranklinAvenue Garden City, New York 11530Attorney for Respondent by Gerald V.Dandeneau, Esq., of Counsel\u00a0DECISION AND ORDERDitore, J.:PRELIMINARY STATEMENT??????????? Respondentcontested a citation for a willful violation of 29 CFR ? 1926.651(c), and theproposed penalty of $10,000. Specifically, Respondent was charged with thewillful failure on March 24, 1978, to guard the walls of an excavation byshoring, sloping or other equivalent means to protect its employees working inthe excavation.??????????? Section1926.651 which relates to specific excavation requirements, states insubsection (c) that:?[t]he walls and faces of all excavationsin which employees are exposed to danger from moving ground shall be guarded bya shoring system, sloping of the ground, or some other equivalent means.????????????? Ahearing was held on October 30, 31 and November 1, 1978, at New York, New York.ISSUES??????????? 1.Whether a violation of 29 CFR ? 1926.651(c) existed at Respondent?s workplaceon March 24, 1978.??????????? 2. Ifa violation existed, were any of Respondent?s employees exposed to the hazardcreated by the violation.??????????? 3. IfRespondent?s employees were exposed, was the hazardous condition serious.??????????? 4. Ifthe condition was serious, did Respondent know of the condition.??????????? 5. IfRespondent knew of the condition, was it responsible for the violation.??????????? 6. IfRespondent was responsible, was it a willful act on the part of Respondent.??????????? 7. Ifthe violation was willful, is the proposed penalty reasonable and proper.STATEMENT OF THE EVIDENCE??????????? A.Background??????????? FromDecember 1977 through March 24, 1978, Respondent pursuant to a contract withthe County of Nassau, State of New York, was constructing a lateral or centerpipe sewer line (T. 20, 21, 24, 25, 142). The work was being performed by anumber of Respondent?s work crews. Each crew was assigned an inspector from theDepartment of Public Works of Nassau County. Each Nassau County inspector dailymonitored the work being performed by Respondent?s employees to ascertainwhether the work was performed according to County specifications and whethersafe trenching or excavation procedures were used (T. 18, 19, 26, 28, 29, 30,63, 68, 69, 107?108, 141; Exh. C?1).??????????? B.The Incident of March 24, 1978??????????? Onthe afternoon of March 23, 1978, between 3:30 and 4:30 p.m., one ofRespondent?s work crews began excavating an area of street adjacent to 110Columbia Drive in Jericho, Long Island, for the installation of a manhole. Thecrew consisted of foreman George Benasutti, three laborers, Maia, Vespa and (name redacted), a backhoe operator andan oiler (T. 111?112, 147, 445, 456, 457). In their prior excavation work onthis project, Benasutti and his crew utilized a steel trench box to protectagainst excavation cave-ins. Due to the presence of a lateral gas service line,a water pipe, and a slight curvature in the road bed, foreman Benasutti couldnot use the trench box at the Columbia Drive excavation (T. 113, 149, 446,447).??????????? Onthe morning of March 24, 1978, about 8:00 a.m., Benasutti and his crewcontinued their excavation for the manhole. After the backhoe finished itsoperation, Benasutti, Vespa and (nameredacted) worked in the excavation laying a length of sewer pipe whichwould eventually be connected to, and 10 inches above the bottom of, themanhole. The trench box was not used, nor was the excavation shored or sheeted(T. 113, 118, 128, 129, 166, 167, 168, 169, 467, 469?470). Between 8:30 and9:00 a.m., Maia, another laborer of the work crew, was standing at the top of,and looking down into, the excavation, directly over the area where (name redacted) was working in theexcavation. He observed the right side wall of the excavation cave in, thewater main break, and the excavation fill with water. He observed sliding sandpush (name redacted) to the otherside of the excavation and cover him up to his shoulders, and observed thewater rise above (name redacted)?shead. Benasutti and Vespa, at the other end of the excavation were able toescape (T. 166, 167, 173, 178, 180, 181, 182?186).??????????? C.Dimensions of the Excavation and Soil Condition??????????? Twoeyewitnesses at the excavation at the time of the accident testified to thedimensions of the excavation and the nature of the soil.??????????? GeorgeMaia, Respondent?s laborer in Benasutti?s work crew who was standing at the topright side of, and looking down into, the excavation when the accidentoccurred, estimated the excavation to be 17 feet wide, 17 feet deep, and 25feet long. The excavation?s walls were sloped like a ?V?, and the soil was sand(T. 169?171, 172, 173, 189, 190).??????????? GeorgeBenasutti, Respondent?s foreman, stated the road where the excavation was dugwas 30 feet wide, and the excavation was 25 feet long. On the morning of March24th, the excavation had been dug approximately 14 feet, another 3 feet had tobe excavated to accommodate the manhole. The excavation?s top or opening wastwo feet from the road curb on the water main or west side, and three feet fromthe east side curb. The width of the opening at the excavation?s top was about25 feet. The width of the bottom of the trench was about five feet. The soilwas composed of sand with a little gravel and stone. Benasutti further statedthat as his crew deepened the excavation they widened it (T. 452, 453, 454,461, 462, 477, 478, 480?481).??????????? OnMarch 27, 1978, three days after the excavation accident, Mr. Benasutti made awritten statement, signed and read by him, that the excavation was 30 feetlong, 18 feet wide at road level; and that the north and south sides of theexcavations were sloped down to a trench portion of the excavation. The trenchwas 12 feet long, 6 feet deep and 5 to 6 feet wide. The exposed water main was18 feet long, and 4 feet below road level. The east and west walls of the excavationwere sloped (T. 462, 463; Exh. C?16).??????????? GeorgePlosko, the Nassau County inspector assigned to monitor Benasutti?s work crew,stated that on the morning of March 24, 1978, the excavation was 17 feet deep,6 or 7 feet wide at the bottom, 20 feet long and 20 or 25 feet wide at roadlevel. His later testimony appears equivocal as to the ?20 to 25? foot width.He estimated the north wall of the excavation was sloped 30 or 40 degrees. Thesouth wall was not sloped. The east and west walls were sloped like a hill butless than 30 or 40 degrees. The west wall was one or two feet from the westroad curb. The soil was of a ?sandy nature, just sandy, small stones like abank run? (T. 120, 124, 129, 155, 158?159, 160).??????????? JosephOrnellas, a compliance officer for OSHA investigated the worksite on March 24,1979, about two hours after the accident occurred (T. 191, 193; Exhs. C?5 throughC?8). Based on his observations and measurements, his conversations withRespondent?s employees, Benasutti, Vespa and Maia, and on information as to thelocation of a water pipe, obtained from the Jericho Water District, Ornellasreconstructed the pre-accident dimensions of the excavation (T. 198?204, 208,278?286; Exh. C?3). His reconstruction figures revealed that the road bed was30 feet wide from curb to curb; that 10 feet of road asphalt remained from theeast curb to the east wall of the excavation; that prior to the accident, thewest wall of the excavation was four feet from the west side road curb; thatthe width of the top of the excavation was 16 feet; that the excavation was 17feet deep and 6 to 7 feet wide at the bottom; and that the excavation was about25 to 30 feet long (T. 198?200, 201, 203?204, 208, 218?221, 222; Exh. C?3).George Ploska, the county inspector, stated that exhibit C?3 closely resembledthe observations he made of the excavation on the morning of March 24, 1978 (T.136).??????????? Ornellasfrom his information and calculations, estimated that prior to the accident onthe morning of March 24, 1978, the east wall of the excavation was sloped about22 degrees from the vertical, the west wall was sloped about 18 degrees fromthe vertical. The soil was loose, sandy, and mixed with pebbles (T. 223?224,229, 230). Based on his examination of the excavation?s soil, he estimated theangle of repose[16]required the east and west walls of the excavation to be sloped between 45degrees for average soil, to 64 degrees for well rounded loose soil, from avertical plane, or 45 degrees to 26 degrees from a horizontal plane (T.224?225, 229?234, 257?260, 262?264).??????????? DouglasQuick, president of a laboratory which tests soil, among other materials, statedthat an analysis of the soil taken from the excavation adjacent to 110 ColumbiaDrive, indicated that the soil was average soil and the angle of repose forthis type of soil was a one-to-one ratio, or an angle of repose of 45 degreesfrom a horizontal or vertical plane (T. 482, 485?489; see: 1926.652, TableP?1). The density analysis of the soil, i.e., the degree of compaction of thesoil, indicated that the soil was loose but he did not think that this type ofsoil would collapse because of its density characteristics (T. 490, 491, 492).??????????? D.Alleged Willful Nature of the Violation??????????? Respondentreceived six prior citations (final orders) which involved either a failure onRespondent?s part to shore, sheet or slope trenches or to adequately shore,sheet or slope trenches (T. 276?278; Exhs. C?9 through C?14).??????????? Therewas testimony from three county inspectors, Jack Dreyer, George Ploska andJames Gallagher, that on several occasions during Respondent?s construction ofthe sewer line, Respondent had to be advised or informed to use adequateprotective means in its trenches and excavations (T. 17, 44, 45, 47, 48, 50,69?74, 79, 126).??????????? GeorgePloska also stated that he worked closely with foreman Benasutti and his crewon this sewer project; that Benasutti always used a trench box except oncertain occasions, i.e., interference from water and gas lines, when the trenchbox could not be used; and that Benasutti was concerned with the safety of hismen (T. 142?144).??????????? Respondentmaintains a general safety program and has a safety director. The duties of thesafety director include issuing safety rules to, and conducting safety sessionswith, Respondent?s employees. The safety sessions include discussions on trenchand excavation safety. Employees are instructed to use a steel trench box, orif that is not possible, to either sheet, shore or slope trenches andexcavations. Respondent leaves it to the judgment of its foremen to determinewhether a trench or excavation slope is sufficient or adequate for safetypurposes (T. 326, 338, 340, 341, 347?348, 353?357, 359, 416, 421?422, 424?428,430, 437?438, 449, 450; Exhs. R?1, R?8, R?9, R?10(a), R?10(b)). Respondent?sinstructions to its employees as to excavation and trench safety are generalinstructions; no specific instructions are given (T. 361?363). ForemanBenasutti stated that he was instructed at one of Respondent?s safety meetings,if sloping was used, to slope each of the four walls of a trench to a 45 degreeangle (T. 453?454). Respondent through its safety director, superintendents andforeman knew of OSHA standards concerning the protective requirements fortrench and excavation safety (T. 340, 347, 349?350, 358, 411, 412, 423,429?430, 450?451).OPINION??????????? Onthe morning of March 24, 1978, prior to the accident, the excavation in whichthree of Respondent?s employees were working, was not shored, sheeted orprotected by any other device against the hazard of an excavation collapse.Respondent maintains that its foreman, Benasutti, sloped the east and westsides of the excavation to a one-to-one ratio, or to an angle of repose of 45degrees above the horizontal plane.??????????? Thecredible evidence establishes that the excavation prior to the accident wasabout 25 to 30 feet long, about 17 feet wide at road level, about 17 feet deep,and about 6 feet wide at the bottom. The east and west sides of the excavationwere sloped like a ?V? or at an angle of repose greater than 45 degrees abovethe horizontal plane. (See 29 CFR ? 1926.653(b) and Table P?1.) The soilconsisted of loose sand with a little gravel and stone.??????????? ForemanBenasutti?s testimony at the hearing conflicted with a written and signedstatement he made three days after the accident (see Exh. 16). At the hearing,Benasutti testified that the excavation was about 25 feet wide at road level,about 14 feet deep and five feet wide at the bottom.??????????? Priorto the accident Benasutti and his crew laid a stretch of pipe in theexcavation. The pipe was to be connected ten inches above the bottom of amanhole that was to be installed at a depth of 17 feet, 10 inches. Since thepipe was laid at its proper grade, the excavation had to be dug to a depth ofat least 17 feet. This negates Benasutti?s statement at the hearing that thedepth of the excavation was about 14 feet. The witnesses Maia and Ploskaestimated the pre-accident depth of the excavation to be about 17 feet.??????????? Benasuttistated at the hearing, that prior to the accident, the excavation?s top at roadlevel was two feet from the west side road curb and three feet from the eastside road curb. This left five feet of the original 30-foot width of theroadway undisturbed. Officer Ornella?s actual measurement of the remainingroadway after the accident, revealed that 10 feet of roadway remained from theeast curb to the east side or wall of the excavation, and from other data,ascertained that four feet of the roadway prior to the accident, remained fromthe west road curb to the west side of the excavation. Since the roadway was 30feet wide, simple arithmetic indicates that the excavation was about 16 feetwide?30 feet of original road minus 14 feet of remaining road. These figuresapproximate what the witnesses Maia and Benasutti (written statement) statedthe width of the excavation was before the accident. Ploska?s testimony as tothe excavation?s width was equivocal but he adopted Ornellas? sketch (Exh. C?3)as closely resembling the excavation?s dimensions as he observed them on themorning of March 24, 1978.??????????? IfBenasutti?s pre-accident estimates given at the hearing, that the width of theexcavation at road level was about 25 feet; that the depth was 14 feet; andthat the east and west sides or walls sloped to 45 degree angles or aone-to-one ratio, it follows that the east side and west sides of theexcavation had to be sloped back horizontally 14 feet at road level tocorrespond with the excavation?s depth. This would total 28 feet of removedroadway width out of the original 30 feet[17], and would approximate a45-degree angle slope for the east and west walls of the excavation. However,Benasutti?s calculations at the hearing, failed to take into account the 5 or 6feet of width at the bottom of the excavation which when added to the 28 feetcaused by the 45-degree slopes, would indicate that the excavation was 33 feetwide at road level or 3 feet wider than the road from curb to curb. There is noevidence that the excavation extended beyond the curb area to the sidewalks.Neither Respondent nor its witness Benasutti made any such claim. For thereasons given above, Benasutti?s hearing testimony as to the pre-accidentdimensions of the excavation is given no credence.??????????? Theevidence establishes that the excavation soil was loose sand with a littlegravel and stone. This type of soil according to Table P?1 (following 29 CFR ?1926.652(g)) required that the east and west walls of the excavation be slopedto a two-to-one ratio, or at an angle of repose of 26 degrees above thehorizontal plane. Respondent neither claimed or established that the east andwest sides of the excavation were sloped to an angle of 26 degrees above thehorizontal. Assuming arguendo, that the nature of the soil was such as torequire a one-to-one ratio, or a slope of 45 degrees, the credible evidenceestablishes that the east and west side of the excavation were not sloped to a45-degree angle from either the horizontal or vertical, but were sloped at anangle greater than 45 degrees from the horizontal.??????????? Respondentinadequately sloped the excavation?s east and west walls, and exposed itsemployee working in the excavation to a cave-in hazard. The hazard was seriousin that it could, and did here, result in a fatal injury to an employee. SinceRespondent places the responsibility upon its crew foreman to determine theadequacy of excavation and trench sloping, the foreman?s knowledge is imputedto Respondent. Secretary of Labor v. F.H. Sparks of Maryland, Inc., 78 OSAHRC 13\/C12, 6 BNA OSHC 1356, 1977?78 CCHOSHD para. 22,543 (Nos. 15472 and 15760, 1978). Respondent is responsible forthe serious violation.??????????? Respondentwas charged with a willful violation of 29 CFR ? 1926.651(c). ?Willful? asdefined by the Commission and a majority of Circuit Courts of Appeal is ?an actdone voluntarily with either intentional disregard of, or plain indifferenceto, the Act?s requirements?, or as an act ?done knowingly and purposely? bysomeone who, ?having a free will or choice, either intentionally disobeys thestandard or recklessly disregards its requirements?. Cedar Construction Company v. OSHRC, et al, No. 77?1538, slip op.pp 3?4 (D. C. Cir., October 20, 1978) and cases cited therein.??????????? Theevidence does not establish that Respondent either intentionally or recklesslydisregarded or exhibited plain indifference to the Act?s excavation andtrenching safety requirements. Respondent is fully aware of the Act?srequirements and has maintained a general safety program, and has held generalsafety instruction sessions with its employees. Respondent has provided steeltrench boxes and other equipment for the purpose of protecting its employeesengaged in excavation and trench work.??????????? UnfortunatelyRespondent?s general safety program and general instructions are inadequate tosupport its safety responsibilities under the Act. Respondent issues nospecific enforced rules or instructions. Respondent gives no specific trainingto its employees concerning the specific or actual hazards that may beencountered at a jobsite, or the specific methods of guarding against thehazards. Respondent gives no detailed training to its crew foreman regardingsloping, or how to achieve proper sloping, and gives no training as to soilconditions, and other activities that they may in concert with soil conditions,create hazardous excavation conditions. Foreman Benasutti stated he attended asafety session held by Respondent where he was told, when sloping, to slopeone-to-one or to an angle of 45 degrees. This instruction is woefully inadequatewhen considered with the myriad conditions that may exist at an excavationsite, and when considered with Respondent?s delegation of safety responsibilityfor excavations and trenches to the judgment of its inadequately trained crewforemen.??????????? Thesediscrepancies and weaknesses in Respondent?s safety program do not rise to thelevel of an intentional or reckless disregard, or a plain indifference to theAct?s excavation and trench requirements. The evidence does not establish awillful violation of the standard herein but does establish a repeat violation.??????????? Respondent?sprior six citations which became final orders (Exhs. C?9 to C?14) reveal thatin each of the six citations (four nonserious, two serious) there was oneviolation in which Respondent has either failed to shore, sheet or slope atrench, or failed to adequately sheet, shore or slope a trench. Although noneof the previous six violations involved the specific standard here (29 CFR ?1926.651(c)), they were substantially similar i.e., failing to guard oradequately guard, trenches against cave-in hazards, to the violation and hazardhere. Secretary of Labor v. Potlatch Corporation, OSHRC Docket No. 16183,decided January 22, 1979. The violation will be reduced to a repeat violation.??????????? Basedon all the circumstances of this case including the gravity and the repeatnature of the violation, and a consideration of all the statutory factors ofsection 17(j) of the Act, the proposed penalty of $10,000 is unreasonable andis reduced to $3,000.FINDINGS OF FACT??????????? Thecredible evidence and the record as a whole establishes preponderant proof ofthe following specific findings of fact.??????????? 1. OnMarch 24, 1978, pursuant to a contract with the County of Nassau, State of NewYork, Respondent was engaged in the construction of a lateral or center pipesewer line.??????????? 2. Onthe morning of March 24, 1978, a work crew of Respondent consisting of foremanGeorge Benasutti, three laborers, Maia, Vespa and (name redacted), a backhoe operator and an oiler were working at,and in, an excavation located adjacent to 110 Columbia Drive, Jericho, LongIsland. The excavation was being prepared for the installation of a manhole ata depth of 17 feet, 10 inches.??????????? 3.George Ploska, a Nassau County inspector, was assigned to Benasutti?s work crewto monitor the work being done by the crew.??????????? 4.Benasutti, Vespa and (name redacted)were working in the excavation and had laid a stretch of pipe which was to beconnected 10 inches above the bottom of the manhole which had not as yet, beeninstalled.??????????? 5.The excavation was about 25 feet long, about 17 feet wide, about 17 feet deepand about 6 feet wide at the bottom. The east and west sides of the excavationwere sloped at an angle greater than 45 degrees above the horizontal plane. Theroad bed from curb to curb (east to west) was 30 feet wide.??????????? 6.The soil of the excavation consisted of loose sand with some gravel, andrequired a sloping angle of at least 45 degrees above the horizontal plane.??????????? 7.The excavation was neither shored nor sheeted. A trench box, previously used,was not in use due to an interference from gas and water lines.??????????? 8.Between 8:30 and 9:00 a.m., on March 24, 1978, while Benasutti, Vespa and (name redacted) were in the excavation,the west wall collapsed trapping (nameredacted). The wall collapse caused the water main to break and flood theexcavation, drowning (name redacted).Benasutti and Vespa escaped without any mishap.??????????? 9.The excavation was inadequately sloped and did not comply with 29 CFR ?1926.651(c) and with the sloping requirements of Table P?1 (following 29 CFR ?1926.652(g)).??????????? 10.Respondent knew of the standard?s requirements for excavation safety.??????????? 11.Respondent maintains a general safety program and holds general safetyinstruction sessions with its employees.??????????? 12.Respondent provides trench boxes and other materials to be used in protectingits employees against the hazards of excavation collapse.??????????? 13.Respondent does not maintain, or provide any specific and rigidly enforcedsafety instructions, rules, or training for its employees as to specific trenchand excavation hazards they may encounter at a jobsite, and as to specificmethods to be employed to protect against the hazards.??????????? 14.Respondent delegates to its crew foremen the responsibility to determine when asloping method is to be used, and to determine, if sloping is used, whether itis adequate to protect Respondent?s employees from the hazards of an excavationor trench collapse.??????????? 15.The evidence is insufficient to establish that Respondent either intentionally,or recklessly, or with plain indifference, disregarded OSHA?s safetyrequirements for excavations and trenches.??????????? 16.Respondent on six prior occasions, received citations which became finalorders, for violations substantially similar to the violation herein.??????????? 17.The prior six violations, four nonserious and two serious, involved situationswhere Respondent either failed to shore, sheet or slope a trench, or failed toadequately shore, sheet or slope a trench for the protection of its employees.??????????? 18.Respondent is responsible for the violation herein which was serious andrepeat.CONCLUSIONS OF LAW??????????? 1.Respondent is, and at all times material herein was, engaged in a businessaffecting commerce within the meaning of section 3(5) of the Act (29 U.S.C. ?652(5)).??????????? 2.The Occupational Safety and Health Review Commission has jurisdiction over thesubject matter and parties to this action.??????????? 3. OnMarch 24, 1978, Respondent was not in willful violation of 29 CFR ? 1926.651(c)but was in repeat violation of 29 CFR 1926.651(c) for failing to adequatelyslope an excavation in which its employees were working.??????????? 4.Under all the circumstances of this case with due consideration of all thestatutory factors of section 17(j) of the Act, and of the repeat nature of theviolation, the proposed penalty of $10,000 is unreasonable and is reduced to$3,000.ORDER??????????? Duedeliberation having been had on the whole record, it is hereby??????????? ORDEREDthat the citation for a willful violation of 29 CFR ? 1926.651(c) is reduced toa repeat violation, and as reduced is affirmed, it is further??????????? ORDEREDthat the proposed penalty of $10,000 is reduced to $3,000, and as reduced isaffirmed.?JEROME C. DITOREJUDGE, OSHRCDated: March 12, 1979?New York New York* Chairman Rowland did not participate inthis decision.[1] This standardprovides:SubpartP Excavations, Trenching, and Shoring?1926.651 Specific excavation requirements(c)The walls and faces of all excavations in which employees are exposed to dangerfrom moving ground shall be guarded by a shoring system, sloping of the ground,or some other equivalent means.[2] Review wasdirected on the issue of whether the judge ?erred by characterizing theviolation . . . as repeated instead of willful.? However, neither party takesexception to that part of the judge?s decision finding the violation repeated,and there is no compelling public interest to warrant review of this finding.Accordingly, to the extent that the direction for review raises an issue with respectto the propriety of the finding of a repeated violation, we summarily affirmthis portion of the judge?s decision and accord it the precedential value of anunreviewed judge?s decision. Stone &Webster Eng?r Corp., 80 OSAHRC 72\/D11, 8 BNA OSHC 1753, 1754 n.1, 1980 CCHOSHD ?24,646 at 30,235 n.1 (No. 15314, 1980).[3] At the time ofthe hearing Respondent was operating seven projects with at least onesuperintendent on each project. The volume of the sewer construction workperformed by Respondent over the past five years was estimated at $150 million,or about two million feet of sewer line. During that time, Respondent?s totalemployment varied between 350 and 600 employees.[4] Both Tomasetti, aformer safety director for Zara, and Huber, the shop steward for Zara?soperating engineers, had personal knowledge of incidents in which gas linesruptured by trench boxes had caught on fire, exploded, or resulted in theasphyxiation of workers. Similarly, Buckley, the business agent for thelaborers? union, considered excavating near a service gas main to be hazardousbecause contact with a trench box could ignite the main. Papa, a countyengineer, conceded that trench boxes cannot be used in close proximity to gasand water mains. Although the witnesses did not expressly state the hazardsresulting from rupture of a water line, Tomasetti indicated that normally thewater utility would shut off a water main on request if the service needs ofthe area would not be unduly affected and if a work crew were available. However,both Tomasetti and Benasutti, the foreman at the site where the fatalityoccurred, testified without rebuttal that the gas utility normally refused toshut off service. The county inspector assigned to Benasutti?s worksite,Ploska, agreed that Benasutti could not continue to use the trench box becauseof ?interference? from gas and water lines.[5] Ploska, thecounty inspector, testified that the excavation was sloped on the east and westsides but did not specify the degree of slope. The north face, which was usedby employees for entrance and exit, was sloped 30?40 degrees from the vertical.The south face was almost vertical. According to Ornellas, the Secretary?scompliance officer, the east side was sloped 22 degrees and the west side 18degrees from the vertical. He gave the slope on the north face at between 45and 60 degrees. The judge rejected Benasutti?s testimony regarding thedimensions of the excavation as not credible and found that the east and westsides were sloped at less than 45 degrees from the vertical. The judge made nofindings regarding the degree of sloping on the north and south faces. However,he determined that the soil composition of the excavation was predominantlyloose sand and noted that the Secretary?s standards require a slope ofapproximately 26 degrees from the horizontal, or approximately 64 degrees fromthe vertical, for such soil. Neither party excepts to these findings.[6] DiPaolosupervised as many as 10 foremen and had a total of between 100 and 150employees under his control.[7] Benasuttitestified that he frequently saw Trotter at his jobsites; among other things,Trotter checked that a trench box was in use and examined the condition of thebox.[8] Six priorcitations, alleging violations of shoring or sloping requirements, wereadmitted into evidence by stipulation of the parties. All citations becamefinal orders of the Commission prior to the inspection in this case. Theseprior violations may be summarized as follows:Nonserious citation issued May 4,1973: 29 C.F.R. ? 1926.652(c) for failure to adequately support trenches morethan five feet in depth and eight feet in length;Nonserious citation issued June 6,1973: ? 1926.652(c) for failure to adequately support or slope trenches morethan eight feet in length and five feet in depth (two trenches approximatelyseven and twelve feet deep);Nonserious citation issued April30, 1974: ? 1926.652(b) for failure to adequately shore two trenches in thatspacing of uprights and number of crossbraces was inadequate and ?1926.652(g)(1) in that cross braces used in another trench did not meet?minimum requirements?;Serious citation issued July 8,1975: ? 1926.652(d) in that sheeting and bracing was not effective to thebottom of the excavation resulting in ?partial collapse? of one side;Nonserious citation issued January26, 1976: ? 1926.651(c) in that an excavation 10 feet square and about 6 ? feetdeep was not shored, sloped, or otherwise supported;Serious citation issued January 26,1976: ? 1926.652(b) in that a trench approximately 30 feet long, 8 feet wide,and varying between 18 and 20 feet deep in unstable and sandy soil was notadequately shored, sheeted, braced, sloped, or otherwise supported; sheeting 40inches in width was not properly spaced and lacked cross bracing.[9] 29 U.S.C. ?666(a) provides that an employer who willfully violates that Act or a standardissued under the Act may be assessed a civil penalty of up to $10,000.[10] Section1926.651(e) specifies that:Thedetermination of the angle of repose and design of the supporting system shallbe based on careful evaluation of pertinent factors such as: Depth of cut;possible variation in water content of the material while the excavation isopen; anticipated changes in materials from exposure to air, sun, water, orfreezing; loading imposed by structures, equipment, overlying material, orstored material; and vibration from equipment, blasting, traffic, or othersources.[11] Angles of reposelisted in Table P?1 for different soil classifications are as follows:SolidRock, Shale or Cemented Sand and Gravels??????????????????????????? 90?CompactedAngular Gravels??????????????????????????????????????????????????????????63? 26?AverageSoils?????????????????????????????????????????????????????????????????????????????????45?CompactedSharp Sand???????????????????????????????????????????????????????????????????33?41?Well-RoundedLoose Sand?????????????????????????????????????????????????????????????26?34?[12] Section1926.651(h) provides:(h) The angle of repose shall beflattened when an excavation has water conditions, silty materials, looseboulders, and areas where erosion, deep frost action, and slide planes appear.[13] A 45 degree slopeis steeper than the angle set forth in Table P?1 as the greatest angle abovethe horizontal at which either compacted sharp sand or well-rounded loose sandwill lie without sliding. See DuaneMeyer, d\/b\/a D. T. Constr. Co., supra. See note 11 supra.[14] We reject Zara?schallenges to the relevance of the prior violations. All of the priorviolations involve standards pertaining to the shoring and sloping ofexcavations and trenches. Therefore, Zara should have been aware of therequirement to protect employees by shoring or sloping trenches and excavationsregardless of whether the prior violations involved precisely the specificstandard at issue in this case. SeeGeorgia Elec. Co. v. Marshall, 595 F.2d 309 (5th Cir. 1979). Also,assuming, as Zara contends, that the prior violations predominantly involvedsituations of partial compliance with shoring requirements, Zara would still beput on notice that its safety program was not sufficient to prevent violationsof these standards.[15] Moreover, we findthat Zara?s safety rule, albeit inadequate, was not observed by Benasutti onthe day of the accident. Although Benasutti?s decision to remove the trench boxappears justified, he was nevertheless required under Zara?s safety rule toslope all sides of the excavation to an angle of 45 degrees. As Judge Ditorefound, two of the sides of the excavation were sloped steeper than 45 degrees.The evidence further indicates that one of the other sides of the excavationwas either unsloped or very inadequately sloped. Clearly, the sloping done byBenasutti in this case did not conform to the requirements of Zara?s rule.Thus, even assuming that Zara?s rule implemented the cited standard?srequirements, the evidence does not support a finding that Benasutti?s beliefthat the trench was properly sloped was reasonable. See Western Waterproofing Co. v. Marshall, supra.[16] The angle ofrepose is ?the greatest angle above the horizontal plane at which a materialwill lie without sliding? 29 CFR ? 1926.653(b).** Benasutti alsostated at the hearing, that the excavation was about 25 feet wide with 5 feetof roadway remaining?2 feet on west side, 3 feet on east side.”