“Docket No. 86-1139 SECRETARY OF LABOR,Complainant,v.TRUMID CONSTRUCTION CO., INC.Respondent.OSHRC DOCKET NO. 86-1139DECISION Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners. BY THE COMMISSION:The issues before the Commission are (1) whether theAdministrative Law Judge erred in vacating an alleged violation of a standard requiringsupport of trenches in \”unstable or soft\” soil, and (2) whether that allegedviolation, and another alleged violation involving an employee working in the trenchwithout a hard hat, should be classified as serious. We find that the judge erred invacating the trench support violation, and that both violations should be classified asserious.[[1\/]]Trumid Construction Co. was the excavation contractor for acondominium construction project in Ossining, New York. It was responsible for grading,digging trenches and laying pipe. On March 6, 1986, a Trumid employee was fatally injuredon the project when the side wall of a trench collapsed. Trumid failed to report theaccident to OSHA as required by 29 C.F.R. ? 1904.8.OSHA received notice of the fatality when an insurance companycontacted it in July 1986.[[2\/]] OSHA then investigated and issued a citation allegingseveral serious violations, including the two at issue herein.[[3\/]]TRENCH SUPPORT ITEMTrumid was cited for noncompliance with the safety standard at29 C.F.R. ? 1926.652(b), which provided:Sides of trenches in unstable or soft material, 5 feet or morein depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means ofsufficient strength to protect the employees working within them. See Tables P-1, P-2 . .. .Trumid disputes the Secretary’s allegation that this standardapplies to Trumid’s excavation. Specifically, the parties disagree over whether the sidesof the alleged \”trench\” were 5 feet or more in depth, and whether the allegedtrench was in \”unstable or soft material.\” It is undisputed that the sides ofthe trench were not shored, sheeted, or braced.A. Whether the cited trenching standard applied to Trumid’sexcavationThe dimensions and configuration of the excavation are shown inthe following cross-section diagram:The pictorial exhibit referred to above is not available inthis format. Please telephone the Review Commission Public Information Office,202-606-5398, to request a paper copy; TTY: 202-606-5386; FAX: 202-606-5050; e-mail: [email protected]\u00a0The dimensions given above are not disputed by the parties. Toclarify them verbally: the first cut into the soil was 18 to 20 inches deep. That cut wasabout 11 or 12 feet wide. A second, narrower cut was made down the middle of the firstcut. That cut resulted in a cavity about 4 to 4 1\/2 feet deeper than the first cut. Thesecond cut was about 3 1\/2 feet wide at the bottom and 4 feet wide at the top (the\”bench\” level).[[4\/]] Pipe was laid in the cavity. (Here, the trench already hadbeen dug 700 to 800 feet.)Former ? 1926.652(b) applied only to trenches five feet or more in depth. However, thejudge concluded that the standard was not applicable to the cited excavation because thetrench portion was less than five feet deep, and thus he vacated this item. The judgeruled that the trench’s depth should not be measured from the original ground level, butfrom the bottom of the first cut below ground (the bench level).[[5\/]] He stated thatoriginal ground level was a \”non-existent point\” that could not be used indetermining the dimensions of the cited trench.On review, the Secretary argues that under the standard’s plainwording and intent, this trench should be measured from the original ground level. Trumidendorses the judge’s approach. It contends that to measure the trench’s depth from theoriginal ground level would require measuring from an imaginary point in mid-air.Alternatively, it argues that if the area above the benches is considered, the excavationwould not be a trench, because it was wider at the top than it was deep.We reject Trumid’s argument that the original ground level mustbe merely imagined in a trench such as this. The original ground level may be ascertainedby stretching a string or tape measure between the tops of the walls — here,specifically, the tops of the walls created by the backhoe’s first cut. The depth of anytrench with sloped walls must be measured from a point between the sides. Thus, suchmeasurements are not uncommon.[[6\/]] In any event, the standard clearly contemplatesmeasuring the trench’s depth from the original ground level, where possible. See 29C.F.R. ? 1926.652(c) (overall depth of trench includes area above bench) Table P-1 (topof trench is identified as being the \”original ground line\”); former 29 C.F.R.? 1926.653(n) (\”trench\” defined as a narrow excavation made \”below thesurface of the ground\”).[[7\/]] This trench’s depth is properly measured from originalground level.We also reject Trumid’s argument that if the portion above the benches is considered partof the excavation, it was not a \”trench\” under the applicable definition becausethe excavation would then be wider than it was deep. That definition (former ?1926.653(n)) stated:\”Trench\” — A narrow excavation made below thesurface of the ground. In general, the depth is greater than the width, but the width of atrench is not greater than 15 feet.The Commission has held that an excavation may be a trench evenif it is wider than it is deep. E.g., Heath & Stich. Inc., supra,n. 7 (trench 12 feet wide and 10 to 11 feet deep). Accord, D. Federico Co. v.OSHRC, 558 F.2d 614 (1st Cir. 1977), aff’g, 3 BNA OSHC 1970, 1975–76 CCH OSHD ?20,422 (No. 4395, 1976) (trench 13 feet wide and 6 1\/2 feet deep).Also under Commission precedent, the width of a trench is to bemeasured at its bottom, so that sloping is not taken into account. Heath & Stich,supra.[[8\/]] The width at the bottom of this opening (3 1\/2 feet) was less than itsdepth, regardless of whether the depth is measured from the bench mark or the originalground level.[[9\/]]Trumid neither addresses the cited precedent, nor indicates why in its view it isincorrect. We have reconsidered that precedent and reaffirm it. Trumid was on notice of Heath& Stich and D. Federico, because they predated the alleged violation by manyyears. Thus, we find that Trumid’s excavation was a \”trench\” and that its sideswere more than 5 feet deep.It also bears noting that the new trenching standard, effectiveMarch 5, 1990, states explicitly that: (1) a trench’s width is to be measured at thebottom, not the top, and that (2) a trench is \”narrow\” in that its width issmall in relation to its length, not its depth. 54 Fed. Reg. at 45,960 (to becodified at ? 1926.650(b)).[[10\/]] Thus, the new standard is consistent with the formerstandard in these respects.B. Whether the trench was dug in \”unstable or softmaterial\” The standard cited here applies only where the ground iscomposed of \”unstable or soft material.\” See p. 2 supra. The judge found thatthe soil was unstable because: (1) it was \”clay type,\” (2) \”groundwater\” was present from thawing frost, and (3) the Secretary’s soil expert, CharlesShimel, testified that it was unstable.[[11\/]] Trumid argues that its employees’eyewitness testimony established that the soil was neither unstable nor soft. It alsocriticizes Shimel’s opinion testimony because it was based in large part on hisexamination of a soil map and on his visit to the worksite about a year after theaccident.Having reviewed the record, we conclude that the evidence fullysupports the judge’s finding that the soil was \”unstable or soft.\” Shimel’stestimony was detailed and authoritative. In particular, he explained how the photographsin evidence showed that the soil was unstable. Those photographs were taken just after thecave-in. They were stipulated into evidence by the parties, were relied on by witnessesfor both sides, and their accuracy was not questioned. Shimel explained that they showedcavities in the lower trench wall, caused by soil sloughing off. He concluded that thesoil was unstable on that basis.To rebut the evidence of instability, Trumid points to thetestimony of its site supervisor when the cave-in occurred. That supervisor testified thatthe soil was \”firm,\” \”solid\” and \”cohesive.\” Trumid alsonotes that its witnesses were the only ones to see the trench. OSHA’s inspector began hisinvestigation four months after the accident. The trench had been filled in. OSHA’s expertdid not visit the worksite until a year after the accident.As indicated above, the reason why OSHA was unable to view the trench first-hand was thatTrumid failed to report the accident to the agency as required. Thus, we do not fault OSHAfor having only circumstantial evidence of the soil type here.[[12\/]]In any event, the eyewitness testimony of Trumid’s employeesdoes not rebut the conclusions that Shimel drew after examining the photographs. None ofTrumid’s witnesses explained why his expert conclusions based on the photographs wereincorrect. In particular, the supervisor’s statement that the soil generally appeared\”firm,\” \”solid\” and \”cohesive\” does not rebut the expertconclusion that some of it was sloughing off, and that the wall therefore was unstable.None of Trumid’s witnesses indicated that they were expert inthe identification of soil types. None denied that soil had sloughed off from the walls.One acknowledged that the soil was wet on top from rain or snow, and that it \”wasjust a little mushy maybe\” near the top of the trench. The preponderance of theevidence fuIly supports the judge’s finding that the soil was \”unstable orsoft.\”The trench, with its undisputed dimensions, would have compliedwith OSHA’s requirements if the soil had been \”hard or compact.\” 29 C.F.R. ?1926.652(c). Trumid offered no reason why the trench would have collapsed had it been dugin stable soil. Thus, the most plausible explanation for the cave-in is that the soil was unstable.Shimel had other reasons for his conclusion that the soil wasunstable. He consulted a U.S. Department of Agriculture map of the area, and testifiedthat it identified the soil type in the area where the accident occurred as \”64Paxton\”–an unstable soil for trenching purposes.[[13\/]] Based on the photographs,Shimel also testified that the frozen, wet and thawing condition of the soil contributedto its instability. In addition, Shimel relied on his visit to the worksite exactly oneyear after the accident. At the time of that visit, the excavation at issue had beenclosed for almost a year. Nevertheless, Shimel was able to observe the soil revealed byother excavations or backfilling on the project, and he was therefore able to determinethat the soil type generally conformed to \”64 Paxton\” soil.Although Trumid raises strong objections to the evidence basedon the soil map and Shimel’s visit,[[14\/]] this evidence must be viewed in the context ofthe entire record. The record evidence in toto is probative of the soil typeat the accident site. As Shimel testified without contradiction, the information he usedwas \”the best information that [he] could obtain.\” Again, this is because Trumidfailed to report the fatality as required. In the circumstances, the Secretary should beallowed to establish a violation based on the best evidence available.The soil map, soil report and worksite visit, about whichShimel testified, constitute substantial evidence that the soil at the accident site morelikely than not was unstable. That evidence corroborates his unrebutted, expertconclusions based on the photographs in evidence. As noted above, the standard of proof inour proceedings is the preponderance of the evidence. See n. 5 supra. In our view, theevidence here clearly preponderates in favor of the conclusion that the soil was\”unstable or soft,\” as the judge found.C. Whether the other elements of a violation have beenestablished The trench was not sloped or otherwise supported in compliancewith the standard’s requirements. Table P-1, incorporated by reference in the standard,graphically depicts the required slopes for different types of soils. A slope no steeperthan approximately 1:1 a 45? angle — was required for \”average soils.\”\”Unstable or soft material\” would require at least as much sloping as\”average soils.\”Shimel gave the only specific testimony regarding the properdimensions for the excavation. In his opinion, the trench walls should have been sloped 11\/2 :1 — that is, 1 1\/2 feet horizontally for every foot vertically — for stability.That would result in an opening at least 20 feet wide at the top.[[15\/]] The actualopening was only 11 to 12 feet wide at the top.Sloping of either 1:1 or 1 1\/2 :1 would have resulted inconsiderably more soil being removed from the trench walls than the bench configurationused by Trumid. Such sloping would thereby have reduced the cave-in hazard at which thestandard was directed. Trumid’s method of benching did not provide protection that isequivalent to that required by section 1926.652(b) for soft or unstable soil.[[16\/]]It is undisputed that Trumid employees worked in the inadequately protected trench, andthat it was aware of the conditions. Thus, all the elements of a violation have beenestablished: the standard applied to the conditions, its terms were violated, Trumid’semployees had access to the hazards, and it had the requisite knowledge of the violation.E.g., North Berry Concrete Corp., 13 BNA OSHC 2055, 2056, 1989 CCH OSHD ?28,444, p. 37,643 (No. 86-163, 1989).ALLEGED SERIOUSNESS OF VIOLATIONSThe next issue is whether the trench support violation and ahard hat violation, as affirmed by the judge, were serious violations. The applicableprovision of the Act is 29 U.S.C. ? 666(k), which provides:[A] serious violation shall be deemed to exist in a place ofemployment if there is a substantial probability that death or serious physical harm couldresult from a condition which exists,. . . . in such place of employment unless theemployer did not, and could not with the exercise of reasonable diligence, know of thepresence of the violation.Trumid had the requisite knowledge of the trench supportviolation, as found above, and the judge correctly found that it was aware that itsemployee in the trench had no hard hat. The remaining question is whether there was a\”substantial probability\” that serious consequences \”could result.\”We find that that test has been met. Supervisor LaBellatestified that Jesus Ayala, the employee killed in the cave-in here, was bending over,apparently to retrieve an object, when the soil collapsed. After the soil collapsed, itcovered the bottom of the excavation to a height of 2 1\/2 feet. Ayala was not wearing ahard hat. The judge found the hard hat item serious for the following reasons:The photographs show piles of excavated material along theoutside of the trench– this material consisting of sand, stones and other excavatedmatter could slide down and strike the men [laying pipes] in the trench causing possibleserious head injuries. Actually, part of the trench did collapse and cause the death ofone of the workers.The fatality demonstrates the seriousness of the trench supportviolation.\u00a0 See Simplex Time Recorder Co., 12 BNA OSHC 1591, 1597, 1984-85 CCHOSHD ? 27,456, p. 35,572 (No. 82-12, 1985). Also, we find that there was a significantrisk of serious head injury in the trench under the circumstances. Both violationsproperly are classified as serious. See Communications, Inc., 7 BNA OSHC 1598,1602, 1979 CCH OSHD ? 23,759, p. 28,813 (No. 76-1924, 1979) (employees likely wouldsuffer serious physical harm from collapse of trench 6’2\” deep, particularly if theywere in a bending position).PENALTIESIn assessing penalties, the Commission gives due considerationto the size of the business, the gravity of the violation, the employer’s good faith, andits history of previous violations. 29 U.S.C. ? 666(j). The record does not establishwhether Trumid was a large or small employer, or whether it had a history of violations.However, the gravity of the trench support violation is a factor that fully justifies the$480 penalty proposed by the Secretary. Also, Trumid’s good faith is not unblemished,because it failed to report the fatality as required. A penalty of $480 will be assessed.The judge assessed a penalty of $200 for the hard hatviolation. The parties do not dispute the appropriateness of that penalty on review. Thejudge’s assessment is affirmed.Thus, the alleged violation of ? 1926.652(b) is affirmed. Thatviolation and the violation of ? 1926.100(a) found by the judge are classified as seriousviolations, with penalties of $480 and $200, respectively.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G.WisemanCommissionerDated: September 12, 1990SECRETARY OF LABORComplainantv.TRUMID CONSTRUCTION CO., INC.RespondentDocket No. 86-1139APPEARANCES:\u00a0\u00a0\u00a0\u00a0 JANE SNELL BRUNNER,Esquire\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 U.S.Department of Labor\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Officeof the Solicitor\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 NewYork, New York 10036\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Forthe Complainant\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 JAMESHARRINGTON, Esquire\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Kissam& Halpan, Esquires\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Forthe RespondentDECISION AND ORDERSOMMER, Judge:On July 25, 1986, Respondent was issued serious citation no. 1alleging violations of 29 C.F.R. 1926.100(a), 29 C.F.R. 1926.652(b) and 29 C.F.R.1926.652(h), with a total penalty proposed of $1,360. An other than serious citation whichwas issued for an alleged violation of 29 C.F.R. 1904.8 with no penalty proposed was notcontested.A hearing was held in New York, N.Y. All parties were represented by counsel who filedpost-hearing briefs. No jurisdictional issues are in dispute, the parties having pleadedsufficient facts to establish the Respondent is subject to the Act and the Commission hasjurisdiction of the parties and of the subject matter.BACKGROUNDTrumid Construction Company, Inc. is a New York Corporationengaged in the construction business. In March 1986 they were engaged in a pipe layingoperation in Ossining, New York. The trench collapsed on one of the respondent’s employeesresulting in a fatality. The Compliance Officer visited the site of the work activity andaccident in July 1986 and issued the citations werein based on his investigation. Sincethe accident and work activity occurred in March 1986 the Compliance Officer observed noneof the alleged violations personally.Citation No. 1, Item 1 – Alleged violation of 29 C.F.R. 1926.100(a)The standard which pertains to head protection for employeesprovides as follows:Employees working in areas where there is a possible danger ofhead injury from impact, or from the falling or flying objects, or from electrical shockand burns, shall be protected by protective helmets.The standard at issue requires that employees \”be protected by protectivehelmets\” where there is \”a possible danger of . . . injury from impact, or fromfalling or flying objects. . .\”The evidence demonstrates that two employees were working in atrench laying pipes without having head protection. This was known by the respondent’ssuperintendent. The photographs show piles of excavated material along the outside of thetrench – this material consisting of sand, stones and other excavated matter could slidedown and strike the men working in the trench causing possible serious head injuries.Actually, part of the trench did collapse and cause the death of one of the workers. Anydislodging of material could strike men working in the trench. In short, the recordsupports a finding that the respondent’s employees were subject to possible head injurywhile working in the trench and were without protective helmets. Accordingly, I find thatthere was a violation of 29 C.F.R. 1926.100(a).The respondent alleges that the Secretary charged the violationof 1926.100(a) was based on possible injuries to employees working in the trench\”close to an operating 225 CAT Back hoe\” which was not proven and thereforerequires a dismissal of this allegation. This argument is without merit. While theSecretary failed to prove that the \”possible injury\” could occur due to the\”Back Hoe\”, the total evidence produced substantiates a violation of thissection because of the possibility of injury as described aforesaid, and is considered anamendment of the citation and complaint to allege the presence of the other possiblecauses of injury to the employees working without protective helmets. See Federal Rules ofProcedure, section 15(b). It is well settled that administrative proceedings are\”liberally construed\” and \”easily amended\”. N.L.R.B. v. FantMilling Co., 360 U.S. 301, 79 S. Ct. 1179, 3 L. Ed. 2d 1243 (1959); Usery v.Marquette Cement Manufacturing Co., 558 F2d 902, 906 (5 OSHC 1793, 1796) (2d Cir.1977).As Professor Davis has stated, \”the most importantcharacteristic of pleadings in the administrative process is their importance. Andexperience shows that unimportance of pleadings is a virtue\”. 1 K. Davis,Administrative Law Treatise a Par. 8.04 at 523 (1958).The respondent failed to object to the introduction of theevidence relevant to the unpleaded allegations, and it had every opportunity to meet theallegations concerning this violation. In sum, the Secretary’s enlargement or amendment ofthe allegations concerning a violation of this section was proper and the issue not raisedby the pleading was tried by implied consent. Considering the circumstances herein, andconsistent with the criteria set forth in section 17(j) of the Act, a penalty of $200 isconsidered appropriate herein.Citation No. 1 – Item No. 2 – Alleged Violation of 29 C.F.R.1926.652(b)The trenching standard at 29 C.F.R. 1926.652(b) provides:Sides of trenches in unstable or soft material, 5 feet or morein depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means ofsufficient strength to protect the employees working within them. See Tables P-1, P-2(following paragraph (g) of this section). In order to prove non-compliance with section 1926.652(b) theSecretary must prove by a preponderance of the evidence that the sides of the trench were:(1) in unstable or soft material; (2) five feet or more in depth; and (3) not shored,sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protectthe employees working within them.The three witnesses (Labella, Della-Donna and Brajas) whopersonally observed the condition and make up of the soil agreed that it was of a claytype. Moreover, the presence of ground water from thawing frost contributed additionallyto the instability of the soil. Shimel, the Secretary’s witness testified that based onhis perusal of aerial photographs of the land topography in the vicinity of the trenchplus interpretations made thereon by the U.S. Departments of Interior and Agriculture, thesoil in the trench area was unstable; however, this opinion was watered down by hisadmission that the soil type could change within a short distance (500 feet) (T102). Inshort, the totality of the credible evidence substantiates that the soil in the trench wasof a clay composition with some wetness present. Under 29 C.F.R. 1926.652(b), this type ofsoil is unstable, and I so find.However, the Secretary failed to sustain his burden of provingthat the sides of the trench were 5 feet or more in depth. Since the trenching violationallegedly occurred in March 1986 and the OHSA investigation took place in July 1986 whenthe trench was filled in and the land back to normal the Compliance Officer had nopersonal knowledge of the scene. LaBella, the superintendent testified to varying depthsof the trench ranging from 4 feet to 6 feet (T14, 20). Shimel, another witness guessed atthe trench depth being \”anywhere from eight to ten feet\” (T69). Scott, theCompliance Officer testified from what LaBella told him \”it was between four and ahalf to five, maybe five and a half feet to the benchmark\”. Shimel based his estimateon the depth from the very bottom of the trench to some non-existant point where theground lie before the cut started which is patently erroneous. The trench line starts fromthe area where the men are standing (see C-5) and the ground is flat astride the cut, notsome non-existant sphere. LaBella testified that the trench \”was only filled in alittle more than two feet\” after the cave in, and a three foot shovel inserted in thetrench shovel \”six or eight inches of the top\”. Thus hereto there is a distinctpossibility of less than a five foot trench being herein.In short the evidence as constituted is insufficient to provethis necessary element of the violation. The opinions advanced by the witnesses arespeculative and are not persuasive as to the depth of the trench. The varying estimates donot constitute the substantial evidence required to make a finding that the trench sideswere 5 feet or more in depth.The proof must be clear and convincing, not presumed orinferred. Ellison Electric, 1 OSHRC 547, 1 BNA OSHC 3034, 1971-3 CCH OSHD Par.15,133 (No. 412, 1972); not based on speculation, Edison Lampworkes, 7 BNA OSHC1818, 1979 CCH OSHD Par. 23,913 (No. 76-484, 1979); or mere conjecture, Franklin LumberCompany, Inc., 74 OSHRC 46 E\/3, 2 BNA OSHC 1077, 1079, 1973-4 CCH OSHD Par. 18,206(No. 900, 1974). Since it was not established that the trench was five feet or more indepth, I find there was no violation of 29 C.F.R. 1926.652(b).Citation No. 1 – Item No. 3 – Alleged Violation of 29 C.F.R. 1926.652(h)The standard provides as follows:When employees are required to be in trenches 4 feet deep ormore, an adequate means of exit, such as a ladder or steps shall be provided and locatedso as to require no more than 25 feet of lateral travel.The Secretary alleged that the respondent violated 29 C.F.R.1926.652(h) because it failed to maintain an adequate means of exit from the trench. Theundisputed evidence established that the trench was 40-42 feet long and over four feet indepth. There was a ramp or slope in the ground provided which was used by the twoemployees for entrance and egress which was located 40-42 feet away where the employeeswere first starting to lay pipe. The employees were laying pipe in the trench, lack of 121\/2 foot sections. Thusly, it is apparent that while laying the first of the pipe lengthsthese workmen were over 25 feet away from their point of exit. The evidence of recordfully establishes that there was a violation of the standard as alleged. Since an exit hadbeen provided for the employees, though not within the required distance, under thecircumstances herein, I find that the violation was non-serious and assess a penalty of$50.FINDINGS OF FACTAll findings of fact relevant and necessary to a determinationof the contested issues have been found specially and appear in the decision. (See Rule52(a) of the Federal Rules of Civil Procedure). Any proposed findings of fact andconclusions of law that are inconsistent with this decision are denied.CONCLUSIONS OF LAW1. Trumid Construction Co. Inc., at all times material to thisproceeding, was subject to the requirements of the Act and jurisdiction of the Commission.2. The record establishes by a preponderance of the evidencethat Trumida) Committed a serious violation of 29 C.F.R. 1926.100(a)b) Did not violate 29 C.F.R. 1926.652(b) and said allegation is vacatedc) Committed a non-serious violation of 29 C.F.R. 1926.652(h).3. The penalty for violation of 29 C.F.R. 1926.100(a) is $200and the penalty for violation of 29 C.F.R. 1926.652(h) is $50, both of which areappropriate and reasonable.ORDER Based upon the findings of fact, conclusions of law, and theentire record, it is ORDERED1. A violation of 29 C.F.R. 1926.100(a) is affirmed and apenalty of $200 ASSESSED2. A violation of 29 C.F.R. 1926.652(b) is vacated3. A violation of 29 C.F.R. 1926.652(h) is AFFIRMED asnon-serious and a penalty of $50 is ASSESSED. SO ORDERED.IRVING SOMMERJudge, OSHRCDATED: July 22, 1987 Washington, D.C.FOOTNOTES: [[1\/]] The cited trench support standard has been superseded by the revised excavationstandards, 29 C.F.R. Part 1926, Subpart P, effective March 5, 1990. Excavations, FinalRule, 54 Fed. Reg. 45,894, 45,959 (Oct. 31, 1989); 54 Fed. Reg. 53,055 (Dec. 27,1989). However, the cited standard was in effect when the alleged violations took place.[[2\/]] Trumid was cited under ? 1904.8 for not reporting theaccident to OSHA within 48 hours, but it did not contest that citation. OSHA’s complianceofficer, David Scott, testified that OSHA received no notice of the fatality until theinsurance company contacted it.[[3\/]] The Commission has the discretion to review the entirejudge’s decision once it is directed for review. Commission Rule 92(a); Hamilton DieCast, Inc., 12 BNA OSHC 1797, 1986-87 CCH OSHD ? 27,576 (No. 83-308, 1986). However,the other issues decided by the judge were not expressly directed for review. Nor do wesee any other reason to review the judge’s disposition of those issues. As to thoseissues, the judge’s decision is a final order of the Commission, with the precedentialvalue of an unreviewed judge’s decision. Leone Construction Co, 3 BNA OSHC 1979,1981, 1975-76 CCH OSHD ? 20,387, p. 24,322 (No. 4090, 1976).[[4\/]] A \”bench\” is a squared-off section of soilbelow ground, resembling a bench in appearance, such as the areas on each side of thesecond cut here.[[5\/]] The judge erred in stating that the proof of a violationmust be \”clear and convincing.\” The standard of proof in our proceedings is thepreponderance of the evidence. E.g., Astra Pharmaceutical Products, Inc., 9BNA OSHC 2126, 2131, 1981 CCH OSHD ? 25,578, p. 31,901, (No. 78-6247, 1981), aff’d onother grounds, 681 F.2d 69 (1st Cir. 1982).The judge stated that the evidence about the trench’s depth wasspeculative, unpersuasive and insubstantial. However, that statement was based on thejudge’s view that the trench’s depth should be measured from the bench level, not theoriginal ground level. He did not disagree with the trench dimensions discussed above,which are essentially undisputed on review.[[6\/]] Trumid also argues that the Secretary’s proposed\”original ground level\” basis of measurement conflicts with her own inspector’sactual approach. It claims that Compliance Officer Scott originally estimated the depth ofthe trench from the bench mark, not the original ground level. However, the evidence doesnot indicate that Scott knowingly calculated the trench’s depth differently than theSecretary now advocates. Thus, Trumid’s claim is rejected.To explain, Scott’s estimates were made before the citation wasissued, based on the photos and what Trumid’s supervisor told him.There is not evidencethat Scott knew about the benches when he made those estimates. (For example, thephotographs in evidence do not show benches, because the spoil piles were resting on theminstead of being set back from the sides of the excavation.) Scott did not address thisissue in his testimony. However, Charles Shimel, the Secretary’s expert on soil types,testified that he was not aware that benches had been created until Trumid’s employeestestified, and that he had gotten the impression from Trumid’s answers to interrogatoriesthat only one cut had been made.[[7\/]] See also Heath & Stich, Inc., 8 BNA OSHC1640, 1643, 1980 CCH OSHD ? 24,580, p. 30,151 (No. 14188, 1980).[[8\/]] If width were measured at the top, many trenches wouldcease to be trenches once they were properly sloped. Sheesley and Winters ConstructionCo., 3 BNA OSHC 1340, 1341-42 n.8, 1974-75 CCH OSHD ? 19,756, p. 23,570 n.8 (No.6824, 1975) (views of Commissioner Cleary).[[9\/]] Trumid argues that the correct approach to trenchmeasurement was taken by Chief Judge Coffin, who concurred in the First Circuit’s opinionin D. Federico. However, his opinion does not support Trumid. Judge Coffin did saythat the much greater width (13′) than depth (6 1\/2′) of the cavity there precludedcalling it a trench. 558 F.2d at 617. However, that excavation was 13 feet wide at thebottom, because it was not sloped. 3 BNA OSHC at 1970, 1975-76 CCH OSHD at p. 24,377.[[10\/]] The new definition states:Trench (trench excavation) means a narrow excavation (inrelation to its length) made below the surface of the ground. In general, the depth isgreater than the width, but the width of a trench (measured at the bottom) is not greaterthan 15 feet (4.6 m). . . .[[11\/]] Shimel is a civil engineer who specializes in soils andfoundation engineering.[[12\/]] Shimel testified without contradiction that theinformation he used was \”the best information that [he] could obtain.\”[[13\/]] That soil type was described in the Westchester County,N. Y. soil survey interim report of October 1978. (The Ossining, N. Y. worksite was withinWestchester County.) The description of \”64 Paxton\” soil in that report states,\”[s]idewalls in excavations are unstable in the surface and subsoil and are subjectto caving.\” Mr. Shimel testified, based on the photos in evidence, that much of thesoil was consistent with \”64 Paxton\” soil, though some was clay-like.[[14\/]] Trumid argues that the soil map was unreliable becauseShimel acknowledged that soiI types may change within 100 to 150 feet. One hundred feetrepresented only 1\/10-inch on the soil map. Trumid also criticizes reliance on the soilmap because, as noted above, its employees testified from first-hand observation that thesoil was \”firm,\” \”solid\” and cohesive.\” These are notcharacteristics of \”64 Paxton\” as described in the soil survey (see n.13 supra).Trumid criticizes reliance on Shimel’s visit to the worksite because the soil he saw wasbetween 400 feet and 1,500 feet away from the accident site. Trumid argues that thoseobservations are not helpful because Shimel acknowledged that he has found changes in soiltype within 100 to 150 feet.[[15\/]] We calculated this 20-foot width as follows. Trenchsides had to be sloped from the bottom, if sloping was used, under the cited standard.E.g., Edward Kelly and Sons, Inc., 10 BNA OSHC 1340, 1343, 1982 CCH OSHD ?25,884, p. 32,386 (No. 76-2802, 1982). Under Table P-1, the approximate angle of reposefor \”average soil\” was 1:1 (a 45? angle), and less steep slopes were requiredfor soils more unstable than average. Here, each side of the excavation should have beensloped 8 1\/4 feet horizontally (1 1\/2 times the 5 1\/2-foot vertical distance). Thus, thetotal trench width at the top should have been 3 1\/2 feet (width of excavation at bottom),plus 16 1\/2 feet, for a total of 20 feet.[[16\/]] The trench apparently would have been inadequate underthe new excavation standard as well. That standard provides specifications for permissiblebenching. However, for the soil type involved here, which Shimel testified requiredsloping of 1 1\/2 :1, benches would not be permissible. Appendix A to Subpart P, FigureB-1.3; 54 Fed. Reg. at 45,969.”