Docket No. 3847

DOBSON BROTHERS CONSTRUCTION CO.

OSHRC Docket No. 3847

Occupational Safety and Health Review Commission

February 18, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

T. A. Housh, Jr., Regional Solicitor, USDOL

Bruce Wright, for the employer

OPINION:

DECISION

BY THE COMMISSION:

The decision of Administrative Law Judge Paul E. Dixon, dated October 22, 1974, is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter "the Act"]. Judge Dixon concluded that the Secretary of Labor failed to carry his burden of proof that respondent employer, Dobson Brothers Construction Company, was constructing a trench in soft or unstable material without adequate safeguards in violation of 29 CFR § 1926.652(b). n1 Judge Dixon did hold respondent in repeated violation of the Act for not complying with the standard published in 29 CFR § 1926.651(i)(1) n2 barring the storing of excavated material within two feet of the edge of a trench. The Judge assessed a penalty of $1,000 for this violation.

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n1 29 C.F.R. § 1926.652(b) provides the following:

Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them.

n2 29 CFR § 1926.651(i)(1) provides the following:

In 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.

[*2]

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Commissioner Moran directed review on November 14, 1974, on the following two issues:

(1) Did the Judge give due consideration to "gravity" in assessing the penalty in this case.

(2) Did the Judge err in basing his penalty assessment on section 17(a) of the Act.

Review was further directed by Commissioner Moran on January 7, 1975, on the following additional issue:

Did the Judge err in applying a "Specific Excavation Requirement," 29 C.F.R. § 1926.651(i)(1), to a "trench"?

There issues have been fully briefed by the parties. In addition, the Secretary of Labor has briefed objections to the Judge's decision that were specified in his petition for review before the full Commission. In this regard, the Secretary has urged that the trench was dug in unstable or soft material, within the meaning of safety standard 29 CFR § 1926.652(b).

The Commission has examined the record in light of the issues directed for review and the position of the Secretary on the $1926.652(b) issue. The Commission finds that the Judge peoperly decided the case and adopts his decision with the following amplification and [*3] penalty adjustment.

The Secretary argues at some length that the Judge should have found respondent failed to comply with 29 CFR § 1926.652(b). The issue of compliance comes down to a battle of the parties' experts. We agree with the Judge's assessment of their evidence for the reasons stated on pages 43 and 44 of his opinion.

Issue (1) of the November 1974 direction invited submissions on the issue of whether the Judge gave due consideration to "gravity" (as that term is used in section 17(j) of the Act) in assessing the penalty in this case. While Judge Dixon does not use the word "gravity" in reaching his decision to assess a penalty of $1,000 for the spoil pile violation, it is clear that he did consider the evidence adduced concerning the spoil pile. Indeed, this is implicit from his resolution of the disputed factual question as to the dimensions of the spoil pile.

During the course of his discussion of the spoil pile, the Judge not only resolved the issue of the height and weight of the spoil pile, he also discussed the nature of the hazard represented by the pile. Thus, at page 46 of the slip opinion, the Judge draws the following conclusion:

A spoil pile of this [*4] mass and consistency represents a hazard, in that should the spoil pile give way or slide with workmen within the trench, even though utilizing a trench box, there would be substantial probability that death or serious physical injury could result (emphasis added).

From this statement, as well as the discussion surrounding the resolution of the dimensions of the spoil pile, it is clear that Judge Dixon considered the gravity of the hazard represented by the pile.

Issue (2) of the November 1974 direction invited submissions on the issue of whether the Judge erred in basing his penalty assessment on section 17(a) of the Act. The Judge acted properly in this regard inasmuch as respondent had a final order outstanding against it for non-compliance with the spoil pile standard. Subsequent violations of a standard are generally classified as "repeated" violations. n3 See, Todd Shipyards Corp., No. 12510, BNA OSHC , CCH E.S.H.G. para. (1975). Admittedly, respondent established that the first spoil pile violation was an aberration in a long and effective safety program. That fact, however, is considered in the assessment of a proper penalty; it does not affect the [*5] characterization of a violation.

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n3 Chairman Barnako is of the opinion that a subsequent violation of a standard is not in itself sufficient to establish a repeat violation. In his view, conduct similar to that required to establish a willful violation is necessary. However, he considers himself bound by the Commission's precedents in the absence of a change in the majority rule on this issue.

Bethlehem Steel Corp., 20 OSAHRC 227, 3 OSHC 1520, OSHD para. 19,996 (1975); General Electric Co., 17 OSAHRC 49, 3 OSHC 1031, OSHD para. 19,567 (1975); Todd Shipyards Corp., Dkt. 12510, 3 OSHC 1813, OSHC para. 20,237 (1975).

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Respondent's size was stipulated at 125 employees. The "gravity" of the violation as discussed by Judge Dixon is set forth above. The Judge notes respondent's ongoing safety program and past history. He notes that this history is mitigated by its facts. In light of all these factors, he assessed a $1,000 penalty.

While the penalty was equal to half of that proposed by the Secretary for [*6] both parts of the repeated serious violation, the Act clearly authorizes Judge Dixon to assess the $1,000 amount. We have, however, reviewed the facts surrounding both the original and subsequent violation and conclude, in light of respondent's persuasively argued discussion of its good faith, that the assessed penalty merits a further reduction to $500 on the strength of that factor.

The January 1975 direction invited submissions on whether a "Specific Excavation Requirement" in 29 CFR § 1926.651(i)(1) was properly applied to a "trench." To answer this question, it need only be noted that Subpart P of Title 29, Code of Federal Regulations, is titled "Excavations, Trenching, and Shoring." Subparagraph (n) of § 1926.653, Definitions applicable to this subpart, defines the word "trench," in pertinent part, as "[a] narrow excavation . . ." (emphasis added). We conclude, in light of this definition, the purposes of the Act, and in the absence of any specific requirements relating to "spoil piles" in § 1926.652, that the excavation requirement to set spoil piles back two feet also applies to the subclass of excavation called "trenches." See, D. Federico Co., Inc., [*7] No. 4395, BNA OSHC , CCH E.S.H.G. para. (1975).

Accordingly, it is ORDERED that the decision of Judge Dixon, as modified by this opinion, is affirmed.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I do not believe that a violation based on noncompliance with 29 C.F.R. § 1926.651(i)(1) can be sustained on the record before us.

The Judge found that the "respondent's employees had excavated a trench." A trench is defined as follows in 29 C.F.R. § 1926.653(n):

"A 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."

The government inspector testified that the trench was approximately 30 feet long, 15 feet deep, 14 feet wide at the top, and four feet wide at the bottom. There was a slight conflict of evidence as to the trench's depth and width at the top. The respondent's safety director testified that the depth was between 13 and 14 feet. Another witness, a registered engineer who appeared for the respondent, determined that the trench was about 14 feet deep and about 17 feet wide at the top.

I find that the evidence [*8] supports the Judge's conclusion that the cavity was a trench. However, the alleged violation cannot be affirmed because the standard allegedly violated does not pertain to trenches. See Secretary v. Salem-Willamette General Contractors, 9 OSAHRC 227 (1974).

The standards contained in 29 C.F.R. § 1926.651 apply to excavations. Since the requirements for trenches are separately provided for in 29 C.F.R. § 1926.652 which does not contain a provision in regard to the storage of materials adjacent to trenches, the citation should be vacated.

I am also compelled to take issue with the following assertion in the foregoing opinion:

"Subsequent violations of a standard are generally classified as 'repeated' violations. n3 See Todd Shipyards Corp. . . . ." (Footnote omitted.)

In footnote 3 to this "ruling," Mr. Barnako states that he doesn't agree with this rule but he is going along with it because "he considers himself bound by the Commission's precedents . . . on this issue." (Emphasis supplied.) If there are any Commission precedents which stand for the proposition stated in the above-quoted text to which footnote 3 pertains, I am unaware of them. Certainly, [*9] that precedent is not established by any of the cases cited in the majority opinion. My examination of the case law on this point reveals only the individual views of Mr. Cleary favoring a rule so classifying violations as "repeated."

Chairman Barnako disqualified himself from participating in the decision in that case, and Commissioner Cleary and myself were in disagreement as to what constitutes a repeated violation. The Judge's conclusion that one of the charges was not a repeated violation was affirmed because Commissioner Cleary and I were in disagreement as to the correctness of that holding. Concerning that charge, Commissioner Cleary stated in his opinion that he considered our decision thereon "to lack precedential value." n4 I contend, as I did in Todd Shipyards, that our prior decision in Secretary v. Bethlehem Steel Corporation, 20 OSAHRC 227 (1975), requires proof that the "violative conditions" in the prior and subsequent citation must [*10] be "substantially the same" in order to establish a repeated violation. Most certainly I did not join in any statement in Todd Shipyards or Bethlehem Steel that could reasonably be construed as meaning that "[s]ubsequent violations of a standard are generally classified as 'repeated' violations."

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n4 Nevertheless, both Mr. Cleary and Mr. Barnako now cite it as precedent. This is reminiscent of Winston Churchill's comment on Stanley Baldwin's policies in his 1936 book While England Slept:

"Decided only to be undecided, resolved to be irresolute, adamant for drift, solid for fluidity, all-powerful to be impotent."

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Furthermore, my colleagues have misconstrued our decision in Secretary v. General Electric Company, Inc., 17 OSAHRC 49 (1975), in their all-empassing pronouncement of a rule for establishing repeated violations. That case involved violations within different divisions of General Electric's Schenectady facility. We agreed there with the Judge's conclusion that the same violations at "like [*11] activities in one geographical location are to be considered" repeated. 17 OSAHRC at 65-66. However, I know of no decision of this Commission that adopts this decision's worldwide, or even nationwide, theory of recidivist liability.

One other comment is pertinent to the question of following Commission precedent. The majority's discussion of whether the Judge considered the gravity of the offense in making the penalty assessment makes it clear that his consideration focused only on the seriousness of the violation. n5 The Commission does have precedent on this point. As we noted in one of our earliest decisions, Secretary v. Nacirema Operating Company, Inc., 1 OSAHRC 33, 36 (1972):

"One should not . . . confuse the categories for classifying violations (degree of hazard) with the criteria to be considered in assessing penalties."

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n5 Conveniently omitted from the quotation taken from the Judge's discussion of the spoil pile is his citation to our decision in Secretary v. Standard Glass & Supply Co., 2 OSAHRC 1488 (1973) which was concerned only with whether a violation should be classified as "serious" or nonserious.

[*12]

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Since both the majority and dissenting decisions in this case refer several times to Judge Dixon's decision, the full text of the same is incorporated herein by reference and attached hereto as Appendix A.

APPENDIX A

Donald McCoy, and Sue Ann Wolff, U.S. Department of Labor, Office of the Solicitor, Appearing on behalf of Complainant

Bruce Wright, Appearing on behalf of Respondent

Hearing held November 15 & 16, 1973, U.S. Courthouse and Federal Building, Lincoln, Nebraska, Judge Paul E. Dixon presiding.

JURISDICTION

This is an action under section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereinafter referred to as the Act), contesting a citation for repeated violations issued by complainant on July 11, 1973, following an inspection of respondent's worksite on July 6, 1973, where respondent was engaged in laying pipe in a trenching operation.

Timely notice of contest was made by respondent, and complaint was filed on the 9th day of August, 1973, with answer filed on August 24, 1973, bringing the case to issue. Complainant withdrew paragraph V of his [*13] complaint for other-than-serious violation of 29 CFR 1926.602(a)(9)(ii) (erroneously cited as 29 CFR 1926.601(b)(4)), on the basis of lack of evidence to support the allegation.

STIPULATIONS AND ADMISSIONS

The hereinafter stipulations and admissions were entered into by the parties:

1. Respondent is engaged in commerce and is an employer within the meaning of the Act.

2. Respondent has approximately 125 employees.

3. Respondent had been cited previously for a serious violation, which was not contested.

4. Respondent does a gross volume of business in the amount of seven million dollars annually.

5. Respondent is engaged in construction, paving, excavation and installation of sewer pipes.

THE CITATION

Respondent was charged with repeated violation in Citation 2, item 1 (part (a)), of 29 CFR 1926.652(b) (approximately 50 yards west of South 40th Street and Stonecliff Drive, Lincoln, Nebraska): "The faces of the trench were not braced or shored, nor laid back to a stable slope. Nor did the low trench box offer protection to the employees from the hazard of moving earth or cave-ins."

In part (b) of Item 1, respondent was charged with repeated violation of 29 CFR [*14] 1926.651(i)(1) (approximately 50 yards west of South 40th Street and Stonecliff Drive, Lincoln, Nebraska): "Excavated material was stored on the edge of the east face of the excavation, was not retained, and thus created a hazard from moving earth."

Immediate abatement periods were set, and a proposed penalty for the repeat violation (citation 2, item 1) of $2,000.00 was assessed. It was further alleged that the conditions combined to form a situation that can cause serious physical harm or death. The alleged violations in the citation were cited from the Federal Register dated December 16, 1972, Volume 37, Number 243, part II, Regulations for Construction.

THE STANDARDS

"29 CFR 1926.652(b) Specific trenching requirements.

(b) Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. See Tables P-1, P-2 (following paragraph (g) of this section)." See the above-mentioned Tables below and on the next page.

"29 CFR 1926.651(i)(1) Specific excavation requirements.

(i)(1) In excavations which employees may be required [*15] to enter, excavated or other material shall be effectively stored and retained at least 2 feet or more from the edge of the excavation."

[SEE ILLUSTRATION IN ORIGINAL]

TABLE P-2
TRENCH SHORING-MINIMUM REQUIREMENTS

		Size and spacing of members

		Uprights	Stringers

Depth of	Kind or condition	Minimum	Maximum	Minimum	Maximum
trench	of earth	dimension	spacing	dimension	spacing

Feet		Inches	Feet	Inches	Feet
5 to 10	Hard, compact	3 X 4 or 2 X 6	6
	Likely to crack	3 X 4 or 2 X 6	3	4 X 6	4
			Close
	Soft, sandy, or filled	3 X 4 or 2 X 6	sheeting	4 X 6	4
			Close
	Hydrostatic pressure	3 X 4 or 2 X 6	sheeting	6 X 8	4
10 to 15	Hard	3 X 4 or 2 X 6	4	4 X 6	4
	Likely to crack	3 X 4 or 2 X 6	2	4 X 6	4
			Close
	Soft, sandy, or filled	3 X 4 or 2 X 6	sheeting	4 X 6	4
			Close
	Hydrostatic pressure	3 X 6	sheeting	8 X 10	4
			Close
15 to 20	All kinds or conditions	3 X 6	sheeting	4 X 12	4
			Close
Over 20	All kinds or conditions	3 X 6	sheeting	6 X 8	4

TABLE P-2
TRENCH SHORING-MINIMUM REQUIREMENTS

		Size and spacing of members
		Cross braces n1

		Width of trench
Depth of	Kind or condition	Up to 3	3 to 6	6 to 9	9 to 12
trench	of earth	feet	feet	feet	feet

Feet		Inches	Inches	Inches	Inches
5 to 10	Hard, compact	2 X 6	4 X 4	4 X 6	6 X 6
	Likely to crack	2 X 6	4 X 4	4 X 6	6 X 6
	Soft, sandy, or filled	4 X 4	4 X 6	6 X 6	6 X 8
	Hydrostatic pressure	4 X 4	4 X 6	6 X 6	6 X 8
10 to 15	Hard	4 X 4	4 X 6	6 X 6	6 X 8
	Likely to crack	4 X 4	4 X 6	6 X 6	8 X 8
	Soft, sandy, or filled	4 X 6	6 X 6	6 X 8	8 X 8
	Hydrostatic pressure	4 X 6	6 X 6	6 X 8	8 X 8
15 to 20	All kinds or conditions	4 X 12	6 X 8	8 X 8	8 X 10
Over 20	All kinds or conditions	4 X 12	8 X 8	8 X 10	10 X 10

[*16]

TABLE P-2
TRENCH SHORING-MINIMUM REQUIREMENTS

		Size and spacing of members
		Maximum spacing

Depth of	Kind or condition	12 to 15	Vertical	Horizontal
trench	of earth	feet

Feet		Inches	Feet	Feet
5 to 10	Hard, compact	6 X 8	4	6
	Likely to crack	6 X 8	4	6
	Soft, sandy, or filled	8 X 8	4	6
	Hydrostatic pressure	8 X 8	4	6
10 to 15	Hard	8 X 8	4	6
	Likely to crack	8 X 8
	Soft, sandy, or filled	8 X 10	4	6
	Hydrostatic pressure	8 X 10	4	6
15 to 20	All kinds or conditions	10 X 10	4	6
Over 20	All kinds or conditions	10 X 12	4	6

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n1 Trench jacks may be used in lieu of, or in combination with, cross braces.

Shoring is not required in solid rock, hard shale, or hard slag.

Where desirable, steel piling and bracing of equal strength may be substituted for wood.

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Occupationel Safety & Health Reporter

THE EVIDENCE

Mr. Jeff Spahn, compliance officer for the U.S. Department of Labor, Occupational Safety and Health Administration, inspected respondent's [*17] worksite on July 6, 1973, where respondent was engaged in laying approximately 1,200 feet of 8-inch sewer line. About one-third of the project had been completed.

Mr. Spahn observed a trenching operation in an uphill configuration running approximately due north and due south, which he measured to be approximately 15 feet deep by 30 feet long and 14 feet wide at the edge, measured at the south edge of the excavation where the backhoe was digging (T. 9). He observed four employees engaged in laying 8-inch sewer pipe and estimated the west face of the trench as near vertical, nearly 80 degrees; the south face, where the digging was being accomplished, as vertical; and, the east face at approximately a 65 degree angle with no shoring or sloping, which he felt was inadequate to protect employees from cave-ins or moving earth.

He observed a spoil pile on the east side of the trench that was approximately 15 feet high, and made the observation that the soil composition seemed to be fairly soft and quite damp, as there had been fairly heavy rains in the preceding two-week period (T. 10).

There was a steel trench box in the bottom of the trench approximately 4 feet high by 12 feet in [*18] length and approximately 4 feet wide. Just to the north was an aluminum ladder or steel ladder for egress, and employees were engaged in activities both inside and outside the steel box. The spoil pile was not secured and was piled to the edge of the trench, with a small amount of dirt trickling into to trench. At an area between the south end of the trench box and the vertical face of the south face there was an area which appeared caved or undercut approximately 8 to 10 inches. (T. 11-12)

Mr. Spahn prepared a cross-section of the trench as he observed it (Exhibit G-1), indicating the bottom of the trench to be 4 feet wide (within which was a 4-foot high trench box), with a 14-foot width at the top of the trench, and with an 80 degree angle on the west face and a 60 to 65 degree angle commencing at the tranch box on the east face, with the spoil pile at the edge of the east wall of the trench.

The height of the trench was established from ground level to the bottom as approximately 14 to 15 feet by inquiry of the superintendent and the counting of ladder rungs of the ladder within the trench (T. 13-14).

By Exhibit G-2, a sketch prepared by the compliance officer, the trench [*19] is indicated to be 33 feet in length, 14 feet wide, within which is located a trench box 4 feet high and 12 feet long, with a trench base width of 4 feet; the sketch indicates the trench to be 15 feet deep, with a spoil pile on the east edge of the trench approximately 15 feet high.

At the north end of the trench a caterpillar is depicted backfilling the trench, and at the south end of the trench a Bantam backhoe is indicated by position.

During the inspection, the compliance officer observed employees outside the trench box and between the backfill area, which would be indicative of the north end of the trench where a ladder was placed. The spoil was piled parallel to the trench box, so that if there had been slippage of the spoil it would have gone into the trench box. The compliance officer noted four people in the trench box at one time or another during his inspection. (T. 16)

Exhibit G-3 was identified by the compliance officer, indicating the photo was taken from the north looking south, representing the spoil pile on the left of the photo, three faces of the trench, and illustrating the height of the spoil pile which he approximated to be 15 feet.

Exhibit G-4 indicates [*20] the west face on the right of the photograph on which a ladder is leaning, and also indicates the spoil pile.

Exhibit G-5 demonstrates the angle of the west face and the height of the spoil pile.

Exhibit G-6 was taken from upon the spoil pile in a northwestern direction, demonstrating placement of ladder in trench box and configuration of the trench.

Exhibit G-7 was taken from in front of the backhoe looking south, demonstrating the angle of the west face of the trench and the backfilling operation.

Exhibit G-8 was taken from the south side of the trench, demonstrating the vertical face of the south face of the trench.

Exhibit G-9, similar to Exhibit G-7, was taken in a northerly direction, demonstrating the angle of the trench faces.

Exhibit G-10 was taken from atop the spoil pile on the east side of the trench, demonstrating general characteristics of the soil and the spoil pile's location along the trench.

Exhibit G-11 was taken from atop the spoil pile, with a different angle, demonstrating how the soil was stored, with the west face in the background.

Exhibit G-11 demonstrates, in the lower half of the picture, the spoil pile, representing the loose nature of the soil, [*21] with the observation of the compliance officer that it was quite damp and that there was some movement in the soil along the entire spoil pile.

Exhibit G-12 is a photograph of an employee coming out of the trench and demonstrates the face of the west face of the trench.

Exhibit G-13 was taken from north to south, demonstrating exposure of employees at the bottom of the trench and general configuration of the trench, with two people with white hats at the midpoint of the photograph, and also demonstrating the height of the spoil pile.

Exhibit G-14 was taken from the south end looking north, demonstrating vertical face of the south trench, a small undercut or caved area, which in the compliance officer's opinion increased the hazard of cave-in.

Exhibit G-15 was taken at a northeasterly angle, demonstrating the operation of the caterpillar and some of the spoil pile.

Exhibit G-16 was taken looking to the north, demonstrating the west face, the ladder, the backfilling being performed, and indicating the west face was deeper in configuration than the east face of the trench.

Mr. Spahn conversed with Mr. Dobson and pointed out what he felt to be the steep nature of the west side, [*22] the east side, and the vertical nature of the south face and the undercut. He indicated to Mr. Dobson that he thought the trench was dangerous, and that unless Mr. Dobson took immediate steps to abate that he, the compliance officer, would seek relief through the courts under the imminent danger provision.

He found Mr. Dobson very cooperative, and Mr. Dobson gave assurances of immediate abatement. Mr. Spahn felt that the hazard presented was moving earth and cave-in, which is generally a fatal-type accident or could involve various serious injuries.

Referring to his Penalty Assessment Sheet (Exhibit G-17), the apparent violation of 29 CFR 1926.652(b) carried an unadjusted penalty of $1,000.00, with the factors of good faith, size and history being taken into account, with no adjustment for good faith on the basis of a prior inspection having been made for the same type of alleged violation. There was also no adjustment made for size due to respondent's number of employees, and due to the fact that this was a second inspection where the alleged violations were almost the same as the first. The compliance officer felt it was a repeated-type violation which would have a multiplying [*23] factor of two, with a proposed penalty of $2,000.00.

Upon cross-examination, it was developed that Mr. Spahn had a certificate in higher accounting, but none in engineering, and had a work history involved in the safety program with the food products industry, but no experience with soil analysis. He had had one month of training at the OSHA Training Institute in Chicago, and his experience was gained in the 19 months he had worked in doing inspections for OSHA.

He was not familiar with the technical typing of the soil at the time of the inspection, but later learned it to be Peorian loess; nor did mr. Spahn have any soil analysis made prior to issuance of the citation (T. 34).

It has been Mr. Spahn's experience and understanding that Peorian loess is fairly soft-type material. It was Mr. Spahn's observation that the soil appeared to be soft, very moist, and unstable, but not to a scientific certainty. (T. 35)

He saw no evidence of failure of the trench, either in front or in back or on top of the trench box, other than the undercut within the trench and soil trickling from the spoil pile. He noted that the density of the spoil was such that he sank into it a considerable [*24] amount, and referred to a number of prior trenching and excavation inspections and soil analyses conducted by the Corps of Enginners which generally were of loess material, none of which could be regarded as hard material. (T. 37)

Mr. Spahn was of the opinion that hard material had about 4,000 pounds of shear strength, but as to the difference between hard and soft naterial he could not testify with certainty (T. 37).

Mr. Spahn utilized a steel tape measure in his measurements with the help of one of the employees, measuring the length, the width, and counting the ladder rungs, and conferred with employer's representative in terms of depth. He did not enter the trench; nor did he measure the height of the spoil pile.

There was also a stick in the trench that showed depth and cut, and upon inquiry of the employer representative he was advised that the depth was 14 to 15 feet (T. 41).

His measurements of the angles of the slope on the sides of the trench were based on an "eyeball" type approach, with Mr. Spahn taking the position that the west face was around 80 degrees and the south face was vertical.

While Mr. Dobson did not specifically object to Mr. Spahn's observation, there [*25] was a question of whether Mr. Dobson was merely being cooperative with the compliance officer rather than being in agreement with his observations (T. 44).

Mr. Spahn acknowledged that there was no written criteria from which he could determine a stability or unstability of the soil when he examines the trench, but referred to the standards. He based his judgment on a number of excavations, inspections of excavations, and various soil analyses that he had personally seen, and which analyses indicated the soil was of a generally soft, unstable nature.

Mr. Spahn felt further that even had the soil been hard that the faces of the trench were not laid back sufficiently where there is a requirement of one-half-to-one, in that he felt there was one vertical face and one near vertical face (T. 46).

Mr. Spahn did not feel that a backhoe of necessity had to dig a vertical face, but rather that it could be backed up and the excavation done at an angle.

Referring to Exhibit G-3, it was Mr. Spahn's estimate that the angle of repose of the spoil pile was 60 to 65 degrees going up and about the same angle as the east face of the trench. Mr. Spahn took most of his pictures standing and could [*26] not say the angle of the camera in terms of degrees. (T. 52)

Mr. Spahn discussed the previously-admitted trenching violation of respondent and made a comparison, in that in the original violation there was one employee exposed, with more employees the second time, and that the depth of the cut was considerably deeper on the second violation than the first. He also felt there were additional factors, in that a caterpillar was operating on the second operation, the spoil pile was much higher, and there was vibration from the backhoe itself, which was a crawler type. (T. 57)

The first violation involved digging in a backfilled area, which was not the case in the second inspection.

Mr. Spahn determined from the respondent's safety director, Mr. Aspedon, that respondent had a safety program, which was taken into account in consideration of the first violation (T. 61).

Mr. Spahn felt the trench could have been safe if it had been laid back on a one-to-one basis, which would meet the minimum of the standards.

Mr. Spahn took a small portion of soil for identification purposes, but did not have it identified prior to the citation; nor were any tests run on it prior to the citation. [*27]

Mr. Spahn reiterated that the angle of the spoil slope was 60 to 65 degrees; or, about the same angle as the east face of the trench and pretty much the same size as the trench, being 14 feet wide, although he did not measure the spoil pile.

Mr. Spahn has seen many soil report analyses of trenches in the Omaha and Lincoln areas, which were pretty uniform as to the type of soil being loess-type material; further, that the soil was soft and unstable (T. 66-67).

Mr. Spahn identified Exhibit G-19 as a photograph of the original violation occurring some two weeks prior to the inspection involved in the case in chief.

Exhibit G-20 was introduced, demonstrating the previous violation and that the penalty was paid without contest (T. 71).

Mr. Robert C. Dobson, vice president of respondent, appeared on behalf of respondent and expressed a company concern with regard to the safety of its employees going back to the mid-1960's, working in conjunction with their insurance company and holding meetings with their superintendents, giving them consultation on safety practices. Respondent has had an active program for approximately 12 or 15 years. (T. 76)

Mr. Dobson explained the original [*28] citation and penalty paid by respondent as a result of an asphalting contract with the University of Nebraska and with a last minute job order change during the course of the construction for a drainage inlet, which was undertaken by his asphalting crew who had no experience in trenching.

Respondent had no actual knowledge of the trenching operation until after the citation had been issued, and explained the violation as an inadvertent violation that would have been avoided had the managing officers of the company known that a trench was going to be open. Because of this unauthorized action on part of their asphalt superintendent, respondent felt it had been in error and paid the proposed penalty and instituted company policies to prevent the recurrence thereof, so that their normal trenching crew would do any excavation over 5 feet deep after consultation with the respondent's safety officer. (T. 71-81) After the Occupational Safety and Health Act went into effect, respondent spent $5,700.00 in 1971, $52,263.00 in 1972, and to the point in time of hearing in 1970 an amount of $19,000.00 toward compliance with OSHA standards.

Mr. Dobson also makes a practice of frequently reviewing [*29] the operations at jobsites for OSHA compliance. With respect to the spoil pile, he had visited the jobsite that morning and it was at least 2 feet back from the edge of the trench and in compliance; he was surprised that it was not in compliance at the time of the compliance officer's inspection. The spoil pile had also been set back the day previous.

Mr. Dobson felt it was a safe trench and did not see any evidence of actual trench failure; nor was there any injury to anyone working the trench. He received no complaints with respect to falling materials and noted that usually two people work within the trench in laying sewer pipe, although it is possible that there would be four. (T. 82-85)

Mr. Dobson expressed his efforts at cooperating and not arguing with the compliance officer, although he was surprised that the spoil pile had inadvertently gotten close to the trench.

Mr. Dobson thought the 60 degree angle of repose on the east face might be fairly accurate, but felt that as to the west slope it was about a 60 degree angle, less than 80 (T. 87), although he did not know the exact angle.

Mr. Dobson holds an Engineering Degree and ventured the opinion that you cannot accurately [*30] estimate the slopes of a trench on an "eyeball" basis, unless measurements and calculations are made (T. 88).

By way of abatement, Mr. Dobson ordered the project shut down, fenced the site, purchased a higher trench box, and brought in a bigger machine to perform the remainder of the project, in conformity with the compliance officer's interpretation with which he disagreed.

When the trench was reopened, it was laid back to a one-to-one slope, and the spoil pile was moved back 2 feet from the trench (T. 89). It was Mr. Dobson's impression that the compliance officer had measured at the south end of the trench where the backhoe was in operation, which of necessity would create a narrow portion at its tracks.

He described a normal trenching operation of a backhoe as breaking the earth and then digging in its deepest portion, whereat in the bottom the trench box would go, then backing up the machine making the next cut and finishing out the sloping (T. 90-91).

The trenching had been underway approximately a week and was reviewed on a daily basis.

The respondent has been in the trenching business in Nebraska since 1910 or 1911, the primary function being that of trenching and laying [*31] of sewer pipe. It operates with experienced personnel, and its superintendent has been with the company 50 years, doing nothing but pipe work for the last 15 or 20 years, along with supervision.

Within the last 10 years, there had been no deaths as a result of a trench failure or serious injuries resulting from a collapse of a trench (T. 92-93).

A soil engineer, Mr. Charles Anson of Western Laboratories, what to the jobsite that afternoon where the conditions regained the same, and from Mr. Dobson's view of the trench on the day of the inspection he felt if was entirely safe with no danger of collapse or probability of danger to individuals working on the trench (T. 94-97).

Mr. Dobson either uses a trench box or shoring, depending upon soil conditions, which is based upon his judgment through experience and the stability of the soil. He uses shoring in clay and he has used a trench box in clay soil; this is based upon what the dirt looks like when the job is started (T. 98-100).

The determination of the composition of the soil is based upon "eyeballing" it (T. 101).

Respondent's instructions to its trenching men is to use one-half-to-one in what they consider stable soil above [*32] the trench box (T. 107-108).

Mr. Dobson reiterated that although the spoil pile had previously been 2 feet back from the trench, at the time of the inspection it was not 2 feet back (T. 108). He issued a verbal reprimand as a result of this infraction.

In connection with the commencement of the trench, Mr. Dobson and his superintendent talked it over and determined that they would use a trench box and slope at least one-half-to-one away from the box, judging the soil to be stable. It was Mr. Dobson's judgment that the west slope of the trench was more than 60 degrees, but less than 80 degrees. (T. 109) He did not know in his judgment if it was more than 65 degrees (T. 110).

The essential judgment is one of "eyeballing", and in connection with respondent's trench he did not know the exact angle and estimated from 60 to 65 degrees, conceding it possibly could have been as much as 80 degrees (T. 111). Mr. Dobson's judgment as to sloping was made with the assistance of a supervisor with some 50 years experience in trenching and working with soils (T. 113), with the object in mind of stability and safety.

He and his supervisor were satisfied that the one-half-to-one sloping was [*33] adequate in the present case (T. 114).

By way of illustration, Mr. Dobson was given the hypothesis of a trench 4 feet wide across the bottom by 14 feet across the top and 14 feet deep, with a slope of 60 degrees, in order to estimate the slope, which resulted in a calculation by Mr. Dobson of a 60 degree slope on one side, 14 feet deep, with a 5-foot box (T. 119-120).

Mr. Dobson agreed that the sides of the trench were not equally sloped and felt that one side was sloped to within just 10 degrees of the other side (T. 120); he knew from being at the site that the west slope was steeper than the east slope (T. 121).

Mr. Aries Aspedon, safety director for respondent, was called and he identified respondent's Exhibit R-1 as a memorandum to all superintendents and described his job as familiarizing himself with OSHA regulations and putting the respondent in compliance. He has attended the OSHA Training Institute in Chicago, taken the instructor's course, attended 30 hours for being an instructor in safety construction, attended the International Safety Academy in Macon, Georgia, the shoring school in Dallas, Texas, and numerous seminars. (T. 123) Exhibit R-2 was identified as his [*34] radification of appointment by the company. Mr. Aspedon's duties involved frequent job inspections, meetings with foremen and superintendents, and teaching of the 10-hour safety course to the foremen, along with on-the-job instruction and seminars which were held five or six times a year.

He visits every jobsite at least once every two weeks, and the jobs in the vicinity of Lincoln more often.

He identified Exhibit R-3 as instructions to employees which are given to each and every employee, which procedure was commenced prior to the citation.

Exhibit R-4 was identified as an in-depth safety program which was initiated in January of 1973, in connection with a seminar with all supervisory personnel.

Exhibit R-5 is identified as the charts for angles of repose and shoring out of the Federal Register, with emphasis on shoring, which was issued to respondent's supervisory personnel.

Mr. Aspedon had visited the jobsite two days prior to the inspection and observed at that time the spoils pile set back 2 feet, and in an examination of the trench noted that the sides of the trench were sloped with a trenching box in place (T. 130). Mr. Aspedon is not a soil engineer, but considering [*35] the depths of the cut, location of the trench, the length of time the trench was going to be open, and other factors, he felt the trench complied with OSHA standards and was in compact soil, and that one-half-to-one slope was sufficient to comply with the regulations (T. 131).

Mr. Aspedon went on to make the observation that he did not observe any apparent faults in the trench or areas where dirt had collapsed or signs of dirt collapsed; nor had he received any reports of same or of injury (T. 132).

Mr. Aspedon testified that the trench was 13 feet, 99/100ths inches between stations 500 and 650, with the stake running from 13.03 to 13.99 feet (T. 133).

He determined the spoil pile to be approximately 8 feet high (T. 134). Mr. Aspedon and supervisors determined what soil is stable and not stable, based upon their experience, and Mr. Aspedon finds it difficult to make determinations as to what constitutes hard, compact or soft and unstable soil (T. 135). He does not feel there is adequate definition contained in the standards.

Mr. Aspedon found it difficult to make a determination of what was unstable or soft material, referring to the standard 29 CFR 1926.653(q) where "unstable [*36] soil" is defined as:

"'Unstable soil' -- Earth material, other than running, that because of its nature or the influence of related conditions, cannot be depended upon to remain in place without extra support, such as would be furnished by a system of shoring." (T. 143)

Mr. Aspedon made a determination that the soil was compact because there was no cracking, shifting or sloughing off (T. 145).

Mr. Aspedon's judgment as to the spoil pile being 8 feet high was based upon "eyeballing" it (T. 150).

Mr. Charles Anson, graduate of the University of Nebraska in 1950, with a Bachelor of Science Degree in Soil Engineering, a registered engineer, and having been engaged in the specialty of soil mechanics for nearly 20 years, appeared on behalf of respondent. Eighty percent of his work is performed in the State of Nebraska. He expressed familiarity with the soil conditions which generally prevail within Lancaster and Lincoln Counties, and also familiarity with the OSHA standards.

He expressed difficulty in understanding the standards, in that he felt some of the definitions were erroneous, such as the definition of "slope" and the definition of the term "hard and compact soil" (T. 164). [*37]

It was his observation that the soil at the trench site would not be soft and would not be hard, but would be somewhere in between (T. 165).

He noted that you could take an undisturbed sample of soil in question and determine in the laboratory whether it is hard, soft or somewhere in between. He noted as to whether the soil was stable or unstable that a soft material could be cut to a stable slope, and that a hard material could also be cut to a stable slope, feeling that the terms "stable soil" or "unstable soil" are vague and relative. (T. 167)

He felt the stability of soil is a question of under what conditions the material is found, the slope, moisture contents, and all other factors that go into determining whether a slope in fact is stable (T. 167).

He noted there was a mathematical computation developed by soil engineers to determine a unit of measure as a factor of safety regarding slope failure; the safety factor being computed from various samples and assumptions (T. 168).

Mr. Anson went to the trench site the day of the inspection and measured the width of the trench at the trench box as 17 feet in the finished portion of the trench; the depth approximately 14 feet, [*38] measured a little ahead of the trench box.

He returned to the site on July 19 after the trench had been filled in, made a test boring, and took undisturbed samples adjacent to the trench at depths of 3 1/2 to 5 feet and at 9 to 10 1/2 feet below existing grade.

His observation of the spoil pile was based on "eyeballing", which he estimated at one-and-a-half-to-one on the side toward the trench, and arrived at a height of 8 feet for slope stability analysis; although he could not honestly say what the highest point of the spoil pile was (T. 169-171). He felt there was no possibility that it was 15 feet high.

At the laboratory, he performed a triaxial compression test to determine the shearing strength of the soil at conditions similar to those found in the field, using confining pressures of 5, 15 and 25 pounds per square inch. He then determined the cohesiveness of the soil, described as the angle of eternal friction, and the cohesion intercept of the soil.

He directed one of his associates, Mr. Stephen Nickel, to actually make the determinations relative to minimum safety factors, which he reviewed and approved; he arrived at a conclusion that the loessian material was earth [*39] material, which under the influence of related conditions could be depended upon to remain in place without extra support (T. 173-175).

Mr. Anson considered it stable soil as opposed to unstable soil, referring to the terms defined in section 1926.653(q) of the standards (T. 176).

By exclusion, he defined the soil as "hard and compact" under the corresponding definition, utilizing subparagraph (h):

"'Hard compact soil' -- All earth materials not classified as running or unstable." (T. 176)

Referring to specific requirements in section 1926.652(b) and Table P-1, he felt that (b) for unstable materials did not apply, but that (c) would apply (T. 177). At the point where he measured at the trench site, the trench box was 4 feet high, and from that point to the top Mr. Anson measured .7:1. Referring to Exhibit R-6, prepared by Mr. Nickel, Mr. Anson agreed with the opinions and conclusions reached. Mr. Anson gave the opinion that there was no substantial probability of trench failure of the trench in question and a very little probability of a reasonably foreseeable probability of trench failure. (T. 178-180)

On a cross-examination, Mr. Anson defined "hard soil": "Hard, compact [*40] soil is all earth material not classified as running or unstable." It was not unstable, so he considered it to be hard. (T. 182)

Referring to Unified Soil Classification Systems Manual of the U.S. Army Engineers Experiment Station Corps, "consistency of clay soil is related to the unconfined, compressive strength in tons per square foot", and "hard" is "an unconfined, compressive strength, greater than 4 tons per square foot" (T. 183).

Mr. Anson did not run unconfined compression tests on any of the samples, but made his determination from triaxial compression test data. He agreed that the soil was substantially less than 400 pounds per square foot, noting the sample from the 3 1/2-foot depth to be approximately 1,700 pounds per square foot in unconfined, compressive strength, and noticed that by doing a triaxial compressive test rather than an unconfined compressive test the value would have to be reduced and it would take less pressure to cause failure of a given soil in an unconfined test. (T. 183-185)

One sample had 610 pounds per square foot as a cohesive interception with the unconfined compressive strength approximately double the cohesion, which would be equal to [*41] an unconfined compression strength of 1,220, except for Mr. Anson's feeling this was not a Phi-O soil, which represents the angle of internal friction. The Phi value was used in arriving at the test results.

Mr. Anson was referred to a paper he had prepared, Shallow Excavations with Unsupported Slopes, which he explained as its purpose to evaluate somewhat the variability of the shearing strength of the Peorian loessian soils in the Lincoln area, wherein he was referred to the reference that the unconfined compressive strength serves a more probative value in evaluating slopes and the stability of slopes.

He characterized the soil at the jobsite as silty clay.

With reference to his paper, he defined "soft" (as used in his paper) as having unconfined compressive strength in a range of .25 to .50 tons per square foot or 500 to 1,000 pounds per square foot, and referring to his previous finding of a 610 value, which referred to cohesion intercept, this would convert into an unconfined compressive strength of a value of 1,220, which would reflect medium consistency, and referring to the table in the Corps of Engineers Manual would be the next category above "soft", with two further [*42] categories of "stiff", "very stiff" and "hard" (T. 181-198).

Referring back to his estimations of the spoil pile and the trench, it was Mr. Anson's opinion that the one-and-a-half-to-one slope was in reference to the spoil bank on the east side of the trench, a 0.7:1 was the side slopes of the trench excavation above the trench box (T. 208).

With respect to the uniformity of the .7:1 figure, Mr. Anson noted that he did not take exact measurements and was sure there was some variation in the slope on the other side that he did not consider to be very substantial at the trench box (T. 209).

Mr. Anson's assumption of .7:1 slope was made by measuring the width across the top of the ditch and measuring the width at the bottom of the ditch, the vertical portion where the box was located. He was informed of the measurement of 38 inches of width at the bottom and then measured the depth from the surface of the ground down to the top of the box, subtracted the width of the trench box from a total width divided by two, resulting in the horizontal distance compared to the depth from the surface of the ground down to the top of the trench box.

Mr. Anson agreed that if the two sides were [*43] not uniform in slope, his method of computation would not give an accurate answer, but merely an average of the two sides (T. 213).

Mr. Anson went on to describe the Q, R and S tests in performing the triaxial test and a further discussion of the Phi values, along with the saturation factors of the silty clay material; wherein, Mr. Anson arrived at a safety factor in excess of 2.0 in one analysis. Further, if the analysis had been done by the method used in his paper, he would have had a lower factor of safety by disregarding friction (T. 221).

Mr. Anson agreed that the size and shape of the spoil pile would be significant in arriving at the calculations of the factor of safety, in that it was a load on one side of the trench being analyzed, and if the spoil pile in fact was 15 feet high, as testified to by the compliance officer, it would be highly unstable (T. 224).

In describing the factor of safety, the figure 1 would be a point of incipient failure if the analysis was 100 percent correct along with the data, and the factor of 2.0 would reflect practically no chance of failure at all, with the factor of safety being a measure of stability of slopes (T. 227-228), with Mr. Anson [*44] willing to go to a factor of as low as 1.5 for a trenching operation, such as in question, with good data; although with the factors he has had in this case he would not go below 1.5 (T. 229).

Mr. Anson was of the opinion that the definitions given by the Corps of Engineers were wholly inapplicable to the definitions contained in the OSHA standards and were different (T. 230-231). The method used by Mr. Anson in his article (Exhibit G-21) was an attempt to determine safe excavated slopes in local materials based on test data he had in his files from previous jobs, a simplified procedure to be done at minimum cost, which he considered to be very conservative, and with the safety factors higher than what he indicated in his paper, as opposed to making a precise test wherein he would use the triaxial compression test.

He felt the use of the Phi factor and the calculation of the safety factor was justified because it was a significant percentage in the strength of the soil (T. 233-235).

Mr. Anson gave the opinion that a safety factor of 1.5 was adequate for the circumstances of the trench in question, based upon his testing of undisturbed samples.

With regard to the spoil pile alongside [*45] the trench, Mr. Anson ventured the opinion that the spoil was approximately 8 feet high by 25 feet in distance from the trench, representing 16 cubic yards or 15,400 pounds per linear foot (T. 236).

Mr. Stephen Nickel was called on behalf of respondent. He identified respondent's Exhibt No. 7 as the original report issued on the trench on the 30th of July, noting that test data was developed from the triaxial testing method and assumptions as to moisture content and selection of pressure. He described the Q, R and S tests and the idea behind the tests to duplicate as nearly as possible the conditions obtained at the particular location.

He felt a consolidated, undrained test at relatively low confining pressures would duplicate the conditions with respect to the trench, and that the degree of accuracy of any particular test is based on how well the material was sampled and how closely the test conditions were controlled.

He used the consolidated, undrained relatively low confining pressure test, and referring to the samples of July 19, he did not expect the saturation to vary greatly in 10 or 12 days. He felt a safety factor of 1.5 as a miminum safety factor and reasonable. [*46] In his report, he used a minimum safety factor of 2.0 because of a pinch on time and short-type method of analysis.

With information furnished him, he calculated the west face of the ditch, with the trench box in place, as a .7:1 slope from above the trench box to the top of the trench, 10 feet high, and a safety factor of 4.9.

The west face of the trench, with the trench box not in place, was a 10-foot slope at .7:1 over a 4-foot vertical slope by approximately balancing the areas on either side of this .4:1 slope, resulting in the .4:1 slope with a height of 14 feet, and a safety factor of 3.3.

The east face of the ditch, with the spoil bank above it and with the trench box and spoil bank, was measured by Mr. Anson as 1.5:1 slope, 8 feet high. The compound slope then was approximated by uniform slope of .8:1, 18 feet high with a safety factor of 2.2.

The east face of the trench, with the spoil bank and trench box not in place, a compound slope, was approximated by .55 to 1 uniform slope, 22 feet high and a safety factor of 1.7.

Then utilizing a computer program in lieu of the short solution, Mr. Nickel described the results of the recorputations in Exhibit No. 6 and established [*47] the minimum safety factor at 1.5. This resulted in the original safety factors in the original report being raised from 1.7 to 2.19, and then in the final analysis it would appear that the minimum allowable safety factor would be 1.5.

Referring to Exhibits G-9 and G-5, Mr. Nickel gave an opinion, by making a reference to the latter, that the slope measured .7 to 1 and within the one-half-to-one safety factor required for hard and compact soil (T. 253-254). Based upon his review of the test results and his analysis, he considered the trench safe.

Mr. Nickel gave the opinion that the trench was not of unstable soil, as defined in 29 CFR 1926.653(q).

He felt there was no other choice than to define the soil as hard, compact soil, as set forth in paragraph (h) of that section (T. 255); further, that there was not a substantial probability that the trench would fail.

Mr. Nickel has a Bachelor's Degree in Civil Engineering from the University of Nebraska obtained in 1967, and a Master's Degree in Civil Engineering, with a specialty in Soil Mechanics obtained in 1972, with five years experience as a soils foundation engineer with a Kansas highway commission. He is a member of the [*48] American Society of Civil Engineers and has a license to practice engineering in Kansas with a license pending in Nebraska (T. 258). Mr. Nickel agrees that the computer results contained a number of assumptions and additions to concrete data, and that variations of the values of the assumptions could have affected the answer he received from his computer results.

Mr. Nickel acknowledged that silty clays, such as were at the trench site, are known to have faults and to fail along lines which run vertical from the surface or parallel to the sides of the trench, and that the three test methods he utilized assume that there were no cracks in the soil mass that was considered (T. 260-272).

Mr. Nickel expressed familiarity with loessian soil typical of Lincoln, Nebraska, describing the material as wind-deposited with the consistency in different locations, based upon the source of the wind-blown deposit. He felt a considerable quantity of the density in the Lincoln area tended to be higher than that of true loessian soil and that the loessian soil in the Lincoln area is not as susceptible to collapse or as sensitive as other loessian soils; he further understands that the Lincoln loessian [*49] soil has a somewhat higher clay content and is possibly higher in plasticity. These characteristics would tend to increase the shear strength and make it more stable. (T. 338-346) He concluded that it doesn't matter what test you run, because with a partially saturated soil the material is going to end up consolidated or nearly so, and there would be some consolidation during the test even if a Q test was run.

Appearing on behalf of complainant was Mr. Charley Flagg, soils engineer for the U.S. Army Corps of Engineers. He has been with the Corps approximately 15 years, has a Bachelor of Science Degree in Civil Engineering and has spent six months studying under Dr. Casagrande at Harvard. He belongs to a number of professional orgunizations, and during his work experience spent 12 years as design engineer for levees, large dams, earth-filled dams, earth structures and military design of excavations of all kinds.

Mr. Flagg was in attendance during the portions of the respondent's expert testimony, and prior to the hearing had reviewed data performed by Western Laboratories in evaluating the safety factors of the trench in question.

He had some doubts as to validity of respondent's [*50] Exhibit R-7, based upon a mechanical analysis being only as good as the information put into it.

He described the Q test, consisting of unconsolidated, undrained testing, and the R test, where air and water are allowed to escape, as compared to conditions in the field where material is at rest condition with major and minor principal stresses, designated as Major Sigma 1 and Minor Sigma 3 (with Sigma 1 acting in a vertical direction and Sigma 3 in a horizontal direction), noting that when a trench is excavated that the soil back from the trench is in a disturbed state, in that air is replacing soil, permitting a stress releasing, and that a decrease in density may have taken place by the actual operation of excavating the trench (T. 290-296).

In his own testing, Mr. Flagg uses an unconsolidated, undrained test.

If a sample is allowed to consolidate, to increase its density, the material gains strength, so that an R test would give a higher strength than a Q test and you would get higher factors of safety with an R test than with a Q test (T. 299).

He felt that normally in the field of soil mechanics the assumed values used by respondent in Exhibit R-6 would never be used to the [*51] magnitude they were used in said Exhibit, in that loessian material is sensitive and its undisturbed strength is much higher than its disturbed strength, which has less strength than in the undisturbed strength (T. 300).

He has found the sensitivity in the loessian material to vary anywhere from three to four or up to six in the Omaha and Lincoln area, and increasing the soil pile from 8 feet to 9 feet or higher would decrease the factor of safety because of more stress in the driving portion of the failure (T. 301).

Regarding the test sample taken on July 13, with moisture content between 27 and 29 percent, it was Mr. Flagg's opinion that the moisture content could change between July 6 and July 13, due to the loess having a phenomenon of great vertical permeability, in that water entering the soil migrates downward quite rapidly to the water table which in turn would affect the moisture content and would affect a soil analysis.

Referring to the result of 86 percent saturated and the draining of the water by the type of testing which Mr. Flagg did not feel was a true R test, if the water was there and saturated at the time or nearly saturated, he felt there would be a lower strength [*52] than what was determined on the test (T. 303).

Mr. Flagg felt that if the respondent's expert programmed the same assumptions into the computer that was used in the chart analysis, there would be some reservations about the validity of the computer and the chart analysis.

Mr. Flagg mainly disagreed with the strength parameters used and the way the strength parameters were developed, feeling that they did not apply to the conditions existing at the trench.

In Mr. Flagg's opinion, in the Omaha and Lincoln area they found on a saturated or nearly saturated specimen that a Q strength or horizontal envelope for the water content approaching 30 percent for the plasticity existing in the loessial materials, that a Phi value of between .25 tons per square foot and .35 tons per square foot was a valid strength, which would result in a factor of safety under civil engineering terms as a 1.0 plus, a little bit better than failure at a .35 factor of safety. He came up with a .35 ton per square foot cohesion intercept, with a factor of safety of about 1.2 to 1.3, and on these results testified that he would not walk into the trench, nor would he allow anyone into the trench (T. 306).

Based [*53] upon the hypothesis that the trench was 14 feet deep, that it was vertical to the 4-foot height, and that in fact it was laid back on an angle of one-half-to-one above the 4-foot height, and based on the information he had as to the other conditions, it was his opinion that the trench was nearing failure.

By explanation, he based his conclusion upon what he knew about the area at the slopes, by the use of the trench box which can allow a buildup of stresses by movement, in that if the trench box is moved it releases its confinement and a failure can occur behind it quite easily, and based upon the testimony that people would have to get out of the trench box and step behind it to go up a ladder (T. 307).

Mr. Flagg further noted a phenomena of the loessian materials known as the collapse phenomena, and utilizing the densities given in the testimony and the water contents if saturation were to take place from rainfall, noting that loess has an ability to decrease in height rapidly by adding surcharge and moisture in a compounding action. By way of illustration, if moisture were to exist by rainfall and then applying a spoil pile load upon it, there is the phenomena of collapse, which [*54] is recognized in loessial material.

By illustration, he referred to case histories of silos in Nebraska falling because of rainfall of 2 inches over a period of a week (T. 308).

Mr. Flagg compared the standards 29 CFR 1926.652(b) and (c), with respect to the use of the words "soft or unstable" versus "hard or compact", noting that in the field of soil machanics the terminology is soft, medium, firm, stiff and hard. Inasmuch as a layman is not familiar with the adjectives of soil mechanics, he felt the only thing to do was to describe two limiting conditions of soft and hard, so that a man digging a trench would know that the soil was soft or hard. He gave the illustration that if a soil is soft it is soft, and hard soil is something that you can't indent if you want to; further, that soft is that value given if material appears not to be hard then it must be soft, and by hard he explained he meant that he could not force it or move it. He further offered the opinion that the standard provided a reasonable guide to a layman as to how he should operate in hard or soft soil. (T. 309-310)

Referring to the standards, it was Mr. Flagg's opinion that the trench was excavated in soft [*55] soil, based upon respondent's own testing.

On cross-examination, Mr. Flagg was referred to section 1926.653(q), referring to the definition of unstable soil as being earth material, other than running, that because of its nature or the influence of related conditions, cannot be depended upon to remain in place without extra support, such as would be furnished by a system of shoring. He was also referred to the descriptive language of the regulation of "soft and unstable", noting that soft was not defined in the standards but that under section 1926.653(h) "hard compact" soil was defined as all earth materials not classified as running or unstable.

Mr. Flagg felt that the important factor in evaluating soil is experience tempered with sound engineering judgment. While Mr. Flagg had been involved in loessial materials for the past 15 years, he had never been involved in an actual trenching project in Lincoln. His discussion of strength parameters was based on his knowledge of loessial soil and a great deal of test data.

Mr. Flagg did not, of his own knowledge and experience, know whether the loessial soils in Lincoln have any different properties than you would expect to find [*56] in a true loessial soils.

Mr. Flagg did not run any test on soil samples from the trench itself, although he did look at a disturbed sample brought by the inspector.

It was Mr. Flagg's opinion that whether in constructing a trench or building a dam, that an undisturbed column of earth should be taken and tested. Mr. Flagg agreed that reasonably qualified experts in soil mechanics do reasonably differ as to the propriety of using Phi as a factor in calculating strength parameters, but not as to the use of the Q or R test.

Mr. Flagg noted there were two types of loessial materials, one the Loveland and the other Peorian, and without X-ray deflection testing it would be difficult to tell the difference, but they are not treated differently in building a dam or in digging a trench.

Based upon the testimony he heard at the hearing, Mr. Flagg gave the opinion that a 14-foot deep trench in loessian oil should have been laid back on a one-on-one slope from the top of the trench box.

Referring to the standard 29 CFR 1926.652(c), which applies to hard and compact soil, he noted that the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper [*57] than a 1-foot rise to each 1/2-foot horizontal. Mr. Flagg was of the opinion, as he referred to the standard, that in hard and compact soil in order to slope it to preclude collapse you may have to slope it more than one-half-to-one.

In referring to the standard 29 CFR 1926.652(c), Mr. Flagg noted that the standard permits and suggests initially that the shoring, sheeting or bracing preclude collapse, and if there is no shoring, sheeting or bracing, the only question remaining is was it sloped to preclude collapse; and, that in dealing with the loessian material and the evidence he heard, he felt the trench should have been shored by temporary shoring of some fashion.

THE ISSUES

Whether or not respondent was in violation of 29 CFR 1926.652(b) and 29 CFR 1926.651(i)(1) depends on disposition of the following factors:

1. Was respondent engaged in digging a trench 5 feet or more in depth.

2. Were the sides of the trench in unstable or soft material, and therefore required to be shored, sheeted, braced, sloped or otherwise protected by means of sufficient strength to protect the employees working within it.

3. Were or had employees been working on the trench under the aforesaid [*58] circumstances.

4. Did the respondent adequately slope the sides of the trench in accordance with the approximate angles of repose established by Table P-1 of the aforementioned standard.

5. Did the respondent store excavated material within 2 feet of the edge of the trench, in violation of 29 CFR 1926.651(i)(1).

6. Was respondent in repeated violation of 29 CFR 1926.652(b) and 29 CFR 1926.651(i)(1) within the meaning of section 17(a) of the Act.

7. What would be an appropriate penalty if violations are found.

DISCUSSION

Issue 1: The preponderance of the credible evidence establishes that throughout the testimony the trench in question was in excess of 5 feet; this determined by the measurements of the compliance officer of the trench being approximately 14 feet deep (T. 9), the testimony of respondent's safety director, Mr. Aspedon, of 13 feet, 99/100ths inches, 13 feet and 3/100ths inches (T. 133; 149), and Mr. Charles Anson, respondent's expert witness (T. 169), where he rounded off the depth to 14 feet.

Issue 2: The issue of whether or not the sides of the trench were in unstable or soft material, the gravamen of complainant's citation, was hotly contested. [*59]

Therefore, it must be determined whether or not the complainant carried his burden of proof to demonstrate that the soil was either unstable or soft to sustain his charge.

Mr. Spahn, the compliance officer, based upon his senses, his visual observation, and a number of trenching inspections in eastern Nebraska, made a judgment that the soil was Peorian loess and was of a generally soft unstable nature. Mr. Spahn's observations and judgments were made upon his experiences as a layman. He has had no technical training in soil analysis.

Mr. Flagg, complainant's expert, based his testimony upon the test findings of Western Laboratories and his experience in the field of soil mechanics, interpreted the standards 29 CFR 1926.652(b) and (c) that the standards reasonably set up only two classifications of soil, namely, hard or soft. He further, based upon his analyses of Western Laboratories testing and based upon his experience and general knowledge of Peorian and Loveland loessial soil, testified that the trench was excavated in soft soil, although he did no independent testing of his own of any soil sample, and agreed that reasonably qualified experts in soil mechanics do have reasonable [*60] differences as to the propriety of using the Phi factor in calculating strength.

Both expert witnesses noted that in the field of soil mechanics there were five variable grades of soil -- soft, medium, firm, stiff and hard (T. 198; 309).

Respondent's soils experts, Mr. Anson and Mr. Nickel, had a different view of the soil at the test site which was subject to laboratory analysis by Mr. Nickel and concurred in by Mr. Anson.

Mr. Anson felt that the soil at the trench site would not be soft and would not be hard, but would be somewhere in between (T. 165). His judgments were made based upon a test boring made at 3 1/2 to 5 feet and at 9 to 10 1/2 feet below grade adjacent to the trench, some 13 days after the inspection.

As was the case with Mr. Flagg, Mr. Anson referred to the Unified Soil Classification System's definitions of soil, and based upon his actual test results conducted by Western Laboratories, concluded that the soil at the trench site in question was medium, rather than soft consistency.

Both complainant's expert and respondent's expert agreed that neither the Unified Soil Classification System nor the Tezghi and Pect Systems were contained or incorporated into [*61] the applicable standards.

Both Mr. Anson and Mr. Nickel testified, based on their actual measurements, soil tests and computations, that the soil was not unstable as that term is used and defined in 29 CFR 1926.653(q) of the standards, but to the contrary, was hard and compact.

By way of reference, "hard compact soil" in the standard 29 CFR 1926.653(h) is defined as "all earth materials not classified as running or unstable".

Further, by the same standard, in subsection (q) "unstable soil" is defined as "earth material, other than running, that because of its nature or the influence of related conditions, cannot be depended upon to remain in place without extra support, such as would be furnished by a system of shoring".

Respondent was cited for violation of 29 CFR 1926.652(b), which as a predicate to any alleged violation establishes that the soil within which it was constructing its trench must be either unstable or soft. This criterion must be established before applying the next criterion, namely, the approximate angle of repose as incorporated by Table P-1.

The most probative evidence is that of scientific laboratory testing, which is specific and is controlling over that [*62] of casual observation and use of the senses, and that of general specialized knowledge such as that possessed by Mr. Flagg, who in his testimony acknowledged that there were variables in the sensitivity of loessian materials of three to six in the Omaha and Lincoln area.

Further, Mr. Flagg's objection to the respondent utilizing the Phi angle for an undrained test was not prudent. Mr. Nickel testified that his studies of the loessial soil in the Lincoln area and that found at the location of the trench in question tended to have higher density, a higher clay content and greater plasticity than true loessial soil, and because of the foregoing characteristics it was found to have an increased Phi value or shear strength and therefore more stable under given conditions than the typical loessian soil. n1

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Decision by Judge J. Paul Brenton.

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It must be concluded that the Secretary failed in his burden of proof in establishing that the trench was constructed in unstable or soft material in violation of 29 CFR 1926.652(b). The preponderance of the credible and probative evidence leads to the conclusion that given the applicable definition contained within the standard that the soil in question was "hard, compact soil". It follows that the citation and proposed penalty for the aforesaid violation must be vacated.

Issue 3: The evidence is undisputed that there were two to four employees working within the trench at the time of the inspection.

Issue 4: The specific evidence must take precedence over the general evidence, and exact measurements must take priority over so-called "eyeballing" estimates with respect to the angles of repose. Respondent was not cited for being in violation of 29 CFR 1926.652(c) pertaining to hard and compact soil, which would require sloping not steeper than a 1-foot rise to each 1-foot horizontal. However, inasmuch as specific evidence was given and exact measurements were taken in connection with respondent's defense to the charge of violation of 29 CFR 1926.651(i)(1), [*64] namely, that the angle of repose in combination with the sloping of the spoils pile served as an effective storage or retaining factor in connection with the spoils pile citation.

There was no contradiction of the compliance officer's observation that the disturbed earth piled alongside and up to the edge of the trench was soft with a slight trickle observed into the trench. The compliance officer made no measure of the angle of repose of the trench itself above the trench box, but made an estimation based upon his experience in inspecting trenches that the west face of the trench was nearly 80 degrees and the east face of the trench was approximately 65 degrees.

While the trench was certainly not a model of symmetry, the respondent's actual measurements made by a qualified soils engineer the day of the inspection showed the angle of the two slopes in question to have been calculated to be at least in a ratio of .7 feet horizontal for each foot vertical rise.

Issue 5: The preponderance of the credible evidence establishes that throughout the testimony the respondent had excavated material stored within 2 feet of the edge of the trench in violation of 29 CFR 1926.651(i)(1). [*65]

Again, the evidence was in conflict as to the height of the spoil pile, with Mr. Spahn making an eyeball estimation that the spoil pile was 15 feet high, which was contested by respondent's witnesses who were of the opinion the spoil pile was approximately 8 feet in height.

Respondent takes the position that the sloping of the spoil pile served as an effective storage or retaining thereof.

This Writer cannot agree with respondent. The evidence demonstrated that the spoil pile was loose with some trickling into the trench, and by respondent's own expert witness, Mr. Anson, expert witness testimony was given that the spoil pile, even from respondent's viewpoint, was 8 feet high by 25 feet in distance from the trench, representing 16 cubic yards or 15,400 pounds per linear foot.

A spoil pile of this mass and consistency represents a hazard, in that should the spoil pile give way or slide with workmen within the trench, even though utilizing a trench box, there would be substantial probability that death or serious physical injury could result. (See Secretary v. Standard Glass & Supply Co., 2 OSAHRC 585 (1973).) Further, the finding that respondent had not contested a previous [*66] citation for the same violation, constitutes a repeat violation within the meaning of section 17(a) of the Act.

An assessment of the criterion of section 17(a) establishes that a respondent that repeatedly violates the requirements of section 5 of the Act or any standard, rule or order promulgated pursuant to section 6 of the Act or regulations . . . may be assessed a civil penalty of not more than $10,000.00 for each violation.

The evidence is clear and undisputed that respondent has an on-going safety program and that the citation previously issued and not contested by respondent was based upon the factual circumstance of an unauthorized act undertaken by one of respondent's supervisory personnel. Respondent has since taken corrective action after having accepted full responsibility for this unauthorized act by its employee. It is felt that this is a mitigating circumstance. In weighing the evidence of respondent's repeated violation, it is felt that a penalty of $1,000.00 is appropriate.

FINDINGS OF FACT

1. Respondent, Dobson Brothers Construction Co., is a general contractor with its principal offices at 1220 "J" Street, Lincoln, Nebraska.

2. Respondent is engaged [*67] in commerce and is an employer within the meaning of the Act.

3. Respondent has approximately 125 employees.

4. Respondent has been cited previously for a serious violation, which was not contested.

5. Respondent does a gross volume of business in the amount of seven million dollars annually.

6. Respondent is engaged in construction, paving, excavation and installation of sewer pipes.

7. On July 6, 1973, employees of Dobson Brothers were engaged in the installation of sewer pipe at a construction site located approximately 50 yards west of South 40th Street and Stonecliff Drive in Lincoln, Nebraska.

8. In connection with said installation, at the foregoing location, respondent's employees had excavated a trench at said location lying on a general north and south line, which trench at all material points was 14 feet in depth and 17 feet in width.

9. Said trench was not constructed in soft or unstable soil, as that term is defined in 29 CFR 1926.653(q).

10. Respondent had two to four employees working within the trench at the time of the compliance officer's inspection.

11. The east and west faces of the trench in question were sloped from a depth of 4 feet at an angle [*68] of repose which was at least .7 feet horizontal to each 1-foot vertical with a 4-foot metal trench box in place and being used in the bottom of the trench.

12. Respondent had a spoil pile of a minimum height of 8 feet by 25 feet, representing 16 cubic yards or 15,400 pounds per linear foot leading up to the edge of the trench.

13. This spoil pile presented a hazard of slippage or giving way which would have endangered the workmen within the trench.

14. The sloping of the soil pile, due to its disturbed state and looseness was in violation of 29 CFR 1926.651(i)(1), in that it was not effectively stored and retained at least 2 feet or more from the edge of the excavation.

15. Respondent was in repeated violation of 29 CFR 1926.651(i)(1).

CONCLUSIONS OF LAW

1. Complainant failed to sustain his burden of proof by the preponderance of the probative and credible evidence that respondent was in violation of 29 CFR 1926.651(b).

2. Complainant, by the preponderance of the probative and credible evidence sustained his burden of proof as to respondent being in violation of 29 CFR 1926.651(i)(1).

3. Respondent was in repeated violation of 29 CFR 1926.651(i)(1).

ORDER [*69]

Based upon the foregoing findings of fact and conclusions of law, it is hereby ORDERED that:

1. The citation for the repeated violation of 29 CFR 1926.652(b) and the proposed penalty therefor, be vacated.

2. The citation for the repeated violation of 29 CFR 1926.651(i)(1) be affirmed, and a penalty of $1,000.00 be assessed.

Paul E. Dixon, Judge, OSAHRC

Date: Oct 22 1974