Docket No. 5106

CTM, INC.

OSHRC Docket No. 5106

Occupational Safety and Health Review Commission

July 21, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

Richard Bohanon, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On November 26, 1974, Administrative Law Judge John S. Patton issued his decision affirming a citation for serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter cited as "the Act"] issued to respondent CTM, Inc. The citation alleged that respondent had failed to comply with the safety standards published at 29 CFR § 1926.652(b) n1 and 29 CFR § 1926.651(i)(1). n2 A penalty of $500 was assessed by the Judge. n3

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n1 § 1926.652 Specific trenching requirements.

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(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).

n2 § 1926.651 Specific excavation requirements.

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

n3 The Judge also affirmed a citation for "nonserious" violations of the Act which is not before us on review.

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Pursuant to section 12(j) of the Act, review was directed sua sponte by Commissioner Moran on the following issues:

(1) Was there sufficient evidence of record to sustain the Judge's finding that respondent was in violation of the Act as alleged?

(2) Did the Judge properly interpret and apply the occupational safety and health standard published at 29 C.F.R. § 1926.651(i)(1)?

(3) Can two allegations that respondent was in violation of the Act be combined into a charge that both of them taken together constitute a "serious" violation as that term is defined in 29 U.S.C. § 666(j)? [Section 17(k) of the Act]

For the reasons given below, we affirm the Judge's decision.

Respondent is engaged in the business of trenching and excavation. On September 12, 1973, respondent's worksite at Broken Arrow, Oklahoma, was inspected by an agent of the Secretary of Labor. Subsequently, the citation for serious violation which is before us on review was issued. It alleged that respondent was in violation of § 1926.652(b) for failure to shore or adequately slope a trench in unstable soil and that excavated [*3] material was not effectively retained two feet from the trench, as required by § 1926.651(i)(1).

The inspection revealed that respondent had excavated a trench for the installation of sewer pipes. The trench measured 13 feet deep, 4 feet wide at the bottom, 4 3/4 feet wide at the 6 foot level (from the bottom), 7-feet wide at the 9-foot level, and 23-25 feet wide at the top. At the time of inspection the trench was between 35-50 feet in length. There was no shoring in the trench.

Soil samples taken from the trench were tested by Hemphill Corporation, a consulting engineering firm, testing laboratory, and drilling company. Dr. Charles Mullis, chief engineer for Hemphill, stated that the soil was comprised of clay, slit, and sand. He further testified that the moisture content of soil taken two feet from the top of the trench was well above the plastic limit n4 of the soil, indicating that outside stress could deform the soil at that level. Although it had rained on the day of the inspection, not enough time had elapsed for the water to seep two feet into the ground. Thus, most of the moisture was native to the soil. Dr. Mullis also testified that the moisture level two feet [*4] from the bottom of the trench was below the plastic limit. He observed, however, that there was considerable silt at that level which could have made the soil liquify if subjected to a sudden shock or vibration. Dr. Mullis observed that, although there was a layer of shale midway down the trench, it was weathered, and had a high moisture content which caused it to resemble clay more than solid rock. Considering the results of the tests, he was of the opinion that the trench was dug in soil of average stability. Dr. Mullis' testimony was supported by the testimony of the compliance officers.

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n4 Dr. Mullis defined the plastic limit as that moisture content at which the soil starts to take on plastic properties. If the moisture content is below the plastic limit the soil will act as an elastic material, and will rebound from stress. Above the plastic limit, it would act as a plastic material, and would deform from stress.

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Witnesses called by respondent contradicted the testimony of Dr. Mullis. Respondent's witnesses, [*5] all of whom were employed by respondent, testified that the soil was stable and that the trench was safe. Mr. Charles King, respondent's secretary-treasurer and safety officer, who has a B.S. degree in civil engineering, testified that the soil consisted of highly cohesive clay on top of a formation of hard shale. Howeve, Mr. Fred Vining, respondent's foreman, indicated that the shale became looser as the digging progressed.

A ten-foot high spoil pile was located three feet from the trench. It contained chunks of soil which were described by the compliance officer as being as large as a human head. Testimony by Dr. Mullis indicated that the pile added stress to the trench, thereby increasing the danger of a collapse. At least three employees were exposed to the hazard of a trench collapse.

Judge Patton held that respondent had failed to comply with the cited standards. He found that the soil was of average stability, thus requiring a slope of 45 degrees in order to comply with the requirements of § 1926.652(b). Finding that the angle of repose was substantially less than 45 degrees except above the nine-foot level of the trench, the Judge held that respondent was in violation [*6] as alleged. Further, he found that, although the spoil pile was more than two feet from the edge of the trench, the height of the pile and the size of the soil chunks created a danger that parts of the pile would collapse upon employees in the trench. Accordingly, he held that respondent failed to "retain" adequately the pile as mandated by § 1926.651(i)(1). After considering the seriousness of the violation, Judge Patton found the $500 penalty which was proposed by the Secretary as appropriate.

We affirm the Judge's disposition. Most of the testimony involving the stability of the soil conflicted, therefore, the Judge's finding that it was of only average stability reflects his evaluation of the witnesses' opinions, and we accept his evaluation. Having been dug in soil of average stability, the trench was required to have been either shored or sloped to a minimum angle of repose of 45 degrees. It is undisputed that the trench was not shored. Further, although the trench was sufficiently sloped above the nine-foot level, the sides were almost verticle below the six-foot level. Accordingly, respondent failed to comply with § 1926.652(b).

As to the § 1926.651(i)(1) violation, [*7] the preponderating evidence supports the Judge's holding that the spoil pile, although located more than two feet from the edge of the trench, was not effectively stored or retained to prevent material from sloughing into the trench. The pile was ten feet high with chunks "as large as a head." If any significant amount of soil had come loose from the upper part of the pile, it could easily have fallen into the trench. Indeed, the exhibits show that several clods of earth had rolled at least to the lip of the trench. Also, there was testimony relied upon by the Administrative Law Judge to the effect that the ten-foot pile of dirt could weaken the sides of the trench. The testimony of Mr. Mullis was that a soil bank very close to the edge would accierate a strength failure of the trench wall.

The issue before us on review is whether the Judge properly interpreted § 1926.651(i)(1) by holding that a spoil pile more than two feet from an excavation may still be in violation of the standard if it is not "effectively stored or retained." n5 We find the Judge's interpretation to be correct.

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n5 See note 2 supra.

[*8]

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The purposes of the standard are to prevent material from falling into an excavation and to prevent the spoil pile from imposing a load factor that could weaken a trench wall. It is important that a standard adopted by the Secretary be construed consonant with the Congressional purpose of assuring safe and healthful working conditions. Brennan v. O.S.H.R.C. and Gerosa, Inc., 491 F.2d 1340, 1343 (2d Cir. 1974). We therefore hold that to satisfy the requirements of 29 CFR § 1926.651(i)(1) spoil piles must not only be stored at least two feet from the edge of an excavation, but must also be effectively retained to prevent earth from falling into the excavation. n5a Here, the latter requirement has been breached.

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n5a This is not to say that retaining walls or the like are necessary in all cases. What is necessary is that spoil piles be stored so as to effectively prevent spillage into the trench or excavation.

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The final issue in [*9] this case is whether the Secretary has the authority to cite the alleged violations of two standards as one "serious" violation for penalty purposes. The Secretary's Area Director testified that, although the § 1926.651(i)(1) violation alone would have been "nonserious" and the § 1926.652(b) violation would have been "serious," their combined effect created a single "serious" violation. We find no abuse of discretion in this characterization.

Section 17(k) of the Act stated in part that

. . . a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment . . .

It is clear from the words of the section that one "or more" practices, means, methods, operations, or process can create a single serious violation. Also, in the instant case the two separate violations created a single serious condition -- the danger of material falling on employees working within the trench. These employees were exposed to a possible [*10] trench collapse as a result of respondent's failure to shore or adequately slope the trench wall. If a cave-in occurred it would be likely to cause death or serious physical harm. n6 Both the likelihood of a trench collpase (an element of gravity) and the probable injury caused by a collapse (an element of seriousness) were enhanced because of the material placed near the trench by the ineffectively retained spoil pile.

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n6 To establish that a violation is serious it need only be shown that there is a substantial probability of death or serious injury if an accident occurs and that the employer could have known of the violation. The probability that an accident may occur is relevant only to the gravity of the violation. See, e.g., RPM Erectors, Inc., 2 BNA OSHC 1187, 1974-75 CCH OSHD para. 18,568 (No. 1114, 1974).

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Regarding the amount of the penalties, we hold that the Judge properly considered the section 17(j) factors in assessing a $500 penalty.

Accordingly, it is ORDERED that the Judge's decision [*11] be affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

There is no evidence in this record to prove that the Act was violated as alleged. The violation charged as "serious," was based on the safety standard codified at 29 C.F.R. § 1926.652(b). It provides that:

"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.)" (Emphasis added.)

The definition of unstable soil is found at 29 C.F.R. § 1926.653(q) wherein it is classified 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."

The evidence contains not one whit of testimony or other proof that the soil in respondent's trench was possessed of any degree of unstability that would have caused collapse. My colleagues find that contradicted testimony that the soil was of "average stability" is tantamount to proof that it was unstable. This [*12] is like saying that a person shown to have a normal heartbeat has an unstable heartbeat.

It is a patently ridiculous conclusion which stands logic on its head.

Proof is also lacking that the requirements of § 1926.651(i)(1) were not observed. That standard provides in part that ". . . excavated or other materials shall be effectively stored and retained at least 2 feet or more from the edge of the excavation." My colleagues agree with Judge Patton's finding n7 that "the spoil pile was more than two feet from the edge of the trench." Nevertheless, they conclude that the requirements of the standard were not observed because "the pile was ten feet high with chunks as large as a head." So what? The height of a pile of dirt cannot by itself prove ineffective storage - nor can the size of the chunks located therein. There was no evidence that any part of the spoils pile ever fell back into the trench - nor that it posed any hazard to employees. Quite the contrary is true. The backhoe operator on this project, a man with 27 years experience in digging trenches, answered "none whatever" wher asked whether there was "any danger of the spoil pile coming back into the ditch." This [*13] evidence went totally uncontradicted.

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n7 The full text of Judge Patton's decision is incorporated herein by reference and attached hereto as Appendix A.

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APPENDIX A

DECISION AND ORDER

This case is before the undersigned Judge on the complaint of the Secretary of Labor, United States Department of Labor, hereinafter referred to as complainant, versus CTM, Inc., hereinafter referred to as respondent, alleging that respondent has violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.), hereinafter referred to as the Act and Occupational Safety and Health Standards 29 CFR 1926.251(c)(5)(i), 29 CFR 1926.450(a)(9), 29 CFR 1926.550(a)(6), 29 CFR 1926.550(a)(9), 29 CFR 1926.651(i)(1) and 29 CFR 1926.652(b). The case was heard before the undersigned Judge on July 17, 1974, at Tulsa, Oklahoma. Mr. Jack F. Ostrander appeared as counsel for the complainant and Mr. Charles King, Secretary-Treasurer of the respondent, represented the respondent. There was no motion to intervene. [*14]

ISSUES IN THE CASE

It was alleged that respondent used an aluminum extension ladder in an open trench which did not exceed 36 inches above the landing in violation of standard 29 CFR 1926.450(a)(9). The respondent stated at the hearing that respondent did not contest this alleged violation.

It was alleged that respondent failed to maintain records of the annual inspections made by a competent person showing the dates and results of inspections for each hoisting machine and piece of equipment in violation of standard 29 CFR 1926.550(a)(6). The respondent stated at the hearing that respondent did not contest the allegations of this violation.

It was alleged that respondent, on or about September 12, 1973, failed to shore, sheet, brace, slope or otherwise support by means of sufficient strength the sides of trenches in unstable or soft material five feet or more in depth to protect the employees working within the excavation in violation of standard 29 CFR 1926.652(b).

It was alleged that respondent failed to effectively store and retain the excavated or other materials taken from the excavation at a distance of at least two feet or more from the edge of the excavation in [*15] violation of standard 29 CFR 1926.651(i)(1).

It was alleged that respondent failed to apply to U-bolt wire rope clips which were used as I splices on the Koehring 440 crane so that the U section was in contact with the dead end of the rope in violation of standard 29 CFR 1926.251(c)(5)(1).

It was alleged that on September 12, 1973, respondent failed to barricade the accessible area within the swing radius of the rear of the rotating super structure of the crane so as to prevent an employee from being struck or crushed by the crane (Koehring 440 crane), in violation of standard 29 CFR 1926.550(a)(9).

EVIDENCE IN THE CASE

At the hearing respondent admitted that respondent is engaged in a business affecting interstate commerce.

Mr. James J. Fitzgerald, safety specialist for the complainant, who made an inspection of the premises of the respondent on September 12, 1973, testified that the respondent was digging a trench for the placing of sewer pipes; that the trench was four feet wide at the bottom (TR 63); that it was four and three-fourths feet wide six feet from the bottom. At the nine foot level it was seven feet wide (TR 63, 64).

Mr. John B. Miles, Jr., employed by respondent, [*16] who accompanied Mr. Fitzgerald on the inspection, stated they measured across the top of the trench. It was 23 feet at the top (TR 89, 91). He stated that the trench came up vertically and then flared out (TR 89). He testified that there was a high degree of hazard nine feet above the ground. The trench came straight up about five feet, then sloped a little to the nine foot level (TR 89, 90). He confirmed the fact that the width at the nine foot level was seven feet (TR 90). He stated from the bottom to the top of the trench was an angle of repose of about 55 degrees. Above the seven foot level was about 35 degrees (TR 92). The depths were measured with a tape (TR 107, 108).

Mr. Fred Vining who was foreman of the construction project in question, stated he made measurements at the top and the bottom of the ditch. He stated the measurement of seven feet wide was made about six inches above the man's head who was standing in the ditch (TR 166, 167). He stated the man who was standing in the ditch was about five feet, eight inches tall, making the height at which said measurement was taken, 64 inches (TR 167). Three measurements were taken at the top at three different places, [*17] being 22, 23 and 25 feet (TR 168). Mr. Fitzgerald testified that the trench was a total of 13 feet deep (TR 56). Mr. Charles Mullis who is chief engineer for Hemphill Corporation, an engineering firm, laboratory and drilling firm, testified he has a master's degree in civil engineering from Georgia Tech. He testified that the soil was a border line between low compressability clay and low compressability silt with 25 percent sand in the soil (TR 8, 9). The silt was two feet from the bottom whereas the silt was not a predominate factor in the sample taken from the top of the trench. There was a moisture content taken two feet from the top well above the plastic limit of the soil. The implication of this according to Mr. Mullis was that the soil was in a plastic condition and would deform when subjected to some outside stress. The moisture content taken two feet from the bottom of the trench was below the plastic limit and this would indicate there was not much or probably no plastic deformation which would take place with this soil at that level when subjected to some external stress (TR 10). He stated the soil taken two feet from the top of the trench would be less stable [*18] under pressure and other various conditions than the soil taken two feet from the bottom of the trench. The higher the moisture content the lower the strength of the soil. He stated the moisture content was a little above average. It varies with the weather and constantly changes. (TR 11, 12). He defined the plastic limit as that moisture content at which the soil starts to take on plastic properties. If the moisture content is less than the plactic limit the soil does not behave as a plastic material but as an elastic material. It would rebound from stress whereas with a plastic material it would deform with stress (TR 13). The presence of silt would also make it more elastic than plastic (TR 13). The liquid limit is the moisture content to which the soil no longer has any sheer strength at all and acts like a fluid rather than a solid material (TR 13). The sample taken two feet from the top showed a moisture content approximately the liquid limit with sheer strength decreasing but he did not know to what extent because this test was not made. The moisture content of the sample two feet from the bottom of the trench was well under the liquid limit of the soil but there [*19] was a compounding factor involved and that was the presence of a significant amount of silt (TR 14). He stated that silt has none of the good characteristics of either clay or sand and has the bad characteristics of both. In general, the more silt the soil contains the more problems are going to arise (TR 14, 15). A seemingly stable silt if it is subjected to sudden shock or vibration can liquify and, unlike water, even though the moisture content is well below the liquid limits, the shock can produce a sueedn build up of floor pressure which literally makes the soil liquify (TR 15).

He stated blasting, dropping of sudden heavy loads, or pile driving can cause shocks of this nature (TR 15). Heavy equipment running over such soil or next to it is also sufficient to cause shock (TR 15). He defined the soil in the area as of average stability (TR 16). He stated typical soil in the area is weathered remnants. He stated it is weathered shale. Sometimes shale will distintegrate in a week, sometimes in a generation. He described the shale here as brown shale, high moisture content indicating it had lost its rock-like characteristics and was behaving more like a clay soil. In the [*20] sample there was no rock even rock chips (TR 29). He stated that if some loose material was on the side of the bank it could have rolled down and could have affected the sample (TR 29). It rained in the morning and the sample was taken in the afternoon, probably the moisture would not have traveled far. Soil taken awhile for water to seep through.

Mr. Fitzgerald described the soil as having a non-glossy finish leading to his determination that it had a sand content (TR 67). He picked up some of the clay and it was moist and sandy (TR 67, 69). He stated that Mr. Miles was the one who took the soil sample (TR 81).

Mr. Vining described the soil as brown shale in spots and loose shale as you got further along in digging. It was brown shale at the bottom. He stated, however, that you hit brown shale before blue (TR 162).

Mr. Robert C. Moore, President and part owner of the company, testified that although he had many years experience in the business, he has no formal training in soil engineering. He stated that people worked for the respondent and are available who have formal traning in soil mechanics (TR 182, 184). He stated the company regularly uses such experts (TR 184). [*21]

Mr. Charles King who has a bachelor of science degree in civil engineering from Oklahoma State University, including formal course in soil mechanics and considerable experience working with soil, stated that the project in question was located in the Mingo Valley water shed which is very flat topography. He stated in general the area is overlain with one or two feet of top soil high in organic content. Under the top soil is two to four feet of brown or black clay possessing high placticity and high cohesion. Lying under the clay is a formation of ground shale six to ten feet thick, firm to hard and low to non-compressible. Below the brown shale is hard blue shale. The entire area is uniform and soil physical properties are unpredictable.

Mr. Mullins stated that gravity would slowly make materials deform and intense cracks would develop. Water gets into the tension cracks and causes the soil to lose its strength (TR 18). He stated that a soil bank adds to the load. A soil bank was in existence at this project. A power shovel such as was in existence at this project also would be an added burden on the walls of the trench (TR 18). Vibrations of machinery as well as weight [*22] of machinery would affect stability (TR 19). There was a water main eight feet from the side of the trench. If the water main should leak it would affect the trench. The water main, however, was far enough away that its affect was insignificant (TR 21, 22). There had been a rain of 1.10 inches on September 12 which could affect the trench (TR 22). It was not contended that there was any shoring. Mr. Mullins testified that he did not go into trenches over his head unless they are shored or he has a line tinder to pull him out in case of a sudden accident. There was no evidence of soil movement except configuration in one side of the slope which may or may not have been a slide (TR 77). Mr. Fitzgerald stated that he did not see any indication of moving of soil or anything leading up to movement of soil. There were no cracks in the bank (TR 77). He saw no evidence of the water main leaking (TR 82).

Mr. Miles stated he did not see any cracks on top or on the sides of the trench (TR 101). He testified, however, that there was a very definite danger of collapse of the trench at the nine foot level (TR 104, 105). He stated 15 people had been killed in trenches in Arkansas and [*23] Oklahoma (TR 12, 13). He stated that if clay begins to dry out and gets cracks in it and it rains in it, this adds additional pressure which may cause it to cave-in (TR 116). Length would have some affect generally (TR 117).

Mr. Richard Bevard, operator of the backhoe, testified that he has seen ditches slide in. They will either crack up a little before they come in or they can be seen to crumble in the bottom. He stated that if it is crumbling at the top it will be crumbling in the bottom (TR 140). He stated that if there is going to be a collapse you will see the soil beginning to move on the sides of the slope near the bottom of the trench (TR 140). He knew there was a power line parallel to the ditch but it did not really cause any problem. He just had to be a little bit more careful about pulling that side off and not getting into the water line (TR 142). He stated that if there is going to be a collapse small particles on the surface can be seen moving (TR 145). Never in his 27 years of operating has he dug a ditch where a man was injured (TR 145). He has seen trenches collapse in a hurry after cracks at the top or crumbling at the bottom. He has also seen it take [*24] two or three hours (TR 147). Ordinarily he watches for cracks at the top (TR 148). Four machines have been operated around the trench (TR 149). A 65 loader comes up to the edge of the trench and dumps in it (TR 150). All of the ditch that was open had been dug that day (TR 152). They dig 200 feet in 10 hours (TR 152).

Mr. Vining testified that any time they dig a ditch they have loose materials that are not going to stand there. It will seek its own slope. He stated if you pull the edge away from there you are going to have a little crumble back down (TR 156). Broken dirt in the ditch is part of what is left there by the digging machine and some falls off in the bucket (TR 157). Both he and the operator thought the ditch was safe (TR 159). Without cracks or crumbling the ditch is safe (TR 159). There was never over 35 to 50 feet open at a time (TR 153). They never had part of a ditch open over an hour (TR 163). They had never had any man injured due to materials slipping or sluffing off into the trench (TR 164). Mr. Moore testified that they had never had a man injured from material falling into the trench (TR 182).

Mr. Charles King testified that after hearing the [*25] testimony he was of the opinion that the ditch was as safe as the regulations required (TR 190). Mr. King introduced two photographs showing the soil 300 to 400 feet east of the site of the ditch having been dug there and being verticle and there being no sluffing off (TR 198, 199).

Mr. Fitzgerald testified that it was not sloped adequately and not shored or sheeted (TR 68). He stated there is a guideline of angle of repose required for certain soil (TR 68). According to Mr. Fitzgerald an average soil should have a 45 degree angle of repose. He stated the slope of respondent was an angle of approximately 65 degrees (TR 69). Mr. Miles testified that from bottom to top of the trench was an angle of repose of about 55 degrees, above the seven foot level about 35 degrees (TR 92). Mr. Miles stated that if a trench was within five degrees of 45 degrees he would say it was somewhat close to an average slope based on the type of soil in said trench (TR 117).

Mr. Bevard testified that it was sloped better on the side on which a spoil bank had been piled (TR 144). He stated that if it is sloped right it may slide but won't cave in (TR 144). It would slide slowly (TR 144). Mr. Vining [*26] stated Mr. Bevard correctly stated the way that the company dug and sloped. He stated they tried to slope the bank every time (TR 153, 154).

Mr. Vining testified that pulling dirt off the side of the bank or flattening the slope on the side where a spoil bank is does not greatly reduce the loading in the soil below. There would not be "that much weight there." They flatten the slope primarily to keep crumbs from coming down in the ditch on the employees (TR 170). Mr. Moore testified they had a good slope in the ditch. He stated he agreed with the procedure of physically digging off the slopes after trying to collaps them with a machine (TR 181). Mr. King testified that he did not make soil analysis to determine the soil slope, that he did it from physical observations and experience (TR 195). He stated that in clay soils and in loads of noncompressible soil the transfer of forces does not exceed a 45 degree angle. If it is further away then a one to one slope, it isn't going to exert any pressure on spoil banks (TR 197). Photographs were introduced by Mr. Fitzgerald, Exhibit C-3 and C-5, showing employees in the trench (TR 56). Mr. Fitzgerald testified that employees were [*27] in and out of the ditch periodically (TR 58). Mr. Fitzgerald testified that Exhibit C-1 which was introduced in evidence reflected employees in the trench with material dug from the trench directly above their head (TR 61). He stated that photograph Exhibit C-2 introduced into evidence reflected three employees at the bottom of the trench (TR 61, 62).

Mr. Vining testified that the company owned hydrolic trench jacks which they had in their yard at their place of business approximately one mile from the project (TR 16).

Mr. Mullis identified Exhibit C-2 which he testified was a spoil bank very close to the edge of the trench (TR 16, 17). He stated it would accellerate a strength failure of the trench (TR 16). The spoil bank added to the load (TR 18). It would decrease stability (TR 19). There were some rocks on the spoil bank larger than a man's head (TR 57). Mr. Fitzgerald pointed out on a photograph introduced as Complainant's Exhibit 1 that it reflected employees in the trench with material directly over their heads (TR 61). He stated that the spoil bank was ten feet high (TR 64). Mr. Miles stated that his estimate was ten feet high but that it was not measured. He stated, [*28] however, that it was over his head (TR 96, 94). He stated that it was awfully high and that if it did slide men would be buried by the amount of material it contained (TR 103). The trench he stated ran east and west and the spoil bank was on the south side (TR 106).

On the other hand Mr. Bevard testified that there was no danger whatsoever of the spoil bank coming back into the ditch (TR 142). He stated the dirt was not piled over ten feet at the most (TR 143). Mr. Bevard stated that they had a policy of moving the dirt back from the trench but in a certain area they had not gotten around to it at the time of the inspection. The dirt would stay by the trench 30 or 40 minutes before they would move it back (TR 150, 151). He stated people would not be working under it but further down the ditch (TR 151).

Mr. Vining testified there was an area where loose material had been dug away to provide an area back away from the trench for any soil coming down from the soil bank to stop it from going into the trench (TR 155). Mr. Moore stated that the spoil bank was about the length of an open trench which was 35 to 50 feet long. Men would lay pipe in the bottom of the trench while the [*29] soil was piled on top (TR 165). Mr. Vining stated they could have gotten it further away by walking a hoe around it and pulling it away. He stated that they could use a dozer but that would have a lot more vibration (TR 169). Mr. Vining stated there was a three foot path dug between the spoil bank and the edge of the trench which caught a lot of the spoil (TR 175). If a big chunk dropped off the top of the spoil bank it would be hard for the path to catch it, however, (TR 176). Mr. King stated that the spoil bank applied very little downward pressure at the distance it was from the settle line of the trench (TR 195). He stated the weight would have been 90 pounds per cubic foot. Ten feet would be 900 pounds per square foot force at 21 feet off from the center of the trench (TR 196). He stated that the effect would be negligable throughout the entire length of the trench. The super imposed load created out at the edge of the trench would be zero and it increases as it moves out to a point of 22 feet (TR 197). He stated the total weight of the spoil bank was about 18,000 pounds per lienal foot. This was based on ten foot high and 20 foot wide at the base and weight of 20 [*30] pounds per cubic foot (TR 197, 198).

Mr. Fitzgerald identified Exhibit C-4, a photograph which he stated showed a U bolt clip that was used in forming an I splice in the cable and reflected the U bolt portion on the dead end or the short end of the cable (TR 48). He stated the hazard consisted of the fact that the bolt rope clips that are designed are required to be made of forged steel and that the inherent design of them is such that they are to be applied in such way that the twist of the cable or rope they are to be applied to fits within the molded groves of the clips (TR 49). He stated that if it is applied improperly these clips tend to have a cutting tendency when they are clamped onto the cable thereby causing a weakness and possibly allowing it to slip (TR 49). He stated there was rather a small probability of an accident occurring but if an accident did happen the injury would probably be very severe or fatal (TR 49, 50). He stated that at least three employees were exposed (TR 50). The respondent took immediate corrective action at the time of the inspection. They immediately changed the rope clip to the other side (TR 51). Mr. Fitzgerald said that only one clamp [*31] on the cable is to hold a pigtail portion of the cable to prevent it from sliding around the swedge block in the connection. The swedge block is designed to develop full strength of the cable. The clamp would afford some support (TR 78). As the load increases the swedge bits harder (TR 79).

Mr. Knorbb, Area Director, stated that the hazard as to said alleged violation is minimal. The primary hazard he stated is that reversing the Crosby clip or wire rope clip where the loop of the clip of the live end of the line causes a tendency when it is tightened to secure the line to pull down and cramp the line. He testified that over a prolonged period of time of working back and forth the flexibility of the line has a tendency to deform the strand to compress the rope and ultimately it can lead to failure of the wire rope itself (TR 128). Where it is reversed this cramping action is on the dead side of the line and it has no load factor on the line. It is also not subject to flexing nearly as much as what the live side of the line is (TR 128). He felt it was not serious enough for a penalty due to the load being lifted by the line at the time of inspection.

Mr. Fitzgerald testified [*32] that immediately upon arrival at the inspection site, respondent had just completed lowering a section of sewer pipe that was being installed in the trench and at the time there was at least on employee walking along the side of a hoisting machine. (TR 51). He was walking along side the superstructure of the crane. The crane would have to sway approximately 180 degrees to move the pipe in the trench. The superstructure or cab of the crane had an overhanging portion going in the swinging radius that overhung and it could possibly have swept or knocked a person down or created a crushing injury. The possibility of such an injury is fairly high. The duration of proximity that he noticed was just the time for an employee to pass, a very short time. (TR 52, 53). At that time no precautions had been taken to decrease the danger of injuries occurring as a result of operation of the crane (TR 53, 54). The respondent told him at the time of inspection that the respondent had not given much thought to it and that it was not a normal work area but that he would go ahead and barricade it off (TR 54). There was no one behind the crane when he saw it. There was no object in the way where [*33] a man could have been crushed between the cab of the machine and some obstacle out on the side (TR 79, 80).

The crane came up at about a five foot level and then sloped a little to a nine foot level according to the testimony of Mr. Miles (TR 90). Mr. Knorpp stated that he felt that if an accident occurred there was a probability of injury that would occur from the accident. This would result if a man was either hit by the crane or brushed into the pinch points instead of the rotating structure and the base of the frame of the crane (TR 129). He testified there is a pinching point that occurs between the outer edge of the back and front of the upper structure of the shovel or crane, and between it and the leading edges of the track on each side as this would rotate from one direction completely around 180 degrees to another direction.

Each time it would pass the corner of the crane there was a pinching action that comes together at that point. If a man should happen to be in that area for one reason or another there would be an injury (TR 129). With only one man exposed periodically by walking along side it it was felt that the probability of an accident itself happening was [*34] not great although the probability of injury might be substantial if an accident did occur (TR 130). The crane operates 180 degrees and a man rotating the crane might lose sight of the man in front of the crane, if the man who is in front does not have too much exposure because it would be in the visable range of the operator's crane.

Mr. Richard Bevard, operator of the crane, testified he has been an operator for 27 years (TR 134). He has operated the bulldozer and track line. He stated that at the time of the hearing he was an operator of a hoe (TR 134). He stated that he had primarily been an operator digging trenches. He was the operator of the backhoe on September 12, 1973 (TR 135). He stated they were cutting a ditch. A ditch is dug by digging down within three or four feet of the bottom straight down and then trying to take the bucket and cave it down, that is push it down. If it is too hard it will then be dug out. He stated that the ditch involved in this case had to be dug out, that it would not cave out. He could not take the weight of the machine and push the banks in (TR 136). The machine weighs about 80,000 pounds (TR 136, 137). Mr. Fred Vining testified [*35] that the bucket is 42 inches wide. Mr. Vining stated the pad of the tracks of the crane is about 28 to 32 inches (TR 172). The crane was about 16 to 17 feet from the center of the ditch and was located about four or five feet from the edge of the ditch (TR 171 - 174).

EVALUATION OF THE EVIDENCE

It will be observed from the above evidence that the trench in question was 13 feet deep, 4 feet wide at the bottom, 4 and 3/4 feet wide at the 6 foot level, 7 feet wide at the 9 foot level and then spreading out to approximately 23 feet wide at the 13 foot level.

The standard allegedly violated, 29 CFR 1926.652(b) reads as follows:

Table P-1 sets forth the approximate angle of repose required for certain types of soil and Table P-2 relates to shoring of trenches. In Table P-1 it is stated that solid rock, shale or cemented sand and gravel may be perpendicular (90 degrees). It is stated that recommended [*36] slope for average soil is 45 degrees. The slope for other types of soil is also set forth. It is not disputed that the trench was in excess of 5 feet deep and the above stated dimensions are not seriously controverted.

The issue remaining for decision, therefore, as to said standard is whether the sides of the trench are in unstable or soft material. On this issue there is some dispute of testimony from experts. As above stated, if the trench is dug in solid rock, shale or cemented sand and gravel it may be perpendicular. There is some evidence in the record that the trench was dug in shale. Mr. Charles King, a civil engineer with a bachelor of science degree from Oklahoma State University and considerable training and experience in soil mechanics testified that soil in the general area is overlaid with one or two feet of topsoil high in organic content. Under the topsoil is two to four feet of brown or black clay possessing high placisity and high choesion. Lying under the clay is a formation of brown shale, 6 to 10 feet thick, firm to hard and low to noncompressibility. Below the brown shale is hard blue shale. This is testimony, however, only to the general area and [*37] not as to the specific ground on which the trench was dug.

Mr. Fred Vining who was foreman of the construction project described the soil in the trench as brown shale in spots and loose shale as further digging progressed. He stated it was brown shale at the bottom. He further stated that brown shale is reached before blue. In the opinion of this Judge the standard as set forth in Table P-1 does not contemplate loose shale which does not have stability and is subject to fall.

There is considerable evidence in the record to the effect that although shale may have been present there were other soils present which greatly reduced the stability. Mr. James Fitzgerald who had many years of experience in working with trenches from a safety standpoint and inspecting trenches described the soil as having a non-glossy finish leading to a determination that it had a silt content. He picked up some of the clay and it was moist and sandy. He described the soil as a boarder line between low compressibility clay and low compressibility silt, with 25 percent sand in the soil. The silt was two feet from the bottom whereas the silt was not a predominate factor in the sample taken from the top [*38] of the trench. The moisture content taken two feet from the top was well above the plastic limit of the soil. Moisture content taken two feet from the bottom of the trench was below the plastic limit. Although in his opinion the soil taken two feet from the top would be less stable under pressure than that taken two feet from the bottom, that taken from the bottom had considerable silt. He stated that silt had none of the good characteristics of either clay or sand and the bad characteristics of both. The more silt the soil contained the more pboblems are going to arise. If subjected to sudden shock or vibration it could liquify and unlike water even though the moisture content was well below the liquid limits the shock could produce a sudden build up of floor pressure which literally made the soil liquify.

Mr. John B. Miles, Jr., with a bachelor and master's degree in engineering from the University of Oklahoma and 12 years experience in the engineering field, including studying of and experience with trenching and treaching at a Junior college a course including study of trench and excavation problems described the soil as soft soil and therefore unstable. He described it [*39] as moist type clay soil.

Mr. Charles Howell Mullis, Jr, chief engineer for Hemphill Corporation, a consulting engineering firm, testing laboratory and drilling company, who had worked approximately 20 years in soil described the soil as low compressibility clay and low compressibility silt.

It would appear that although there was some shale in the soil the soil was also composed of clay and silt and such shale that did exist was loose and did not substantially increase the amount of stability of the soil. In the opinion of this Judge the soil, even below the 9 foot level, was at best average soil. The angle of repose was substantially less than 45 degrees except above the 9 foot level. It therefore would appear that the trench was not properly sloped under the circumstances. There is no contention that there was shoring as set forth in Table P-2 of the standard and, therefore, the standard was not met either by shoring or sloping of the trench. The respondent contends that the action taken was adequate from a standpoint of safety. Even if for the sake of argument this was conceded, the fact remains that the requirements are set forth in the standard and the requirements have [*40] not been met and, therefore, the standard was violated.

It also is alleged that the respondent violated standard 29 CFR 1926.651(i)(1) by failing to effectively store and retain the excavated or other material taken from the excavation at a distance of at least two feet or more from the edge of the excavation. It is uncontradicted that a spoil pile, dirt taken from the excavation, was adjacent to the excavation at a height of 10 feet. Said standard provides:

"In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least two feet or more from the edge of the excavation."

Mr. Vining testified that there was a three foot path dug between the spoil bank and the edge of the trench which caught a lot of spoil. Mr. Fitzgerald stated that the spoil bank was directly over the heads of the employees working in the trench. This did not constitute a statement, however, that the spoil bank was closer than two feet from the trench. Mr. Mullis stated that the spoil bank was "very close" to the edge of the trench. In viewing all of the evidence this Judge reaches the conclusion that the spoil bank was not within two [*41] feet of the edge of the trench. This finding of fact, however, does not necessarily result in any finding that standard 29 CFR 1926.651(i)(1) has not been violated. It will be noted that said standard not only requires that the excavated materials be at least two feet from the edge of the excavation but also states that it "shall be effectively stored and retained" at least two feet from the edge of the excavation. A 10 foot high pile of dirt from the ditch does present an extra hazard both from the standpoint of material from the ditch falling on employees and from the standpoint of weakening the sides of the trench. Mr. Mullis testified that some rocks in the spoil bank were larger than a man's head. There certainly would be danger under such circumstances of a rock falling from the spoil bank into the trench and injuring an employee working below. The three foot distance between the spoil bank and the side of the trench is a protection. A bank piled as high as 10 feet, however, with rocks larger than a man's head in it, can upon collapse, have material fall or roll beyond the three feet in question into the trench and injure the people working below. Although the requirement [*42] of the standard that a spoil bank be at least two feet from the side of the trench has been met, the requirement in said standard that such material be "effectively stored and retained" has not been met.

A penalty in the amount of $500 was proposed for violation of standard 29 CFR 1926.651(i)(1) and violation of standard 29 CFR 1926.652(b). There is a possibility of employees being buried should either the trench or spoil bank collapse as well as the possibility existing of serious injury from the weight of a collapse upon employee. In the opinion of this Judge the gravity of the violation in the event an accident should occur is sufficiently severe to justify a penalty in the proposed amount of $500.

It is also alleged that respondent violated standard 29 CFR 1926.251(c)(5)(1) which provides:

"When used for I splices the U-bolt shall be applied so that the U section is in contact with the dead end of the rope."

Mr. Fitzgerald testified that the U-bolt was applied improperly. He stated that the hazard consisted of the fact that the bolt rope clips that are designed are required to be made of forged steel and that the inherent design of them is such that they are to be applied [*43] in a way causing the twist of the cable or rope. They are attached to fit within the molded grooves of the clips. He stated that if it is applied improperly these clips then to have a cutting tendency when they are clamped onto the cable, thereby causing a weakness and possibily allowing it to slip. He stated there was rather a small probability of accident occurring but that an accident could be fatal.

Mr. Knorbb, Area Director, described the hazard as follows. He stated that reversing the Crosby clip or wire rope clip where the loop of the clip was on the live end of the wire caused a tendency when tightened to secure the line to pull down and clamp the line. Over a prolonged period of time working back and forth, flexibility of the line had a tendency to deform the strand, compress the rope and ultimately it could lead to failure of the wire rope itself. He stated that when reversed the cramping action was on the dead side of the line and had no load factor on the line. It would appear that the evidence substantiates the allegations in this regard and that such violation has occurred. Testimony of the complainant was to the effect that the possibility of this injury occurring [*44] was somewhat remote and that therefore no penalty was proposed. Under the circumstances, this Judge is of the opinion that a penalty should not be assessed for this violation.

It was alleged that respondent violated standard 29 CFR 1926.550(a)(9). Said standard is as follows:

"Accessible areas within the swing radius of the rear of the rotating superstructure of the crane either permanently or temporaily mounted shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane."

As above noted, the respondent operated a crane at the site at which the ditch was being dug. According to Mr. Fitzgerald, the crane had a sway of approximately 180 degrees to move pipe in the trench. The superstructure or cab of the crane had an overhanging portion going in the swinging radius that could possibly have swept or knocked a person down to create a crushing injury. He described the possibility of such an injury as high. There was no barricade as required by the standard. The crane was located about four or five feet from the edge of the ditch. This charge appears to have been sustained. A penalty in the amount of $65 was proposed. If the crane [*45] did strike an employee injury could be substantial. This Judge is of the opinion that the proposed penalty of $65 is the minimum penalty that should be assessed.

FINDINGS OF FACT

1. Respondent is an employer engaged in a business affecting interstate commerce.

2. Respondent is engaged in excavation and trenching operations and was on September 12, 1973, engaged in such operations in Broken Arrow, Oklahoma.

3. Respondent was digging a trench and laying pipe on said date. The trench was 4 feet wide at the bottom, 4 and 3/4 feet wide at the 6 foot depth level, 7 foot wide at the 9 foot depth level and approximately 23 foot wide at the top level of the trench which was the 13 foot level.

4. Respondent did not shore or brace said trench.

5. The soil of said trench consisted of silt and clay and loose shale as well as some sand.

6. The soil of the sides of said trench was of approximately average stability.

7. The respondent did not slope said trench at a 45 degree angle from the bottom of the trench to the 9 foot deep level. Respondent did slope said trench at a 35 degree angle above the 9 foot deep level.

8. Employees of respondent were on September 12, 1973, working [*46] in said trench.

9. The respondent maintains a spoil bank adjacent to said trench which was 10 feet high and contained rocks larger than a man's head and which was not effectively stored and retained.

10. On September 12, 1973, respondent failed to apply the U-bolt wire rope clips which were used as I splices on the Koehring 440 crane so that the U section was in contact with the dead end of the rope.

11. On September 12, 1973, side rails of the aluminum extension ladder, located in said trench did not exceed 36 inches above the landing.

12. At said workplace on September 12, 1973, respondent failed to maintain records of the annual inspections made by competent persons showing the dates and results of inspections for each hoisting machine and piece of equipment.

13. At its workplace on September 12, 1973, respondent failed to barricade the accessible area within the swing radius of the rear of the rotating superstructure of the crane so as to prevent an employee from being struck or crushed by the crane.

CONCLUSIONS OF LAW

1. Respondent is engaged in a business affecting interstate commerce and is within the jurisdiction of the Occupational Safety and Health Act. [*47]

2. Respondent's failure to shore, sheet, brace, slope or otherwise support by means of sufficient strength the sides of said trench, constituted a violation of section 5(a)(2) of the Act and standard 29 CFR 1926.652(b). This was a serious violation.

3. Respondent's failure to effectively shore and retain the excavated or other material taken from said excavation constituted a violation of standard 29 CFR 1926.651(i)(1). This was a serious violation.

4. Respondent's failure to apply the U-bolt wire rope clips which were used as I splices on the Koehring 440 crane so that the U section was in contact with the dead end of the rope constituted a violation of section 5(a)(2) of the Act and standard 29 CFR 1926.251(c)(5)(1). Said violation was a non-serious violation.

5. Respondent having an aluminum extension ladder located in said trench, the side rails of which did not extend 36 inches above the landing, constituted a violation of standard 29 CFR 1926.450(a)(9). This was a non-serious violation.

6. Respondent's failure to maintain records of the annual inspections made by a competent person, showing the date and results of inspections for each hoisting machine and piece [*48] of equipment, constituted a violation of section 5(a)(2) of the Act and standard 29 CFR 1926.550(a)(6). This was a non-serious violation.

7. Respondent's failure to barricade the accessible area within the swing radius of the rear of the rotating superstructure of the crane so as to prevent an employee from being struck or crushed by the crane constituted a violation of section 5(a)(2) of the Act and standard 29 CFR 1926.550(a)(9). This constituted a non-serious violation.

ORDER

It is therefore Ordered that respondent was on September 12, 1973, in violation of section 5(a)(2) of the Act and the following standards:

Respondent was in serious violation of standard 29 CFR 1926.652(b).

Respondent was in serious violation of standard 29 CFR 1926.651(i)(1). A penalty in the amount of $500 is assessed for said violation of standards 29 CFR 1926.652(b) and 29 CFR 1926.651(i)(1). The requirement that said violations be immediately abated is affirmed.

Respondent was in violation of standard 29 CFR 1926.251(c)(5)(1). No penalty is assessed for said violations. The requirement that said violation be immediately abated is affirmed.

Respondent was in violation of standard 29 CFR [*49] 1926.450(a)(9). No penalty is assessed for said violation. The requirement that said violation be immediately abated is affirmed.

Respondent was in violation of standard 29 CFR 1926.550(a)(6). No penalty is assessed for said violation. The requirement that said violation be immediately abated is affirmed.

Respondent was in violation of standard 29 CFR 1926.550(a)(9). A penalty in the amount of $65 is assessed for said violation. The requirement that said violation be immediately abated is affirmed.

Dated this 26 day of Nov, 1974.

JOHN S. PATTON, Judge, OSHRC