SECRETARY OF LABOR,
Complainant,
v.
AUSTIN ENGINEERING COMPANY, INC.,
Respondent.
OSHRC Docket No. 81-0168
DECISION
Before: BUCKLEY, Chairman, and CLEARY, Commissioner.
BY THE COMMISSION:
This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.
§ 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§
651-678 ("the Act"). The Commission is an adjudicatory agency, independent of'
the Department of Labor and the Occupational Safety and Health Administration. It was
established to resolve disputes arising out of enforcement actions brought by the
Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the
Act, 29 U.S.C. § 659(c).
Austin Engineering Company ("Austin"), a utility construction company, was
issued one citation alleging serious violations of two trenching standards and another
citation charging a nonserious violation of a fire extinguisher standard. Judge Stanley M.
Schwartz affirmed the citation charging Austin with serious trenching violations and
vacated the citation alleging a fire extinguisher violation. He assessed a penalty of $50.
For the reasons set forth below, we conclude that Austin violated one of the cited
trenching standards and the fire extinguisher standard, but we are divided on whether the
other cited trenching standard was also violated.[[1]]
I
Austin was in the process of installing a water main in a trench that it had dug when its
worksite was inspected by Roy Moore, a compliance officer from the Occupational Safety and
Health Administration. Austin was cited for a nonserious violation of 29 C.F.R. §
1926.550(a)(14)(i) [[2]] for failure to have a fire extinguisher on a truck crane used to
place reinforced concrete pipe in the bottom of the trench. No penalty was proposed by the
Secretary. The compliance officer testified that during his inspection he examined the cab
of the truck crane and found that there was no fire extinguisher. Austin presented
evidence that there had been fire extinguishers on the truck crane at one time or another,
but they had been stolen. For that reason, fire extinguishers were kept on pickup trucks,
which were "probably 100 feet" from the truck crane.
Judge Schwartz concluded that the Secretary did not prove that the fire extinguisher was
inaccessible or unavailable. He stated that there was no evidence that an employee in the
truck crane would experience difficulties in reaching a pickup truck quickly and easily
enough to obtain a fire extinguisher. He determined that the reason given for keeping fire
extinguishers on pickup trucks approximately 100 feet away from the truck crane was
adequate, and he vacated the citation.
We reverse the judge's decision and find a violation. The fire extinguishers kept by
Austin on the pickup trucks located approximately 100 feet from the truck crane at issue
were not accessible and available "at all operator stations or cabs of
equipment" as required by section 1926.550(a)(14)(i). See M-CO Equipment Co., 75
OSAHRC 37/C3, 2 BNA OSHC 1660, 1661, 1974-75 CCH OSHD ¶ 19,394 at p. 23,158 (No. 3811,
1975). Respondent's argument is that employee safety is equally well served by the
presence of accessible fire extinguishers at locations other than those specified in the
standard. Even accepting this as true, we nevertheless may not vacate the citation because
to do so would be an impermissible intrusion on the Secretary's rulemaking authority. See
Van Raalte Co., 76 OSAHRC 48/B8, 4 BNA OSHC 1151, 1152, 1975-76 CCH OSHD ¶ 20,633 at p.
24,698 (No. 5007, 1976) (the Commission lacks the power to question the wisdom of a
standard). The Secretary's intention to require extinguishers at particular locations is
evident from the language of the standard and is not inconsistent with the statutory
purpose of the Act. Therefore, Austin's contention that the regulation could have been
drafted differently or less arbitrarily without compromising employee safety must be
rejected. See, e.g., Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)
(effect must be given to literal or usual meaning of words in statute except in rare cases
when literal application produces a result at odds with the drafter's intention).[[3]]
We may however, consider the impact on employee safety that the violation will have in
assessing a penalty. Based on the considerations in section 17(j) of the Act, 29 U.S.C. §
666(i), we assess no penalty.
II
The Secretary alleges that Austin committed a serious violation of 29 C.F.R. §
1926.651(i)(1)[[4]] because the spoil pile was within two feet of the edge of the trench.
Excavated material was stored at the top of the west wall of the trench within two feet of
the edge. The compliance officer stated that during his inspection he observed an employee
of Austin working with the bedding material on the bottom of the trench at the end of the
pipe. He asserted that the condition posed a hazard of serious injury or death to the
employee working in the trench.
Leach, Austin's supervisor, testified that Austin had just opened the trench to continue
work from the preceding day when the compliance officer began his inspection. He stated
that before employees would gravel or grade the ditch the spoil pile would knocked down.
However, he did not contradict the compliance officer's testimony that one employee was
observable in the trench at the time of the inspection. Moreover, he admitted that three
employees of Austin were working inside the pipe at the bottom of the trench when the
compliance officer was conducting his inspection. When these employees would leave the
pipe, they would be directly underneath the spoil pile.
We affirm the judge's finding of a violation. It is undisputed that excavated material was
stored within two feet of the edge of the trench and that employees were working in the
trench near the location of the spoil pile. That evidence is sufficient, to establish the
violation. Based on the considerations in section 17(j) of the Act, 29 U.S.C. § 666(i),
we assess a penalty of $25 for this violation.
III
Austin was also cited for committing a serious violation of 29 C.F.R. § 1926.652(c) [[5]]
in that it allegedly failed to either shore or adequately slope the sides if the open
trench. The trench was approximately 12 feet deep, 6 feet wide at the bottom, and 35 to 40
feet long. It is undisputed that the material comprising the trench walls from the top
down to 3-1/2 feet was hard or compact soil that was adequately sloped. What is at issue
is the composition of the material below 3-1/2 feet, which was neither sloped nor shored.
The Secretary asserts that it was "hard or compact soil" requiring sloping or
shoring, while Austin asserts that the material was equivalent in stability to solid rock,
shale, or cemented sand and gravel, and did not have to be sloped or shored.
Compliance officer, Moore used a shovel to take samples of the material in the east wall
of the trench. He took three samples: one each from depths of 18 inches, 3 feet, and 6
feet. He testified that the sample taken at a depth of 6 feet was "a gray to white
material" that, was a combination of possibly clay and granular, weathered limestone.
Moore stated that the material below the 6-foot level appeared to be of the same general
kind as that sample. He testified that he found isolated rocks scattered in the soil but
observed no significant layering.
Donald Reaves, a geotechnical engineer who had been manager of the laboratory where
Moore's sample was analyzed, testified that Moore's sampling method was acceptable and the
test methods used to analyze the sample by the laboratory were generally recognized in the
field. He stated that the tests showed that the 6-foot sample was "silty, sandy
gravel" that could not be classified as solid rock. Reaves also performed a boring
for the Secretary at a location near the trench site on February 9, 1982, and, one week
earlier, assisted in a boring taken about 100 feet to the north of the trench site. Reaves
testified that there was a reasonable correlation between Moore's sample and some material
found at some levels in the borings taken in February 1982. He stated that the February 9
boring demonstrated that a significant part of the trench wall was hard and compact, and
that both borings showed that much of the material in the trench walls consisted of
alternate layers of tan silt (also described as tan weathered limestone) and rock.
Jack Holt, a registered professional engineer specializing in soils, performed the boring
for the Secretary on February 2, 1982, at which Reaves assisted. According to Dr. Holt,
his log of the February 2 boring was consistent with the results of the February 9 boring
discussed by Reaves. Dr. Holt stated that there are bedding planes throughout the area of
the trench composed of fractured, discontinuous rock overlying silt layers, which he
explained were produced by the chemical weathering of the rock over time. When asked if he
considered a significant portion of the trench walls to be composed of solid rock, he
replied that "solid rock really doesn't mean anything" because all rocks have
air in them and are porous. He did testify that "rock comprises a significant
portion" of the trench wall with stones 2 to 3 feet thick and 2 to 4 feet long, with
a "significant amount of silt in them." He concluded that the trench was cut in
"a very stable formation."
John Crawford, a registered professional engineer, testified concerning a boring that a
drilling crew under his supervision had performed at Austin's request eleven months after
Moore's inspection. Crawford chose a location approximately 15 feet away from the trench
site for the boring in order to get material near where the trench had been dug, but not
so close as to be in the zone of material that had been disturbed by the excavating
process. Based on his observations while boring and his viewing of a film made by Austin's
vice president,[[6]] Crawford stated that the formation was "[b]asically . . . solid
limestone" and "very stable rock."
The log prepared by Crawford to document his observations and tests of the boring that he
took showed that from 3-1/2 feet to 5 feet was tan weathered limestone and from 5 feet to
the bottom of the boring at 15 feet was tan limestone with small solution cavities[[7]]
that was slightly fractured. At approximately 10 feet there was a layer of clay-sand that
was only 1/2 to 1 inch thick.
Crawford characterized the material from 3-1/2 feet to 5 feet down as tan limestone that
was somewhat weathered from its undisturbed hard state but was "still fairly
competent" and "usually the next step up from being solid, hard, resilient
rock." He categorized that material as solid rock, shale or cemented sand and gravel
which requires no sloping under Table P-1 of section 1926.652(c). He considered the tan
limestone from 5 feet to 15 feet down to be solid hard rock which requires no sloping.
In his decision Judge Schwartz concluded that Austin had violated section 1926.652(c). He
found the most probative evidence of the nature of the material in the trench walls to be
Moore's testimony concerning the samples taken at the time of the inspection. The judge
noted that those samples were the only ones taken of the trench as it actually existed and
that Moore's visual observations were consistent with the analyses of the samples. He
found no basis in the evidence for concluding that Moore's sampling procedures were
improper. Judge Schwartz therefore concluded that a significant portion of the trench
walls was hard or compact soil that was not adequately sloped.
Commissioner Cleary would affirm Judge Schwartz's decision regarding this item. He notes
that the Commission has held that in order to establish a prima facie showing the
Secretary must prove that the trench at issue was at least 5 feet deep and 8 feet long,
the trench was neither shored nor sloped appropriately, and a significant part of the
trench wall consisted of hard or compact soil. CCI, Inc., 80 OSAHRC 127/D4, 9 BNA OSHC
1169, 1981 CCH OSHD ¶ 25,091 (No. 76-1228, 1980), aff'd, 688 F.2d 88 (10th Cir. 1982).
It is undisputed that the formation in which the trench was dug and the trench walls
themselves contained a considerable amount of rock. The walls were not, however, solid
rock, but consisted of rock interlayered with soil. While a trench whose walls are largely
rock might appear to be stable, there is a very real danger that the walls will collapse
if the rocks are separated by layers of lesser stability. A trench wall is only as strong
as its weakest part. Therefore, a wall containing solid rock, shale, or cemented sand and
gravel interlayered with soil is considered to be the weaker of the two types of material
unless the areas of soil constitute an insignificant part of the wall. CCI, Inc., supra.
Commissioner Cleary concludes that the evidence in this case shows that the trench walls,
as they existed at the time of the inspection, contained significant amounts of material
that cannot be classified as solid rock, shale, or cemented sand and gravel.
Like Judge Schwartz, Commissioner Cleary considers it significant that the only witness
who took samples of the trench material as it existed at the time of the inspection was
Moore. Evidence presented at the hearing indicated that the composition of soil can vary
even a short distance away. Commissioner Cleary notes that Moore's testimony as to the
trench material at the time of the inspection was corroborated by Reaves' testimony
regarding the results of the tests performed on the samples taken by Moore, as well as the
results of the boring done by a laboratory almost three months later. More particularly,
Moore's testimony that the trench material was clay and granular weathered limestone at 6
feet and below is supported by Reaves' testimony that Moore's 6-foot sample was analyzed
as "silty, sandy gravel."
Commission Cleary further notes that the results of the tests on Moore's samples correlate
with the testimony of Reaves and Holt concerning the borings that they subsequently took.
Reaves and Holt agreed that their borings showed that a significant part of the trench
wall was hard and compact material consisting mostly of alternating layers of silt and
fractured rock. Holt further testified that photographs of the trench as it existed at the
time of inspection showed the same interlaying of silt and rock as did the boring he
analyzed. Commissioner Cleary concludes that the trench walls at issue contained a
significant amount of material that was not solid rock, shale, or cemented sand and
gravel, and were therefore required to be sloped or shored.[[8]]
Chairman Buckley would reverse the judge's decision and vacate this item of the citation.
Section 1926.652 mandates certain requirements for the excavation of trenches in different
types of soil. Appended to the standard, and specifically referred to in section 1926.652,
is a table setting forth approximate angles of repose for different types of soil as a
guide for use in determining the appropriate slope for a trench. As interpreted by the
Commission, the standard, when read with the appended table, provides certain sloping
requirements ranging from 2:1 for loose sand to no slope at all for excavations in solid
rock, shale, or cemented sand and gravel. See, e.g., D.A. & L. Caruso, Inc., 84 OSAHRC
__/__, 11 BNA OSHC 2138, 1984 CCH OSHD ¶ 26,985 (No. 79- 5676, 1984).
Section 652(c) provides that trenches dug in hard and compact soil be sloped to at least
an angle of 1/2:1 or approximately a 63 degree angle.
All parties agree that the first 3-1/2 feet of the trench was composed of hard and compact
soil and that it was properly sloped at an angle of 63 degrees or less. Thus, two of the
three samples taken by the compliance officer were from hard and compact soil, but do not,
as the. judge implied, support a finding that the trench wall below the 3-1/2-foot level
required sloping. It is undisputed that the earth below the 3-1/2-foot level was composed
of soil different from and of much greater stability than the "hard or compact"
soil at the upper layer of the trench. Indeed, the evidence shows that below 3-1/2 feet
the trench was dug in material. equivalent in stability to solid rock, shale, or cemented
sand and gravel requiring no sloping because no cave-in hazard would be present.
Crawford, Austin's highly qualified expert witness, testified that the boring he took from
an area near the location of the trench showed that the material below the 3-1/2-foot
level was solid rock or its equivalent in stability. Although the boring showed that there
were certain amounts of material that could not be characterized as the equivalent of
solid rock, the amount of such material was, in Crawford's opinion, insignificant.[[9]]
Crawford stated that the trench was dug in a geologic formation known as the Edwards
Formation. In the general vicinity or the trench was a rock quarry, also dug in the
Edwards Formation, in which vertical cuts had been made that demonstrated that the quarry
material was highly stable. Other evidence also demonstrates the rock-like stability of
the material in which the trench was dug. Tommy Leach, Austin's Superintendent, testified
that the trench was cut by blasting and, drilling and the type of rock at the site was
"impossible to dig." He noted that the backhoe at, the site was using a rock
bucket.
Paul Keller, President of Austin and a registered professional engineer, testified that he
visited the trench site on the day after the inspection and on the day of the filming of
Haralson's movie. Attempts to dig the sides of the trench with a backhoe at those times
were unsuccessful because of the solid rock encountered below the two to three feet of
overburden. He noted that when he had worked before in the area of the trench he had to
"drill" and "shoot" before he could scratch a trench out with a
backhoe. Keller testified that he considered the trench at issue to have been safe and
doubted that Leach could have sloped the walls any more without blasting them. Keller's
testimony therefore corroborates Crawford's view that the material In which the trench was
dug was the equivalent of solid rock.
The Secretary's witness, Dr. Holt, confirmed that "rock comprises a significant
portion" of the trench wall and that the trench was cut in "a very stable
formation." In Chairman Buckley's view, the evidence clearly established that below
the 3-1/2-foot level the trench was cut through earth equivalent in stability to solid
rock, shale, or cemented .sand and gravel and did not require sloping. A brief review of
the photographic exhibits in the case amply demonstrates the rock like stability of the
excavation. The Secretary here would require Austin to slope the sides of a trench so
stable that only by blasting could the sloping be achieved. Such a result serves no
purpose under the Act, and the violation should be vacated.
To resolve our impasse on the merits of this citation item and to permit the parties to conclude this litigation, we agree to sever the section 1926.652(c) citation item from the remainder of the case and vacate the direction for review insofar as it applies to this item. E.g., Texaco, Inc., 80 OSAHRC 74/B1, 8 BNA OSHC 1758, 1980 CCH OSHD ¶ 24,634 (Nos. 77-3040 & 77-3542, 1980). The judge's decision concluding that Austin violated section 1926.652(c) becomes the appealable final order of the Commission but is accorded the precedential value of an unreviewed judge's decision.
Accordingly, the judge's decision is affirmed in part and reversed in part. We sever the portion of the case alleging that Austin violated section 1926.652(c), and vacate the direction for review with respect to it.
FOR THE COMMISSION
RAY H. DARLING, JR.
EXECUTIVE SECRETARY
DATED: FEB 22, 1985
FOOTNOTES:
[[1]] As established by the Act, the Commission is composed of three members. Section
12(a), 29 U.S.C. § 661(a). Currently, the Commission has two members as a result of a
vacancy.
[[2]] The standard provides that, with regard to cranes and derricks:
An accessible fire extinguisher of 5BC rating, or higher, shall be available at all
operator stations or cabs of equipment.
[[3]] Even assuming the standard does not literally require that a fire extinguisher be
located in the cab of the crane, Commissioner Cleary would not consider that the fire
extinguishers kept by Austin on pickup trucks located approximately 100 feet from the
truck crane at issue were "accessible" and "available" as required by
section 1926.550(a)(14)(i). See M-CO Equipment Co., supra; National Industrial
Constructors, Inc., 81 OSAHRC 94/A2, 10 BNA OSHC 1081, 1981 CCH OSHD ¶ 25,473 (No.
76-4507, 1981). Trucks are mobile and may not be present at the time that a fire
extinguisher is needed. There is no evidence that the pickup trucks at issue would always
remain in the same place. Moreover, there is nothing in the record to suggest that a fire
extinguisher would be less susceptible to theft in the cab of a pickup truck than in the
cab of a truck crane.
[[4]]The standard provides:
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.
[[5]] The standard reads in pertinent part:
Sides of trenches in hard or compact soil, including embankments, shall be shored or
otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in
length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped
to preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot
horizontal.
Appended to section 1926.652, and referred to therein, is Table P-1. Table P-1 is entitled
"Approximate Angle of Repose for Sloping of Sides of Excavations." "Angle
of repose" is defined in section 1926.653(b) as "[the] greatest angle above the
horizontal plane at which a material will lie without sliding." Table P-1 shows a
90-degree angle of repose for "Solid Rock, Shale or Cemented Sand and Gravels."
[[6]] Joe Haralson, Austin's vice president, testified concerning Exhibit R-1, which was a
film that he had made two months after the inspection showing a backhoe with a rock bucket
having difficulty trying to cut through material that had not been blasted. He stated that
the area shown in the film was the location where the trench at issue had been dug. He
said that the backhoe in the film encountered rock below the 1-1/2 to 2 feet of overburden
for the entire length of that cut.
[[7]]Solution cavities are holes eaten in the rock by acid waters that generally move
slowly through the rock by way of solution channels.
[[8]] Even assuming that sloping the trench might present some difficulty, the option of
shoring permitted by the standard does not present any similar difficulty.
[[9]] Crawford explained that the non-solid material resulted from lenses, bodies of
material that are thin on the edges and thick in the middle, and solution cavities, and
was therefore not arranged in continuous.layers within the limestone.