SECRETARY OF LABOR,

Complainant

v.

ZUNKER CONTRACTORS, INC.,

Respondent.

OSHRC Docket No. 82-0936

DECISION

BEFORE: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

The basic issues are whether the judge erred in finding that Zunker Contractors, Inc., violated the trench support requirements at 29 C.F.R. § 1926.652(b),[[1/]] and in assessing a $1,000 penalty. The two Commissioners are at an impasse on the merits of the citation. To resolve the impasse, and permit the parties to conclude this litigation, Chairman Buckley and Commissioner Arey agree to vacate the direction for review. Texaco, Inc., 80 OSAHRC 74/B1, 8 BNA OSHC 1758, 1980 CCH OSHD ¶ 24,634 (No. 77-3040, 1980). Their respective positions on the merits of the citation are set forth below.

Commissioner Arey would affirm the judge's decision. The judge summarized the basis for finding a serious violation of section 1926.652(b) as follows:

The evidence established that the sides of the trench were virtually vertical with no angle of repose of any significance. The trench was approximately 11 feet deep, 3 feet wide at its base and 6 to 8 feet wide at the top, and was excavated in average, soft and/or unstable soil. Respondent had its employees, on a regular basis, enter into the unshored or unsloped 11-feet-deep trench to perform the leveling of gravel, the installation of sewer pipe and the further covering of the sewer pipe with gravel . . . . Indeed it was . . . the president, owner and operator of Respondent company, that directed the employees in their duties and was supervising these employees in the trench five minutes prior to the side of the trench giving way, collapsing on, burying, and seriously [injuring] employee Borgwardt
. . . .

The judge found that Zunker knew or should have known that the soil was unstable. He also rejected Zunker's argument that the standard is unenforceably vague. He imposed the maximum penalty allowed for a serious violation. He based that assessment on his finding that Zunker consciously disregarded the cave-in hazard presented by this inadequately sloped and wholly unsupported trench.

Commissioner Arey would adopt those findings because they were based on the judge's evaluation of the credibility of the various witnesses, and those credibility findings were proper. The basic principles governing Commission review of a judge's credibility findings were restated in Inland Steel Co., 86 OSAHRC 39/A3, 12 BNA OSHC 1968, 1986-87 CCH OSHD ¶ 27,647 (No. 79-3286, 1986):

Normally, we will accept the administrative law judge's evaluation of the credibility of witnesses because it is the judge who has lived with the case, heard the witnesses and observed their demeanor. . . . However, the judge should identify the conflicting testimony and explain the reasons for failing to credit a witness's testimony or for crediting the testimony of one witness over that of another.

12 BNA OSHC at 1978, 1986-87 CCH OSHD at p. 36,005 (citations omitted). The judge's findings here that the trench walls were virtually vertical, and that the soil was unstable, were based on credibility findings resolving conflicting testimony on those issues.[[2/]] Commissioner Arey finds that the judge identified the conflicting testimony and gave proper reasons for his credibility findings. Therefore, under longstanding Commission precedent, the judge's credibility resolutions are entitled to the Commission's deference.

The judge based his finding that the trench walls had no significant slope on the testimony of "three disinterested on-the-scene eyewitnesses" (two paramedics and a volunteer fireman), who entered the trench that collapsed. All three reported seeing identical conditions. The judge found the testimony of two corporate officers and two other employees of Zunker regarding the trench dimensions and sloping to be "unreliable and indeed untruthful," stating as follows:

The testimony of all these witnesses, each of whom had an interest in the results of these proceedings, was at total odds with the testimony of the [paramedics and fireman] who were disinterested and who truthfully reported their observations at the work site, and in particular at the site of the cave-in. The demeanor of [Zunker's witnesses] as well as their sworn testimony, leaves much to be desired as having any probative value in determining the factual issues in this case. . . . What element of truth we do attribute to these witnesses comes from Respondent's backhoe operator who indicated that it took him 20 minutes to dig the trench. . . . [I]t would be virtually impossible to excavate a trench in accordance with the dimensions testified to by [Zunker's president] within a 20-minute period.

(Citations omitted.) The judge also noted that the Superintendent of Public Works for the city (Sheboygan Falls, Wisconsin) and a city inspector corroborated the testimony of the "three disinterested on-the-scene eyewitnesses" concerning the dimensions of the trench that collapsed. The two city employees testified that, during their visits to the worksite (the Superintendent had been to the jobsite 15 to 20 times), the top width of Zunker's trenches had never been more than five to eight feet. Thus, they had never seen a trench at the worksite excavated in the manner described by Zunker's witnesses. The two city employees also testified that they had never seen shoring or trench boxes in use for employee protection.

As to the soil conditions, the judge found that he could resolve the issue without deciding between the conflicting views of the expert witnesses. He noted that the eyewitnesses who entered the trench had testified that the soil was compacted clay which, when dry, was crumbly and fractured easily, turning to small particles or dust. This testimony was corroborated by the soil survey submitted into evidence, a survey published by the United States Department of Agriculture, Soil Conservation Service, which identified the soil in the area as mainly "clay loam" or "silty clay loam glacial till."[[3/]] The judge was justified in finding that the soil was "soft or unstable" under the cited standard, and "average" soil under Table P-1, on this basis alone.

Nevertheless, the judge also credited the opinion of the Secretary's expert, Dr. Painter, that the soil was unstable, over the opinion of Zunker's expert, Dr. Bosscher, that it was hard and stable.[[4/]] He noted that Dr. Painter had significant experience academically, as a geologist, and as a practicing soil and foundation engineer. He also noted that Dr. Painter, an assistant professor of soil mechanics at the University of Wisconsin, had done soil research in the area and was "particularly familiar with the soil structure and content in Wisconsin and in the area relevant to these proceedings[.]"

Respondent's expert, [Dr.] Bosscher, a professor of civil engineering at the University of Wisconsin, developed his expertise solely with the academe and was without any real practical experience within the field of soil engineering. After carefully listening to the views of each expert, I find Complainant's expert, Dr. Painter, to present more of a realistic, knowledgeable, and practical view, with precise conclusions concerning the condition of the soil in issue and how it got that way . . . . I find Dr. Bosscher's testimony to lack that degree of precision, accuracy and reliability to have any persuasiveness or have impact upon deciding the issues in this case.

(Citations omitted.) Commissioner Arey concludes that the judge's reasons for finding the soil to be "soft or unstable" within the meaning of the cited standard are well explained and that the finding is supported by the clear preponderance of the credible evidence. She therefore adopts that finding.

Commissioner Arey also rejects Zunker's contention that the standard is unenforceably vague. The Commission has held that the standard is sufficiently clear to be enforceable. Connecticut Natural Gas Corp., 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1798-99, 1978 CCH OSHD ¶ 22,874, pp. 27,667-68 (No. 13964, 1978). Similarly, the United States Court of Appeals that has jurisdiction in Wisconsin, where this case arose, has held that the standard is sufficiently clear to be enforceable. Super Excavators, Inc. v. OSHRC, 674 F.2d 592 (7th Cir. 1981), cert. denied, 457 U.S. 1133, 102 S.Ct. 2958 (1982). Commissioner Arey would apply this precedent here.[[5/]]

Finally, Commissioner Arey would affirm the judge's penalty assessment due to the high gravity of the violation and Zunker's knowing disregard of the clear hazard presented by the unprotected trench. See 29 U.S.C. § 666(j).

Chairman Buckley would reverse the judge's decision and vacate the citation because the evidence is at best evenly balanced about whether the sloping was inadequate, and the judge's findings about the weight and credibility of the evidence are unjustified. As to the soil conditions, he notes that Zunker's expert, Dr. Bosscher, actually went to the jobsite after the accident and performed tests on the soil. The Secretary's expert, Dr. Painter, did not test the soil himself, but relied on information developed by Dr. Bosscher and his general knowledge of the soil in the area.

Dr. Bosscher had a 9-foot-deep trench dug, with vertical walls. He entered that trench, visually observed the walls, attempted to fracture the soil with shovels, and took a series of readings with a "pocket penetrometer." He observed no cracks or fissures in the soil. He concluded from first-hand observation that the soil could be characterized as "hard clay," and that it was sufficiently cohesive that the trench at issue here should not have collapsed in the amount of time it was open. The bases for his opinions were well-supported by scientific studies he discussed.

There is no reason to prefer Dr. Painter's second-hand observations to Dr. Bosscher's first-hand observations. Neither is there reason to prefer the necessarily hasty observations of paramedics or volunteer firemen, performing a rescue operation in the trench that collapsed, to Dr. Bosscher's thorough study. As to the judge's finding that the evidence preponderates against Dr. Bosscher's position, that finding was not based on demeanor or factors peculiarly observable by the hearing judge.

Here, we are in as good a position as the judge to evaluate the qualifications of the experts and weigh their testimony in light of the other evidence of record.

All Purpose Crane Inc., 87 OSAHRC 24/A3, 13 BNA OSHC 1236, 1239, 1986-87 CCH OSHD ¶ 27,877, p. 36,550 (No. 82-284, 1987). Dr. Bosscher's testimony is more persuasive than the Secretary's evidence. It should be noted that the USDA soil survey relied on by the Secretary was a general-account of soil conditions over a wide area, and did not pinpoint the area where this trench was dug. Dr. Bosscher's study was precise. That the soil in the general area may have been predominately "silty clay loam" does not show the condition of the actual soil involved here any better than Dr. Bosscher did. The Secretary failed to prove that the soil was "soft or unstable."

Based on Dr. Bosscher's analysis, the trench would have been in compliance if sloped as provided for "hard or compact soil" under § 1926.652(c).[[6/]] To summarize, that type of soil must be sloped 1/2:1 (an angle of 63º 26') above the bottom five feet of the trench. The bottom five feet need not be sloped or shored.

Zunker's witnesses testified to specific measurements they made of each critical dimension of the trench. Based on those measurements, the trench was sloped in compliance with § 1926.652(c). The Secretary's evidence included no measurements. It consisted of recollections of visual estimates by various persons who either did not recollect the particular trench at issue here, or clearly were concentrating on something else -- the rescue of the injured worker.

The specific measurements to which Zunker's witnesses testified were as follows. Zunker's president and vice-president testified that they measured the width of the top of the trench immediately after the accident, using a graduated surveying rod laid across the trench. The trench was 11 to 11 1/2 feet wide at the east end and 12 feet wide at the west end. They disagreed slightly about the depth of the trench. One testified that it was about 12 feet deep. The other testified that it was 10 to 10 1/2 feet deep. They agreed, however, that the trench was 2 1/2 feet wide at the bottom, because that was the width of the backhoe bucket used to dig the trench.

The backhoe operator who dug the trench also testified that it was 12 feet deep and about 12 feet wide at the top. He based his estimate on the machine's width, which he testified was a little over 11 feet wide, and testified that "I was on the outside of either track with the top of the trench." Based on these measurements, the width of the trench at ground level was sufficient under § 1926.652(c).[[7/]]

However, the judge discredited all this testimony by Zunker's witnesses. His reasons for doing so were inadequate, in Chairman Buckley's view. As noted above, the "disinterested on-the-scene eyewitnesses" whose recollections the judge credited were emergency personnel who clearly were concentrating on the rescue instead of the trench dimensions. Also, the city inspector and Superintendent of Public Works merely recollected rough visual estimates they had made of trenches Zunker had dug. Neither claimed to have seen the trench that collapsed. The measurements by Zunker's witnesses were certainly no less probative than the recollections of rough estimates by the Secretary's witnesses.

The judge's stated reasons for discrediting Zunker's witnesses were that (1) they "had an interest in the results of these proceedings," (2) their demeanor "leaves much to be desired," and (3) it would be virtually impossible to excavate a trench like the one they described in 20 minutes --- the time the backhoe operator testified it took to dig it. However, an employer's officers and employees are not to be disbelieved merely because of their employment. Also, the judge did not explain what it was about their "demeanor" that left "much to be desired." Chairman Buckley would not accept such a blanket dismissal of four witnesses' testimony based on "demeanor," without further explanation. As noted above, the judge should "explain the reasons for failing to credit a witness's testimony," to merit acceptance of a credibility finding.[[8/]]

As to the estimate that the trench was dug in 20 minutes, that estimate relied on by the judge was provided by the backhoe operator, whose other testimony he discredited entirely. The judge did not explain his apparently inconsistent treatment of that testimony. Also, such an estimate clearly is the kind of rough estimate that characterized the testimony of the Secretary's fact witnesses throughout the hearing. There is no indication that the backhoe operator looked at a watch or had any other basis for his recollection.

In any event, the specific measurement by Zunker's witnesses were not very different from the rough estimates testified to by the Secretary's witnesses based on their recollections.[[9/]] Even assuming, for purposes of argument, that the measurements Zunker's witnesses testified to lack credibility, the Secretary only produced rough estimates that the top width of the trench was slightly less than required -- 8 feet as opposed to 9 1/2 or 10 feet. See supra n. 7. Those rough estimates simply are insufficient to rely on as exact enough to serve as the basis for affirming this citation. Thus, Chairman Buckley would conclude that the Secretary failed to prove that Zunker violated either § 1926.652(b) or (c).[[10/]]

As noted above, to resolve their impasse, the Commissioners agree to vacate the direction for review. Therefore, the judge's decision affirming a serious violation of 1926.652(b), and assessing a $1,000 penalty, becomes the final order of the Commission, and is accorded the precedential value of an unreviewed judge's decision. E.g., Texaco, supra.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: April 27, 1989

SECRETARY OF LABOR,

Complainant.

v.

ZUNKER CONTRACTORS, INC.,
A Corporation

Respondent.

DECISION AND ORDER

Appearances:

FRANCIS X. LILLY, Esquire, Solicitor of Labor,
JOHN SECARAS, Regional Solicitor,
CYRUS A. ALEXANDER, Esquire, Office of the Solicitor,
Chicago, Illinois, for Ford B. Ford, Under Secretary of Labor,
U.S. Department of Labor, Complainant.

THOMAS A. SCHUESSLER, Esquire,
Strub, Woodworth, Quincey & Becker
Beaver Dam, Wisconsin, for
Zunder Contractors, Inc., Respondent

BOBRICK, Judge

This proceeding was commenced pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., (hereinafter referred to as the "Act"), wherein Respondent, Zunker Contractors, Inc., contested a Citation issued by Complaint, Ford B. Ford, Under Secretary of Labor, U.S.   Department of Labor.[[1]]  The Citation charged Respondent with a serious violation of the Excavations, Trenching, and Shoring Standard, 29 C.F.R. § 1926.652(b), [[2/]] as follows:

29 C.F.R. § 1926.652(b) The side(s) of the trench(es) in unstable or soft material which were more than 5 feet in depth, were not shored, sheeted, braced, sloped or otherwise supported in accordance with Tables P-1 and P-2:

(a) Slope of south side of lateral trench excavation extending east from the north-south sanitary sewer trench, (adjacent to manhole 2 plus 32) located at Highway PP and Chippewa Trail, Sheboygan Falls, WI., was not laid back adequately to protect employees from the potential hazard of cave-in.

The citation was issued as a result of an investigation made by the Occupational Safety and Health Administration, U.S. Department of Labor, which had been prompted by a report of a trench cave-in at Respondent's jobsites in the Sheboygan Falls, Wisconsin, area (Tr. 128).

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

FACTS OF CASE

Zunker Contractors, Inc., Respondent herein, is a Wisconsin Corporation engaged in sewer construction and related activities. On July 21, 1982, Respondent was digging trenches and laying sewer pipe in these trenches at a subdivision development in Sheboygan Falls, Wisconsin.

On July 21, 1982, Respondent was installing sanitary sewers, storm sewers, and water main installations at a subdivision known as K-Meadows Subdivision, Highway PP and Chippewa Trails, for the City of Sheboygan Falls, Wisconsin. This work was done pursuant to a bid and plan submitted by Respondent and accepted by the City of Sheboygan Falls. Respondent's contract with the city called for it to, among other things, provide and install main sewer lines and lateral sewer lines leading to the main line (Tr. II-395).[[3/]] The area in which this excavation and sewer installation was to take place was a relatively flat area where the soil consisted of red clay.

The work carried out by Respondent involved the excavation of a large trench in which the main sewer line would be installed. Smaller trenches extending perpendicularly from both sides of the main trench were excavated and were to accommodate the installation of smaller sewer pipes which would connect to the larger sewer pipe. These smaller trenches in which the smaller sewer pipe was to be located were referred to as laterals. The main sewer line ran north and south and the smaller connecting laterals were placed in an east-west direction from the main sewer line. The excavation and placement of the sewer piping involved the digging of a trench to a specified depth, after which it would be backfilled with gravel to a specified grade. The sewer pipe was then placed on the gravel bed after which additional gravel would be placed into the trench to cover the pipe to a specific depth. Once the sewer pipe was completely covered with gravel the entire trench would then be backfilled to ground level.

With respect to the construction of the laterals, the work done by Respondent's employees would involve the following: First, a backhoe operator would begin to dig out the lateral trench starting from the main sewer. Once the lateral was dug to its specified depth, gravel would be placed into the trench. This was accomplished with use of a front-end loader bringing gravel to the trench and dumping the gravel into the trench. An employee would go into the trench and level the stone insuring that it met the designed grade and was of the appropriate thickness to form a proper resting surface for the sewer pipe. Once the stone was at the proper grade and depth, the sewer pipe was placed onto the gravel bed and then checked for proper grade and slope. At least two employees would be in the trench installing the sewer pipe. After the sewer pipe was appropriately installed into the trench and connected to the main sewer line, gravel was again dumped into the trench by the front-end loader and again an employee would enter the trench and level out the gravel insuring that the pipe was fully covered with gravel to a predetermined height. After that the trench would be backfilled and compacted so as to be level with the surface of the area (Tr. II-190-195).

Respondent began the work of installing the sanitary and storm sewer lines at the K-Meadows Subdivision on July 16, 1982. By July 21, 1982, a large part of the main sewer line had been constructed. Additionally, approximately 11 or 12 lateral sewer lines had also been installed (Tr. II-164). It was on the morning of July 21, 1982, that a cave-in took place, burying an employee, said employee sustaining severe injuries involving complete paralysis from his chest down (Tr. II-199).

On July 21, 1982, the following sequence of events occurred. Respondent's employees assembled at the work site at approximately 7:00 a.m. to begin work. Mr. David L. Zunker, the president and owner of Respondent, gave the work orders to several of his employees to install a lateral sewer line to lot 29 of the subdivision. He was personally in charge of digging the laterals at the jobsite (Tr. II-157, 407, 408). The crew which was to perform the work consisted of Mr. Theodore C. Washnieski, the backhoe operator, Mr. Henry Conklin, Jr., the front-end loader operator, and Mr. Randy Borgwardt, the plumber who was to level the gravel and install and connect the sewer pipes. Mr. Washnieski began the work by digging out the trench. The excavation of this trench was done in a similar manner to all the other trenches which had been dug for the installation of the lateral sewer pipe. The trench was to measure 27 feet in length and 12 feet in depth. The very bottom of the trench was 30 inches wide. According to Mr. Washnieski, the width at the top of the trench was 12 feet, and the sides above the 5-foot level of the trench were sloped outward to form the 12-foot width of the top of the trench (Tr. II-248-250). Mr. Washnieski indicated that it took him 20 minutes to dig this trench (Tr. II-251). Once the trench was dug, Mr. Washnieski left the area and proceeded to excavate a second lateral trench.

After the trench was fully excavated, Mr. Conklin, the front-end loader operator, brought gravel in his loader to the trench, dumping same into it. Once the gravel was placed into the trench, Mr. Borgwardt then entered the trench and leveled the gravel to the proper depth and grade to accommodate the installation of the lateral sewer pipe (Tr. II-221, 222). Once the gravel had been leveled and graded, Mr. Conklin went into the trench to assist Mr. Borgwardt in installing the sewer pipe. Thereafter, Mr. Conklin returned to his front-end loader to bring additional stone to the trench to be placed over the pipe (Tr. II-220-222, 412). Mr. Conklin, operating his front-end loader, brought and placed additional gravel into the trench to cover the sewer pipe, whereupon Mr. Borgwardt went back into the trench to level off this second level of gravel which was to cover the sewer pipe (Tr. II-413, 235, 245). It was at this point that Mr. Conklin reported that he saw Mr. Borgwardt get into the trench, signaling his position in the trench with an upraised shovel, and then he suddenly lost sight of the shovel. At this point, Mr. Conklin became aware that something was wrong and that a possible accident had occurred (Tr. II- 224-227). He left his front-end loader, ran to the edge of the trench and found that Mr. Borgwardt had been totally buried beneath a cave-in caused by part of the south wall of the trench giving way (Tr. II-231). Mr. Conklin then yelled for help from other workers and jumped into the trench to begin uncovering the buried worker (Tr. II-164, 228-231). The manner in which the excavation was to be done and the work which was to take place in the excavation was directed by David L. Zunker (Tr. II-153, 166, 408). It was merely five minutes prior to the cave-in that Mr. David L. Zunker was standing above the lateral trench observing the work being carried out within it (Tr. II-164).

Immediately after the cave-in emergency calls were made for medical and other emergency assistance. Responding to these calls were the Orange Cross Ambulance Service of Memorial Hospital, and the Fire Department of the City of Sheboygan Falls (Tr. I-82, 116, 157). Volunteer Fireman Thomas S. De Pagter, upon arriving at the scene, was informed of the cave-in and that a man had been buried. He took his, oxygen breathing equipment to the area of the cave-in. Once at the site of the cave-in, he found the victim buried within, dirt had been removed from around the victim's head, but he was encased in solid earth from his chest to each edge of the trench walls (Tr. I-157, 170). Mr. De Pagter saw that the north wall of the trench was virtually vertical, "a straight cut with no angle or taper to it" (Tr. I-159). He noticed that his oxygen line dangled straight down into the trench (Tr. I-157). He further noticed that the trench was approximately ten feet deep where the victim was standing and at that depth the trench was only three to four feet wide. The top of the trench was only six to eight feet wide (Tr. I-163). He found that the soil in the trench appeared to be dense clay which was well packed and hard to move (Tr. I-162).

Two paramedics employed with the Orange Cross Ambulance Service, upon their arrival at the work site, reported similar conditions to that observed by Mr. De Pagter, the volunteer fireman who arrived at the scene before they did.

Mr. Larry Duenk, one of the paramedics at the scene, found a man buried in a 12-feet-deep by 25-feet-long trench (Tr. I-83, 89). He observed that the south wall of the trench had collapsed upon the victim and that a rescue operation was underway to dig the man out (Tr. I-82). He noticed that the trench at the point of the cave-in was only six to eight feet wide (Tr. I-84, 89). He entered the trench to aid the victim and once in the trench he observed that the north wall of the trench was "pretty much vertical" with no sloping of any "consequence" (Tr. 1-84, 94, 100). He could tell that the north wall was vertical since he also noticed that the oxygen tubing and oxygen mask, which had been placed into the trench to aid the victim, were dangling from the edge of the side of the trench straight down as though they were a pendulum; it did not touch the edge of the trench at all (Tr. 1-84). Once in the trench he found it to be extremely narrow, no more than four to five feet wide, with barely enough room for one person to render aid (Ex. C-17; Tr. 1-89, 95, 99). He found the soil within the trench to be clay but of an unusual nature since it would pulverize and turn into a fine powder upon exerting any pressure upon the soil (Tr. 92, 93, 94, 99). In rendering emergency aid to the victim, Mr. Borgwardt, he found him to be unconscious with indications of serious injury (Tr. 113). He spent approximately ten to fifteen minutes in the trench administering appropriate emergency aid until the victim was extricated.

The second paramedic, Mr. James W. Levi, an emergency medical technician with the Orange Cross Ambulance Service, observed similar conditions as those observed by the two other emergency service personnel (Tr. 115). Mr. Levi reported that as he approached the trench he saw men digging out the buried victim, earth had been removed from around the victim's head and from the front part of his body (Tr. I-116, 118). He observed that the south wall had collapsed upon the victim but that the north wall was still intact (Tr. I-116, 117). He further observed that the north wall was "exactly vertical" with no angle of repose to it (Tr. I-116, 117, 123). Once in the trench he found that the soil would crumble easily under foot and that he could hardly hold his balance on it by reason of its instability. The soil would give way wherever he would step (Tr. I-117, 122). The soil was of a clay-like texture with particles the size of a hand and smaller (Tr. I-122).

According to Mr. David L. Zunker and Mr. Wayne J. Zunker, owners and operators of the Respondent business, once the injured employee had been removed from the trench and taken from the work site to the hospital, they measured the dimensions of the trench (Tr. II-411). According to these two individuals, the basic measurements of the trench were 12 feet in width, approximately 11 feet in depth, with the sides sloping out after the 5-foot level (Ex. R-8; Tr. II-158, 159, 160, 169, 408).

On July 22, 1982, a Compliance Officer with the Occupational Safety and Health Administration made an investigation of the conditions at Respondent's work site at the K-Meadows Subdivision, in particular as to those events occurring on July 21, 1982. When he arrived at the jobsite the trench which had caved-in had been covered over and his investigation concerned a general view of the area. Additionally, he interviewed the president of Respondent, some of the on-scene witnesses, and took soil samples.

As part of his investigation, the Compliance Officer consulted a soil survey of Sheboygan County, Wisconsin, made by the United States Department of Agriculture, Soil Conservation Service, and consulted with a soil engineer. From this, he determined that the soil at the Respondent's work site was average soil, was of unstable nature, and ultimately determined that the trenching standard, 29 C.F.R. § 1926.652(b), applied to the situation. Since his investigation revealed that the sides of the trench were not sloped, but were vertical, that shoring was not used and that the trench was approximately 11 to 12 feet in depth and 26 feet in length, he determined that a violation of this standard occurred. As a result of this determination, a Citation was issued alleging a serious violation of 29 C.F.R. § 1926.652(b).

ALLEGED VIOLATION OF THE EXCAVATIONS, TRENCHING, AND SHORING STANDARD

29 C.F.R. § 1926.652(b)

A. CONDITION OF TRENCH

We find that the credible evidence submitted in this case overwhelmingly established that the sides of the trenches excavated by Respondent in which employees were required to work, one of which collapsed upon one of its employees, had sides which were virtually vertical having no sloping component to them of any significance. We further reach the conclusion that the width of the trenches, in particular the one that collapsed, above their three-foot level were approximately five feet and that the width of the trenches at their top ranged between six and eight feet. In this case, it would be difficult to reach any other conclusion since three disinterested on-the-scene eyewitnesses, who entered the trench that collapsed, all reported seeing identical conditions, that being that the sides of the trench were essentially vertical with no sloping of any consequence to them, and that the width of the trench at the very top was six to eight feet, and no wider than that (Tr. I-84, 86, 89, 94, 95, 100, 116, 117, 123, 158, 159, 163).

We find the testimony of Mr. David Zunker and Mr. Wayne Zunker together with two of its employees concerning the width of the trench, the dimensions of the trench, and the existence of sloping to be unreliable and indeed untruthful. The testimony of all these witnesses, each of whom had an interest in the results of these proceedings, was at total odds with the testimony of the above discussed witnesses who were disinterested and who truthfully reported their observations at the work site, and in particular at the site of the cave-in. The demeanor of Messrs. Zunker together with their two employees, as well as their sworn testimony, leaves much to be desired as having any probative value in determining the factual issues in this case. Their testimony in chief is found not credible or reliable and accordingly will be disregarded. What element of truth we do attribute to these witnesses comes from Respondent's backhoe operator who indicated that it took him 20 minutes to dig the trench (Tr. 11-251). As was pointed out by Complainant's expert in soil engineering, who has significant practical experience as well as significant technical and scientific expertise in soil engineering, and who had been associated with sewer line installation, it would be virtually impossible to excavate a trench in accordance with the dimensions testified to by Mr. David L. Zunker within a 20-minute period (Tr. ll-498). This view was confirmed by the Superintendent of Public Works for the City of Sheboygan Falls in that, although he had been to the jobsite 15 to 20 times, he had never seen a trench that was constructed like that described by Mr. Kenneth Zunker and Mr. David Zunker, each claiming that the sides were sloped and the trench width at its top was 12 feet (Tr. 11-503, 508, 510).

Adding to the uncontroverted credible testimony of these emergency service witnesses was the testimony of the Superintendent of Public Works of the City of Sheboygan Falls, and one of its inspectors. Both of these individuals were regularly at the work site, had viewed the excavation work and also found that the condition of the trench which had caved-in, as well as other trenches at the work site, was consistent with that reported by the three emergency personnel who appeared at the cave-in scene. These two witnesses reported that throughout their visits to the work site they never saw a lateral trench which was 12 feet wide at its top, and that the top width of the trenches, including the one that caved-in, was no more than five to eight feet. Likewise, they never saw a trench sloped in the manner as that described by Respondent's owner; they had observed that the sides of the trenches excavated at the work site had virtually no slope to them (Tr. I-43, 52, 53, 55, II-503, 509, 510, 511). Additionally, these witnesses reported seeing no utilization of shoring or trench boxes prior to the cave-in (Tr. I-449 II-509).

Having determined that the sides of the trench which caved-in, as well as all other trenches excavated by Respondent at the work site, were straight up and down, and that the dimensions of the trenches were as follows: 2 1/2 to 3 feet at its base, 6 to 8 feet at its top, and 11 to 12 feet in depth, we now turn to the contested issue concerning the condition of the soil in which the trench was dug.

B. CONDITION OF SOIL

Complainant in citing Respondent for a violation of 29 C.F.R. § 1926.652(b) maintained that the soil in which the trench was excavated was unstable or soft in nature. Respondent on the other hand maintained that the soil was hard and compact and thus, under 29 C.F.R. § 1926.552(c), it was required only to slope the sides of the trench above the five-foot level and that the angle of repose in the sloped portion of the sides of the trench, would be a 63 degree angle under a ratio of one-foot rise to each half-foot horizontal. Respondent argues that its construction of the trench, having a width of 12 feet, complied with the requirements of 29 C.F.R. § 1926.652(c) and that it was improperly cited for a violation of 29 C.F.R. § 1926.652(b). While we find Respondent's argument purely academic in, nature, since we have determined that Respondent constricted the trench with no angle of repose to its sides at all, and thus even considering its argument, it would nonetheless be in violation of the standard it relies upon, i.e., 29 C.F.R. § 1926.652(c), we find that the standard cited by the Complainant is appropriate when considering the condition of the soil in which dug.

With respect to the issue concerning the condition of the soil, i.e., whether it was soft and unstable or whether it was hard and compact, both parties presented extended testimony of two soil engineering experts. Before reaching an assessment of the persuasiveness of each expert's view and of their expertise and opinions concerning the issues in this case, we find that we can resolve the basic issue as to the condition of the soil from other testimony and documents submitted in evidence at trial.

First, looking to the testimony of the eyewitnesses who entered the trench, they each reported finding the soil compacted clay, which when dry was crumbly and fractured easily turning to small particles or dust (Tr. I-93, 94, 99, 117, 122, 162). This observation seems consistent with the soil survey published by the United States Department of Agriculture, Soil Conservation Service, which showed the soil to be of average characteristics, made mainly of clay loam or silty clay loam glacial till (Ex. C-20, 21). In viewing the provisions of 29 C.F.R. § 1926.652(b) and (c), it is important to not that 1926.652(b), referring to Table P-1, specifically notes that clays, silts, and loams require shoring and bracing, and furthermore is more in line with the definition of average soil.

In attempting to identify just what is hard and compact soil, we must make reference to 1926.653(h) which defines hard compact soil as "all earth materials not classified as running or unstable." Further referencing these regulations, 1926.653(q) entitled "Unstable Soil" defines such 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." By interpretation it is clear that by using Table P-1 in reference to clay, silt and loam, which requires shoring and bracing, we would have to hold that the clay found at the work site would fall within the term "unstable soil" as defined by the regulations.

As above mentioned the evidence clearly portrayed the soil at Respondent's work site and at the site of the trench which caved-in, as Kewaunee type soil which is defined as silty clay loam. With the aid of the regulations, we must reach the conclusion that the soil was soft and unstable and that trenching standard 79 C.F.R. § 1926.652(b) was applicable to the work site (Ex. R-6, C-20, C-21; Tr. 11-10).

Additionally, both parties presented the expert testimony and opinions of two soil engineers concerning the condition of the soil. The complainant presented the testimony of Dr. William T. Painter, Ph.D., P.E. Dr. Painter has significant experience within the academic area and as a geologist and as a practicing soil and foundation engineer. His experience was multi-faceted and covered almost every avenue of soil mechanics in its practical sense (Ex. C-15; Tr. II-61-68, 69). As a soil engineer, he has been involved in a multitude of field works such as stabilization of landslides, construction of forest access ways, geological investigations associated with building construction or remedial construction, foundation engineering, excavations for sewer and other systems, as well as other activities dealing with the science of soil and foundation engineering (Tr. II-62-67, 69, 496). Dr. Painter's academic achievement follows his professional accomplishments in that he has been involved in many learned studies dealing with soil research, soil mechanics and foundation analysis.

Significantly, Dr. Painter was an assistant professor of soil mechanics with the University of Wisconsin and in that capacity he did soil research in the, State of Wisconsin, and in particular within Sheboygan County where Respondent's work site involved In this matter was located. His geological investigations made him particularly familiar with the soil structure and content in Wisconsin and in the area relevant to these proceedings (Tr. II-66, 67, 71).

Respondent's expert, Mr. Peter J. Bosscher, a professor of civil engineering at the University of Wisconsin, developed his expertise solely within the academe and was without any real practical experience within the field of soil engineering. After carefully listening to the views of each expert, I find Complainant's expert, Dr. Painter, to present more of a realistic, knowledgeable, and practical view, with precise conclusions concerning the condition of the soil in issue and now it got that way (Tr. II-107, 147). I find Dr. Bosscher's testimony to lack that degree of precision, accuracy and reliability to have any persuasiveness or have impact upon deciding the issues in this case.

We find reasonable and well founded Dr. Painter's view of the geology of the Sheboygan County area as being created by glacial action and in geological terms known as a glacial outwash plain (Tr. II-76). An outwash plain is one sheets that existed at the glacial period. Different types of soils were then deposited as a result of the streams running off the glaciers. These deposits consisted of silt, clay, sand and gravel. The ice covering these deposits was approximately half mile thick. Following the change of climates, the heating up of the area, and the melting of the glacial ice, lakes were formed and streams picked up the clay, silt, sand and gravel making deposits at particular areas. Coarser materials would be conveyed more distant from the source. The latter mentioned material makes up the soil in Sheboygan County and surrounding areas.

As the ice melted and water receded and evaporated, the glacial till was allowed to dry out and fissures and small cracks developed within the soil as the moisture evaporated away from the surface. Understandably, this process took many thousands of years (Tr. 73-80). As the soil dried out, it became fissured and granular in nature so that soil would break into many small pieces upon disturbance from an excavation. It is a characteristic of this type of soil to have fractures when disturbed by excavations (Tr. II-80).

Without belaboring this opinion, Dr. Painter's ultimate conclusion that the clay soil found in Sheboygan County is of low plasticity and as such would not usually remain intact when disturbed, would tend to crumble, and would not have much cohesion to it, is found to be a credible material fact herein. [[4/]] The various studies and geological data and surveys made of the area were supportive of Dr. Painter's conclusions.

Dr. Painter further indicated that as one excavates in clay, such as that found at respondent's work site, stresses would be released in the soil which would cause the soil to move toward the opening of the excavation. Because of the tiny fissures which are present in the soil, this would cause very little strength to be exerted by the clay to hold itself together and would tend not to stay intact but to lead to a massive collapse when excavated without safety procedures in place (Tr. II-82-85). In reviewing all of Dr. Painter's testimony, we find considerable support and persuasiveness to his ultimate conclusions and accept same to resolve the contested issues herein. [[5/]] We find his analysis of the geologic makeup of the area in question precise, knowledgeable and well founded both from an academic standpoint and from his own practical and technical experience. We accept as fact his opinion that the soil at the work site, and throughout Sheboygan County and surrounding areas, which is composed of silty loam clay to be unstable in nature. (See fn. 4, supra.) Accordingly, we again reach the conclusion that any excavation into the clay soil in Sheboygan County must be done in accordance with trenching standard 29 C.F.R. § 1926.652(b).

C. VIOLATION OF 29 C.F.R. § 1926.652(b)

As earlier discussed the trench constructed by Respondent was not sloped or shored as prescribed by the cited standard, 29 C.F.R. § 1926.652(b). The evidence established that the sides of the trench were virtually vertical with no angle of repose of any significance. The trench was approximately 11 feet deep, 3 feet wide at its base and 6 to 8 feet wide at the top, and was excavated in average, soft and/or unstable soil. Respondent had its employees, on a regular basis, enter into the unshored or unsloped 11-feet-deep trench to perform the leveling of gravel, the installation of sewer pipe and the further covering of the sewer pipe with gravel (Tr. II-162, 192, 195, 222, 172, 412, 413). Indeed it was David L. Zunker, the president, owner and operator of Respondent company, that directed the employees in their duties and was supervising these employees in the trench five minutes prior to the side of the trench giving way, collapsing on, burying, and seriously injurying employee Borgwardt (Tr. II-164, 166). By reason of these facts, we find a serious violation of the cited standard and will affirm same.

AFFIRMATIVE DEFENSES

A. 29 C.F.R. § 1926.652 Is Allegedly Vague And Unforceable

Respondent challenges the cited standard on the ground that the regulation is void by reason of vagueness and and by reason that the standard is difficult for an employer to understand especially in view of the provisions of 29 C.F.R. § 1926.652(c) which provides for an alternate method of sloping where hard soil is found.

We fail to follow the rationale of respondent's argument. The cited standard has been considered by the Commission and has been found to be fully enforceable. Marshall v. Connecticut Natural Gas Corp., 78 OSAHRC 60/83, 6 BNA OSHC 1796, 1978 CCH OSHD ¶ 22,874 (No. 13964, 1978). In that case, the Commission rejected the argument that the standard was vague stating "when the various terms of section 1926.652(b) are read in light of the other provisions of the trenching standards, their meaning is sufficiently precise to put employers on notice of what the standard requires" (6 BNA OSHC at 1799).

Accordingly, since the Commission has rejected the argument that the standard is vague, it will likewise be rejected in this case.

B. The Respondent Was Allegedly Unaware Of The Serious Condition

Respondent argues that there was no evidence to indicate that the soil was unstable and was likely to cave-in. It argues that there was no substantial probability that death or serious harm could result from the manner in which it excavated the trench. It finds that the cave-in was an unforeseeable event caused by an enormous complexity of forces and factors affecting the soil structure, analogous to an unpredictable earthquake. We find respondent's argument disingenuous at best.

As pointed out by Dr. Painter's eloquent and knowledgeable recitation of soil dynamics in the cited area, it was just a matter of time before a cave-in would occur because of the method of excavation chosen by Respondent. The instability of the soil was easily discernable to those who were interested in finding the existence of that fact. As earlier discussed, we are not dealing herein with hard and compact soil, and that fact was readily and reasonably apparent to all.

Moreover, Respondent's method of constructing the trench invited disaster. The sides of the trench were not sloped but were vertical; Respondent caused employees to enter into this 11-foot trench, measuring 3 feet at the bottom and 6 to 8 feet at the top, to perform numerous tasks. Indeed, five minutes prior to the cave-in, the owner and operator of Respondent, Mr. David L. Zunker, was at the edge of the dangerously constructed trench viewing and directing the activities of the employees within the trench. We find Respondent's motive for constructing the trench as it did all but too clear that it was one of economics. The backhoe operator indicated that he spent 20 minutes excavating the 25-feet-long by 12-feet-deep trench. As Dr. Painter pointed out, this is hardly enough time to cut a trench to those dimensions, let alone excavate a trench that would comply with the standard and indeed be anything close to that claimed to have been done by the Respondent (Tr. II-496-499). Quite clearly Respondent chose to create a dangerous and hazardous workplace by excavating a trench whose walls were vertical not sloped nor shored, since this was a less expensive means of accomplishing completion of the project involving installation of the sever lines. We reject Respondent's argument in that we perceive from the evidence in this case that the safety of employees was disregarded with reckless abandon on behalf of expediency and economy. We believe the evidence well establishes the fact that had Respondent complied with the cited standard it would have prevented a cave-in and would have prevented the serious injuries to Mr. Borgwardt. We find that the conduct of Respondent in failing to comply with the Act and the cited regulation, was a knowledgeable and voluntary one, and accordingly will be characterized as serious, if not willful. Respondent's argument in this regard is rejected.

PENALTY

We find in this case a conscious, if not willful, disregard by Respondent of the requirement of the Act and the cited standard. For obvious expediency purposes, Respondent constructed a trench whose sides were neither sloped nor shored. It was obviously economically advantageous to Respondent to construct such a trench as it did, than to construct one that complied with the Act and the cited standard. By reason of this conduct, a dangerous work condition was established. Respondent, with knowledge of this serious and dangerous condition, required its employees to enter into the 12-foot trench whose sides were neither shored nor sloped and whose sides were cut in unstable soil. It was a just a matter of time before a cave-in would have occurred, and in fact one did occur seriously injuring an employee. Keeping in mind the requirements of section 17(j) of the Act, and due consideration being given to the serious nature and consequences resulting from the violation, we find that a penalty of $1,000 is appropriate.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, as set out in my Decision and Order, and for good cause shown, it is ORDERED:

1. That item one of Serious Citation No. 1 is AFFIRMED.

2. That a penalty of $1,000 is ASSESSED.

EDWARD A. BOBRICK
Judge, OSHRC

Dated: May 2, 1985

FOOTNOTES:

[[1/]] That standard provides:

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.)

[[2/]] As Chairman Buckley suggests in his separate views, it is unusual for a judge to make a credibility resolution that amounts to a "blanket dismissal of four witnesses' testimony." However, this is a rare case. In essence, the Secretary and Zunker presented two sets of witnesses who, insofar as the disputed factual issues are concerned, testified to two totally different, and largely mutually exclusive, sets of facts. The conflicting testimony for the most part could not be reconciled. Realistically, the judge had only two options: (a) to credit the Secretary's witnesses and discredit Zunker's, or (b) to credit Zunker's witnesses and discredit the Secretary's. He chose option (a).

[[3/]] "Unstable soil" is defined at 29 C.F.R. § 1926.653(q) as "[e]arth 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." A note to Table P-1 of 29 C.F.R. § 1926.652 states that "clays, silts, loams or non- homogenous soils require shoring and bracing." (Emphasis added).

[[4/]] Dr. Painter corroborated the testimony of the on-site eyewitnesses concerning the tendency of the soil to crumble easily when disturbed. He testified that the type of soil found in the trench tends to break up when disturbed; this is the natural result of the drying out process that occurs during excavation.

[[5/]] The direction for review included as an issue the question of whether the standard was not validly promulgated as an "established Federal standard" under 29 U.S.C. § 655(a). The direction for review noted a possible ground for concluding that the standard is invalid. The basis for the standard being considered an "established Federal standard" was that it had been promulgated originally under the federal Construction Safety Act. Zunker argues, however, that it was not validly promulgated under the Construction Safety Act because it was promulgated less than 30 days before its effective date (promulgated April 17, 1971, with an effective date of April 24, 1971).

Commissioner Arey would reject this contention on the basis of Commission precedent holding that OSHA standards are not subject to attack during enforcement proceedings on the ground that there may have been procedural defects during their previous adoption under other federal statutes. E.g., Daniel Construction Co., 81 OSAHRC 41/A2, 9 BNA OSHC 1854, 1856, 1981 CCH OSHD ¶ 25,385, pp. 31,622-23 (No. 12525, 1981). She notes that, in enacting 29 U.S.C. § 655(a), Congress authorized the Secretary to summarily adopt established federal standards "as soon as practicable;" it did not require the Secretary to examine whether there were procedural defects when the standards were initially promulgated under other federal laws. General Motors Corp., GM Parts Div., 81 OSAHRC 13/C10, 9 BNA OSHC 1331, 1336-37 1981 CCH OSHD ¶ 25,202 (No. 79-4478, 1981).

[[6/]] That standard provides:

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. . . .

[[7/]] Each trench wall would have to be sloped 1/2:1 (1/2 foot horizontally for every foot vertically) above the bottom live feet. (As noted above, the bottom five feet could be vertical, consistent with § 1926.652(c).) Assuming that the trench was 12 feet deep (no witness testified that it was deeper), the top 7 feet would have to be sloped 1/2:1. That means that each wall had to be sloped 3 1/2 feet horizontally. The bottom width was 2 1/2 feet. Thus, the top width would have to be 2 1/2 feet + 3 1/2 feet + 3 1/2 feet, or 9 1/2 feet. Respondent's witnesses testified that it measured 11 to 12 feet wide according to the surveying rod. Thus, it was wider than required by 1926.652(c).

[[8/]] The grounds for a credibility finding based on "demeanor" were illustrated in Inland Steel, supra. There, the judge discredited one witness's testimony because his demeanor and manner of answering questions on cross- examination "displayed bias" against the employer. 12 BNA OSHC at 1278-79, 1986-87 CCH OSHD at pp. 36,005-06. He discredited certain other witnesses where "on cross examination [their] account of particular events created a strong impression that they were giving a wrong coloring to material facts so as to deprive them of credit." 12 BNA OSHC at 1982, 1986-87 CCH OSHD at p. 36,009. Those demeanor findings were properly explained and were consistent with other evidence.

[[9/]] Because the trench dimensions claimed by the parties were not very different, Dr. Painter's testimony that a trench with the dimensions that Zunker claims could not have been dug in 20 minutes is unpersuasive.

[[10/]] Because of his opinion on the merits of the citation, Chairman Buckley does not need to address other arguments for vacating the citation, including the standard's alleged vagueness and invalidity.

[[1]] Jurisdiction of the parties and the subject matter herein is confirmed upon the Occupational Safety and Health Review Commission by Section 10(c) of the Act.

[[2/]] § 1926.652  Specific trenching requirements.
(a) 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).

[[3/]] Trial in this matter was held in two sessions, the transcript of each session having its own page numbers starting with page 1. Accordingly, reference herein to the transcript will be- as follows: The transcript of the first session of March 24 and 25, 1983, will be cited as (Tr. I- ). The transcript of the second session of May 2, 3, and 4, 1983, will be cited as (Tr. II- ).

[[4/]] Viewing the specific cited work area, we find this area, like all of Sheboygan County, was a glacial outwash area. By reason of the earth's heating, the soil left from the glacier lost its moisture and began to harden with cracks resulting internally due to shrinkage (referred to as desiccation) (Tr. II-77, 78). As the soil further dried, fissures or cracks began to develop within the soil forming a network of cracks through it and causing it to be granular in nature (Tr. II-79, 80), hence, the powdery breakup of the soil mentioned by the paramedics. The soil had little plasticity to it. By reason of these factors, the soil in the work area became very unstable when disturbed by an excavation (Tr. II-80-86). This type of soil, according to the scientific and technical expertise of Dr. Painter, could not be considered as hard or compact but at best was average unstable soil (Tr. II-92). We find Dr. Painter's conclusion decisive as to the issue of the nature of the soil at the cited work site.

[[5/]]We will not comment on Dr. Bosscher's conclusion that the soil at the work site was hard and compact and stable, except to say that such conclusion is contrary to the manifest weight of the considerable credible evidence herein showing otherwise. We find that his reliance on certain documents to be inappropriate and his overall experience something less than necessary in providing insight into underground construction activities and soil analysis. For those very same reasons pointed out by Dr. Painter's review of Dr. Bosscher's analysis, we find Dr. Bosscher's conclusion without reliance or persuasion. and as such, are rejected in total.