Docket No. 85-0319

SECRETARY OF LABOR,

Complainant,

CALANG CORPORATION,

Respondent.

OSHRC DOCKET NO. 85-0319

DECISION

Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

The basic issue is whether violations by Calang Corporation[[1/]] of two standards governing trenches promulgated by the Secretary of Labor ("Secretary") under the Occupational Safety and Health Act, 29 U.S.C. § 651-678 ("the Act"), were willful. At the time of the inspection at issue here, 29 C.F.R. § 1926.652(b) required sloping or otherwise supporting the sides of trenches more than five feet deep in soft or unstable soil.[[2/]] The other standard, 29 C.F.R. § 1926.651(i)(1), required that excavated material be stored at least two feet away from the edge of the trench.[[3/]] We affirm the administrative law judge's decision that the violations were willful and assess a combined penalty of $8,000.

Statement of Case

Many of the relevant facts are not disputed by the parties on review. Calang was installing a new sewer line adjacent to an existing one on St. Simons Island, Georgia, under a contract with local government authorities. On the morning of February 28, 1985, inspector David Hubert, a compliance officer from the Secretary's Occupational Safety and Health Administration ("OSHA"), arrived to inspect the worksite. No excavating was being done that morning.

Compliance officer Hubert picked up a sample of soil from the bucket of Calang's front end loader, which was being used in the sewer line installation. The soil sample appeared to him to be "very loose, runny sand material." Hubert then discussed the soil conditions with Calang's president, Langford Beckworth, who has had many years' experience in heavy construction and pipelaying. Hubert testified:

I warned him. . . that in excavating in what was apparently sandy soil, that he should use a trench box or slope the soil back at least one to one.[[4/]]

Hubert "apprised Mr. Beckworth of the requirements in the trenching and excavation standards" relevant to the work planned for the afternoon, and of "various methods that he could use to be in compliance with the standards."

Hubert also told Beckworth that morning "that the spoil [pile] [[5/]] should be at least two feet from the edge of the trench or excavation". Hubert testified that, to his recollection, Beckworth "said that that's the way they always did it," pointing to a spoil pile left from the previous day, which was viewed by the compliance officer to be about 1 1/2 feet from the trench wall.

Excavation of the trench began after lunch, about 2 p.m. Calang was connecting a new length of sewer pipe to the existing pipe.[[6/]] About 2:30 p.m., Hubert measured the dimensions of the trench where the exposed pipe lay, with the assistance of an employee who was working in the trench. Using a 12-foot measuring tape, Hubert determined that the trench was 9 feet deep and that it was 9 feet wide at the top. Based on his measurements, we conclude that at least one of the trench walls was sloped at an angle of approximately 1/5:1 (1/5 foot horizontally for every foot vertically).[[7/]] There was no shoring or other trench protection in place.

Two Calang employees were in the trench from 2:00 p.m. to 3:00 p.m., although one of them left and returned several times. A third employee stood on the exposed pipe throughout that period.[[8/]] Beckworth himself was also in the trench during that period. Hubert further observed that there was a spoil pile, several feet high, right at the edge of the west trench wall, above where two employees were working.

After taking the measurements at 2:30 p.m., Hubert again discussed the conditions of the trench with Beckworth. Hubert told him that the trench walls appeared to be "nominally vertical." Beckworth replied that in his opinion they were "sloped enough." Beckworth did not explain why. Hubert also pointed out to Beckworth that the spoil pile was at the edge of the trench. There was no response, and the situation was not corrected. Beckworth and the two employees continued working in the trench. Hubert attempted to get Beckworth to leave the trench so that they could discuss the matter further, but Beckworth would not come out of the trench until his work was completed.

Hubert also asked Beckworth what the soil type was, pointing to the west wall, about halfway down. Beckworth replied that there was sandy soil in the wall.[[9/]] Hubert obtained a sample of soil from one side of the trench, about 6 feet below ground level. He testified that it crumbled in his hand and felt like damp sand.

Hubert made additional visual measurements about 3:00 p.m. Beckworth was standing in the trench with two of Calang's employees, measuring the trench's depth with a plumb rod. Hubert testified that Beckworth declined to tell him the depth, saying, "You can see it for yourself." Based on Hubert's visual estimates of the height and width of the trench walls, we conclude that they were sloped at only 1/5:1.[[10/]]

Legal Analysis

As noted above, the judge found willful violations of both of the cited standards. Calang no longer contests the existence of the violations. Thus, we turn to whether they were willful.

A willful violation is one committed with intentional, knowing or voluntary disregard for the requirements of the Act, or with plain indifference to employee safety. E.g., Williams Enterprises Inc., 13 BNA OSHC 1249, 1256-57, 1986-87 CCH OSHD ś 27,893, p. 36,589 (No. 85-355, 1987). It is differentiated from other types of violations by a "heightened awareness -- of the illegality of the conduct or conditions -- and by a state of mind -- conscious disregard or plain indifference." Id.

A finding of willfulness is not justified if an employer has made a good faith effort to comply with a standard, even though the employer's efforts are not entirely effective or complete. Id. Also, a violation is not willful if the employer had a good faith opinion that the violative conditions conformed to the requirements of the cited standard. However, the test of good faith for these purposes is an objective one -- whether the employer's belief concerning a factual matter, or concerning the interpretation of a standard, was reasonable under the circumstances. Id. 13 BNA OSHC at 1259, 1986-87 CCH OSHD at p. 36,591.

In this case, the evidence establishes that Calang consciously disregarded the requirements of the cited standards. To summarize the evidence discussed above, Compliance Officer Hubert informed Beckworth in the morning, before the work began, that the trench sides had to be sloped about 1:1, and that the spoil piles had to be 2 feet away from the edge of the trench. Hubert testified without contradiction that he was relating OSHA requirements to Beckworth. After measuring the slope about 2:30 p.m., he told Beckworth that the trench walls were "nominally vertical." Beckworth continued to work in the trench with the employees, saying he felt the walls were sloped enough. Hubert also advised Beckworth that the spoil pile was at the very edge of the west trench wall, and there was no response. Furthermore, Beckworth did not make any effort to relocate the spoil pile.

Calang's basic position is that:

Mr. Beckworth reasonably determined that the safety precautions he took, including well-pointing and sloping, were adequate to comply with the Act, to [meet] the safety needs of Calang Corporation's employees and that the positioning of his spoil material was not done intentionally to endanger Calang Corporation's employees.

We find, however, that Beckworth could not have reasonably determined that his precautions were adequate to comply with the Act. Although he may not have committed the violations "intentionally to endanger" the employees, he did intentionally ignore OSHA's requirements after the inspector correctly explained them to him. This intentional disregard of the Act's requirements constitutes a willful violation of the Act.

Furthermore, Calang does not even offer an explanation for its failure to keep the spoil pile two feet away from the trench edge. Nothing in the record indicates that there was any physical obstruction that prevented it from locating the spoil pile two feet away. Beckworth responded with silence when Hubert told him it was at the trench edge. He did not relocate the spoil pile, which was several feet high, even after Hubert pointed out the situation. Thus, the conclusion that the spoil pile violation resulted from conscious disregard of the OSHA requirement is inescapable.

We further conclude that Calang could not have believed in good faith that the slope of the trench walls complied with OSHA requirements. The slope of the trench walls was much less than required by the OSHA standards, even if we accepted Calang's position on the soil content.[[11/]] The hazards pointed out by Hubert were clearly visible and easily measurable.

The evidence overwhelmingly establishes that at least the top three feet of the trench walls was sand. This being the case, that portion of the trench would require at least a 1:1 slope under the cited standard. The actual slope, based on the dimensions of the trench, was about 1/5:1. Even Calang's experienced pipelayer, Harry Hummell, testified that in his opinion the slope was about 1/3:1. The judge, commenting on that testimony, stated that "[a] person as experienced in pipe construction as Beckworth was certainly able to make the same observation."[[12/]] The inadequacy of the slope was clearly visible, even assuming for purposes of argument that the lower portions of the walls were "hardpan," as Calang contends.[[13/]]

The inadequacy of the sloping also could have been easily measured. For example, the walls were required to be at least 13 1/2 feet apart at the point where Hubert took measurements at 2:30 p.m., because the trench was nine feet deep and 6 1/2 feet wide at a point six feet below the surface.[[14/]] However, they were only nine feet apart. Once again, this difference was readily discernible by Beckworth.[[15/]]

As to Calang's "good faith efforts" argument, we note that Calang used wellpointing ("de-watering") equipment, which lowered the water table to 18 feet, thus reducing the possibility of a cave-in due to water pressure.[[16/]] Beckworth also testified that the equipment is time-consuming to install, because it amounts to digging a shallow well at 3-foot intervals, adjacent to the trench.

De-watering the trench may have been a useful step. However, Calang's wellpointing efforts were no substitute for properly sloping or supporting the trench walls, as required under the aforementioned standards. The Secretary's expert on the classification of soil types, James Horton, testified without contradiction that wellpointing does not alter the sloping requirements for soil. The good faith effort required is an effort to comply with the cited provisions. Furthermore, Calang still failed to explain why it took no action on Hubert's warnings about inadequate sloping and the spoil pile.

Calang also notes that it purchased two trench boxes prior to the start of the job, at a cost of about $17,700, in addition to one trench box it already had. Beckworth testified that no trench boxes had been used on the project, and that they could not be used at the time of the inspection because of various restrictions on the width of the trench. Assuming for argument's sake that the trench boxes could not have been used, that fact would not excuse Beckworth's conscious disregard of alternative safety measures that were required. In fact, Calang's purchase of trench boxes indicates that it was aware that strong cave-in protection was required in addition to the wellpointing equipment. Compliance officer Hubert explained to Beckworth numerous alternative means of compliance listed in the cited provision, including sloping and shoring. Calang used none of them. As discussed below, it gave no reasonable basis for that failure.

Calang asserts that it was unable to provide more sloping, due to an underground gas line (two inches in diameter) on one side of the trench, and underground cables on the other side. However, even assuming for argument's sake that further sloping was impossible, shoring was an available alternative under the standard, as Hubert explained to Beckworth. If Calang decided (for whatever reason) that it was not going to provide adequate sloping, then it was required under the standard to provide one of the other alternatives such as adequate shoring. Calang's failure to attempt any shoring negates the conclusion that it acted in reasonable good faith.

Standard trench shoring consists basically of paneling (wood beams or the equivalent) along each side wall, and cross braces that span the width of the trench. (Minimum requirements for shoring are given in Table P-2 of the excavation standards, and are expressly incorporated by reference in the cited standard.) The only testimony questioning the feasibility of shoring was by Glynn County water and sewer inspector Timothy Ransom. Ransom stated that if shoring were used where the new manhole was to be placed, "I don't see how you could get your digger in, because shoring is cross-grade." However, there was no evidence that shoring would be infeasible toward the opposite end of the trench, or in other areas of the trench where the backhoe was not currently operating.

Ransom arguably acknowledged that further protection was feasible when he testified that he would have asked for more protection for employees if the soil had been sandier. Calang has failed to supply a reasonable basis for its failure to provide at least partial shoring or other protection in the trench.

We also note that Calang in presenting its case made no attempt to show how close the utilities were to the trench walls. Calang was required under the excavation standard, 29 C.F.R. § 1926.651(a), to determine whether underground utilities would be encountered, and to determine their "exact location" when approaching them.[[17/]] Hubert testified that he observed "no significant utilities" affecting the area where the employees were working. So far as the record shows, Calang alone would have access to blueprints or other documents indicating the location of those utilities.[[18/]] Because Calang failed to introduce into evidence available information that it was required to know, showing how close the lines were to the trench, its assertion that the utilities precluded further sloping is unsupported by the record. Moreover, we are unable to conclude that Calang had a reasonable belief that further sloping was precluded due to the presence of utilities.

The circumstances here are similar to those in Donovan v. Williams Enterprises, Inc., 744 F.2d 170, 180 (D.C. Cir. 1984), where the court held that:

Prior to issuing the citations . . . the Secretary -- through his representative--repeatedly warned [the employer's] supervisory personnel about the company's failure to comply with construction site safety standards. He also advised those supervisors as to the specific steps that the company should take to bring its project into compliance. The Secretary's warnings and advice went unheeded and the violations continued. These facts alone are sufficient to establish "intentional disregard of" and "plain indifference to" OSHA's regulations.

See also A. C. Dellovade, Inc., 13 BNA OSHC 1017, 1019-20, 1986-87 CCH OSHD ś 27,786, p. 36,342 (No. 83-1189,1987) (failure to provide safety belts, and instructions for their use, was willful where OSHA inspector had explained means of compliance to employer's job superintendent, employer was supplied with booklet containing OSHA regulations, and job superintendent was aware of OSHA safety belt requirements); D. A.& L. Caruso, Inc., 11 BNA OSHC 2138, 2142, 1984-85 CCH OSHD ś 26,985, p. 34,694 (No. 79-5676, 1984) (failure to support trench walls before allowing employees to enter trench was willful where employer had been cited previously for violation of same standard, OSHA inspector had explained trenching requirements to employer's engineer about four months before inspection, and its job superintendent knew the requirements and the need for trench support).

The judge assessed a combined penalty of $8000 for the two willful violations. We agree with the judge's conclusion that $8000 is an "appropriate penalty." Penalties are to be assessed in light of the gravity of the violation, the employer's size, good faith and history of violations. 29 U.S.C. § 666(j). The likely consequences of a cave-in would have been death or serious physical harm for three or four employees. Trench cave-ins, which are frequently caused by failure to comply with the Secretary's trenching standards, have been for many years one of the most severe problems in occupational safety. In response, OSHA established in 1985 a National Emphasis Program for programmed safety inspections of trenching and excavation operations. OSHA Instruction CPL 2.69 (September 19, 1985), 1985-86 CCH Employment Safety and Health Developments ("New Developments") ś 8664. Conscious disregard of OSHA trenching requirements warrants a substantial penalty because the incidence of cave-ins is high, and the likelihood of death or severe injury to employees in a collapsing trench is also high.

As to Calang's size, Beckworth testified that the company had "turned over around two million dollars of contracts since January [1985]," a 7 1/2 -month period. Calang had previously been cited for an OSHA violation, which it did not contest.[[19/]] We have found no objective good faith on Calang's part. Under the Act, the Secretary could have proposed separate penalties of up to $10,000 for each violation. A combined penalty of $8,000 is therefore fully justified on the record before us.

For the reasons set forth above, we affirm the alleged willful violations of 29 C.F.R. §§ 1926.651(i)(1) and 652(b), and we assess a combined penalty of $8,000.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: September 12, 1990

SECRETARY OF LABOR,

Complainant,

CALANG CORPORATION, Respondent.

OSHRC Docket No. 85-0319

APPEARANCES:

Daniel A. Caldwell, Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf of complainant

Philip R. Taylor, Esquire, Brunswick, Georgia, on behalf of respondent

DECISION AND ORDER

Burroughs, Judge: Calang Corporation ("Calang") contests alleged willful violations of 29 C.F.R. § 1926.652(b), for failure to shore, sheet, brace, slope or support the walls of a trench, and 29 C.F.R. § 1926.651(i)(1), for failure to store excavated material two feet from the edge of an excavation which employees were required to enter. It further contests alleged serious violations of 29 C.F.R. § 1926.100(a), for failure of employees to wear hard hats while working in a trench, and 29 C.F.R. § 1926.602(a)(9)(ii), for failure of a front-end loader, which was in use at the trench site, to have a reverse signal alarm.

The violations allegedly occurred during an inspection conducted by Compliance Officer David Hubert on February 28, 1985, at a trench site located on St. Simons Island, Georgia. Calang was working under a contract with the Water and Sewer Department of St. Simons Island to install a sewer line on a job referred to as the Military Road project.

The original notice of contest placed in issue items 2a (29 C.F.R. § 1926.201(a)(4)) and 2b (29 C.F.R. § 1926.202) of the serious citation. At the commencement of the hearing, the Secretary moved to amend items 2a and 2b to classify the alleged violations as other than serious and to vacate the proposed penalty. The motion was granted, and respondent later withdrew its notice of contest as to these items (Tr. 4-5, 56-57). The disposition of these items has been appropriately reflected in the order issued in this case.

Alleged Violation of 29 C.F.R. § 1926.652(b)

In January 1985, the Dodge Report [[1/]] for the area in which St. Simons Island is located identified the construction of a sewer line on St. Simons Island. Compliance Officer David Hubert was assigned to conduct an inspection. On January 26, 1985, he traveled to the site of the proposed sewer line but discovered that construction had not commenced. He proceeded to the St. Simons Water and Sewer District Office and met with District Manager Ralph Thurston and Tim Ransom, who was assigned to be an inspector on the project. They identified the area where the sewer line was to be constructed, and Hubert apprised them of the requirements of OSHA's trenching standards.

On February 28, 1985, Hubert returned to St. Simons Island and located the site of the sewer line near the corner of Cater and Stewart Streets. When he arrived around 10:10 a.m., a front-end loader was being operated at the site. There was an open trench from the previous day that had a 30-inch sewer pipe installed in it and partially backfilled. No excavating had taken place that morning, and none was being done at the time of his arrival. Hubert was advised that Langford Beckworth, the owner of the company, was the superintendent on the job but that he was not at the site. In the absence of Beckworth, Hubert was advised that Larry Bruce, the backhoe operator, was in charge. After Hubert talked with Bruce for a few minutes, Beckworth arrived at the site and an opening conference was held with him.

During his discussions with Beckworth, Hubert was advised that excavating would not commence until after lunch. Hubert informed Beckworth that he would return after lunch to observe the excavation operations. Prior to going to lunch, Hubert informed Beckworth that the soil appeared to be sandy and that he should use a trench box or slope the walls of the trench at least one to one. He advised Beckworth of the trenching and excavation standards, including the fact that the soil had to be two feet from the edge of the trench.

After lunch and until 2:00 p.m., there was no excavating or laying of pipe at the trench site. The backhoe operator commenced excavating around 2:00 p.m., and all other trenching activity resumed. During the excavating, one of the pipelayers stood on top of the exposed end of the pipe that had been laid the previous day. Beckworth and two other employees went into the open trench and remained in the trench for approximately one hour, although one of the employees went in and out of the trench on several occasions. Beckworth was taking measurements of the depth at the area where a manhole was to be installed (Tr. 74). While the employees were in the trench, the trench walls were not shored, braced or otherwise supported and a trench box was not in use.

Hubert, with the assistance of a Calang employee, used a tape measure to take measurements of the trench at 2:30 p.m. He estimated additional measurements at 3:00 p.m. which were based on the width of the backhoe bucket. At 2:30 p.m. the trench was 6 1/2 feet wide at the point in the trench directly above the exposed pipe. The width of the top of the trench at the same area was 9 feet. The trench was 9 feet deep. At 3:00 p.m. the trench was 8 feet wide at the bottom, 12 feet wide at the top, and 10 feet deep. Employees were working in the trench at the time the measurements were made by Hubert.

The cited standard, 29 C.F.R. § 1926.652(b),[[2/]] requires that sides of trenches in unstable or soft materials, five feet or more in depth, be shored, sheeted, braced, sloped or otherwise supported to protect employees. Calang disputes the determination that the walls of the trench were composed of soft or unstable material. It submits that the walls were composed of hard or compact soil. In the context of this case, the distinction has little significance. In CCI, Inc., 80 OSAHRC 127/D4, 9 BNA OSHC 1169, 1981 CCH OSHD ś 25,091 (No. 76-1228, 1980), aff'd, 688 F.2d 88 (10th Cir. 1982), the Commission reaffirmed its position in Connecticut Natural Gas Corp., 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1799, 1978 CCH OSHD ś 22,874, at p. 27,668 (No. 13964, 1978), that sections 1926.652(b) and (c), read together, inform employers that some protection is required in any trench five feet or more in depth dug in soil. There is no dispute that the trench was more than five feet in depth and was dug in soil and not solid rock, shale, or cemented sand and gravel.

The preponderance of the evidence fully supports the conclusion that the trench was excavated in soft and unstable soil. Hubert relied upon several factors in reaching his conclusion. He was advised by Thurston and Ransom that the sewer line was to be laid in sandy soil and through some marsh areas (Tr. 27). Hubert was advised by Beckworth at the time Beckworth was in the trench between 2:00 p.m. and 3:00 p.m. that the trench wall was sand (Tr. 82). Hubert also observed the texture of the soil removed from the excavation (Tr. 57-58). In addition, around 2:30 p.m. he asked the pipelayer standing on top of the sewer pipe to hand him a handful of soil from the west wall. The pipelayer removed some soil around the six-foot level and handed it to Hubert. Hubert testified that the chunk of soil crumbled in his hand and felt like damp sand (Tr. 80-81).

In preparation of the case for trial, the Secretary obtained the services of Law Engineering Company to make two exploratory borings in the area of the trench that was under construction on February 28, 1985. The borings were based on representations by Hubert as to the location of the trench on that date (Tr. 93-95, 133-134, 149, 152). Hubert was not present at the time the borings were obtained but had previously accompanied an employee of Law Engineering, Ken Bunnel, to the site and a schematic drawing had been made of the area to show where the borings were to be made (Tr. 93-94, 116-117, 132). Using a measuring tape, Hubert and Bunnel determined the best area to take undisturbed soil samples on each side of the trench line (Tr. 94).

During the hearing, James A. Horton of Law Engineering, who was qualified as an expert in the classification of soil types (Tr. 130), testified that he was present the day the samples were taken. Standard penetration samples were taken at depths of 2.5 feet, 3 feet, 5 feet and 10 feet (Ex. C-7; Tr. 132-133). Based on tests performed (Ex. C-7), Horton concluded that the soil was soft and unstable (Tr. 142).

Beckworth testified that the test borings were made in the trench line of an old sewer (Tr. 166-167). Ransom also disputed the accuracy of the measurements from the sewer line under construction at the time of the inspection (Tr. 203-204). Hubert testified that he and Bunnel paralleled the trench line from Cater Street to the manhole installed on the inspection date (Tr. 94). He stated that he and Bunnel were certain the markings on the drawings for the text borings were outside the trench area (Tr. 117). Beckworth's testimony is negated by Horton's opinion that the two borings were outside the area of any backfill. Horton's opinion was based on the stratification of the soil and supports Hubert's view that the borings were made outside of any backfilled areas (Tr. 139). Calang's evidence is insufficient to rebut the findings made by Hubert and Horton.

While Beckworth and Ransom refer to the soil as hardpan, they both concede that the top part of the trench walls was sand. Beckworth qualified his statement that he told Hubert the walls were sand by stating that he was referring to only part of the trench walls. He testified that the lower sections of the trench were dug in hardpan material (Tr. 164, 169). Ransom testified that the soil from the four-foot level of the subgrade to the trench bottom was hardpan (Tr. 197). He described hardpan as silt and sand pressed together (Tr. 210). He testified that the first two to three feet of the trench was sand (Tr. 206).

The Commission has in a number of cases recognized that the ground in which a trench is dug may be composed of a number of different types of soil. The decisions recognize that a trench wall composed of soils of different strengths is only as stable as its weakest component. In W. N. Couch Construction Co., 76 OSAHRC 44/A2, 4 BNA OSHC 1054, 1975-76 CCH OSHD ś 20,574 (No. 7370, 1976), the Commission stated that if the walls of a trench contain a significant amount of soft or unstable materials, the soil as a whole is to be considered soft or unstable and the trench is governed by the requirements of section 1926.652(b). See also CCI, Inc., 80 OSAHRC 127/D4, 9 BNA OSHC 1169, 1981 CCH OSHD ś 25,091 (No. 76-1228, 1980), aff'd, 688 F.2d 88 (10th Cir. 1982). Beckworth and Ransom conceded that the top two to four feet of the trench walls was sand. This is a significant amount of unstable material and requires a determination be made that the trench was excavated in soft and unstable materials.

Hubert, with the assistance of a Calang employee, took measurements of the trench at 2:30 p.m. They used a 12-foot measuring tape (Tr. 70-71). There were three employees working in the trench at the time the measurement was made. The trench was 6 1/2 feet wide at a point directly over the exposed pipe and 9 feet wide at the top at the same area. The trench was 9 feet deep. It is undisputed and the photographs introduced as Complainant's Exhibits 2, 3, 4 and 5 clearly reflect that the trench walls were not shored, sheeted, braced or otherwise supported. The only question is whether the trench was sufficiently sloped to comply with Table P-1 of Subpart P.

The measurement of the bottom width at a point directly above the exposed pipe was 6 1/2 feet. The measurement would have been approximately three feet above the bottom of the trench since the pipe was 30 inches in diameter and was sitting on approximately six inches of gravel (Tr. 80). The photographs (Ex. C-2 thru C-5) reflect that the walls were primarily vertical up to this point. The width measurement at the bottom is considered accurate. The top width was nine feet and the depth was nine feet. Table P-1 of Subpart P requires a slope of one to one for average soils from the bottom of the trench to the top. The slope for compacted sharp sand and well-rounded loose sand is one and a half to one and two to one, respectively. Soil expert Horton testified that the type of soil present in the area of the trench required an angle of repose of not less than one to one (Tr. 143). There was only a 2 1/2-foot slope from the bottom width to the top width. The photographs reflect that most of this slope occurs at the top of the trench. Using the slope most favorable to Calang, i.e., one to one, the 2 1/2-foot slope is insufficient to comply with the requirements of 29 C.F.R. § 1926.652(b), and Table P-1. Harry Hummell, who prepared the pipe for laying and worked in conjunction with the backhoe operator, testified that the slope was about three to one (Tr. 214). The photographs and measurements support a slope close to a three to one. The violation has been established.

Calang had a series of well points along the area where the trench was eventually dug. They were pumping water out of the ground in order to lower the water table prior to digging. Contrary to Calang's argument, well pointing is not a means of complying with § 1926.652(b). Section 1926.652(b) is specific in the types of abatement required to strengthen the walls of trenches to protect employees working in them. Well pointing would not alter the type of sloping required by Table P-1 or change the characterization of the soil. It could be a means of compliance with other OSHA standards. For example, § 1926.651(p) requires that some suitable means be used to prevent water from accumulating in an excavation. The well points accomplished this job, and Calang was not cited for any accumulation of water in the trench.

Alleged Violation of 29 C.F.R. § 1926.651(i)(1)

Section 1926.651(i)(1) [[3/]] requires that excavated material removed from a trench in which employees are working be stored or retained at least two feet from the edge of the excavation. There is no dispute over the fact that three employees were in the bottom of the trench and that a fourth employee was standing on the end of the sewer laid from the previous day. Photographs introduced into evidence as Complainant's Exhibits 2, 4 and 5 show the four employees. Complainant's Exhibits 2, 3 and 5 show excavated materials stored up to the edge of one of the trench walls while employees are in the trench. The employees are shown in the trench at the location of the excavated material. Hubert testified that he observed the spoil at the edge of the trench wall (Tr. 75-76). Ransom conceded that there was some spoil at the edge of the trench (Tr. 202).

Calang argues that the standard is ambiguous in that it does not make clear as to whether the two-foot distance is to be measured from the center of the spoil pile or from the outermost edge of the spoil pile. It points out that the center of the spoil was more than two feet from the edge of the trench. This argument must be rejected. The obvious intent of the standard is to prevent any superimposed loads on the trench wall at a point where the additional weight is likely to cause a collapse. Any soil in the two-foot area would place additional weight and stress on the trench wall. James A. Horton, who was qualified as an expert, testified that a spoil pile commencing at the very edge of a trench, as in this case, would add an additional load on the trench wall (Tr. 146-148). An interpretation that the standard requires the center of the spoil pile be two feet from the edge of the excavation would be inconsistent with the objective of preventing additional weight on the trench wall.

In Austin Engineering Company, Inc., _ OSAHRC_____, 12 BNA OSHC 1187, 1985 CCH OSHD ś 27,189 (No. 80-168, 1985), the Commission held that undisputed evidence 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 is sufficient to establish a violation of 29 C.F.R. § 1926.651(i)(1). The employees in this case were working in the trench near the location of the spoil pile that extended up to the edge of the trench wall. The violation has been established.

Alleged Violation of 29 C.F.R. § 1926.100(a)

The Secretary alleges that Calang violated 29 C.F.R. § 1926.100(a) since the employees in the trench were not wearing protective helmets. There is no dispute that three of the employees were wearing cloth hats. The fourth employee in the trench wore no type of hat (Ex. C-2 thru C-5; Tr. 61-62, 90). There were no hard hats at the site or in Calang's warehouse.

Section 1926.100(a)[[4/]] requires employees to wear protective helmets when working in areas where there is a possible danger from head injury from impact or from falling objects. The employees were working in the trench while the backhoe was operating and with spoil up to the edge of the excavation. Equipment was also located on the ground above one of the trench walls (Ex. C-2 thru C-4). At 2:30 p.m. the trench was nine feet deep. It was 10 feet deep at 3:00 p.m. There was a possible danger of head injury from falling objects since equipment or the spoil could have inadvertently fallen into the trench. The violation has been established.

Calang argues that the issue should not be affirmed because Beckworth raised the question as to whether hard hats were required and that Hubert gave an equivocal response. Hubert agreed that Beckworth raised the issue and that he advised him that it depended on the exposure (Tr. 61, 104). Hubert testified that he informed Beckworth that the employees in the trench should wear hard hats (Tr. 91). An employer cannot escape being cited for an apparent violation by raising the issue before the compliance officer brings it to his attention.

Alleged Violation of § 1926.602(a)(9)(ii)

When Hubert arrived at the site, he observed a Caterpillar 950 front-end loader in operation. The front-end loader had three reverse and four forward gears and was being operated in forward and reverse gears during the time of the inspection. It is undisputed that the front-end loader did not have a reverse signal alarm.

The Secretary argues that the front-end loader had an obstructed view to the rear and that the absence of a reverse signal alarm was in violation of 29 C.F.R. § 1926.602(a)(9)(ii).[[5/]] This standard requires earthmoving or compacting equipment to have a reverse signal alarm when the operator has an obstructed view to the rear or that someone be present to signal the operator that it is safe to proceed in reverse. Calang disputes the determination that the operator had an obstructed view to the rear. It further argues that flagmen were at the site to signal the operator and keep persons from getting in the path of the equipment.

The back and engine compartment of the front-end loader is approximately 6 1/2 feet in height. This height is several inches higher than the height of the normal person. Whenever someone is standing directly behind and close to the front-end loader, the operator's view of such a person would be obstructed. The operator of the front-end loader, William Baxley, conceded this fact during his testimony (Tr. 10, 14-15). Calang argues that it would be extremely unlikely that someone would be so close to the rear of the machine that he would be out of the view of the operator. This argument is based on the fact that the loader was equipped with a large fan in its rear that created a great deal of hot exhaust. According to Baxley, the hot exhaust would make it too uncomfortable to stand near the rear of the loader. The hot exhaust does not alter the fact that an obstructed view does exist whenever a person is close to the rear of the engine.

Calang further argues that it had an employee-warning system. The evidence is undisputed that Calang employed two ladies as flagmen at the site (Tr. 63). Baxley testified that the company had a foreman and flagman that watched everything (Tr. 17). There was no evidence that a specific person was assigned to signal for him whenever the front-end loader proceeded in reverse. Baxley's testimony that flagmen assisted and informed him if someone was to his rear was nebulous and unconvincing (Tr. 17-18). The flagmen's duties included looking after the traffic (Tr. 17). Since the trench was alongside a road, it seems more likely that the duties of the flagmen were limited to monitoring traffic. Hubert observed the operations of the front-end loader and was forceful in his testimony that no signal person was assigned to monitor the reverse movements of the equipment (Tr. 45). No such person appears in either of the photographs introduced into evidence as Complainant's Exhibit 1 and Respondent's Exhibit A. The violation has been established.

Classification of Violations

Willful

The Secretary alleges that the violations of 29 C.F.R. § 1926.652(b) and 29 C.F.R. § 1926.651(i)(1) were willful. A willful violation is one that is "committed with intentional, knowing or voluntary disregard for the requirements of the Act or with plain indifference to employee safety." Asbestos Textile Co., Inc., 84 OSAHRC______ , 12 BNA OSHC 1062, 1063, 1984 CCH OSHD ś 27,101 (No. 79-3831, 1984), appeal filed and withdrawn. The Secretary must establish more than carelessness or a lack of diligence in discovering or eliminating a hazard. Where an employer has made a good faith effort to comply with the standard, a willful violation is not justified even though the employer's efforts are not entirely effective or complete. Marmon Group, Inc., 84 OSAHRC
_______, 11 BNA OSHC 2090, 1984 CCH OSHD ś 26,975 (No. 79-5363, 1984), appeal filed and withdrawn.

A number of factors have been considered by the Commission in deciding the issue of willfulness. These factors include not only the evidence of knowledge or plain indifference but also factors which argue in an employer's favor, e.g., good faith efforts at compliance. Such factors as an employer's knowledge of the standard, his reason for noncompliance, good faith efforts made to comply, established procedures for compliance, responsibility for compliance, previous violations of the same standard, warning from employees or other workers at the site, precautions, if any, taken to protect employees, the isolated acts of employees or supervisors, and training of employees are considered in reaching a determination as to whether a violation is willful. See,
e.g., Asbestos Textile Co., Inc., supra; Marmon Group, Inc., supra; D. A & L Caruso, Inc., 84 OSAHRC __, 11 BNA OSHC 2138, 1984 CCH OSHD ś 26,985 (No. 79-5676, 1984); Mobil Oil Corporation, 83 OSAHRC 47/B6, 11 BNA OSHC 1700, 1983-1984 CCH OSHD ś 26,699 (No. 79-4802, 1983). There must be evidence, apart from establishing knowledge of the hazard, from which it can be reasonably concluded that the employer intentionally disregarded or was indifferent to the safety of the workplace. Kus-Tum Builders, Inc., 81 OSAHRC 97/B2, 10 BNA OSHC 1128, 1981 CCH OSHD ś 25,738 (No. 76-2644, 1981).

The record is undisputed that Hubert discussed the trenching standards with Beckworth prior to the company's lunch period. He informed Beckworth that the soil appeared to be sandy and that he should use a trench box or slope. When Beckworth informed Hubert that he could not use a trench box because of utilities in the area, Hubert discussed other options, such as sloping, with him. He specifically advised Beckworth that sloping should be at least one to one.

Although Beckworth was apprised of the trenching standards, including the fact that spoil was to be two feet from the edge of the trench, he failed to comply with the standards. During the afternoon operations, Hubert advised Beckworth, who was in the trench at the time, that the trench was inadequately sloped. Beckworth's only reply was that it was sloped enough (Tr. 82- 83). It is clear that Beckworth was plainly indifferent to the requirements of the trenching standards. He could not in good faith have believed that the slope of the trench complied with the standard or that the spoil was located two feet from the edge of the excavation. Harry Hummell, who prepared the pipe for laying and worked in conjunction with the backhoe operator, testified that the operator was cutting about a three-to-one slope (Tr. 214). A person as experienced in pipe construction as Beckworth was certainly able to make the same observation.

There was no good faith effort made to comply with the standards. The test for determining good faith "is an objective one, i.e., was the employer's belief concerning a factual matter or concerning the interpretation of a standard reasonable under the circumstances." Mel Jarvis Construction Company, Inc., 81 OSAHRC 89/B13, 10 BNA OSHC 1052, 1053, 1981 CCH OSHD ś 25,713 (No. 77-2100, 1981). Facts showing that a compliance officer's advice goes unheeded and violations are committed is "sufficient to establish 'intentional disregard of' and 'plain indifference to' OSHA's regulations." Donovan v. Williams Enterprises, Inc., 744 F.2d 170, 180 (D. C. Cir. 1984). The violations were willful.

Serious

The Secretary classified the violations of 29 C.F.R. § 1926.100(a) and 29 C.F.R. § 1926.602(a)(9)(ii) as serious within the meaning of section 17(k) of the Act.[[6/]] "To establish that a violation is 'serious' it must be shown that there is a substantial probability that death or serious physical harm could result from the violative condition and that the employer knew or with the exercise of reasonable diligence could have known of the presence of the violation." Wisconsin Electric Power Co., 76 OSAHRC 134/B2, 4 BNA OSHC 1783, 1787, 1976-77 CCH OSHD ś 21,234 at p. 25,532 (No. 5209, 1976), aff'd, 567 F.2d 735 (7th Cir. 1977). The Secretary does not have to establish the likelihood of an accident before a violation can be classified as serious. He "need only show that an accident is possible and that such an accident will most likely result in serious injury." Communications, Inc., 79 OSAHRC 61/A2, 7 BNA OSHC 1598, 1602, 1979 CCH OSHD ś 23,759, at p. 28,813 (No. 76-1924, 1979), aff'd in an unpublished opinion, No. 79-2148 (D.C. Cir. 1981).

Beckworth was aware that employees in the trench were not wearing hard hats and that the front-end loader did not have a reverse signal alarm. The fact that he chose to construe the standards as not being applicable is no defense. As an employer, Calang is charged with the responsibility of knowing and complying with OSHA standards.

Employees were working in close proximity to the front-end loader. In the event an employee was struck by the front-end loader, there was a substantial probability that serious physical harm could have resulted from the violative condition. The violation of 29 C.F.R. § 1926.602(a)(9)(ii) was serious.

There were four employees in the trench who were not wearing hard hats. The trench was 9 feet deep at 2:30 p.m. and 10 feet deep at 3:00 p.m. The depth of the trench exposed the employees to falling spoil or equipment at the ground surface that might accidentally fall into the trench. The backhoe was operating while the employees were in the trench. While it is unlikely that the bucket of the backhoe would strike one of the employees, the likelihood of such an event did exist. The violation of 29 C.F.R. § 1926.100(a) was serious.

Penalty Determinations

While the Secretary proposed a penalty of $8,000 for the willful violations of 29 C.F.R. § 1926.651(i)(1) and 29 C.F.R. § 1926.652(b), the Commission is the final arbiter in all contested cases. Secretary v. OSHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). Under section 17(j)[[7/]] of the Act, the Commission is required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations in determining the assessment of an appropriate penalty. The gravity of the offense is the principal factor to be considered. Nacirema Operating Co., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ś 15,032 (No. 4, 1972).

The gravity of the violations were quite severe. Four employees were in the trench for approximately one hour at a depth of nine to ten feet. Spoil was stored at the edge of the excavation, and equipment (backhoe and front-end loader) was being operated at the site. Because of the depth of the trench, a collapse of the trench walls would have in all probability resulted in the death of the three employees who were at the bottom of the trench. A penalty of $8,000 is assessed for the willful violations of 29 C.F.R. § 1926.652(b) and 29 C.F.R. § 1926.651(i)(1).

The Secretary proposed a penalty of $400 for the serious violation of 29 C.F.R. § 1926.100(a). Four employees were exposed for an hour to the possibility of falling hazards or possible impact from the bucket of the backhoe. A penalty of $400 is assessed for the violation.

The Secretary proposed a penalty of $500 for the serious violation of 29 C.F.R. § 1926.602(a)(9)(ii). The front-end loader was being operated at the site. Employees were in the vicinity. The gravity of the violation is considered low since an unobserved person would have to be in close proximity to the back of the loader. Since the engine was in the rear and exhausted hot air out the rear, the possibility of an accident occurring is considered to have been remote. A penalty of $75 is assessed for the violation.

FINDINGS OF FACT

1. Calang Corporation was incorporated in 1979 and has its home office in Baxley, Georgia. (Tr. 180). It is primarily engaged in the business of sewer and water pipe construction (Tr. 188).

2. Calang was awarded a contract by the Water and Sewer Department of St. Simons Island, Georgia, to construct a sewer line which was referred to as the Military Road project (Tr.158-159, 190-191, 193).

3. After Calang was awarded the contract, it purchased two additional trench boxes to go with the one it already had on hand. The trench boxes were delivered to the project before any work took place (Respondent's Ex. B; Tr. 161).

4. Prior to commencing the project, Calang had approximately $50,000 worth of dewatering equipment brought on the project (Tr. 163).

5. As a result of a Dodge Report, which identified active and anticipated construction projects in a certain area, Compliance Officer David A. Hubert was assigned in January, 1985, to inspect a sewer project on St. Simons Island, later identified as the Military Road project (Tr. 24).

6. On January 26, 1985, Hubert went to the site on St. Simons Island specified in the Dodge Report. He saw no activity. He then went to the District water and sewer manager's office for St. Simons Island and had a discussion with the manager, Ralph Thurston, and an inspector, Tim Ransom. They identified the area where the sewer pipe was to be laid (Tr. 26, 99, 190-191, 196).

7. Hubert was advised by Ransom and Thurston that the trench was to be dug in sandy soil and through some marsh areas (Tr. 27).

8. Hubert explained the requirements of OSHA trenching standards to Thurston and Ransom (Tr. 28-30, 99, 122, 192, 196). Ransom was to be an inspector on the job (Tr. 99-100).

9. Hubert told Thurston and Ransom not to inform Calang that an inspection was scheduled in order not to violate the requirement against giving advance notice of an inspection (Tr. 100, 122, 192, 196).

10. On February 28, 1985, Hubert returned to St. Simons Island to check out the project (Tr. 30-31). He located the site around 10:10 a.m. near the corner of Cater and Stewart Streets (Tr. 31). A front-end loader was operating at the corner of Cater and Stewart Streets (Tr. 31).

11. The front-end loader operator, Bill Baxley, informed Hubert that the superintendent was Langford Beckworth but that he was not at the site. In his absence, Baxley informed Hubert that the backhoe operator, Larry Bruce, was in charge (Tr. 32). After Hubert had talked with Bruce for several minutes, Beckworth arrived at the site and an opening conference was conducted with him (Tr. 34).

12. When Hubert arrived at the site, no digging had been done that day by respondent, and there was no activity taking place in the open trench that had already been dug. Beckworth informed Hubert that excavating would commence after lunch. Hubert returned after lunch to watch the excavating operation (Tr. 58, 101).

13. The trench had been dug and sewer line laid along Stewart Street almost to Demere Street at the time Hubert arrived at the site (Tr. 33-34).

14. Prior to going to lunch, Hubert informed Beckworth that the soil appeared to be sandy and that he should use a trench box or slope the soil at least one to one. He advised Beckworth of the trenching and excavation standards, including the fact that spoil was to be two feet from the edge of the trench (Tr. 58-59, 61-62, 101-103, 105-106, 108, 118, 125).

15. Beckworth informed Hubert that the company had three trench boxes (Tr. 78, 112) but indicated he could not use the trench boxes because of utilities in the area (Tr. 109, 117). Hubert discussed other options, such as sloping, with him (Tr. 59-61, 117). Hubert advised Beckworth that sloping should be at least one to one (Tr. 117).

16. After lunch and until 2:00 p.m., there was no excavating or laying of pipe at the trench site. Around 2:00 p.m. the backhoe operator commenced excavating, and other trenching activity resumed (Tr. 64-65, 67, 103, 105, 107-108). During the excavating, one of the pipelayers stood on top of an exposed end of the pipe that had been laid the previous day (Ex. C-2; Tr. 65, 67-68).

17. The exposed sewer pipe in the trench was 30 inches in diameter and was sitting on approximately six inches of gravel (Ex. C-4 thru C-6; Tr. 80).

18. In addition to the employee standing on the sewer pipe, Beckworth and two other employees of Calang were in the trench. The backhoe was extending the length of the trench while the employees were in it (Ex. C-2 thru C-5; Tr. 68-69, 73-74, 92, 101). The employees remained in the trench for approximately one hour (Tr. 69-70). One employee went in and out of the trench a few times, but Beckworth and the other employee remained in the trench for the entire period of time from approximately 2:00 p.m. to 3:00 p.m. (Tr. 69-70, 73).

19. During the time the employees were in the trench, the trench walls were not shored or braced or otherwise supported and a trench box was not in use (Ex. C-2 thru C- 5; Tr. 85-86). There was a trench box at the site (Tr. 65).

20. Respondent had a series of well points along the area where the trench was eventually dug. They were pumping water out of the ground in order to lower the water table prior to excavating (Tr. 33, 109, 125-126, 144, 164, 169). There was a swamp that was contiguous with the site (Tr. 33).

21. Well pointing would not alter the type of sloping required by OSHA or the characterization of the soil (Tr. 144).

22. Hubert, with the assistance of a Calang employee, took measurements of the the trench with a 12-foot measuring tape (Tr. 70-71).

23. At 2:30 p.m. the trench was 6 1/2 feet wide at the point in the trench that was directly above the exposed pipe. The width at the top at the same area was 9 feet. The trench was 9 feet deep (Ex. C-6; Tr. 71-73, 110).

24. Three employees, including Beckworth, were in the trench at the time of the 2:30 p.m. measurements (Tr. 73-74).

25. The trench at 3:00 p.m. was 12 feet wide at the top, 8 feet wide at the bottom, and 10 feet deep (Ex. C-6; Tr. 74, 110).

26. The soil in which the trench was dug was loose, damp sandy material that was unstable (Ex. C-7; Tr. 57, 81-82, 108, 114-115, 137-138, 141-144).

27. A front-end loader and a backhoe were being operated at the site (Respondent's Ex. A, Ex. C-1, C-5; Tr. 9, 64, 91). The front-end loader was operated while employees were in the trench (Tr. 64).

28. The spoil removed from the excavation was stored alongside the trench. It ran up to the edge of the trench wall (Ex. C-4 thru C-6; Tr. 75-76, 86, 202).

29. Employees at the site wore cloth hats with the name of the corporation on them (Ex. C-3 thru C-5; Tr. 61-62, 90). There were no hard hats at the site or in Calang's warehouse. Calang purchased the hats after the inspection and furnished them to employees the next day (Tr. 62, 104, 182).

30. During the inspection, Beckworth inquired if it was necessary for employees to wear hard hats. Hubert advised him that it depended on the exposure of the employee (Tr. 61, 104). Hubert informed Beckworth that employees in the trench should be wearing hard hats (Tr. 91).

31. Three of the employees in the trench wore cloth hats. A fourth employee wore no type of hat (Ex. C-2 thru C-5).

32. At the time of the inspection, William Baxley, a heavy equipment operator, was operating a Caterpillar 950 front-end loader (Respondent's Ex. A; Tr. 9, 16, 40). The loader has three reverse and four forward gears (Tr. 10). It was being operated in the forward and reverse gears at the time of the inspection (Tr. 38).

33. The front-end loader did not have a reverse signal alarm. It was purchased without such an alarm (Tr. 15, 17, 45, 187-188, 219, 222).

34. Employees were working or standing in close vicinity to the front-end loader while it was being operated (Respondent's Ex. A, Ex. C-1; Tr. 38, 40-41). There was also no signal person assisting the backhoe operator (Tr. 45).

35. The back and engine compartment of the front-end loader is approximately 6 1/2 feet tall (Tr. 42, 51-52). The view of the driver of a person located directly behind and close to the front-end loader is obstructed (Tr. 10, 14-15).

36. When the front-end loader is running, it is difficult for someone to stand behind it. A fan blows hot air out the rear (Tr. 11, 15).

37. The front-end loader has an open cab (Respondent's Ex. A; Tr. 16). The driver can look behind and would notice anyone unless they were up against the back of the machine (Tr. 16).

38. There was no person signaling to the driver of the front-end loader (Tr. 45).

39. The front-end loader was used to pick up and move the soil excavated by the backhoe and to return it to the trench during backfill operations (Tr. 10). At the time Hubert arrived at the site, the front-end loader was hauling off dirt from the area (Tr. 37).

40. On the day of the inspection, Calang employed two flagmen at the site (Tr. 17-19).

41. Calang has no written safety program. Beckworth discusses safety with employees approximately three times a week (Tr. 36).

CONCLUSIONS OF LAW

1. Calang, at all times material to this proceeding, was engaged in a business within the meaning of section 3(5) of the Act.

2. Calang, at all times material to this proceeding, was subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter.

3. On February 28, 1985, Calang was engaged in installing a sewer line on St. Simons Island. The trench in which the sewer line was being laid was 6 1/2 feet in width at the bottom, 9 feet wide at the top, and 9 feet deep. The trench walls were not shored, sheeted, braced or otherwise supported. The soil in which the trench was dug was properly classified as soft and unstable. The slope of the trench was inadequate to comply with Table P-1 of Subpart P. The trench was in violation of 29 C.F.R. § 1926.652(b). The violation was willful.

4. On February 28, 1985, spoil from the excavation was placed on the ground at the edge of the excavation in violation of 29 C.F.R. §1926.651(i)(1). The violation was willful.

5. A penalty of $8,000 is assessed for the two willful violations.

6. On February 28, 1985, four employees were in the trench. None of the employees were wearing protective helmets. The failure to wear protective helmets was in violation of 29 C.F.R. § 1926.100(a). The violation was serious. A penalty of $400 is assessed for the violation.

7. On February 28, 1985, a front-end loader was being operated at the site without a reverse signal alarm or signal person being assigned to make certain the loader was operated safely. This was a violation of 29 C.F.R. § 1926.602(a)(9)(ii). The violation was serious. A penalty of $75 is assessed for the violation.

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is

ORDERED:

(1) That items 1a and 1b of the willful citation issued to Calang on March 22, 1985, are affirmed and a penalty of $8,000 assessed for the violations;

(2) That items one and three of the serious citation issued to Calang on March 22, 1985, are affirmed and penalties of $400 and $75, respectively, are assessed for the violations;

(3) That items 2a and 2b of the serious citation issued to Calang on March 22, 1985, are modified in accordance with the terms of settlement to affirm the violations as "other than serious"; and

(4) No penalties are assessed for the "other" affirmed violations.

Dated this 13th day of February, 1986

JAMES D. BURROUGHS
Judge

FOOTNOTES:

[[1/]] Calang has not objected to being named as such, even though it changed its name to Southern Pipe Contractors, Inc., one month before the inspection (according to its president, Langford Beckworth). Beckworth also testified that previously, Calang had done some business under the name "Beckworth Construction Co."

[[2/]] That standard provided:

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/]] That standard provided:

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.

Since the inspection in this case, the cited standards have been superseded by revised standards, 29 C.F.R. Part 1926, Subpart P--Excavations, effective March 5, 1990. 54 Fed. Reg. 45,894, 45,959 (1989); 54 Fed. Reg. 53,055 (1989).

[[4/]] A "one to one" slope ("1:1") would be a 45ş angle -- one foot of horizontal slope for each foot of vertical slope.

[[5/]] A spoil pile is composed of material excavated in the digging of a trench.

[[6/]] The new length of pipe would connect with the existing pipe, run to a new manhole, and then reconnect to the existing pipe at another point. To do this, Calang first had to unearth and plug the pipe. Then it dug out an area for the new, pre-fabricated manhole.

[[7/]] It was 6 1/2 feet wide at a point directly above the exposed pipe, which was about 3 feet above the bottom. Thus, the trench was only 2 1/2 feet wider at the top than it was 6 feet below ground level (9 feet wide versus 6 1/2 feet wide). If the walls were equally steep, each was sloped 1 1/4 feet horizontally over its 6-foot height, or .208:1 -- virtually 1/5:1. (If the walls were not sloped equally, then one was sloped at an angle that was even steeper than 1/5:1).

[[8/]] The pipe was 30 inches in diameter and was sitting on about six inches of gravel.

[[9/]] Hubert testified that Beckworth replied, "The whole wall is sand. That's all you're going to find around here." Beckworth admitted saying "that there was sandy soil," but testified that he was not referring to the lower part of the trench. As explained below, Calang argues that that part was "hardpan."

[[10/]] Hubert visually estimated from the plumb rod that the trench was 10 feet deep at that point. He also estimated the trench's width at both top and bottom, by comparing those dimensions with the width of the bucket of the backhoe used to dig the trench. Hubert understood that the bucket was 4 feet wide. He estimated that the top width was about 3 times the bucket's width (or 12 feet) and that the bottom width was about twice the bucket's width (or 8 feet). Based on these estimates, we conclude that each wall was sloped about 2 feet horizontally, which means each was sloped 1/5:1. (If the walls were not equally steep, one wall was even steeper than a 1/5:1 slope.) Beckworth testified that the backhoe bucket actually was 5 feet wide. Under that assumption, the estimated width would be 15 feet at the top and 10 feet at the bottom. If these estimates are accurate, the trench walls were sloped 1/4:1.

[[11/]] The judge found that the lower portion of the soil was "soft or unstable," based on expert and other testimony. On review, Calang disputes that finding, and it specifically criticizes the judge's reliance on test borings taken by the Secretary that support that finding. Calang contends that these tests were not taken at the location of the trench and were not adequate to determine the stability of the soil. Since the sloping of the trench was clearly inadequate even if part of the trench was "hardpan" as Calang argues, we need not decide whether the Secretary's test borings were accurate, or whether the lower portion of the soil was "soft or unstable."

[[12/]] Glynn County, Ga., water and sewer inspector Timothy Ransom testified, "It would be hard to judge exactly what angle [the walls were sloped]. I would say, maybe, thirty degrees." He could only have meant 30ş from the vertical, or a 60ş slope. That slope would be flatter than 1/2:1. Ransom's very rough estimate is inconsistent with the measurements, photographs and other evidence. We therefore conclude that Ransom's very rough estimate is not reasonable in light of the record evidence, and it is not accepted.

[[13/]] Ransom described "hardpan" as follows:

hardpan usually is five, maybe six feet, below your sub-grade. It's a very dense, just compacted soil. It doesn't have any fines in it at all. It's hard to well point, but it doesn't contain any water, so you really don't have to well point it, because it will hold its own if sloped properly. . . . It's silt and sand. It's hard and pressed together.

If the lower portions were hardpan, they would have to be sloped no more steeply than 1/2:1 above the bottom 5 feet of the trench. § 1926.652(c) (requirements for "hard or compact soil"). As discussed above, the actual slope of the walls was 1/3:1 or steeper. Furthermore, the judge stated that the photographs showed that most of the slope occurred at the top part of the trench, and neither party disputes this conclusion. Accepting the judge's view of the photographs, the trench walls below the area where the slope was concentrated would have been even steeper than the figure of 1/5:1 derived from the trench dimensions alone. Thus, the inadequacy of the slope was readily apparent, even accepting Calang's position on the soil content.

[[14/]] The 13 1/2-foot requirement is arrived at as follows. Three feet of horizontal sloping was required for the top 3 feet of each wall of the 9-foot-deep trench. Another 1/2 foot of horizontal sloping of each wall would have been required below that, assuming that portion was "hard or compact," as Calang asserts. (No sloping would have been required for the bottom 5 feet, under that assumption.)

[[15/]] County inspector Ransom testified that "[e]verything I ask [Beckworth] to do, he does . . . . " Assuming that Ransom, as he stated, had had good working relations with Beckworth, that does not negate Beckworth's willful disregard of the hazards Hubert pointed out. There is no indication that Ransom advised Beckworth that he was in compliance with either standard, or even spoke to him about the noncomplying conditions.

[[16/]] Beckworth testified that "we had approximately $50,000 worth of de-watering equipment brought on the project." However, the invoice for the equipment, submitted in evidence, states that the equipment was rented for one month (February 6 to March 5, 1985) for a total of $5,159.44. Also, Calang's counsel made clear that the invoice was for "the rental equipment, the invoice on the de-watering."

[[17/]] That standard provides:

Prior to opening an excavation, effort shall be made to determine whether underground installations; i.e., sewer, telephone, water, fuel, electric lines, etc., will be encountered, and if so, where such underground installations are located. When the excavation approaches the estimated location of such an installation, the exact location shall be determined and when it is uncovered, proper supports shall be provided for the existing installation. Utility companies shall be contacted and advised of proposed work prior to the start of actual excavation.

(emphasis added).

[[18/]] Even if there were no such documents, Calang was aware of where the telephone company said its lines ran. Beckworth testified that "Sure, he [Hubert] couldn't see them; but if he had got out there before excavation started, the day before, he would have seen the flags where the telephone company had located them." Yet, Beckworth never indicated the distance of those flags, or any other utilities, from the trench.

[[19/]] The Secretary's counsel handed Beckworth a document he described as a citation issued to Calang in 1976 for failure to have "hard hats" in a trench. Beckworth testified that he considered it a warning, not a citation, because no fine was assessed.

[[1/]] The Dodge Report is a publication which identifies ongoing and anticipated construction projects.

[[2/]] Section 1926.652(b) of 29 C.F.R. provides:

(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).

[[3/]] Section 1926.651(i)(1) states:

(i)(1) 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.

[[4/]] Section 1926.100(a) states:

(a) Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets.

[[5/]] Section 1926.602(a)(9)(ii) states:

(ii) No employer shall permit earthmoving or compacting equipment which has an obstructed view to the rear to be used in reverse gear unless the equipment has in operation a reverse signal alarm distinguishable from the surrounding noise level or an employee signals that it is safe to do so.

[[6/]] Section 17(k) of the Act provides:

(k) For purposes of this section, 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 unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

[[7/]] Section 17(j) of the Act provides:

(j) The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.