HEATH & STICH, INC.  

OSHRC Docket No. 14188

Occupational Safety and Health Review Commission

June 26, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Roy L. White, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   A decision of Administrative Law Judge Erwin L. Stuller is before the Commission for review pursuant to section 12(j) of the Act, 29 U.S.C. §   661(i). n1 Judge Stuller found that Respondent, Heath & Stich, Inc., committed a serious violation of the Act by failing to comply with the standards at 29 C.F.R. § §   1926.651(s) n2 and 1926.652(c). n3 He assessed a penalty of $100.   We affirm Judge Stuller's decision.

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n1 Former Commissioner Moran's direction for review did not state specific issues to be reviewed.

n2 §   1926.651 Specific excavation requirements.

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(s) When mobile equipment is utilized or allowed adjacent to excavations, substantial stop logs or barricades shall be installed.   If possible, the grade should be away from the excavation.

n3 §   1926.652 Specific trenching requirements.

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(c) 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.   When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion.

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Heath & Stich contracted to renovate a section of a street in San Antonio, Texas.   Part of the project required the installation of new water and sewer lines where needed.   As part of the process of laying sewer pipe, a trench was dug in segments.   The trench was begun by cutting into the existing asphalt at a width of 12 feet and removing the asphalt and its bed to a depth of approximately 14 inches.   The remainder of the trench was dug at a width of 8 feet and to a depth of 10 to 11 feet.

After a suitable length of trench was dug, a front end loader was used to dump gravel into the trench. Two employees, who were positioned in a previously laid section of sewer pipe as the gravel was being dumped into the trench, would then emerge from the pipe and spread the gravel on the bottom of the trench thereby making a bed for the next section of pipe. There were no stop logs or barricade at the edge of the trench.

The compliance officer who inspected the worksite testified that the trench was 20 feet long, 11 feet deep, and 8 feet wide. He testified further that the walls of the trench were neither sloped [*3]   nor shored.   The compliance officer also testified that the trench was dug in hard and compact soil. He stated that there was water on the bottom of the trench and that the walls of the trench appeared moist.   He further observed that a great deal of traffic, including buses and trucks, passed within 8 feet of the trench and that dump trucks parked adjacent to the trench while they were being loaded.   Finally, in the compliance officer's opinion, the operation of the front end loader adjacent to the trench created the risk that the weight of the loader would cause the walls of the trench to cave-in.

Mr. Heath, Respondent's president, testified that the normal procedure used by Heath & Stich is to cut the trench at an initial top width of 12 feet and a bottom width of 8 feet. Heath testified that the walls of the trench at issue were sloped. He did not base this testimony on any measurement, but on the supposition that the trench was dug in the manner planned by the company.   When asked to determine the slope of the walls if the trench was 12 feet wide at the top and 8 feet wide at the bottom, Heath replied that the slope would be one foot vertical rise to each quarter foot horizontal.   [*4]   n4 Mr. Madla, Heath & Stich's foreman, testified that in his opinion the walls of the trench had sufficient slope to make the trench safe. He did not elaborate on this opinion.

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n4 A slope of one-quarter to one is steeper than the slope of one-half to one required by §   1926.652(c).

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Heath & Stich's expert witness, Dr. Raba, testified that analysis of soil samples taken from the general area where the trench was dug revealed that the trench was dug in clay.   In Dr. Raba's opinion, the soil was sufficiently stable and did not require shoring or sloping. He testified further that there was no indication that water was seeping into the trench and that the amount of water already in the bottom of the trench was minimal.   According to Dr. Raba, traffic near the trench is significant in two respects.   First, it would place an additional load on top of the soil and this might have a tendency to cause the trench walls to collapse. Second, certain traffic can set up vibrations that could weaken the trench walls.   Dr. Raba   [*5]   thought that the traffic present in this case was too far away to add an additional load on the trench walls and that the soil in question was not susceptible to vibrations.   Therefore, in his opinion, the nearby traffic would not affect the stability of the trench walls.   He concluded, based on the tests conducted by his firm, that the trenching method used by Heath & Stich was safe.

Judge Stuller found that Heath & Stich violation section 1926.652(c) by failing to slope or shore a trench more than 5 feet deep and more than 8 feet long that was dug in hard and compact soil. He found that the standing water in the trench and the nearby heavy traffic added to the possibility of the trench collapsing.   He also found that Heath & Stich violated section 1926.651(s) by operating a front end loader within 3 feet of the trench without installing substantial stop logs or barricades that would prevent the loader from accidentally falling into the trench.

In arriving at his conclusions, Judge Stuller specifically gave greater weight to the testimony of the compliance officer than to that of Heath & Stich's witnesses, Heath and Madla.   The judge gave little weight to the testimony of Heath [*6]   & Stich's expert witness, Dr. Raba.   He noted that Dr. Raba's opinion of the stability of the trench walls was based on a report of samples taken from borings made near the site of the inspection at some unknown time after the inspection.   Judge Stuller found that Heath & Stich failed to adequately relate the time, place, and general conditions under which the samples were taken to those existing at the time of inspection.   The judge, therefore, found the samples to be an inadequate basis for an expert opinion.   Judge Stuller also stated that the term "hard and compact soil," although ambiguous to Dr. Raba, has "stood the test of time" and is sufficiently understood by employers as well as compliance officers.

In concluding that Heath & Stich violated the standards cited, the judge rejected Respondent's arguments that (1) the ground cavity was not a "trench" to which section 1926.652(c) applies; (2) the Secretary failed to prove that the trench walls were not sloped; (3) the soil in which the trench was dug was so stable that additional protection was not needed to render the workplace safe; (4) the compliance officer was not competent to determine that the soil was hard and compact;   [*7]   (5) the term "hard and compact" soil is unconstitutionally vague; (6) the trench came within the "trench box" exception in 29 C.F.R. §   1926.652(k); n5 (7) the company employed a flagman who provided the same protection as the stop logs or barricades required by section 1926.651(s); (8) stop logs could have been knocked into the trench by the front end loader, thereby creating an equal or greater hazard; (9) the work could not have been done with stop logs or barricades in place; and (10) no serious violation was proven because "it was not shown that there was substantial probability that death or serious physical harm could result from the conditions at the project site."

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n5 §   1926.652 Specific trenching requirements.

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(k) Protable trench boxes or sliding trench shields may be used for the protection of personnel in lieu of a shoring system or sloping. Where such trench boxes or shields are used, they shall be designed, constructed, and maintained in a manner which will provide protection equal to or greater than the sheeting or shoring required for the trench.

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Heath & Stich, in its petition for review of the judge's decision, argues that the judge incorrectly resolved conflicting evidentiary questions. n6

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n6 We reject Heath & Stich's threshold argument that the Secretary must prove a violation "beyond a shadow of a doubt." The Commission's findings are based on a preponderance of the evidence.   Armor Elevator Co., 73 OSAHRC 54/A2, 1 BNA OSHC 1409, 1973-74 CCH OSHD P16,958 (No. 425, 1973).

n7 Heath & Stich does not directly argue before us that the violation was not proved to be serious.   However, because Heath & Stich argues that its operation was safe, we conclude that the issue is before us.   We conclude that Judge Stuller's holding that the violation was serious is supported by the record and by Commission precedent.   Niagara Mohawk Power Corp., 79 OSAHRC 36/A2, 7 BNA OSHC 1447, 1979 CCH OSHD P23,670 (No. 76-2414, 1979).

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One of Heath & Stich's arguments before the judge was that the excavation in question [*9]   was wider than it was deep and was therefore not a trench under the standard.   We note, however, that the contention that an excavation with a width greater than its depth cannot be a trench has been rejected by the Commission.   West Coast Construction Co., 76 OSAHRC 149/F1, 4 BNA OSHC 1940, 1976-77 CCH OSHD P21,419 (No. 7454, 1976); D. Federico Co., 76 OSAHRC 13/A2, 3 BNA OSHC 1970, 1972 n.5, 1975-76 CCH OSHD P20,422 at 24,378 n.5 (No. 4395, 1976), aff'd, 558 F.2d 614 (1st Cir. 1977). Moreover, because we have held that the width of a trench is to be measured at the trench's bottom, Stimson Contracting Co., 77 OSAHRC 38/A2, 5 BNA OSHC 1176, 1977-78 CCH OSHD P21,675 (No. 13812, 1977), Judge Stuller's finding that the trench was deeper than its width at the bottom establishes conclusively that the ground opening was a trench. In this regard, Judge Stuller noted that Heath & Stich's argument that the trench was 12 feet wide and only 10 to 11 feet deep was misleading.   He found that the trench was 12 feet wide at the initial opening to a depth of 14 inches.   Thereafter, however, the trench was dug vertically at a width of 8 feet. Accordingly, the judge found that the [*10]   bottom 89% of the trench was deeper than it was wide and that it therefore met the general criterion that a trench's depth be greater than its width. 29 C.F.R. §   1926.653(n).

Heath & Stich argues that the compliance officer's opinion that the soil was hard and compact within the meaning of section 1926.652(c) should not be credited over the opinion of its expert witness Raba that the soil was sufficiently stable. There is, however, no conflict in these opinions.   Under the Secretary's trenching standards, soil is either classified as hard or compact, section 1926.652(c), or soft and unstable, section 1926.652(b). n8 See Connecticut Natural Gas Corp., 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1978 CCH OSHD P22,874 (No. 13964, 1978).   Thus, Raba's opinion that the soil was stable necessarily means that, within the regulatory framework, the soil must be considered hard or compact. n9 Heath & Stich has not contended that the trench in question wa dug in solid rock, shale, or cemented sand and gravel. Raba testified that the substances he found and tested were clays.   Therefore, to the extent that Heath & Stich contends the soil is so stable that the trench need not be protected under [*11]   the requirements of section 1926.652(c), the argument amounts to an impermissible challenge to the wisdom of the standard.   The Commission has no authority to consider that issue.   Austin Bridge Co., 79 OSAHRC 81/A2, 7 BNA OSHC 1761, 1979 CCH OSHD P23,935 (No. 76-93, 1979).

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n8 We note that under the trenching standards there is an implicit exemption from shoring or sloping trenches dug in solid rock, or cemented sand and gravels. See Austin Bridge Co., 79 OSAHRC 81/A2, 7 BNA OSHC 1761, 1766 n. 11, 1979 CCH OSHD P23,935 at 29,022 n. 11 (No. 76-93, 1979).

n9 We also note that if the soil was not hard or compact, it would have been soft and unstable and would be regulated by §   1926.652(b), which requires greater protection than §   1926.652(c).

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The judge's finding that section 1926.651(s) (stop logs or barricades) requires a physical barrier and that the use of a flagman would not comply with the standard is also supported by precedent.   In Concrete Construction Co., 76 OSAHRC 139/A2, 4 BNA OSHC 1828,   [*12]   1976-77 CCH OSHD P21,269 (No. 5692, 1976), aff'd, 598 F.2d 1031 (6th Cir. 1979), we held that an analogous standard required the use of a physical barrier and that an employee acting as a flagman cannot be substituted for such a barrier. Our reasoning in that case is equally applicable here.

Finally Heath & Stich urges us, as it did Judge Stuller, to find that its operation came within the trench box exception in section 1926.652(k) n10 because its employees were in the sewer pipe during the time that gravel was being dumped into the trench. Heath & Stich's argument is misplaced.   First, although the standard does not define trench box, it is obvious from the context in which the term appears that such a device would be one that would protect workers from the collapse of a trench while enabling them to perform their duties.   The compliance officer testified in this regard that the employees could suffocate in the sewer pipe if the pipe was covered by a collapse of the trench walls.   Moreover, the standard requires that the trench box offer protection that is equal to or greater than the protection afforded by sloping or shoring. The evidence reveals that Heath & Stich's employees [*13]   had to leave the sewer pipe to perform their duties.   When they did, they were not protected by the sewer pipe and consequently were exposed to the hazard caused by the unprotected trench walls.   Accordingly, we conclude that the sewer pipe in question is neither a "trench box" nor an equivalent to a "trench box."

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n10 See note 5 supra.

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With respect to Heath & Stich's other arguments, Judge Stuller considered the entire record and detailed the reasons for his findings of fact.   Where the evidence was conflicting, the judge explained his reasons for crediting the testimony of one witness over others.   Under these circumstances, the Commission will accept the judge's credibility findings.   Asplundh Tree Expert Co., 78 OSAHRC 77/E12, 6 BNA OSHC 1951, 1978 CCH OSHD P23,033 (No. 16162, 1978); C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD P22,481 (No. 14249, 1978).   In addition, the judge properly rejected Heath & Stich's legal arguments and correctly concluded that Heath & Stich violated [*14]   the Act as alleged.   Accordingly, we adopt the judge's decision.   Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).

Finally, we note that the Secretary of Labor did not file a brief in this case because of what he discerned to be the Commission's policy of vacating directions for review that did not state specific issues to be reviewed.   However, the Secretary requested "that further notice be given and the briefing period extended if in fact the Commission determines not to vacate the direction for review." Heath & Stich, which had earlier stated that it intended to file a brief on review with the Commission, understood the Secretary's letter to be a motion and requested leave to postpone filing a brief "pending the outcome of the Secretary's motion."

Approximately two months after the Secretary's submission in this case, the Commission published a policy statement in the Federal Register stating that when a direction for review does not specify the issues to be reviewed, the Commission would examine the issues raised by a party's petition for review or brief on review and, when appropriate, would afford the parties an opportunity to [*15]   file additional briefs.   41 Fed. Reg. 53,015 (1976).

The Commission has carefully reviewed this case and has considered Heath & Stich's exceptions to the judge's decision set forth in Respondent's petition for discretionary review and brief in support thereof.   For the reasons stated above, we conclude that the judge properly found that Heath & Stich violated the Act by failing to comply with the standards at 29 C.F.R. § §   1926.651(s) and 1926.652(c).   Accordingly, the judge's decision is affirmed unless, within ten days of the issuance of this decision, Heath & Stich requests the opportunity to submit an additional brief.   Upon receipt of a brief by Heath & Stich, should the company elect to file one, the Commission will determine whether additional briefs are necessary and the parties will be so notified.   The Commission will then reconsider its decision in this case in light of the submissions received.

IT IS SO ORDERED.