Docket No. 2515

A. L. AMARAL COMPANY

OSHRC Docket No. 2515

Occupational Safety and Health Review Commission

July 14, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge Jerome C. Ditore, dated January 22, 1974, has been before the Commission for review pursuant to 29 U.S.C. § 661(i) for more than a year. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to decide this case at this time.

The Commission is equally divided on the correctness of the Judge's determination that the respondent violated 29 U.S.C. § 654(a)(2) by failing to comply with the occupational safety standards codified at 29 C.F.R. § § 1926.652(b) and 1926.652(h).

Chairman Moran would reverse the Judge's findings because the above-cited standards do not apply to the type of cavity where the violations allegedly occurred. Section 1926.652 pertains to trenches and, since the width of the cavity was greater than the depth, the general excavation standards in section 1926.651 applied to the situs of the alleged violations. Compare the definitions of the words "excavation" and "trench" as respectively provided in 29 C.F.R. § 1926.653(f) and (n). In the Chairman's [*2] opinion, the alleged violations should not be affirmed because the special trench standards are generally stricter than the general excavation standards.

Commissioner Cleary would affirm the Judge's findings. Since the definition of a trench in 29 C.F.R. § 1926.653(n) is qualified by the words "[i]n general," he concludes that the trenching standards were applicable in this case.

Accordingly, the decision of the Judge is affirmed by an equally divided Commission. This decision has no precedential weight. Secretary v. Garcia Concrete, Inc., 18 OSAHRC 184 (1975).

[The Judge's decision referred to herein follows]

DITORE, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 631, et seq., hereinafter called the Act), contesting a serious citation and a nonserious citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of the Act.

The citations alleged that as a result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at I-91, Longmeadow, Massachusetts, the Respondent violated Section 5(a)(2) [*3] of the Act by failing to comply with certain Occupational Safety and Health Standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The citations were issued on March 16, 1973. The citation for a serious violation alleged that this violation resulted from Respondent's failure to comply with a standard promulgated by the Secretary by publication in the Federal Register on December 16, 1972 (37 F.R. 27554 (1972)), and codified in 29 C.F.R. 1926.652(b).

The citation for nonserious violations alleged that these violations resulted from Respondent's failure to comply with standards promulatated by the Secretary by publication in the Federal Register on December 16, 1972 (37 F.R. 27553 and 27555) and codified in 29 C.F.R. 1926.651(i)(1) and 1926.652(b).

The description of the alleged violation of 29 C.F.R. 1926.652(b) set forth in the citation states:

Failure to shore, sheet, brace, slope or otherwise support by means of sufficient strength, the sides of a trench of unstable or soft material, 5 feet or more in depth where employees are working in that trench. Location - alongside 1-91 Longmeadow, Massachusetts.

The description of the alleged violation of 29 [*4] C.F.R. 1926.652(h) set forth in the citation states:

Failure to provide a ladder or steps in trenches of 4 feet deep or more in depth, for employees to provide an adequate means of exit so as not to require more than 25 feet of lateral travel. Location - 1-91 Longmeadow, Massachusetts.

The description of the alleged violation of 29 C.F.R. 1926.651(i)(1) set forth in the citation states:

Failure to store excavated material at least 2 feet from the edge of the trench where employees may be required to enter. Location - 1-91 Longmeadow, Massachusetts. n1

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n1 Respondent at the time of hearing withdrew its contest to this violation, and it is not here in issue.

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Standard 29 C.F.R. 1926.652(b) as promulgated by the Secretary is as follows:

(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 [*5] section).

Standard 29 C.F.R. 1926.652(h) as promulgated by the Secretary is as follows:

(h) When employees are required to be in trenches 4 feet deep or more, an adequate means of exit, such as a ladder or steps, shall be provided and located so as to require no more than 25 feet of lateral travel.

Pursuant to enforcement procedures set forth in Section 10(a) of the Act, the Respondent was notified by letter dated March 16, 1973, from Harold R. Smith, Area Director of the Hartford, Connecticut Area Office, that the Occupational Safety and Health Administration, U.S. Department of Labor, proposed to assess a penalty for the alleged violation of 29 C.F.R. 1926.652(b) in the amount of $700.00, and for the alleged violation of 29 C.F.R. 1926.652(h) in the amount of $85.00. n2

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n2 No penalty was assessed for the non-contested violation of 29 C.F.R. 1926.651(i)(1). (Notification of proposed penalty)

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After Respondent contested this enforcement action, and a complaint and answer had been filed by the parties, the case [*6] came on for a hearing at Hartford, Connecticut, on June 20, 1973.

ISSUES

1. Whether Respondent violated 29 C.F.R. 1926.652(b).

2. If Respondent violated the standard, whether the violation was serious.

3. If Respondent violated the standard and the violation was serious, whether the proposed penalty of $700.00 was proper.

4. Whether Respondent violated 29 C.F.R. 1926.652.(h).

5. If Respondent violated this standard, whether the proposed penalty of $85.00 was proper.

STATEMENT OF THE EVIDENCE

A. Stipulations and Admissions

It was stipulated between the parties that: Respondent, A.L. Amaral and Sons Construction Corporation, is a Massachusetts corporation with its principal office for business located at 196 Rood Street, Ludlow, Massachusetts; Respondent is an "employer" within the meaning of the Act; Respondent was in the business of construction contracting; and on March 14, 1973, Respondent was engaged by the Lane Construction Company, on a project on Route I-91 in Longmeadow, Massachusetts.

It was further stipulated that Respondent on March 14, 1973, had approximately four employees who were engaged in constructing a catchbasin. These employees were working [*7] within a manhole or catchbasin excavation. Respondent further admitted that there was no ladder in the catchbasin excavation area; that excavated material was placed within two feet of the excavation; and that under it's contract with the Lane Construction Company, it was required to perform it's work pursuant to federal occupational safety and health standards.

B. Complainant Case

On March 14, 1973, Harold R. Smith, Area Director for the Hartford, Connecticut Area Office, inspected Respondent's work site at Interstate Route I-91, Longmeadow, Massachusetts.

Respondent's work site was adjacent and parallel to the southbound lane of Route I-91. The work site consisted of a trench running north to south, and visually estimated to be about 75 feet long, 4 to 4 1/2 feet deep and 3 to 4 feet in width.

The north end of the trench consisted of a catchbasin excavation where a new catchbasin was being installed. It is in this area that the serious violation charged against Respondent allegedly occured.

The catchbasin excavation, visually estimated, was about 6 to 6 1/2 feet deep, and 10 to 11 feet wide in a east to west direction (Exh. C-3, marked "C-B", see also Exh. C-2). [*8] The diameter of the catch-basin was about five feet. The depth of the catchbasin excavation between the west masonry wall of the catchbasin and the west earthwall of the excavation was about 5 to 5 1/2 feet, between the east earthwall and the east masonry wall of the catchbasin the depth was about 6 to 6 1/2 feet deep. The earthwalls of the 45 foot trench and the catchbasin excavation were almost vertical (see Exh. C-2).

Officer Smith stated that the soil was wet, sandy with some silt and gravel, and in his opinion was unstable and soft (see Exh. C-1). Excavated material was stored about 3 to 3 1/2 feet above the trench ground line and within 2 feet of the edge of the trench. There was no ladder or steps in the catchbasin excavation area.

Officer Smith during his inspection observed three employees in the catchbasin excavation area. One was in the catchbasin, another was working outside the catchbasin but in the catchbasin excavation area (see Exh. C-2). One other employee entered the catchbasin excavation area to remove his tools after the employees were ordered out of the area by Respondent.

Officer Smith observed the employees exiting the catch basin area by pulling themselves [*9] out at the north earthwall which, in height, was over their heads. This north earthwall was sloped to about an 80 degrees incline (Exh. C-3, exit area marked "X").

Mr. Smith deemed the violation to be serious because if the east-west earthwalls of the catchbasin excavation collapsed, there was a strong probability that serious injury would befall the employees working in the excavation area. Mr. Smith proposed a penalty for this serious violation of $700.00. This amount was arrived at by deducting from the unadjusted penalty of $1,000.00, a 20% credit for no prior history, and a 10% credit for size. No credit was given for given for good faith.

For the non-serious violation of failing to provide a ladder (29 C.F.R. 1926.652(h), Mr. Smith proposed an adjusted penalty of $85.00, which was arrived at by reducing the unadjusted penalty of $250.00 by 20% for no prior history and 10% for size.

C. Respondent's Case

Armando Luis Amaral, President of A.L. Amaral and Sons Construction Corporation, testified that on March 14, 1973, Respondent was extending and constructing a new catchbasin on Route I-91 in the Springfield-Longmeadow area of Massachusetts. On this day, Respondent [*10] had dug down about 5 feet and cut in half an old catchbasin on the southbound lane side of I-91. A catchbasin excavation was then dug and a pipe was laid which ran in an east to west direction from the old catchbasin to the new one being built about 6 to 8 feet away (see Exh. C-2 pipe marked "2"). A trench was dug from the new catchbasin excavation area, running about 45 feet in a north to south direction. This trench was less than 4 feet and about 30 inches wide (see Exhs. C-3, C-4). The diameter of the new catchbasin excavation area was 12 to 15 feet wide, and 5 feet deep from bottom to ground level (see Exh. R-1).

Mr. Amaral claimed that as the new catchbasin was being built the excavation area around the catchbasin was back filled so that the excavation at the time Mr. Smith made his inspection (Exh.C-2) was only 4 feet deep from back filled bottom to ground level.

Mr. Amaral further testified that the catch basin itself was only 5 feet high from its bottom to ground level and was 5 feet in diameter from outer masonry wall to outer masonry wall (Exh. R-1). The catchbasin was built of masonry blocks. The first four bottom levels of the catchbasin was built of masonry blocks. [*11] The first four bottom levels of the catchbasin construction consisted of masonry blocks 8 inches high. The next two layers consisted of masonry blocks 6 inches high, with a final 6 inch layer to be installed (see Exh. C-2).

The pipe which extended from the old catchbasin in a westerly direction entered the new catchbasin 24 inches above its bottom (Exh. C-2, pipe marked 2"). This pipe was estimated to be 15 inches in diameter. The distance from the top of the pipe to ground level was estimated to be 3 feet.

The pipe which extended from the new catchbasin into the elongated trench was also 15 inches in diameter and was 26 inches above the bottom of the catchbasin (Exh. C-2), pipe marked "1").

Mr. Amaral claimed the soil was not unstable or soft. It consisted partially of clay and silt but mostly gravel. He further stated that his employees left the catch basin excavation area by the north wall side which was sloped so they could walk out. The excavation at the work site was dug by a back hoe machine. The excavated soil was not original earth but fill used at the time the highway was constructed. It consisted of gravel and sand with some clay and was easily removed [*12] by the back hoe machine. The edge of the 45 foot trench was about 4 1/2 feet from the edge of the southbound highway lane surface.

Mr. Amaral stated that his company owned no shoring equipment and had none at the job site. He also admitted that two of his employees were observed by Mr. Smith working in the catchbasin excavation area.

OPINION

Respondent was charged with a serious violation of 29 C.F.R. 1926.652(b) in that it failed "to shore, sheet, brace, slope or otherwise support by means of sufficient strength the sides of a trench or unstable or soft material 5 feet or more in depth where" its employeees were working (Citation).

29 C.F.R. 1926.652(b), as promulgated, states:

(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 employees working within them. See tables P-1, P-2 (following paragraph (g) of this section)

Section 1926.653(n) defines a trench as:

[a] narrow excavation made below the surface of the ground. In general, the depth is greater than the width, but the width of a trench is not greater than 15 feet.

Respondent in its [*13] brief (pp 2-6) contends that the catchbasin excavation was not a trench within the definition of 29 C.F.R. 1926.653(n), and therefore there was no violation of 29 C.F.R. 1926.652(b).

The catchbasin excavation was the northern terminus of a 45-foot long trench. The 45-foot trench was approximately 4 feet deep and about 30 to 36 inches wide. The northern end of this trench consisted of a catchbasin excavation alleged to be, by estimate of the Complainant, 10 to 11 feet wide and 6 to 6 1/2 feet deep. Respondent estimates this excavation to be 12 to 15 feet wide and 5 feet deep. Under either estimate the excavation was wider than it was deep. These estimated measurements do not remove the catchbasin excavation from the "trench" definition. The catchbasin excavation was an integral part of the 45-foot trench. The "trench" definition does not rigidly impose the requirement that all excavations must be deeper than they are wide to be trenches. The use of the words "[i]n general" in the definition permits exceptions to the definition's measurements of what constitutes a trench. This case falls within the exception. Secretary v. Van Diest Brothers, Inc. OSAHRC [*14] Docket No. 2050.

The dimensions of the catch basin excavation

What is important, and most troublesome, where fact finding depends on exact measurements, is the failure to take, or the lack of, exact measurements, particularly where a federal standard to be enforced depends on specific measurements beyond which, if certain other conditions exist, violations may occur.

Here the Complainant's witness, Area Director Smith, did not take any accurate measurements of the depth and width of the catchbasin excavation. Mr. Smith relied solely on his visual estimate or opinion for these measurements. Estimates or opinions of depths and widths are of little or no value, standing alone, for the fact finder. Depths and widths are essential elements of the violation, and must be established by proper proof. Visual estimates do not meet this test. There is no valid reason in this record, for the failure to take accurate measurements.

Mr. Smith estimated the width of the catchbasin excavation in an east to west direction, to be 10 to 11 feet, and the earthwalls on the east and west sides to be about 90 degrees or almost vertical (Exh. C-3).

Mr. Amaral estimates the width to be 12 to 15 [*15] feet, east to west and north to south. Five feet of this width is taken up by the catchbasin (Exh. R-1). Mr. Smith estimates the depth of the catchbasin excavation from the westerly masonry wall of the catchbasin to the west earthwall to be 5 to 5 1/2 feet deep, and 6 to 6 1/2 feet deep from the east earthwall to the east masonry wall of the catchbasin. The width from masonry to earthwalls on the cast and the west side were estimated to be 4 to 5 feet by Mr. Smith, slightly more by Mr. Amaral. There is no claim that there existed a hazardous trench condition on the north or south side of the excavation under the serious violation. Mr. Amaral estimates the depth of the catchbasin excavation at the time of Mr. Smith's observations, to be 4 feet. All of these observations and estimates are mere opinions with no other support than the witness's unproven ability to estimate depths and widths by eye. However, there is other evidence in the record from which the depth of the catchbasin excavation can be determined.

Mr. Amaral testified that he dug the catchbasin excavation no deeper than five feet, and that as the bottom of the catch basin was completed, he back filled the [*16] excavation between the catch basin and the earthwalls to a depth of four feet. n3 This testimony is negated by Mr. Amaral's later testimony which establishes that the catchbasin excavation was at least 6 or more feet.

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n3 The admission by Mr. Amaral that Respondent dug the catchbasin excavation initially to a depth of five feet would place the excavation within the restrictions of the standard, and would place his employees in the excavation at this depth when they commenced to construct the catchbasin.

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Mr. Amaral testified that drain pipe No. 2 (Exh. C-2) entered 24 inches from the bottom of the new catchbasin. This pipe was 15 inches in diameter, and the top of the pipe was 3 feet from the earth level. Simple arithmetic establishes that the catchbasin excavation was dug to a depth of 6 feet 3 inches -- 24" + 15" + 36" = 75" or 6 feet 3 inches. Mr. Amaral also testified that each of the first four layers of masonry brick of the catchbasin was 8 inches high, the two upper layers were 6 inches high. The catchbasin, [*17] as depicted in Exh. C-2, was 44 inches or 3 feet 8 inches high from the bottom of the excavation to the top of the catchbasin. Pipe No. 2 was three feet from the earth level. Adding the measurements of the first four layers of 8" masonry bricks and one 6 inch layer to the 3 feet that the top of pipe No. 2 is from the earth level, indicates a total height from the bottom of the excavation to the earth level of approximately 74 inches or 6 feet 2 inches (Exhbs. R-1, C-2).

The catchbasin excavation was dug to a depth of more than six feet.

The Soil

The soil removed from the catchbasin excavation and the earthwalls of the excavation was not original earth but prior fill. It consisted of clay, silt, gravel and sand. There was water in the excavation but whether it came from rain or water from the old catchbasin is not adequately established.

Standard 29 C.F.R. 1926.652(b) requires that the "[s]ides of trenches in unstable or soft material 5 feet or more in depth," be shored, sheeted, braced, sloped or otherwise supported by means of sufficient strength to protect the employees working in the trenches. The standard includes, and refers to, Table P-1 for sloping requirements. [*18] Table P-1 prohibits sloping and requires shoring and bracing where the earth material of a trench consists of clay, silts, or loams of non-homogenous soils.

29 C.F.R. 1926.653(g) defines "unstable soil" 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.

There is no dispute that the earth material here was not original but prior fill, and consisted of clay, gravel, silt and sand, easily removed by a back hoe machine (Exh. C-7). Complainant states the soil was unstable and soft. Respondent claims it was not unstable or soft. From the nature of the soil and its relationship to traffic earth vibrations from Route I-91 and Respondent's machinery, this Judge finds that the soil was unstable and soft.

The evidence established that the catchbasin excavation came within the definition of a trench (29 C.F.R. 1926.653(n)); that the excavation was dug to a depth of more than 6 feet; and that the soil was unstable and soft requiring the excavation to be shored or braced.

Based upon these findings, the catchbasin excavation [*19] was required to be shored or braced (29 C.F.R. 1926.652(b)). It was not. Respondent was in violation of the standard if any of his employees were exposed to the hazard.

Respondent's employees

Respondent concedes that there were four employees working at the worksite. Mr. Smith observed two employees in the excavation area, one working in the catchbasin (Exh. C-2), the other outside the catchbasin but in the excavation area. n4 What portion of the excavation area this second employee was working is left to conjecture.

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n4 A third employee was observed entering the excavation to remove his tools after Respondent ordered its employees out of the excavation. Respondent is not responsible for this isolated action of one of its employees.

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At least two of Respondent's four employees worked in the catchbasin excavation on March 14, 1973, and were exposed to the hazard of a possible trench collapse or cave-in. Their exposure to this hazard was not at the time of Mr. Smith's observations. At that crucial [*20] time, the lack of proper measurements, and accurate location of the second employee, prevents this Judge from finding that the area between the west earthwall and the west masonry wall of the catchbasin was 5 to 5 1/2 feet deep as estimated by Mr. Smith, or four feet as estimated by Mr. Amaral, or that there was an employee in that area. The evidence indicates that the depth of the excavation in and around the area of the east masonry wall of the catchbasin was 6 feet or more (see Exh. C-2). There is no evidence an employee was working there at the time of Mr. Smith's observations.

This Judge cannot find that at the time Mr. Smith made his observations any employee of Respondent was exposed to a trench hazard. This finding does not relieve Respondent from the serious violation.

The evidence does establish that somewhere during the time Respondent started to work on March 14, 1973, and the time Mr. Smith appeared on the scene, a catchbasin excavation was dug 6 or more feet in depth; that the east and west sides of the excavation were not shored or braced, and that the earth material was unstable and soft; and that Respondent's employees were working in the excavation as evidenced [*21] by the catchbasin being built and the pipes laid.

Serious Violation

This Judge will not disturb Complainant's recommendation that the violation was serious. Generally, possibilities of trench or excavation collapses or cave-ins are always serious because when such accidents occur, the probabilities of serious injury to an employee are ever present. However, the gravity of such a violation in any given situation depends on the circumstances involved.

In determining gravity, certain factors are to be taken into consideration. Secretary v. Broadview Construction,

1. The number of employees exposed to the risk of injury. Here no accurate number is ascertainable. It was at least two but less than four.

2. The duration of the exposure. This element cannot be accurately ascertained. Complainant's proof at the time of his witness' observations, fails to establish that any employee was in any hazardous portion of the excavation. The employee depicted inside the catchbasin in Exh. C-2 is not exposed to a hazard being protected by the catchbasin. There is no evidence that the catchbasin would not protect the employee [*22] if an accident occurred. There was, at some time during March 14, 1973, prior to Mr. Smith's arrival, exposure of Respondent's employees to a trench collapse hazard.

3. The precautions taken against injury. There appear to be none of record. Respondent owned no shoring equipment and had none at the job site.

4. The degree of probability of the occurrence of any injury. Hindsight and certain of the evidence reveals the degree of probability of an injury to be low because the possibility of a trench collapse or cave-in was low. Considering the catchbasin excavation as somewhat rectangular in formation with the longer sides running east to west, the south side abutted the 75 foot trench. The bottom of the trench was below pipe #1 (Exh. C-2) or about a height of 3 feet, 8 inches above the bottom of the catchbasin. The catchbasin supported this south wall. There was no chance of a collapse on this side. The west earthwall of the catchbasin excavation area appears to be where the guard rail is shown in Exh. C-4, with removed earth piled outside the guard rail on a rise about 15 feet above the railroad tracks. The exact depth of this area cannot be determined. Mr. Smith estimated [*23] it to be 5 to 5 1/2 feet; Mr. Amaral estimated it to be 4 feet. The doubt raised by the conflict of estimates will be resolved in Respondent's favor. The north earthwall was not, of record, considered a trench hazard as to possible collapse. The east earthwall, as stated by Mr. Amaral, and unrefuted by Complainant, was supported by one half of the old catchbasin, thereby reducing the possibility of a cave-in at that area.

Taking into consideration the above gravity factors, the weakness of the evidence as to certain crucial elements of the violation, Respondent's size, lack of prior history and paucity of good faith, the proposed penalty is reduced from $700.00 to $150.00.

Non-Serious Violation -- 29 C.F.R. 1926.652(h)

The evidence establishes that Respondent failed to provide a ladder or steps in the catchbasin excavation which was four or more feet deep. It is undisputed that no ladder or steps were in the catchbasin excavation.

Employees exited the excavation on the north earthwall which was sloped about 80 degrees. Mr. Smith observed that the employees had to pull themselves out; and that the north earthwall was over their heads Exh. C-3 exit area marked "X". [*24]

Since the standard, 29 C.F.R. 1926.652(h), requires a ladder or steps in a trench four or more feet deep, Respondent failure to provide these exit means for its employees, violated the standard. Taking into consideration Respondent's size, prior history, good faith and the gravity of the violation, the $85.00 proposed by Complainant is reasonable.

FINDINGS OF FACT

The credible evidence and the record as a whole establishes substantial proof of the following specific findings.

1. Respondent, A.L. Amaral and Sons Construction Corporation, is a corporation organized under the laws of the State of Massachusetts, and maintains an office and place of business at 196 Rood Street, Ludlow, Massachusetts.

2. At all times material herein, Respondent was engaged as a subcontractor under contract with the Lane Construction Corporation of Meriden, Connecticut, on a catchbasin construction project on Interstate Route I-91, in Longmeadow, Massachusetts.

3. Respondent employed approximately four employees at its jobsite on Interstate Route I-91, on March 14, 1973. (Admission #5, item 11 of file)

4. Respondent admits it was an "employer" within the meaning of the Occupational [*25] Safety and Health Act of 1970.

Inspection of Respondent's Worksite

5. On March 14, 1973, Mr. Harold R. Smith, Area Director for the Hartford, Connecticut, Area of the Occupational Safety and Health Administration, inspected Respondent's jobsite on Route I-91, at Longmeadow, Massachusetts.

6. As a result of Mr. Smith's inspection, a citation for a serious violation of 29 C.F.R. 1926.652(b), a citation for non-serious violations of 29 C.F.R. 1926.652(h) and 29 C.F.R. 1926.651(i)(1), and a Notification of Proposed Penalty totalling $785.00, were issued to Respondent on March 16, 1973. (Citation and Notification)

7. Respondent, at the hearing, withdrew its contest to item 2 of the non-serious citation which alleged a violation of 29 C.F.R. 1926.651(i)(1).

Respondent's Work Site

8. On March 14, 1973, Respondent dug a catchbasin excavation more than 6 feet in depth and approximately 12 to 15 feet, east to west, in width. The excavation, adjacent and parallel to the south bound traffic lane of Route I-91, was the northern end of a trench 45 feet along, 30 to 36 inches wide and approximately 4 feet deep. The 45 foot trench is not involved with any of the violations here at [*26] issue. (Exhs. C-2, C-3, marked "C-B, C-4, R-1) (see Opinion for discussion of depth and width measurements, and evidence to support these measurements)

9. A new catchbasin constructed of masonry bricks which consisted of four lower layers of 8 inch brick and 2 upper layers of 6 inch brick, was built in the catchbasin excavation. The outer diameter of the catchbasin was five feet (Exhs. C-2, R-1)

10. The catchbasin excavation was an integral part of the 45 foot long trench, and is a trench as defined by 29 C.F.R. 1926.653(n) (see Opinion).

The Soil

11. The soil of the sides of the catchbasin excavation was not original but prior fill, and was unstable and soft. It consisted of clay, gravel, silt and sand, and was damp. (Exh. C-1)

12. The east and west earth sides or walls of the catchbasin excavation were almost vertical.

13. It is admitted by Respondent that there was no ladder or steps in the excavation by which its employees could exit the excavation.

13a. A ladder is required where the depth of an excavation is 4 or more feet. (29 C.F.R. 1926.652(h))

14. Respondent's employees exited the excavation at the north earthwall which was sloped about 80 [*27] degrees. The ground level of the north earthwall was over the heads of the employees which required the employees to pull themselves out of the excavation. (Exh. C-3, marked "X")

14a. 29 C.F.R. 1926.652(b) requires that the sides of trenches in unstable or soft soil, 5 feet or more in depth, be shored, sheeted, braced, sloped or otherwise supported by means of sufficient strength to protect employees working in the trench.

15. The unstable, soft and non-homogenous nature of the soil prohibited sloping as a safety means (29 C.F.R. 1926.652(b), Table P-1; 29 C.F.R. 1926.653(q)).

16. For purposes of good faith, the evidence does not establish that Respondent sloped the sides of the excavation according to Table P-1 of 29 C.F.R. 1926.652(b).

17. The east and west earth sides of the catchbasin excavation were not shored, braced, sheeted or otherwise supported by means of sufficient strength to protect employees working in the excavation.

18. There is no evidence which establishes that the north wall of the catchbasin excavation exposed any employees to the hazard of a trench collapse (see Opinion).

19. The evidence is insufficient to establish the depth of the catchbasin [*28] excavation between the west wall of the catchbasin and the west earthwall at the time of Mr. Smith's observation (see Opinion).

20. There is evidence which establishes that the depth of the catchbasin excavation adjacent to the east masonry wall of the catchbasin, and pipe #2, was over 6 feet. (see Opinion; Exh. C-2).

21. Mr. Smith observed two employees in the catchbasin excavation area which is conceded by Respondent.

22. One of the employees observed by Mr. Smith was working within the newly constructed catchbasin. (Exh. C-2) There is evidence that the height of the catchbasin was 44 inches or 3 feet 8 inches from the bottom of the excavation. (Exh. C-2) There is no evidence that the employee in the catchbasin itself was exposed to a trench hazard; or if a trench collapse occurred the catchbasin would not protect the employee from injury.

23. There is no evidence which establishes the precise location of the second employee observed by Mr. Smith, in the catch basin excavation area. (see Opinion).

24. There is evidence that somewhere from the time the catchbasin excavation was dug to the time of Mr. Smith's appearance on the scene, the catchbasin excavation [*29] was 6 or more feet deep.

25. During this unspecified time, Respondent had at least two of his four employees working in the unsupported excavation at a depth of 6 or more feet.

26. The gravity of the violation is found to be low due to the weakness, and lack of, evidence to establish the length of time any of Respondent's employees worked in the excavation at a depth of 6 or more feet, the small number of employees exposed, and the low probability of an accident occurring. The probability of a serious injury if an accident occurred due to this violation, is deemed high, and the violation is found to be serious. (see Opinion).

27. Taking into consideration Respondent's size, prior history and the low gravity factor of the violation, the penalty for the serious violation of 29 C.F.R. 1926.652(b) is assessed at $150.00. No credit is given for good faith, as none is evident from the record. (see Opinion).

28. The proposed penalty of $85.00 for the violation of 29 C.F.R. 1926.652(h) is approved, based on the statutory considerations given by Complainant in arriving at a proposed penalty for this item.

CONCLUSIONS OF LAW

1. Respondent is, and at all times relevant [*30] herein was, engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter of, and parties to, this citation.

3. Respondent was in violation of 29 C.F.R. 1926.652(b) on March 14, 1973.

4. The violation of 29 C.F.R. 1926.652(b) was a serious one within the meaning of the Act.

5. A penalty of $150.00 is assessed for the serious violation of 29 C.F.R. 1926.652(b).

6. Respondent was in violation of 29 C.F.R. 1926.652(h) on March 14, 1973.

7. A penalty of $85.00 for the violation of 29 C.F.R. 1926.652(b) is proper.

ORDER

Due deliberation having been had on the whole record, it is hereby ORDERED that the Citation for a serious violation of 29 C.F.R. 1926.652(b), issued to Respondent on March 16, 1973, is affirmed, it is further ORDERED that the Notification of Proposed Penalty for the serious violation of 29 C.F.R. 1926.652(b) is vacated, and a penalty of $150.00 is assessed for this violation it is further ORDERED that the Citation for a non-serious violation of 29 C.F.R. 1926.652(h) issued to Respondent on March 16, [*31] 1973, is affirmed, and the proposed penalty of $85.00 is affirmed.