Docket No. 522

BI-CO PAVERS, INC.

OSHRC Docket No. 522

Occupational Safety and Health Review Commission

December 6, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision issued by Judge John S. Patton. Judge Patton affirmed Complainant's citation for non-serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter "the Act"), alleging that Respondent violated a regulation published at 29 C.F.R. 1926.652(b). n1

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n1 The regulation is cited as currently numbered. It provided: Sides of trenches in unstable or soft material, 4 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).

The regulation was amended on February 17, 1972, so as to apply to trenches five feet or more in depth (37 Fed. Reg. 3518 (1972)).

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Having considered the entire record, we conclude the Judge erred by finding that Respondent violated section 5(a)(2) of the Act and the cited regulation. Accordingly, we adopt the decision of the Judge only to the extent it is consistent with the following decision.

On October 22, 1971, Respondent had dug a trench for the installation of a trunkline sewer for the city of Lake Charles, Louisiana. The trench, which was dug in clay soil known as "gumbo", was 4 1/2 to 5 feet deep and was sloped at an angle of 2 to 1. It was not shored. A portion of the trench collapsed, injuring two of Respondent's employees.

The regulation in question provided, in relevant part, that "[s]ides of trenches in unstable or soft material . . . shall be sloped . . . or otherwise supported by means of sufficient strength to protect the employees working in them" (emphasis added). It also refers to tables P-1 and P-2 following paragraph (g). Table P-1 indicates the degree of sloping required in various types of soils. Table P-2 describes the type of shoring required. Table P-1 contains the following note at the lefthand margin:

Clays, Silts, Loams or Non-Homogenous Soils Require Shoring and Bracing.

The Presence of Ground Water Requires Special Treatment.

Complainant contends, and the Judge concluded, that the note referred to in Table P-1 mandates that all trenches of at least the depth specified in the cited regulation be shored even though they are properly sloped if they are dug in "Clays, Silts, Loams, or Non-Homogenous Soils." We cannot agree.

The cited regulation clearly provides that sloping of trenches in unstable soil satisfies the standard as an alternative to shoring. In the case before us, it is undisputed that Respondent satisfied the standard by sloping at a 2 to 1 ratio, the maximum slope shown in Table P-1. This slope is sufficient for well-rounded loose sand. Such sand is less stable than the type of soil in which Respondent had dug the trench. Were we to give effect to the note in Table P-1 relied on by Complainant and the Judge, we would find the disjunctive phrasing of the cited standard meaningless. In sum, we find the interpretation urged by Complainant and adopted by the Judge inconsistent with the cited regulation and with the table itself.

Our conclusion is not altered because an accident occurred. As we have stated previously, the fact that an accident occurred does not establish a violation of the Act. Secretary of Labor v. Hanovia Lamp Division, Canrad Precision Industries, Inc., Here the evidence establishes that the probable cause of the collapse was the undermining of the side of the trench in order to tighten bolts on the pipe being installed. The collapse was not related to the trench's angle of repose. It may be that allowing the undermining without other precautions violated section 5(a)(1) of the Act or violated section 5(a)(2) by violating a different standard; but neither of these was alleged or tried. Such possible allegations are not before us, and we do not consider them.

Accordingly, it is ORDERED that the citation and proposed penalty are vacated.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER concurring: This is a case where an effective application of the Act concerning a trenching hazard has been frustrated by a failure to plead alternatively violations of section 5(a)(1) of the Act and the particular standard on the facts involved. See Secretary of Labor v. Sun Shipbuilding and Drydock Co., Section 12(g) of the Act provides, in pertinent part, that "Unless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure." The Commission has reiterated that mandate in its rule 2200.2(b). The Commission has not adopted any rule not permitting alternative pleading. Accordingly, rule 8(a) and (e) of the Federal Rules of Civil Procedure providing for alternative pleading should apply.

[The Judge's decision referred to herein follows]

PATTON, JUDGE, OSAHRC: This case is before this Judge on the complaint of James D. Hodgson, Secretary of Labor, United States Department of Labor, hereinafter referred to as plaintiff, against Bi-Co Pavers, Inc., the respondent, hereinafter referred to as respondent alleging that respondent has violated section 5(a)(2) of the Occupational Safety and Health Act of 1970, (80 Stat. 1604; 29 U.S.C. 651, et seq. ), hereinafter called the Act and Occupational Safety and Health Standards 29 C.F.R. 1926.652(b). It is alleged that a non-serious violation occurred in that on October 22, 1971, the respondent failed to properly brace a trench in which its employees were working with the result that two of said employees were injured.

Citation was issued by the Department of Labor alleging said violation, and a penalty in the amount of $35 was proposed. The respondent filed a notice of contest to said citation whereupon the aforesaid complaint was filed by the plaintiff. Hearing was held before John S. Patton, Judge in Lake Charles, Louisiana, on June 12, 1972. Mr. William E. Everhart, Attorney appeared as counsel for the plaintiff. The respondent was not represented by counsel but Mr. Willard Smith, Vice-President and Safety Engineer of respondent, represented respondent at the hearing. Plumbers and Steam Fitters Local Union 106 which represented some of the employees of the respondent working on said project intervened. Mr. Thomas B. Simmons, Business Agent of said intervenor represented intervenor at the hearing. The parties were accorded the right to present evidence and orally argue the case. The parties were accorded the right to file written briefs, but the privilege of filing written briefs was not requested and no briefs have been received.

LAW AND ISSUES OF THE CASE

Occupational Safety and Health Standard 29 C.F.R. 1518.652(b) now 1926.652(b) provides as follows:

Side 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).

Table P-1 contains the following statement: "Clays, silts, loams or non-homogenous soils require shoring and bracing." The issue for determination, therefore, is whether the soil in which the trench was dug was clay, silts, loams or non-homogenous soil, and if so, whether there was proper shoring and bracing. In the event the soil was of a stable nature, the question for determination is whether there was a proper shoring and bracing or whether there was adequate slope in the sides of the trench.

EVIDENCE OF THE CASE

It was testified by Mr. Ross B. Cates, Jr., Office Manager and Vice-President of the respondent that respondent is a general contractor employing approximately 150 employees at Lake Charles, Louisiana. He stated that on October 22, 1971, the respondent was installing a central trunk line sewer for the City of Lake Charles. He stated that the city was installing said central trunk line to take care of all the area they had recently taken into the city limits, including the Air Base so they could tie the two systems together. He stated that the company also engages in road paving activities for the City of Lake Charles and the State of Louisiana. He stated that work on said contract of the city was begun as best he could recall in the Month of June, 1971. He testified that at the time of the hearing work was substantially completed; that it had been substantially completed in December, 1971, although some work had been done the week preceeding the hearing. He stated that approximately ten employees were working on this job. He testified that they were working at a place located at Kayoche Coulee and Legion Street. They were making a pipe line across a Coulee. He stated that a Coulee is a type of canal.

It was testified by Mr. Fuzzy Wyble that he was job supervisor on said project. He stated that approximately 18 inches and two feet of water was in the coulee. He stated that it was filled in with dirt and the water was diverted around the end of it, that therefore, there was water on both sides of the fill. He stated that the soil with which it was filled was commonly known in the area as gumbo. He stated that this is a clay-type of soil. The fill was described as about two feet to two and one-half feet deep; 18 inches of water and they got about six inches above the water. They cut about a three and a half to four foot ditch under the bottom of the trench. He stated the dirt was thrown on the side. He described the distance from the top of the fill to the bottom of the trench was about 12 or 13 feet. He stated this was only an estimate. He stated however, that the trench was about 30 feet long; he could not see over the top. He stated there were approximately seven feet of dirt thrown out of the ditch. The ditch was about 30 feet long and approximately 54 inches wide at the bottom and 15 to 18 feet wide at the top. He expressed the opinion that it was not subject to cave-ins because of the amount of slope on the sides of the trench.

Mr. Homer Howell said that the ditch was about 54 inches wide at the bottom and about 15 to 18 feet at the top. Mr. Howell stated that he had worked on the job. He testified that the ditch was safe in his opinion because there was better than a two to one slope up the ditch and it would not cave-in. Both Mr. Howell and Mr. Wyble stated that there was no shoring of the sides of the trench. Both witnesses testified that on October 22, 1971, there was a cave-in of some of the dirt causing it to strike the legs of two of the employees. Mr. Howell estimated the dirt which fell as weighing between 150 to 200 pounds. Both Mr. Wyble and Mr. Howell testified that in their opinion the collapse would not have occurred but for the fact that the employees undermined the sides of the ditch by digging a hallow area out of the side of it so as to properly bolt the pipes together. Mr. Wyble stated that they used some natural soil to make the dyke, that the only slush in the dam or canal was what was pushed up out of it with the clay and other materials put in. The testimony was to the effect that neither of the said employees were badly injured that they were sent to the doctor as a precaution and were able to return to work.

EVALUATION OF THE EVIDENCE

As above stated, the issues for determination are whether the total area, from the beginning to top of the ditch was in excess of five feet and if the soil was clay, silt, loam, or non-homogenous soils whether there was shoring and bracing of the side of the ditch. In the event it was stable soil, not consisting of the above-described types of soil, the requirement of adequate precaution would be met by a proper sloping of the sides of the ditch or trench. I am of the opinion that the evidence clearly establishes that the total depth of the ditch was in excess of five feet. The area from the bottom of the canal to the bottom of the ditch was described as three and a half to four feet. The area of water which had been above this area was 18 inches and an additional six inches existed above that, making a total of five and a half to six feet in depth. In addition to this there was approximately seven feet of dirt thrown out on the sides of the banks of the trench. Mr. Wyble did not actually measure the depth but the witness stated that he built that type of a ditch just about every day; that his main job was deep construction of sewers. His estimate would therefore, have some reliability. Further be noted that he was five feet, nine inches tall and that he could not see over the trench. I am of the opinion that the total area was, therefore, in excess of five feet in depth. It is admitted by the witnesses that gumbo clay soil was the type of soil that existed on the side of the trench. The regulation specifically provides that if there is clay soil, the type of soil on the side of the ditch, sloping the sides of the ditch is not adequate but the only adequate precaution consists of proper shoring and bracing.

It is the position of the respondent that because of the sloping at approximately two to one level the condition was a safe one. This is an argument that should properly be addressed to the Secretary of Labor in an application for a variance. The Occupational Safety and Health Act provides that a request may be made of the Secretary of Labor for a variance from a standard upon a proper application being filed. There is no provision in the Act, however, for a change of a standard by the Review Commission or any of its Judges. It would be to exceed my authority for me to pass upon the appropriateness or the wisdom of the standard. I can only determine what the standard is and whether or not it has been met. It is apparent that the standard does require bracing and shoring where the sides of the ditch consist of clay and sloping is not an adequate substitute. The undisputed evidence is to the effect that the type of soil in this case was clay. The evidence clearly shows that the total depth was in excess of five feet. It is, therefore, apparent that the standard has not been met.

It is contended that decision should be in favor of the respondent because of the fact that the two men allegedly injured were only slightly injured and that the injury was caused by their undermining the sides in properly bolting the pipes together. There is no indication that this bolting was not necessary and that this was not a necessary incident to the performance of the job. The condition should be safe for the employees when bolting the pipes as well as other times. It is true that no substantial injury resulted but if 150 to 200 pounds of dirt falls upon a man, as happened in this instance, it is quite possible that a more serious injury could result.

I am of the opinion, however, that because of the sloping of the sides of the ditch, there has been some reduction in the risk that would otherwise be entailed and for that reason agree with the position of the plaintiff that the violation may be classified as a non-serious violation. I am of the opinion that under the circumstances of this case the $35 penalty is appropriate. I, therefore, make the following findings of fact.

FINDINGS OF FACT

1. Respondent has been at all times relevant to this case a company engaged in construction primarily in road paving and laying of sewers including connecting of sewerage systems between the City of Lake Charles, Louisiana, and the United States Air Base. Respondent also constructs highways over which people move in interstate commerce.

2. Plumbers and Steam Fitters Union, Local 106, the intervenor in this cause is the authorized representative of part of the respondent's employees. The Laborer's Construction Union 207 is the authorized employee representative of other of respondent's employees.

3. At all times relevant to this case the respondent was engaged in a business affecting interstate commerce.

4. On October 22, 1971, and on October 28, 1971, respondent was laying a sewer for the City of Lake Charles at Kayocag Coulee, in the City of Lake Charles, Louisiana.

5. On said date, in the performance of said contract to lay a sewer, the respondent was digging a trench across a coulee, which is a type of canal.

6. The soil in which said trench was built was gumbo clay soil.

7. The respondent dug a ditch three and one-half feet deep and built up a dam to diverge the water approximately two feet high, making a total height from the bottom of the ditch to the top of the dam of five and a half to six feet. On October 22, 1971, two employees of respondent who were working in said trench were slightly injured by a cave-in of dirt weighing approximately 150 to 200 pounds.

8. The cave-in was caused, at least in part, by the undermining of the sides of said ditch by said employees in digging out dirt for the purpose of tightening bolts on the pipe connections.

9. On said date the respondent did not in any way brace or shore the side of said ditch or dam.

CONCLUSIONS OF LAW

1. Respondent is engaged in a business affecting interstate commerce and comes within the jurisdiction of the Occupational Safety and Health Act and Occupational Safety and Health Review Commission.

2. On October 22, 1971, the respondent was in violation of Standard 1926.652(b) in that it permitted its employees to work in a ditch of clay soil in excess of five feet high which was not properly shored or braced.

3. Said violation is a non-serious violation and the proposed penalty of $35 is proper.

ORDER

It is, therefore, ORDERED that the respondent be and hereby is found to be in violation of Occupational Safety and Health Standard 29 C.F.R. 1926.652(b).

The respondent be and hereby is assessed a penalty in the amount of $35.