CCI, INC.  

OSHRC Docket No. 76-1228

Occupational Safety and Health Review Commission

December 30, 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

Robert H. Jacobvitz, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This case is before the Commission for review under section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Respondent, CCI, Inc., n2 is a contracting-engineering firm based in Albuquerque, New Mexico.   On February 24, 1976, CCI was laying a sewer line near Alamogordo, New Mexico, when its worksite was inspected by an authorized representative of the Secretary of Labor ("Secretary").   As a result of that inspection, three citations were issued.   Respondent timely contested all three citations and a hearing was held before Administrative Law Judge Henry F. Martin, Jr.   The judge affirmed two citations and vacated the other.   The Secretary petitioned for review of that portion of the judge's decision dealing with the single vacated citation, and review was granted by Chairman Cleary on the following issue:

Whether the Administrative Law Judge erred in vacating the citation alleging noncompliance with the standard at 29 CFR [*2]   §   1926.652(c) because he failed to consider evidence about the nonhomogeneity of soil types in the walls of the inspected trench.

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n1 29 U.S.C. §   661(i).

n2 At the time of the inspection and the issuance of the citation, Respondent was operating under the name Co-Con, Inc.   While this case was before the Commission on review, counsel for Respondent filed on February 7, 1980, a Notice of Name Change stating that Co-Con, Inc. has changed its corporate name to CCI, Inc.

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We find that the judge did err.   The record in this case establishes that the earth in the sides of the trench was of a type to which the standard at 29 C.F.R. §   1926.652(c) n3 applies and that the walls of the trench were not sloped or supported as required by the standard.   We reverse the judge's decision with respect to this citation and affirm a serious violation of the Act for failure to comply with the cited standard.

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n3 Section 1926.652(c) provides, in pertinent part, as follows.

(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.

"Hard compact soil" is defined at 29 C.F.R. §   1926.653(h) as "All earth materials not classified as running or unstable."

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I

At the hearing, the compliance officer who conducted the inspection testified that the trench at issue was open for a distance of 600 to 700 feet at the time of the inspection, the trench varied in depth from 13 to 15 feet, its walls were vertical, and Respondent's foreman and three groups of employees were working in the open trench when she arrived.   The compliance officer stated there were two strata of earth in the trench walls.   The top layer was mostly sand, with some clay in it.   This layer was about two feet deep in one place but was 9 or 10 feet deep in other places.   The bottom layer appeared to be mostly clay, with some silt. The compliance officer testified that the soil in the walls of the trench was "fairly loose" and was not cemented. It crumbled readily in her hand during the inspection, and she took a "grab sample" of earth from the trench wall to have it analyzed.   The results of this analysis were not introduced into evidence, but the compliance officer testified that the results supported her initial determination that the trench was dug in hard or compact soil within the meaning [*4]   of the standard.   During the inspection she saw employees in the trench operating a small "caterpillar dozer" and a tamper.   In the compliance officer's opinion, this equipment caused vibrations that might induce a cave-in.   The compliance officer also testified that there was vibration caused by traffic on the nearby road and by Respondent's heavy equipment.

Robert K. Lloyd, a soils foundation engineer called as a witness by the Secretary, testified that his laboratory received a telephone request from the compliance officer to take soil samples from locations where the trench had been open at the time of the inspection. Six test holes were dug at the locations specified in the request.   The test holes were dug in late April, two months after the inspection. Mr. Lloyd testified that an analysis of the soil samples showed that there were layers of different soils. He stated that the soils were primarily clays and silts, and he classified the soils as hard and compact.

Quentin E. Daniel, who testified for the Secretary, was consulting engineer for the city of Alamogordo on the sewer line construction project.   In that capacity, he visited the site frequently, sometimes as often [*5]   as twice a day.   He is a civil engineer with twenty-six years' experience and is familiar with the soils in the area.   He testified that the walls of the trench were made up of different types of soil, including a heavy caliche and adobe loam or clay. He testified that he regularly witnessed soil "sloughing off" the trench walls.   His testimony was that the soil was not hard shale, cemented sand, or cemented gravel. On cross examination, Mr. Daniel was asked if he ever saw Respondent's equipment break because of the hardness of the soil. He testified that the equipment breakage was only partially the result of the hardness of the soil. He stated that some of the equipment was worn badly and that the breakage resulted from the age and poor condition of the equipment.   Mr. Daniel also testified that the compacting equipment used in the trench caused vibrations that could cause the soil to slide.

Respondent called as a witness its project engineer, Clabe Wicker.   Mr. Wicker is a registered civil engineer who has twenty-five years of experience in earth excavation.   He testified that there were different layers of soil in the trench walls.   He testified that the earth materials in [*6]   the trench walls were "gypsum and dirt," that gypsum would bond the other soils, and that the walls were cemented sand. He testified that Respondent attempted to slope the trench walls but the soil was so hard that the equipment kept breaking, so the sloping could not be accomplished.   On cross examination, he described the earth in the trench walls as "hard soil." He stated that the soil in the trench was layered and that the trench walls were "gypsum and dirt." Mr. Wicker also stated that gypsum becomes soft when it gets wet, making a cave-in possible.

Leon Siegel testified as an expert witness on behalf of Respondent.   Mr. Siegel holds a master's degree in chemical engineering.   His laboratory performed a chemical analysis on two soil samples submitted by Respondent.   Mr. Siegel indicated that he was told that one sample came from the top part of the trench and the other from the bottom of the trench. The two samples differed in appearance and content, but both had a high gypsum content.   Mr. Siegel testified thay gypsum very readily cements other earth materials and makes a rigid bond.

James Baker, CCI's field engineer, testified that penetrometer readings he took during construction [*7]   indicated that the soil in the trench walls would be stable at much greater depths than those at which CCI was digging, even if vertical and unsupported.   On voir dire, he testified that he had never calibrated the penetrometer he used.

Donald T. Lopez was called as witness for the Secretary on rebuttal.   He is a civil engineer employed in the Soils Design Section of the U.S. Army Corps of Engineers and has a master's degree in civil engineering.   Mr. Lopez indicated that penetrometer readings alone were not reliable without laboratory test data because the penetrometer is not an exact method of determining the shear strength of soils. He also testified that penetrometers must be calibrated regularly in order to assure the accuracy of their readings.   Mr. Lopez testified that homogenous soil is not stratified with different types of soils but is all one kind of soil. He stated that the stability of nonhomogenous stratified soil is dependent upon the weakest layer of the soil.

In his decision, the administrative law judge stated that the standard does not require shoring for solid rock, hard shale, or hard slag.   He stated that the crucial question of fact to be determined is "whether [*8]   the trench was dug in hard or compact soil or whether the materials in the sides of the trench were hard or solid enough to fall within the category of rock, shale, or cemented sand or gravels as referred to in Table P-1." He concluded that there was conflicting evidence as to the type of soil and that it was impossible to determine from the record in what classification the soil should be placed.   The judge held that, since the Secretary had the burden of proof and no determination could be made on the record, the violation was not proven.   Accordingly, he vacated this citation.

II

The Secretary petitioned for review of the judge's decision on the ground that the judge erred in concluding that the Secretary had failed to carry his burden of proof.   The Secretary argued that the judge ignored evidence "that the trench walls were composed of nonhomogenous soils." The Secretary's petition was granted by Chairman Cleary.

The Secretary's first argument on review is that the sides of the trench were shown to be hard, compact soil within the meaning of section 1926.652(c).   The Secretary's second argument is that the standard requires nonhomogenous soil to be supported, that the soil [*9]   in the sides of the trench was shown to be nonhomogenous, and that Respondent has not shown that the soil was cemented sand. In support of this argument the Secretary refers to the "note" in Table P-1 of section 1926.652 n4 which states, "Clays, Silts, Loams or Non-homogenous Soils Require Shoring and Bracing." He maintains that the evidence shows that the walls of the trench were composed of nonhomogenous soils.

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n4 Table P-1 is entitled "Approximate Angle of Repose for Sloping of Sides of Excavations." The table graphically indicates the sloping requirements to be met by an employer who chooses the alternative of sloping the trench walls instead of shoring them.   The table indicates that in solid rock, shale, or cemented sand and gravels the walls may be at an angle as steep as 90 degrees, that is, vertical.   The "note" says, "Clays, Silts, Loams, or Non-Homogenous Soils Prequire Shoring and Bracing.   The Presence of Ground Water Requires Special Treatment."

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Respondent's argument also relies on the tables in the [*10]   standard.   Citing Tables P-1 and P-2 of section 1926.652, n5 Respondent argues that section 1926.652(c) does not apply where the trench walls are composed of cemented sand, cemented gravel, solid rock, hard shale, or hard slag.   Respondent also argues that the Secretary must prove that the trench walls were not composed of those types of material and that the Secretary has failed in this proof.   Respondent further argues that shoring is not required for trenches dug in material comparable in hardness to those listed above and that its trench was dug in soil comparable in hardness to those listed.

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n5 Table P-2, entitled "Trench Shoring -- Minimum Requirements," states the minimum requirements for trench shoring in different types of soils at different depths. It contains a note that: "Shoring is not required in solid rock, hard shale, or hard slag."

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Additionally, Respondent maintains that a violation was not proven because the soil analysis introduced by the Secretary was taken after the date of the inspection and [*11]   was not taken at the exact location of the inspection. Respondent urges that, because of the Secretary's failure to introduce results of tests of the soil samples taken during the inspection, we must infer that these results would be less favorable to the Secretary's case than the test results that were introduced.

III

We reverse the judge and affirm the citation because we find that the Secretary has shown that a significant portion of the soil in the unshored trench walls was hard, compact soil as opposed to solid rock, shale, or cemented sand and gravel.

Under 29 C.F.R. §   1926.652, earth material is classified either as soft and unstable or as hard or compact soil. n6 29 C.F.R. §   1926.653(h); Heath & Stich, Inc., 80 OSAHRC    , 8 BNA OSHC 1640, 1980 CCH P24,580 (No. 14188, 1980).   In contrast with trenches dug in "hard or compact soil," which are governed by section 1926.652(c), trenches dug in "unstable or soft material" are governed by section 1926.652(b).   The Commission has discussed the interrelationship between sections 1926.652(b) n7 and (c) and the application of Tables P-1 and P-2, stating, "Read together, the standards [29 C.F.R. § §   1926.652(b) and (c)], inform [*12]   employers that some protection is required in any trench 5 feet or more in depth dug in soil." Connecticut Natural Gas Corp., 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1799, 1978 CCH OSHD P22,874 at p. 27,668 (No. 13964, 1978).   We have further stated that Tables P-1 and P-2 contain guidelines for the proper sloping and shoring of trenches of various dimensions in various soil types.   Duane Meyer d/b/a D.T. Construction Co., 79 OSAHRC 57/D4, 7 BNA OSHC 1560, 1979 CCH OSHD P23,742 (No. 16029, 1979); Connecticut Natural Gas Corp., supra.

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n6 The terms "unstable soil" and "hard compact soil" are defined in §   1926.653.   "Hard compact soil" is defined in 29 C.F.R. §   1926.653(h) as "All earth materials not classfied as running or unstable." "Unstable soil" is defined in 29 C.F.R. §   1926.653(q) 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."

n7 Section 1926.652(b) provides:

Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them.   See Tables P-1, P-2 (following paragraph (g) of this section).

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Solid rock, shale, or cemented sand and gravels are treated as something other than the types of soil covered by § §   1926.652(b) and (c).   Heath & Stich, supra, 8 BNA OSHC at 1643, n.8, 1980 CCH OSHD at p. 30,151, n.8. Under the trenching standards as amplified by the advisory tables, an unshored trench may have a 90 degree angle of repose only where the trench is dug in solid rock, shale, or cemented sand and gravel. Table P-1 also states that nonhomogenous soils must be supported.   The Commission has recognized that the ground in which a particular trench is dug may be composed of a number of different types of soils of varying hardness and stability.   Thus, in W.N. Couch Construction Co., 76 OSAHRC 44/A2, 4 BNA OSHC 1054, 1975-76 CCH OSHD P20,574 (No. 7370, 1976), a case in which a trench was dug in a mixture of hard, compact and soft soils, we 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 more stringent protective requirements of section 1926.652(b).   [*14]   The underlying principle upon which the Commission decision in W. N. Couch rests -- that a trench wall composed of soils of differing strengths is only as stable as its weakest component -- applies here as well.   A trench wall composed of solid rock, shale, or cemented sand and gravel interlayered with areas of hard compact soil will be considered to be the weaker of the two types of materials where the hard and compact components constitute a significant portion of the trench walls.   Thus, if a significant part of the material in a trench wall is hard or compact, the trench must be supported in accordance with the requirements of section 1926.652(c) even if some portion of the trench wall is composed of solid rock, shale, or cemented sand and gravel.

To establish a prima facie showing of noncompliance with section 1926.652(c), the Secretary must show that (1) the trench at issue is at least 5 feet deep and at least 8 feet long, (2) the trench is neither shored nor sloped appropriately, and (3) a significant portion of the trench wall is composed of hard or compact soil. A respondent may then rebut this prima facie case by proving that its trench was dug entirely in solid rock,   [*15]   shale, or cemented sand or gravel, which are not required to be shored or sloped.

IV

For the reasons that follow, we find that the Secretary has made a prima facie showing that Respondent failed to comply with the standard at 29 C.F.R. §   1926.652(c) and that Respondent has failed to rebut this showing.

The photographic exhibits show that the trench walls were neither shored nor sloped, a situation undisputed by Respondent.   The compliance officer testified without contradiction that the trench was 13 to 15 feet deep and 600 to 700 feet long.   Although there was disagreement as to the precise nature and strength of the soil, all witnesses agreed that the trench walls had layers composed of different types of earth material.   Thus, the trench was dug in nonhomogenous earth materials.   Witness Lopez specifically testified that the stability of nonhomogenous soil is dependent upon the weakest layer in that soil. It is also clear that a significant portion of the soil was hard, compact soil. Although the witnesses did not agree as to the precise nature of the soil, they all described it in one way or another as hard or compact. We therefore conclude that the Secretary has established [*16]   a prima facie case of noncompliance with the standard at 29 C.F.R. §   1926.652(c).

Respondent contends that the record evidence supports its claim that the trench was dug in cemented sand, thus allowing a 90 degree angle of repose.   Respondent cites the judge's statement that Mr. Wicker was "convincing" when he gave his opinion that the material in the trench was cemented sand. Respondent argues that this statement is credibility determination and should not be disturbed.   We disagree.   The judge did not make any finding of fact that the trench was dug in cemented sand. Instead, he stated that, in light of all of the testimony, "there is certainly room to argue that cemented sand was in the sides of the trench." The judge then concluded that, from the record, he could not determine the composition of the soil.

Even if we were to view the evidence as to the composition of the soil in the light most favorable to Respondent, the most that could be said would be that the trench material was, in some part, cemented sand. There is no contention and no evidence that the material was entirely solid rock, shale, or cemented sand and gravel. Further, the evidence demonstrates that the   [*17]   trench was dug primarily in hard or compact soil. Such a conclusion is consistent with our finding that the earth material was nonhomogenous. In sum, the evidence does not establish that the trench material was completely or indeed predominately of the type that need not be supported.

Respondent has argued that the soil analysis in evidence does not show the composition of the soil at the time and the place of the inspection. We have not, however, relied on testimony or exhibits based on the soil samples.   There is no reliable evidence to show that the analyses introduced by either party were of samples taken at or near the site of the inspection, so the probative value of this evidence is, at best, questionable.   The reliability of the evidence regarding soil tests is diminished further by the disparity between the results of the two tests.   One test performed for Mr. Lloyd showed a gypsum content of 2 percent in one sample hole, but the tests performed by Mr. Siegel indicate that one sample tested had a gypsum content of over 74 percent.   The record also leaves unanswered the question as to the effect of weather on the cementing properties of the sypsum in the soil.

In any event,   [*18]   even if we did rely on the soil samples and tests, we would still find that Respondent was not in compliance because the tests indicated the presence of significant amounts of clays and silts. Cf. W.N. Couch Construction Co., supra (the presence of significant amounts of soft or unstable soil in the walls of a trench otherwise dug in hard and compact soil brings the trench within the requirements of 29 C.F.R. 1926.652(b)).

We also reject Respondent's argument that we must draw an inference adverse to the Secretary because the Secretary failed to introduce the results of testing done on the soil samples taken by the compliance officer during the inspection. Respondent argues that we must infer that the results of that analysis would be less favorable to the Secretary's case than the test results that were introduced.   We have previously held that it is reasonable to draw such an inference.   See Adler & Neilson Co., Inc., 77 OSAHRC 33/B6, 5 PNA OSHC 1130, 1977-78 CCH OSHD P21,609 (No. 13380, 1977).

When the party who has failed to introduce the evidence offers testimony to explain this failure or to contradict the inference, the inference cannot be drawn unless [*19]   the fact finder specifically rejects this testimony.   II Wigmore On Evidence, §   291 (1940).   Here, the inference is rebutted by evidence in the record that contradicts it.   The compliance officer testified that she did not issue the citation alleging a violation of section 1926.652(c) until she received the results of soil tests and that the results supported her initial opinion that the soil was hard and compact. She testified that the citation would not have been issued if the test results had not indicated that it was warranted.   Therefore the compliance officer's testimony contradicts the negative inference that might be drawn.   We do not accept the compliance officer's testimony as to the test results from the first samples, standing alone, as sufficient to prove the Secretary's case.   It is, however, sufficient for the limited purpose of contradicting the negative inference.   See Case v. New York Central Railroad Co., 329 F.2d 936 (2d Cir. 1964).

A penalty of $550 was proposed by the Secretary.   Having considered the evidence of record and the factors to be considered under section 17(j) of the Act, 29 U.S.C. §   666(i), we find that penalty to be appropriate.   Accordingly,   [*20]   the decision of the administrative law judge is modified to affirm a serious violation of the Act for failure to comply with the standard at 29 C.F.R. §   1926.652(c), and a penalty of $550 is assessed.

SO ORDERED.