Docket No. 76-2802

EDWARD KELLY & SONS, INC.

OSHRC Docket No. 76-2802

Occupational Safety and Health Review Commission

January 29, 1982

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Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

William S. Kloepfer, Regional Solicitor, U.S. Department of Labor

Richard S. Baker, for the employer

Peter Nash, amicus curiae

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Cecil L. Cutler is before the Commission pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). In his decision, Judge Cutler affirmed a citation that alleged a serious violation of the Act for the failure of Respondent, Edward Kelly & Sons, Inc., to comply with the standard found at 29 C.F.R. § 1926.652(b). n1 Respondent had sloped the top seven feet of soft, unstable soil in a twelve-foot deep trench, but had not sloped the bottom five feet of hard and compact soil. For the reasons that follow, we conclude Respondent complied with the applicable sloping requirements. Accordingly, we reverse Judge Cutler's decision and vacate the section 1926.652(b) citation.

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n1 29 C.F.R. § 1926.652(b) provides:

§ 1926.652 Specific trenching requirements.

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

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Respondent is a Toledo sewer contractor employing twenty to twenty-five employees. On May 13, 1976, Respondent was laying thirty-inch concrete sewer pipe into a trench in Holland, Ohio. The trench was twelve feet deep, four to five feet wide at the bottom, and twenty to twenty-two feet wide at the top. During the course of the morning, the depth of the trench increased from seven or eight feet to twelve feet as the work progressed up the rise of a slight hill. The bottom five feet of the trench consisted of hard, blue clay; the soil above the five-foot level consisted of "average" soil, composed of brown, sandy clay. Only the top portion of the trench above the five-foot section of hard, blue clay was sloped. The bottom five feet of the walls were vertical. The soil was wet around utility pipes which were about five feet from the surface and which had broken. As the work proceeded up the hill, Doug McKee, an Occupational Safety and Health Administration ("OSHA") compliance officer, inspected the site. He observed three men working in the trench near the bottom. n2

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n2 The compliance officer was the Secretary's only witness. At the close of his testimony, Respondent moved for an involuntary dismissal pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Respondent argued that the Secretary had failed to show that the sides of the trench were not sloped sufficiently to protect employees working within and that there was no showing employees were subjected to a hazard. Administrative Law Judge Garl Watkins, who was initially assigned to hear the case, granted the motion and asked for briefs from both parties. Prior to issuing an official order, Judge Watkins died. The case was reassigned to Judge Cutler, who concluded that Judge Watkins had incorrectly granted Respondent's motion and issued an order on March 8, 1978, denying Respondent's motion. Respondent argues on review that Judge Watkins' oral statement granting Respondent's motion was a judicial action leaving entry of a written order only a ministerial formality and, therefore, that Judge Cutler erred in denying Respondent's motion.

We reject Respondent's argument. Under § 12(j), 29 U.S.C. § 661(i), of the Act and Commission Rule 90, 29 C.F.R. § 2200.90, a judge retains jurisdiction of a case until his report of the case is docketed by the Commission's Executive Secretary. Once a judge's report is docketed, he no longer has jurisdiction. Singleton Sheet Metal Works, 73 OSAHRC 6/F6, 1 BNA OSHC 1062, 1971-73 CCH OSHD P15,273 (No. 878, 1972). However, until the judge's report is docketed, it is not submitted for consideration to Commission members and may be modified by the judge. Rob't W. Setterlin, 76 OSAHRC 53/D8, 4 BNA OSHC 1214, 1975-76 CCH OSHD P20,682 (No. 7377, 1976); Gurney Industries, 74 OSAHRC 8/A2, 1 BNA OSHC 1376, 1973-74 CCH OSHD P16,805 (No. 722, 1973). Accord, H.S. Holtze Construction Co. v. Marshall, 627 F.2d 149 (8th Cir. 1980).

In this case, Judge Watkins did not file a written decision with the Executive Secretary. Therefore, the judge retained jurisdiction of the case and could have reversed or modified his ruling. The parties agreed that the record made before Judge Watkins would stand and be considered part of the record before Judge Cutler. Judge Cutler therefore had the same authority to consider the record as had Judge Watkins. Accordingly, Judge Cutler had jurisdiction of the case and had the power to deny Respondent's motion to dismiss.

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Henry Combs, Respondent's foreman at the construction site, testified that as the work on the trench proceeded up the hill, the bottom of the trench, about the lower five feet, was composed of blue, hard clay and the remainder of the trench, approximately seven feet, was composed of average soil consisting of a brown, sandy clay. On the hill, three gas line conduits and drain tiles laid to get rid of water in the field had been broken. Mr. Combs stated that some water had run out of the broken drain tiles into the bottom of the trench. The water was drained through the sewer pipe already laid. The foreman stated that the average soil above the five-foot level was sloped but that the bottom five feet was not sloped because the soil was hard, blue clay. Mr. Combs stated that he thought the trench was safe.

Respondent also presented as witnesses two experienced safety inspectors, Lloyd Oliver and William Moening, from the Ohio Industrial Commission's Division of Safety and Hygiene. They had arrived at Respondent's worksite to make a routine inspection at the same time that the OSHA compliance officer [*5] was making his inspection. Mr. Oliver stated that there was some clay towards the bottom of the trench and then some sand and a loam top soil. Mr. Moening stated that the bottom four or five feet was solid blue clay and the next five or six feet was sand. On top, there was some top soil and clay-type soil. They both testified that the sides of the trench were being sloped at an angle of repose for the type of soil excavated and they concluded that the sides of the trench were sufficiently sloped to protect employees working within them from the danger of moving ground. They stated they found no evidence that any soil was likely to slip, slide, or move. Respondent introduced into evidence the Ohio inspectors' reports to that effect.

On May 17, 1976, four days after the compliance officer's inspection, Merle Allen of the Ohio Industrial Commission's On-Site Consultation Service arrived at the site, pursuant to Respondent's request. Mr. Allen previously had been an OSHA compliance officer for the Toledo district office. The On-Site Consultation Service is an Ohio state agency that advises employers concerning the applicability of OSHA regulations. Mr. Allen testified that the [*6] bottom five feet consisted of hard, compact soil and he concluded that the sides of the trench were sloped in compliance with applicable OSHA regulations.

Respondent argued to Judge Cutler that the Secretary had failed to establish that the soil in the trench was "soft and unstable" within the meaning of section 1926.652(b). Respondent further argued that, even if the soil in the trench was considered soft and unstable, Respondent had complied with section 1926.652(b) by sloping all the sandy, brown clay soil above the bottom five feet of hard, blue clay in accordance with the one-to-one sloping requirements for average soil found in Table P-1 to which section 1926.652(b) refers. Respondent argued that section 1926.652(b) should be read in conjunction with section 1926.652(c), n3 which requires sloping of hard, compact soil only above the bottom five feet. Accordingly, Respondent contended that the bottom five feet of hard soil in a trench need not be sloped even if the soil above it is soft and unstable.

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n3 29 C.F.R. § 1926.652(c) provides:

§ 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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Judge Cutler rejected Respondent's arguments. The judge found that the trench "ranged in depth from seven or eight to twelve feet" and was four to five feet wide at the bottom. He also found, relying on Respondent's evidence, that the trench was sloped above the five-foot level to a width of twenty to twenty-two feet at the top. The judge found that the bottom five feet of soil in the trench was blue, hard clay and, above that to the surface, the soil was brown clay with sand in it, described as "average" soil. Judge Cutler concluded this average soil above the five-foot level was soft and unstable soil within the meaning of section 1926.652(b). The judge noted that if sloping were required for only the average soil resting on the hard clay, then Respondent's sloping of the soil above the five-foot level was sufficient to comply with Table P-1 and section 1926.652(b). Relying on Connecticut Natural Gas Corp., 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1978 CCH OSHD P22,874 (No. 13964, 1978), Judge Cutler concluded that Respondent violated section 1926.652(b) by failing to slope the trench from the bottom [*8] because the amount of unstable soil was not negligible. However, because the trench, as sloped, presented a minimal hazard of cave-in or collapse and since Respondent had acted in considerable good faith in attempting to comply with the Secretary's regulations, Judge Cutler assessed a penalty of $1.00.

III

Respondent petitioned for review of the judge's decision. Former Commissioner Barnako directed review of the issues raised in Respondent's petition.

On review, Respondent argues that there was no hazard presented to employees from its failure to slope the bottom five feet of the trench. Respondent relies on the Commission's decision in W.N. Couch Construction Co., 76 OSAHRC 44/A2, 4 BNA OSHC 1054, 1975-76 CCH OSHD P20,574 (No. 7370, 1976) ("Couch"), and points to the Commission's statement in that case that section 1926.652(b) only requires an employer to slope or shore the "soft or unstable constituents of trench walls" in trenches at least five feet deep. 4 BNA OSHC at 1056, 1975-76 CCH OSHD at p. 24,592. Respondent concludes it complied with the requirements of section 1926.652(b) by sloping all unstable soil in its trench. Respondent further contends that Judge [*9] Cutler misinterpreted Connecticut Natural Gas Corp. since Couch, supra, to which Connecticut Natural Gas Corp. refers, only held that section 1926.652(b) requires the sloping of the "soft or unstable constituents of trench walls." n4

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n4 The Associated General Contractors of America has filed an amicus brief in support of Respondent, contending that no violation can be affirmed absent a finding that the trench was dug in soft or unstable soil; that Couch only requires sloping of soft, unstable soil; and that there is no evidentiary basis in this case to conclude employees were not sufficiently protected by sloping soil only above the five-foot level.

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The Secretary argues that a preponderance of the evidence supports the judge's conclusion that the trench was not properly sloped. The Secretary states that to comply with the one-to-one sloping requirements which Table P-1 establishes for average soil, the trench, which was twelve feet deep and four and one-third feet wide at the bottom, should have [*10] been twenty-eight and one-third feet wide at the top. The Secretary continues that since no testimony estimated that the trench's width at the top was twenty-eight and one-third feet, and since the judge accepted Respondent's testimony that the trench was twenty-two feet wide at the top, the trench was not sufficiently sloped. n5 The Secretary concludes that Judge Cutler properly applied the Commission's decision in Connecticut Natural Gas Corp., supra, to affirm the citation and that his decision should be affirmed.

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n5 In his brief on review, the Secretary states that although the only factual dispute at the hearing, the width of the trench at the surface, was decided adversely to him, he does not take exception to the judge's resolution of the factual dispute since a violation was established even accepting Respondent's testimony of the trench's width at the surface. Accordingly, the dimensions of the trench are not in dispute.

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In this case, the trench walls were composed of a distinct layer of hard [*11] soil underneath a distinct layer of soft soil. n6 Respondent sloped the soft layer but not the hard layer. In Couch, supra, on which Respondent relies, the trench was composed of four and one-half feet of soft and unstable soil above about six and one-half feet of hard or compact soil. The Commission stated that the trench was regulated by section 1926.652(b) and, because Couch failed to slope any soil in its trench, the Commission concluded that Couch violated section 1926.652(b). The Commission also stated that section 1926.652(b) requires an employer to slope or shore "all soft or unstable constituents" of trench walls so long as the trench is five feet or more in depth and the soft or unstable portion is not so small as to be "insignificant." Id. at note 5 and accompanying text, 4 BNA OSHC at 1056, 1975-76 CCH OSHD at p. 24,592.

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n6 Respondent argues that the judge did not make a finding that the soil in the trench was unstable. However, the judge specifically found that the sandy, brown clay in the top of the trench was soft or unstable soil within the meaning of § 1926.652(b). We adopt the judge's finding. See Kent Nowlin Construction Co., 80 OSAHRC 39/A10, 8 BNA OSHC 1286, 1980 CCH OSHD P24,459 (No. 76-192, 1980) (the trenching standards including Table P-1 create a rebuttable presumption that primarily sandy soils, unless cemented, are unstable within the meaning of § 1926.652(b)).

Chairman Rowland agrees to adopt the judge's finding that the soil in the top of the trench was soft or unstable. However, Chairman Rowland does not rely on the "rebuttable presumption." Rather, he adopts the judge's finding because the record as a whole shows that the soil in the top of the trench was soft or unstable.

[*12]

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If a trench is excavated in hard, compact soil, the trench is regulated by section 1926.652(c) and may have vertical walls up to five feet from the bottom. National Industrial Constructors, Inc., 81 OSAHRC 10 BNA OSHC 1081, 1091 n. 25, 1981 CCH OSHD P25,473 at p. 32,132 n. 25 (No. 76-4507, 1981). If a trench is excavated in soft and unstable soil, it is regulated by section 1926.652(b) and it must be sloped from the bottom. Connecticut Natural Gas Corp., supra. However, where a trench wall is clearly divided into a soft soil section above a hard soil section, we conclude that section 1926.652(b) must be read with section 1926.652(c). Since the bottom five feet of soil in this case was hard and compact, only the soil above the five-foot level was required to be sloped. n7 The Secretary has pointed to no evidence showing that the strength of the entire trench wall was affected by the layer of soft or unstable soil above the layer of hard, compact soil. n8 Our construction of section 1926.652(b) in this case recognizes what is implicit within section 1926.652(c): hard or compact soil in [*13] the bottom five feet of a trench does not pose a cavein hazard to employees working within that trench.

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n7 Since Couch, the Commission has required that trench walls be sloped from the bottom despite claims that the trench walls were composed of nonhomogenous soil and claims that portions of the wall did not require sloping because of the stability of the soil material. However, in no case since Couch have we been confronted with a trench wall clearly divided into a soft section above a hard soil section. In Connecticut Natural Gas Corp., supra, the Commission accepted a judge's finding that all soil below a concrete overhang in a trench was unstable and stated that "as long as the trench is more than five feet in depth and the amount of unstable soil is not negligible, all soil in the trench must be shored or sloped." 6 BNA OSHC at 1799, 1978 CCH OSHD at p. 27,669. There, the phrase "all soil must be shored or sloped" referred to the soft, unstable soil which composed that trench. In Communications, Inc., 79 OSAHRC 61/A2, 7 BNA OSHC 1598, 1979 CCH OSHD P23,759 (No. 76-1924, 1979), aff'd, No. 79-2148 (D.C. Cir., Dec. 29, 1981), the Commission accepted the judge's findings, based on credibility, that the soil was unstable and, therefore, section 1926.652(b) required that the trench wall be sloped from the bottom. In CCI, Inc., 80 OSAHRC 127/D4, 9 BNA OSHC 1169, 1981 CCH OSHD P25,091 (No. 76-1228, 1980), appeal filed, No. 81-1218 (10th Cir., Feb. 25, 1981), the Commission applied the principle that a trench wall composed of nonhomogenous soil was only as stable as its weakest component and therefore required the wall composed of rock and less stable materials to be sloped. However, the trench wall was not composed of two distinct and uniform soil sections.

n8 The testimony concerning water in the trench was that it was present around utility pipes, which cut across the trench. Although some water had run out of the broken utility pipes, the water drained through the sewer pipe already laid. Thus, the water was present only to a limited extent. Therefore, there was only a very small section of soil (around the pipes) which could possibly be affected by the presence of water. We do not believe this evidence to be sufficient to find that the soil in the trench was destabilized due to the presence of water. Cf. Joseph J. Stolar Construction Co., 81 OSAHRC 66/C6, 9 BNA OSHC 2020, 1981 CCH OSHD P25,488 (No. 78-2528, 1981), aff'd, No. 81-4146 (2nd Cir., Dec. 11, 1981) (section 1926.652(b) required twelve-foot trench wall to be sloped from bottom where water in the lower part of wall destabilized the hard, compact soil above the wet, unstable part).

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All of the Respondent's witnesses agreed that the trench, as sloped, was safe. Judge Cutler also found that Respondent had properly sloped the top seven feet of soft or unstable soil, in accordance with section 1926.652(b). Accordingly, we conclude that the trench walls were properly sloped within the meaning of section 1926.652(b). The judge's decision affirming the citation is therefore reversed and the citation is vacated. SO ORDERED.