“SECRETARY OF LABOR,Complainant,CONCRETE CONSTRUCTION COMPANY,Respondent.OSHRC Docket No. 89-2019DECISIONBEFORE: FOULKE ChairmanWISEMAN and MONTOYA Commissioners BY THE COMMISSION:This case involves a citation issued by the Secretary alleging thatConcrete Construction Co. (\”Concrete\”) committed serious violations ofthe Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-78(\”the Act\”), by failing to comply with provisions of the Secretary’sconstruction standards. We affirm the decision of Administrative LawJudge James D. Burroughs to the extent the judge found that theSecretary’s inspection satisfied the procedural requirements of section8 of the Act, 29 U.S.C. ? 657, and to the extent the judge affirmed thecitation item alleging that Concrete failed to comply with 29 C.F.R. ?1926.21 (b)(2) because its employees were not given proper safetyinstructions. We further affirm that portion of the judge’s decisionfinding that Concrete violated the Act by failing to comply with section1926.652(e), which requires that trenches dug in locations adjacent tobackfill be shored or braced.[[1]] However, we find that violation deminimis in nature and assess no penalty.[[2]]*Legality of the Inspection*Compliance Officer Charles B. Perry inspected Concrete’s worksite alongU.S. Route 62 in Grove City, Ohio, where Concrete was working on astreet and utility improvement project. At the time in question here,Concrete’s employees were removing sections of an old water line inorder to connect fire hydrants on the opposite side of the road to a newline which Concrete had installed approximately five months previously.When Perry arrived at the jobsite he drove the length of the site butsaw no one working. He then went back to the construction trailers,found no one in Concrete’s trailer, but met the inspectors for the Cityof Columbus, Ohio in their trailer. After discussing the work area andthe locations of employees with the inspectors, he drove back down route62. Two-way traffic was being maintained on the two lanes adjacent toand about 16 feet from the area where the excavation work was beingconducted. From his car he observed employees in an excavation at theintersection with Southwest Boulevard (\”Southwest site\”). He parked,walked up to the excavation, and photographed two of Concrete’semployees, Brenda Baldwin and Rita McNichols, working in the excavation.He then identified himself to the employees and asked where theirforeman was. Two or three minutes later, the foreman, David B. Schultz,arrived. Schultz directed the employees to leave the excavation, place asnow fence around it to prevent access, and take some tools and materialdown to a second excavation at Addison Drive (\”Addison site\”).Perry showed Schultz his credentials and explained that he was at theworksite to conduct a general-study ( random) inspection. Even thoughSchultz was aware that Concrete required its foremen to notify thesafety officers at the company’s main office whenever a complianceofficer came to a worksite, Schultz did not request that Perry wait forConcrete’s safety officer, nor did Schultz demand a warrant.Perry stated that Schultz remained with him throughout the entireinspection, during which time Perry took measurements of the excavationat the Southwest site and discussed the nature of the work with Schultz.Perry surmised that the excavation had been dug in recently excavatedbackfill because Schultz told him that Concrete was in the process oftying sections of the old water line to the new line. Perry alsointerviewed the employees there regarding the extent of their safetytraining.Schultz, on the other hand, denied that he was with Perry during theentire inspection. Schultz explained that the city was scheduled to shutoff the water service for the area so that Concrete could cut and plugthe old water line at the Addison site in order to transfer service tothe new line. Schultz testified that because the city had imposed adeadline for the restoration of water service, he could not stay at theSouthwest site but had to return quickly to the Addison site afterdirecting Baldwin and McNichols to take the necessary equipment andmaterial there. He said that he looked at Perry’s identification andthen left. He further testified that because he was preoccupied with thewater shutoff, he did not pay that much attention to Perry, and he didnot recall seeing Perry take any measurements. He did not contact acorporate safety officer because he assumed that Perry had alreadycompleted his inspection of the Southwest site, and he himself did notsee anything wrong with the excavation. However, he did not ask how longPerry had been at the job site. According to Schultz, Perry \”followed\”him to the Addison site, where he and Perry had further discussions, andPerry took some pictures in Schultz’ presence.Perry conducted a closing inspection with Schultz, during which JohnLusignolo, one of Concrete’s safety officials, arrived at the site.Lusignolo objected to Perry’s conducting an inspection in the absence ofa corporate safety officer. Alfred R. Gallucci, Concrete’s SafetyOfficer, disciplined Schultz for not asking Perry to wait for a safetyofficial to arrive.Concrete contends that on these facts, the Secretary failed to complywith section 8(a) and (e) of the Act, which imposes certain proceduralrequirements for the conduct of an inspection.[[3]] Judge Burroughsrejected Concrete’s contention, and we agree, generally for the reasonsthe judge assigned*A. Section 8(a)*The Supreme Court has held that the Fourth Amendment requires theSecretary to obtain a warrant in order to conduct a nonconsensualinspection. \/Marshall v. Barlow’s, Inc\/., 436 U.S. 307 (1978). Thepurpose of section 8(a) is to give compliance officers a right of entryconsistent with the Fourth Amendment; thus, section 8(a) must be read ina manner that effectuates the Fourth Amendment. \/See Accu-Namics, Inc.\/,1 BNA OSHC 1751, 1973- 74 CCH OSHD ?17,936 (No. 477, 1974), \/aff’d, \/515F.2d 828 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976).Judge Burroughs found that Perry observed employees Baldwin andMcNichols in the excavation at the Southwest site and took at least onephotograph before he presented his credentials. The judge emphasized,however, that Perry identified himself to Schultz as soon as Schultzarrived, pointing out that prior to Schultz’ arrival, Perry wasattempting to determine the foreman’s whereabouts. Considering thatPerry had only been on the site for a few minutes, the judge held thatSchultz was responsible for the failure to have a corporate safetyofficial present during the inspection. The judge also concluded thateven if Perry had not acted in accordance with section 8(a), Concrete’srights under the Fourth Amendment had not been violated because bothexcavations were located in plain view along a public road and \”[t]hereis no evidence that Perry looked where he had no right to look.\”As the judge indicated in his decision, the Fourth Amendment onlyprotects against intrusions into areas where an employer has areasonable expectation of privacy. Therefore, it does not require awarrant for a nonconsensual inspection of a workplace to the extent theworkplace is open to the public. \/Accu-Namics,\/ 1 BNA OSHC at 1754,1973- 74 CCH OSHD at p. 22,233 (citing \/See v. City of Seattle\/, 387U.S. 541, 545 (1967)). The record plainly supports the judge’sconclusion that Concrete could not have had a reasonable expectation ofprivacy with respect to Perry’s observations and photographing of theSouthwest site before he identified himself to Schultz. The worksite wasalongside and in close proximity to a public road. Furthermore, therecord does not show that Perry left the public right-of-way and enteredprivate property when he approached the excavation to photograph it.Even assuming he did, the \”open fields\” exception to the FourthAmendment would apply. Under that principle, there is no constitutionalviolation when an inspector makes observations from areas on commercialpremises that are out of doors and not closed off to the public, even ifthe inspector entered the premises without permission. \/AckermannEnterp.\/, 10 BNA OSHC 1709,1982 CCH OSHD ? 26,090 (No. 80- 4971,1982).[[4]]The judge did not explicitly find that Schultz consented to theinspection after Perry identified himself, but such a finding may beimplied from the judge’s conclusion that Schultz was responsible for thefailure of Concrete to have a safety official present, as required byits policy. In any event, the evidence supports such a finding. A waiverof Fourth Amendment rights occur when an employer \”freely andvoluntarily\” consents to an inspection. \/Simplex Time Recorder Co. v.Secretary of Labor,\/ 766 F.2d 575, 582 (D.C. Cir. 1985). In this case,while Perry may have arrived at an inopportune time so far as Concrete’swork schedule was concerned, there is no indication that he coercedSchultz or\/\/misled Schultz in any way. Perry simply explained that hewas on the worksite to conduct an inspection, and Schultz made nofurther inquiry.[[5]] \/See Lake Butler Apparel Co. v. Secretary ofLabor, \/519 F.2d 84, 88 n.14 (5th Cir. 1975) (holding that a consensualinspection exists \”where the compliance officer presented himself at theplant in the same manner as might any other government official and the[employer’s representative] had the same right of refusal,\” anddistinguishing cases in which the search is not lawful because consentwas given only after law enforcement officials made misrepresentationsregarding their authority to conduct the search).Accordingly, we conclude that the judge property rejected Concrete’sclaim of a violation of its rights under section 8(a) and the FourthAmendment.*B. Section 8(e)*Section 8(e), unlike section 8(a), does not confer a constitutionalright; rather, its purpose is to allow employees and employers toaccompany inspectors \”in order to effectuate a full and completeinvestigation.\” \/Chicago Bridge & Iron Co., \/1 BNA OSHC1086,1089,1971-73 CCH OSHD ? 15,416, p. 20,644 (No. 224,1973), \/aff’d,\/535 F.2d 371 (7th Cir. 1976). The judge found that because Perry andSchultz \”were in each other’s company during Perry’s inspection,\”Schultz had been \”given an opportunity to accompany [Perry] within themeaning of section 8(a).\” Reasoning that section 8(e) is \”directory\”rather than \”mandatory,\” the judge concluded that any lack of actualaccompaniment by a representative of Concrete would not justifydismissal of the citations. The judge further concluded that even ifPerry had violated section 8(e), Concrete had not shown that its defensehad been prejudiced.Concrete contends that the judge erred in characterizing section 8(e) asnonmandatory in nature. It asserts that Perry did not formally offerSchultz the opportunity to accompany him during the inspection and thatPerry continued his inspection of the Southwest site after Schultz leftto go to the other worksite. While we agree that section 8(e) imposes amandatory obligation on the Secretary, we reject Concrete’s contentionthat the Secretary failed to comply with its requirements inthecircumstances presented here.As Concrete correctly points out, two courts of appeals have held thatsection 8(e) is not merely directory in nature. Neither of thesedecisions, however, holds that failure of an employer’s representativeto accompany a compliance officer necessarily invalidates the citations.Rather, the courts emphasized that the Secretary is obligated under theAct to afford an \/opportunity\/ for accompaniment. \/Marshall v. WesternWaterproofing Co.\/, 560 F.2d 947, 952 (8th Cir. 1977) (\”accompanimentopportunities\”); Chicago Bridge & Iron Co. v. OSHRC, 535 F.2d 371, 376(7th Cir. 1976). \/aff’g\/ 1 BNA OSHC 1086,1971-73 CCH OSHD ? 15,416 (No.224, 1973) (\”substantial compliance\” with section 8(e) exists where eachemployer on a multi-employer worksite is made aware of its right toaccompany the inspector).[[6]] The extent of the efforts required on thepart of the inspector to satisfy section 8(e) will depend upon thecircumstances of the particular case. \/See Wright- Schuchart-HarborContrac.,\/ 1 BNA OSHC 1138,1140,1971-73 CCH OSHD ? 15,473, p. 20,752(No. 559,1973) (rejecting contention that section 8(e) imposes a\”mandatory jurisdictional requirement\” which precludes the Secretaryfrom citing an employer unless the employer’s representative wasactually present when the inspector observes the violative conditions).Judge Burroughs did not resolve the dispute in the evidence as towhether or not Schultz remained with Perry at the Southwest site.However, since section 8(e) only requires that the employer be affordedthe opportunity to accompany the inspector, and not that the employer’srepresentative actually exercise that opportunity, resolution of thisdisputed factual matter is not necessary. The judge found that Schultzhad been afforded an opportunity for accompaniment because he and Perrywere together for at least some period of time. The preponderance of theevidence supports that finding. Clearly, Schultz would have been presentduring Perry’s inspection of the Southwest site had he not voluntarilyleft to go to the Addison site. As previously noted, Perry took noactions that would have precluded Schultz from requesting that Perrywait for a company safety officer to arrive.[[7]] As the court held in\/Chicago Bridge\/, absence of a \”formalized offer\” of the opportunity toaccompany the inspector does not automatically render citations void.535 F.2d at 376. On the facts here, we conclude that Concrete receivedan adequate opportunity to accompany inspector Perry.We further agree with Judge Burroughs that, even assuming Concrete wasnot afforded an opportunity to accompany inspector Perry, vacation ofthe citations is not appropriate because Concrete’s preparation orpresentation of its defense was not prejudiced. See \/WesternWaterproofing Co.\/, 560 F.2d at 591 (no remedy for violation of section8(e) unless the employer’s defense is prejudiced); \/Pullman Pwr.Prods.,\/8 BNA OSHC 1930, 1980 CCH OSHD ?24,692 (No.78- 4989,1980),\/aff’d\/, 655 F.2d 41 (4th Cir.1981) (same). Here, Concrete claimsthat it was unable to challenge Perry’s measurements of the excavationand was deprived of an opportunity to advise Perry that Concrete had asafety training program and that the backfill with which Perry wasconcerned was compacted and stable. The record, however, demonstratedthat Concrete had a full and fair opportunity to present its defense onthese matters. Furthermore, the evidence does not establish that theexcavations at either the Southwest or Addison sites had been closed bythe time safety officer Lusignolo arrived at the closing conference.Therefore, Concrete has failed to show that Lusignolo could not havereviewed the conditions at either excavation with Perry when he arrivedat the closing conference. Accordingly, we find no indication that anydenial of the right to accompany Perry would have been prejudicial toConcrete.*Alleged Violation of Section 1926.21(b)(2)*At the time of the inspection, employee Baldwin, one of the twoemployees working in the excavation at the Southwest site, had beenemployed by Concrete as a laborer for only about two weeks. Not only wasthis her first job in the construction industry, but the day of theinspection was the first occasion that she had ever been in anexcavation. Under Concrete’s policy that more experienced laborers wouldshow newer employees how to perform various tasks, employee McNichols,another laborer who had been employed by Concrete off and on for abouttwo years, was with Baldwin in the excavation to train Baldwin inremoving a valve, the work assigned for the Southwest site. When hired,Baldwin had been given a safety booklet, which she read but did not\”really study.\” Although backhoe operator Willard stated that Concretehad given him training regarding safety in excavations, it is undisputedthat no one had discussed with Baldwin the hazards of working inexcavations.The cited standard, section 1926.21 (b)(2), requires that the employer\”instruct each employee in the recognition and avoidance of unsafeconditions and the regulations applicable to his work environment tocontrol or eliminate any hazards or other exposure to illness orinjury.\” Judge Burroughs concluded that Concrete had not complied withthe requirement to give instruction to \”each employee\” because Baldwinhad not been instructed regarding the hazards in question. The judgerejected Concrete’s contention that Baldwin’s mere reading of the safetybooklet was sufficient to satisfy the standard for two reasons: Baldwinadmitted that she had read the rules in only a \”cursory\” fashion, andthe rules themselves were \”skeletal.\” He also rejected Concrete’sreliance on McNichols’ guidance on the ground that McNichols was onlyinstructing Baldwin in how to perform a work task and was not providingsafety training. The judge found the violation to be serious andassessed a penalty of $400.Although Concrete contends that the judge erred in finding that it hadfailed to comply with the standard, Concrete does not assert that if aviolation existed, the violation was not serious in nature. In addition,neither party takes exception to the judge’s penalty assessment.Concrete essentially repeats the arguments it made before JudgeBurroughs but also argues that the judge’s decision is inconsistent.According to Concrete, the judge’s conclusion that reading a safetymanual alone is not enough to provide adequate training requires thatthe employee actually work in the excavation in order to become properlytrained. At the same time, however, the judge faulted Concrete forallowing an untrained employee into the excavation. In Concrete’s view,it allowed a new worker to enter the excavation only with an experiencedemployee, and the judge failed to specify what more Concrete should havedone to comply with the standard. Noting that employees Willard andMcNichols testified that they considered the excavation safe, Concretefurther claims that there was no need to give Baldwin instructionregarding hazards because no hazardous condition existed. We rejectthese contentions for the following reasons.An employer complies with section 1926.21(b)(2) when it instructs itsemployees about the hazards they may encounter on the job and theregulations applicable to those hazards. A\/rcher-Western Contrac.,Ltd.\/, 15 BNA OSHC 1013, 1020, 1991 CCH OSHD ? 29,317, p. 39,381 (No.87- 1067,1991), \/petition for review filed,\/ No. 91-1311 (D.C. Cir. July1, 1991); \/H.H. Hall Constr. Co.\/, 10 BNA OSHC 1042, 1044,1049,1981 CCHOSHD ? 25,712 pp. 32,054, 32,058 (No. 76-4765, 1981). It is undisputedthat Concrete did not provide BaIdwin with any training in the avoidanceof hazards except to give her a safety booklet. As the Secretarycontends and the judge found, that booklet addresses the matter ofexcavation safety in a cursory fashion which plainly fails to informemployees of the requirements and specifications of the Secretary’strench and excavation standards.[[8]] The evidence plainly supports thejudge’s finding that Baldwin’s brief reading of this booklet is notsufficient to inform her of the hazards and applicable excavationstandards within the meaning of section 1926.21(b)(2).Unlike Concrete, we do not interpret Judge Burroughs’ decision to holdthat Concrete could only train its employees by actually having them gointo the excavation; rather, the judge simply found that reading thesafety booklet alone was inadequate. In any event, section 1926.21(b)(2)does not limit the employer in the method by which it may impart thenecessary training. An adequate safety program that includes appropriateinstructions to employees will satisfy the standard. \/Archer-Western,1\/5 BNA OSHC at 1020, 1991 CCH OSHD at p. 39,381;\/Dravo Engrs. &Constructors,\/ 11 BNA OSHC 2010,1984-85 CCH OSHD ? 26,930 (No. 81-748,1984). Nor does the fact that other employees may have considered theexcavation safe excuse Concrete from giving the necessary instructionsto Baldwin. See H.H. Hall, 10 BNA OSHC at 1049, 1981 CCH OSHD at p.32,058 (No. 76- 4765, 1981) (violation for failure to instruct isseparate and distinct from the question of whether violations of trenchand excavation standards existed).For these reasons, we conclude that Concrete committed a seriousviolation of section 1926.21(b)(2), and we affirm the judge’s penaltyassessment of $400.*Alleged Violation of Section 1926.652(e)*There is no dispute that the excavations at both the Southwest andAddison sites were dug in backfilled material resulting from earlierutility work in those areas. Perry testified that he believed that thebackfill material he observed at the Southwest site dated from theprevious December, about five months before the inspection, whenConcrete had first installed the new water line. Both laborer McNicholsand foreman Schultz, however, testified that the new water line was tothe east of the Southwest site and that they were exposing the old waterline. McNichols described the backfill as \”settled\” and \”compacted\” andsaid she was able to walk along the backfill when exiting the excavationwithout experiencing any movement of the backfill under her feet.Similar testimony was given by Willard, the backhoe operator, who statedthat the water line in the Southwest site had been backfilled \”years andyears ago\” and was \”hard\” and \”solid.\” Schultz was not sure but believedthat the original water line exposed in the Southwest site had beeninstalled 20 years previously, and he recognized the backfill shown inthe Secretary’s photograph, as a limestone and crushed gravel mixture,known as \”304,\” which compacts well. He further stated that the OhioDepartment of Transportation requires that material placed under astreet be compacted and that the backfill in the Addison site was ofsimilar age and composition. Perry admitted that a photograph he took ofthe Addison site did not show any new water line and that he did notknow how long the backfill in the Addison site had been there.Concrete also presented the testimony of an expert witness, Daniel G.Longo, a soils engineer. At Longo’s direction, a few days after theinspection Concrete re- excavated the areas where the employees had beenworking. Longo described the original backfill as \”pretty well cemented,compacted and stable.\” According to Longo, the new backfill thatConcrete had just used to fill each excavation was readilydistinguishable from the old backfill associated with the original waterline because it was not cemented or compacted.Perry took measurements on both excavations. The Southwest site was 7feet deep except at one end, where its depth was 5 feet, 6 inches. Itwas 23 feet long, approximately 8 feet wide at each end, and 12 feetwide at its middle. The Addison site was 6 feet deep, 9 feet long, and 8feet, 9 inches in width. Although Perry did not measure the bottom widthof either excavation, he testified without dispute that each excavationwas sloped only along the one wall where the backfill was evident; theother walls of both excavations had no sloping.Section 1926.652(e) requires as follows:Additional precautions by way of shoring and bracing shall be taken toprevent slides or cave-ins when excavations or trenches are made inlocations adjacent to backfilled excavations, or where excavations aresubjected to vibrations from railroad or highway traffic, the operationof machinery, or any other source.An \”excavation\” is defined at section 1926.653(f) as \”[a]ny manmadecavity or depression in the earth’s surface.\” Section 1926.653(n)defines a \”trench\” as follows: \”A narrow excavation made below thesurface of the ground. In general, the depth is greater than the width,but the width of a trench is not greater than 15 feet.\” The citedstandard is part of section 1926.652, which is entitled \”Specifictrenching requirements.\”Judge Burroughs rejected Concrete’s contention that section 1926.652(e)is inapplicable because the two excavations in question do not comewithin the definition of a \”trench.\” The judge stated that there is no\”absolute rule\”‘ that a trench must be deeper than its width, and heconcluded that the excavations should be characterized as trenchesbecause their width was not substantially greater than their depth andthey were being used to lay water lines. The judge also concluded thatConcrete violated section 1926.652(e) and that the violation was seriousin nature as the Secretary alleged because it was dug in backfill. Weagree with the judge that the standard applies to Concrete’s worksiteand that Concrete failed to comply with its requirements, but we findthe violation to be \/de minimis.\/As Judge Burroughs noted, the definition of a trench at section1926.653(n) by its plain terms does not impose an absolute requirementthat a trench must always be deeper than it is wide. Rather, the onlylimiting factor in the definition is that a trench cannot be greaterthan 15 feet in width. \/D. Federico Co. v. OSHRC\/, 558 F.2d 614,616 (1stCir. 1977). Accordingly, the Commission has held that a ground openingwider than it is deep may nevertheless still be considered atrench.\/Trumid Constr. Co.\/, 14 BNA OSHC 1784, 1786, 1987-90 CCH OSHD ? 29,078, pp. 38,856-57 (No. 86-1139, 1990). Generally speaking, theCommission has considered excavations that have been dug for pipelinesto come within the category of \”trenches.\” \/Id.; Leone Constr. Co.\/, 3BNA OSHC 1979, 1975- 76 CCH OSHD ? 20,387 (No. 4090, 1976). While theexcavations here, as Concrete contends, may have been dug somewhat widerto allow the employees to remove the valve at the Southwest site and tocut and place a cap on the line at the Addison site, that circumstancealone is not a sufficiently distinguishing factor to precludeapplication of the general principle that a pipeline excavation can beconsidered a trench. [[9]] \/See West Coast Constr. Co.,\/ 4 BNA OSHC1940, 1976-77 CCH OSHD ? 21,419 (No. 7454, 1976) (pipeline excavationthat was wider than its depth at a point where it had been widened toallow a catch basin to be installed is a trench under the definition).\/See also Wes Constr. Corp\/., 4 BNA OSHC 1536, 1538, 1976-77 CCH OSHD?20,996, p. 25,226 (No. 4106,1976) (distinguishing pipeline work from\”traditional\” excavation activity \”such as pouring concrete\”).Accordingly, the judge properly found the excavations at the Southwestand Addison sites to be trenches covered by section 1926.652(e).The Commission has authority to determine that a violation is \/deminimis\/ in nature where it has \”no direct or immediate relationship toemployee safety and health.\” E\/.g., Super Excavators, Inc., \/15 BNA OSHC1313, 1314-15, 1991 CCH OSHD ? 29,498, p. 39,802 (No. 89-2253, 1991).There are several different circumstances which may be taken intoconsideration in determining whether the necessary relationship withsafety or health exists in a particular situation, including thelikelihood of an accident occurring. A remote likelihood of an accidentis a specific ground on which a violation may be found \/de minimis.Phoenix Roofing, Inc. v. Dole\/, 874 F.2d 1027, 1032 (5th Cir. 1989).\/See Keco Indus.\/, 11 BNA OSHC 1832, 1834-35, 1983-84 CCH OSHD ? 26,810,pp. 34,296-97 (No. 81-1976, 1984) (violation de minimis where the chanceof an employee contacting live electrical parts was negligible); DanielConstr. Co., 10 BNA OSHC 1254, 1260, 1982 CCH OSHD ? 25,840, p. 32,331(No. 80-1224, 1981), \/aff’d, \/692 F.2d 818 (1st Cir. 1982) (violation deminimis where possibility that electrical wires, could be damaged, thusexposing employees to the hazard of electric shock, was remote andspeculative).As Commissioner Wiseman’s separate opinion notes, the standard at issuehere, section 1926.652(e), requires that where trenches are locatedadjacent to backfill, \/\”additional \/precautions\” (emphasis added), suchas shoring and bracing, must be taken beyond the requirements normallyapplicable to trenches. Because the standard is limited to theparticular safety measures needed to account for the existence ofbackfill ,[[10]] the only issue before us is whether, on the record inthis case, the presence of the backfill is a condition having a directand immediate relationship to the safety of Concrete’s employees. Themere fact that Concrete’s trenches may also not have been sloped, as the\/general \/trench standardsat section 1926.652 (b) and (c) restore, does not preclude a finding ofa de minimis violation in this case, where the evidence establishes onlya remote or insignificant possibility that the backfill itself mightcollapse. Similarly, the fact that solid rock is the only materialexplicitly exempted from the sloping, shoring, or other protectionrequired by those general provisions of section 1926.652, which apply toall soil types, has no bearing on the limited issue here of whetherConcrete’s trenches were hazardous solely because of the presence ofbackfill.[[11]]While the Southwest and Addison sites were dug in a backfilled area asthe judge found, the preponderance of the evidence clearly shows thatthe backfill was compacted and stable. Perry’s testimony indicates thathe merely \/assumed\/ that the backfill had recently been placed in thetwo trenches because he was aware that Concrete had installed a newwater line in the area about five months previously. Concrete’semployees, on the other hand, testified from their own personalknowledge that the new water line was not exposed in these trenches andthat the existing backfill was considerably older. Concrete’s witnesses,including its expert, soils engineer Longo, all agreed that the existingbackfill not only had been compacted originally but had become hard andstable over time. Longo, furthermore, gave his opinion that the backfillwould have no impact on the safety or stability of the trenches.The uncontroverted evidence plainly establishes that the backfill wassolid and compacted and would not, in and of itself, have had anyadverse effect on the stability of the walls of the trenches. On thesefacts ,we find that the likelihood that either of the trenches mighthave collapsed as a result of the presence of the backfill was remote.We therefore conclude that the violation for failing to shore or bracethe trenches because they had been excavated in such material is a \/deminimis\/ violation[[12]].Accordingly, item 1 of the citation, alleging a serious violation of 29C.F.R. ? 1926.21(b)(2), is affirmed, and a penalty of $400 is assessedtherefor. Item 4, alleging a serious violation of 29 C.F.R. ?1926.652(e), is affirmed as a \/de minimis\/ violation and no penalty isassessed.Edwin G. Foulke, Jr.ChairmanVelma Montoya CommissionerDated: May 14, 1992*Concurring and Dissenting Opinion*WISEMAN, Commissioner, concurring in part and dissenting in part:I agree with my colleagues’ affirmance of Judge Burroughs’ decision tothe extent the judge found that the Secretary’s inspection satisfied theprocedural requirements of Section 8 of the Act, 29 U.S.C. ? 657, and tothe extent the judge affirmed the citation item alleging that Concretefailed to comply with 29 C.F.R. ? 1926.21(b)(2) because its employeeswere not given proper safety instructions; however, I dissent from mycolleagues’ decision to reclassify Concrete’s failure to comply with 29C.F.R. ? 1926.652(e) as a \/de minimis \/violation.The standard set forth in 29 C.F.R. ? 1926.652(e) informs employees thatbackfilled trenches are governed by a more restrictive requirement thantrenches generally. Whereas paragraph (c) of section 1926.652 allowsemployees the option of sloping, in lieu of shoring, trenches above fivefeet when they are dug in hard or compact soil, paragraph (e) of section1926.652 requires \/additional\/ precautions such as shoring and bracingto be taken to prevent slides or cave-ins in either of two situations:(1) where excavations or trenches are made in locations adjacent tobackfilled excavations; and (2) where excavations are subject tovibrations from railroad or highway traffic, the operation of machinery,or any other source. It is undisputed that the excavations at issue weremade in locations adjacent to backfilled excavations, and there is nostated exception to the standard which would forego the additionalprecautions in the event the backfill is compacted and stable.Section 1926.652(e) is a standard that includes requirements that by itsterms must be observed whenever specified conditions are encountered,and is predicated on the existence of a hazard when its terms are notmet. The Secretary is not required to prove that noncompliance with thisstandard creates a hazard in order to establish a violation. \/See Wright& Lopez, Inc., \/10 BNA OSHC 1108, 1111-12, 1981 CCH OSHD ? 25,728 (No.76- 256, 1981); Austin Bridge Co., 7 BNA OSHC 1761, 1765-66, 1979 CCHOSHD ? 23,935 (No. 76-93 1979). This standard presumes the existence ofa hazard when its terms are not met. My colleagues, in determining thatConcrete need not comply because its noncompliance created no hazard toits employees, are essentially questioning the wisdom of the standard.\/See Heath & Stich, Inc\/., 8 BNA OSHC 1640, 1643, 1980 CCH OSHD? 24,580(No. 14188, 1980) (contention that compliance with ? 1926.652(c) wasunnecessary because soil was stable, was rejected as an \”impermissiblechallenge to the wisdom of the standard\”).Furthermore, my colleagues base their \/de minimis\/ classification ontheir contention that it was a remote likelihood that either of thetrenches might collapse as a result of the presence of the backfill. Ihave had over 40 years of exposure to numerous trenches through myexperience in construction and through inspections as an administratorof safety and health programs. After reviewing the record and closelyscrutinizing the exhibited photographs, I am convinced, based on myexperience, that Concrete’s trench had much more than a remote chance ofcollapsing.de minimis wViolations have been classified as \/de minimis\/ where the items citedare trifling or where no injury would result or any injury would beextremely minor. \/See Fabricraft, Inc.\/, 7 BNA OSHC 1540, 1979 CCH OSHD? 23,691 (No.76-1410, 1979) (the violation was de minimis where thefailure to install needle guards on sewing machines resulted in twominor puncture wounds over a 5 1\/2 year time period); \/J.W. Black LumberCo\/., 3 BNA OSHC 1678, 1975-76 CCH OSHD? 20, 114 (No. 4734, 1975)(violation was de minimis because it was a minor breach of a toiletpartitioning standard); \/R.H. Bishop Co.,\/ 1 BNA OSHC 1767, 1973-74 CCHOSHD ? 17,930 (No.637, 1974) (violation was\/de minimis \/where employerfailed to provide a receptacle for disposable cups). Also, violationshave been classified as \/de minimis\/ where there is no significantdifference between the protection provided by the employer and thatwhich would be afforded by technical compliance with the standard. \/SeePhoenix Roofing, Inc. V. Dole,\/ 874 F.2d 1027 (5th Cir. 1989) (althoughthe court found that an injury would be serious or fatal, itreclassified the citation as \/de minimis\/ because it concluded that theprotection which Phoenix employed provided safety equal to or greaterthan that imposed by regulation); \/Charles H. Tompkins, \/6 BNA OSHC1045, 1047, 1977-78 CCH OSHD ? 22,337, p. 26,918 (No. 15428, 1977)(violation was \/de minimis \/because employees’ climbing safety was not\”appreciably diminished\” by additional distance betweenrungs on scaffold bucks); \/Erie Coke Corp\/., 15 BNA OSHC 1561 (No.88-611, 1992) (violation was de minimis where employer provided flameresistant gloves to its employees, by making them available to itsemployees but not actually paying for them).On the other hand, a serious violation exists where there is asubstantial probability that death or serious physical harm could resultfrom a failure to comply with the applicable standard. It is notnecessary for the occurrence of the accident itself to be probable. Itis sufficient if the accident is possible, and its probable result wouldbe serious injury or death. \/Brown & Root, Inc.,\/ \/Power Plant Div.\/, 8BNA OSHC 1055,1060,1980 CCH OSHD ? 24,275, p. 29,570 (No. 76-3942, 1980).In this case, regardless of the compactness and stability of thebackfill, there is no guarantee that the excavation would not collapse.Noncompliance with paragraph (e) of section 1926.652 creates a hazard ofcollapsing trench walls, and the probability of a resulting death orserious physical harm. As long as there is any possibility of acollapse, and such collapse would most likely result in serious injuryor death to workers in the excavation, it is clear that the violation ofthis standard would not only have a direct effect on the safety ofConcrete’s employees, but that the consequences of Concrete’s violationcould be extremely serious.For a violation to be serious, the Secretary also must prove that theemployer knew, or with the exercise of reasonable diligence should haveknown, of the existence of the violation. The knowledge element isdirected to the physical conditions which constitute a violation. \/SeeSouthwestern Acoustics & Specialty, Inc\/., 5 BNA OSHC 1091, 1092, 1977-78 CCH OSHD ? 21,582 (No. 12174, 1977). Concrete’s own safety manualcautions as follows: \”Do not enter a trench that is five feet or more indepth unless it is shored, sheeted, boxed, layed-back or in solid rock.\”By Concrete’s own acknowledgement, a trench like the one it was citedfor, that is, one that is not shored, sheeted, boxed, laid-back or insolid rock is potentially so dangerous that its employees should notattempt to enter it.The standard at issue is specific, and based on my experience and myreview of the record, I do not believe Concrete sufficiently rebuttedthe standard’s presumption of a hazard. Had the trench in this case beendug in solid rock, perhaps it would present no safety hazard to the twoemployees working in it at the time of inspection even without beingshored or braced. Solid rock is treated as something other than thetypes of soil covered by section 1926.652. See \/CCI, Inc.,\/ 9 BNA OSHC1169, 1173, 1981 CCH OSHD? 25,091 (No. 76-1228, 1980). The trench inthis case, however, had not been dug in solid rock; it was adjacent tobackfill and it had not even been sloped, much less shored or braced ascalled for by section 1926.652(e). There was always the possibility of acave-in and resulting probable serious injury or death to Concrete’semployees working in the trench at the time of the inspection. These arenot trifling circumstances having no direct relationship to the healthand safety of Concrete’s employees. Accordingly, I would affirm JudgeBurroughs’ classification of Concrete’s violation of section 1926.652(e)as serious.DONALD G. WISEMAN COMMISSIONER————————————————————————UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSIONSECRETARY OF LABOR,Complainant,v.CONCRETE CONSTRUCTION COMPANY,Respondent.OSHRC Docket No. 89-2019APPEARANCES:Christopher J. Carney, Esquire, Office of the Solicitor, U. S.Department of Labor, Cleveland, Ohio, on behalf of complainant.Roger L. Sabo, Esquire, Millisor and Nobil, Columbus, Ohio, on behalf ofrespondent._DECISION AND ORDER_Burroughs, Judge: Respondent, Concrete Construction Company(\”Concrete\”), contests alleged violations of the following five safetystandards: 29 C.F.R. ? 1926.21(b)(2) for failure to train employees inthe recognition and avoidance of unsafe conditions, 29 C.F.R.?1926.28(a) for failure to require an employee operating a backhoe towear a safety belt, 29 C.F.R.? 1926.651(i)(1) for failure to maintain aspoil pile at least two feet from the edge of a trench, 29 C.F.R. ?1926.652(e) for failure to take additional precautions to support thewalls of two trenches where the trenches were dug adjacent to backfilledexcavations, and 29 C.F.R. ? 1926.652(h) for failure to provide a ladderas a means of exit in a trench that was more than four feet deep. Thealleged violations were set forth in a serious citation issued toConcrete on June 1, 1989. Additional issues raised by Concrete includethe validity of the inspection and whether the excavations were trencheswithin the meaning of ?1926.653(n)._FACTS_Concrete is a corporation engaged in highway paving and utility work invarious areas of the State of Ohio. At its peak in 1989, it employedapproximately 150 employees (Tr. 279). In May 1989, Concrete was workingon a contract from the State of Ohio Department of Transportation toreconstruct State Route 62 in Grove City, Ohio. The project involvedwidening the road, installing storm sewers and relocating a portion ofthe city water line which would be exposed in the subgrade of the newroadway being constructed (Tr. 284). As a result of the old water linebeing brittle, Concrete received a change order to its contract toreplace substantially more of the water line (Tr. 284-285). The newwater line was located outside the pavement on the widenedroadway–placing it between the curb and the sidewalk (Tr. 246, 285) andapproximately 16 feet from the old water line (Tr. 285).On February 13, 1989, Compliance Officer Charles Perry was assigned toconduct a general schedule inspection of the Route 62 project. Theinspection was selected through the use of the Dodge Reports[[1]] (Tr.35). Due to the priority of other matters, Perry did not actuallyundertake the inspection until May 18, 1989.[[2]] On the date of theinspection, the project had two open excavations. The first was locatedat the corner of Route 62 at Broadway and Southwest Boulevard(\”Southwest\”). The second was located at the corner of Addison andBroadway (\”Addison\”).On May 18, 1989, Perry arrived at the Route 62 project at approximately12:00 p.m. He drove the length of the work site (approximately one and athird miles) and did not see anyone working. He then proceeded to thearea where the job trailors were parked. No one was in Concrete’strailor. Perry proceeded to the trailer used by the inspectors for theCity of Columbus. He talked with the inspectors for approximately onehour and left to return to the Route 62 work site (Tr. 36-37).As Perry drove back to the work site, he observed two employees in anexcavation at the corner of Route 62 and Southwest Boulevard. Theemployees were identified as Rita McNichols and Brenda Baldwin. Thebackhoe operator was also at the excavation sitting in his equipment.Perry stopped and took one photograph of the employees in the excavation(Ex. C-8; Tr. 37). The acronym \”OSHA\” was on the pocket of Perry’scoveralls, and also appeared on the hard hat he was wearing (Tr. 38).Perry testified that, after taking the photograph, he identified himselfto the employees and asked for the foreman. They informed him that theforeman was not at the site. Within a few minutes, the foreman, DavidSchultz, drove up (Tr. 38). According to Perry, he showed Schultz hiscredentials and explained to him that he was there to make a generalschedule inspection of the site. Schultz did not ask for a warrant, nordid he request that Perry wait until a safety officer of Concrete couldbe present (Tr. 39). Perry then conducted his walkaround inspection.Concrete weaves a slightly different scenario. Both parties agree thatPerry spotted the two employees in the excavation, parked his car,walked to the area and took at least one photograph (Tr. 37-38, 222).Baldwin and Willard observed Perry’s presence but testified that theydid not know he was from OSHA. When Schultz arrived at the Southwestexcavation, he directed the workers to place a fence around the openingand go to the Addison excavation and \”cut and plug\” the water line (Tr.247-248). At the time, McNichols and Baldwin exited the excavation bystepping on a water main and storm sewer pipe (Tr. 20, 22-23, 205).According to Schultz, he noticed Perry standing along side theexcavation but did not know he was a compliance officer. Schultz wasbusy since he was in a rush to cut through a portion of the old line atthe Addison excavation. Water service had to be terminated while the cutwas made, and Schultz did not want to unduly delay restoring the waterservice. According to Schultz, as he was leaving the Southwest site,Perry showed his credentials and told him he was there to conduct aninspection. Schultz responded that he had to get to the Addisonexcavation and get the water back in service as soon as possible (Tr.250). Perry did not conduct an opening conference (Tr. 266)._THERE IS NO CAUSE TO VACATE_ _CITATIONS FOR AN IMPROPER INSPECTION_Concrete asserts that the citation should be vacated, because Perryfailed to comply with sections 8(a) and 8(e) of the Occupational Safetyand Health Act of 1970 (\”Act\”), 29 U.S.C. ? 657. Section 8(a)[[3]]requires the compliance officer to present his credentials to theappropriate persons at the work site before conducting an inspection.Section 8 (e)[[4]] states that an employer is entitled to have arepresentative accompany the compliance officer during the physicalinspection of the workplace. Concrete contends that the denial of theserights prejudiced the company in defending against the allegedviolations. The evidence does not support this contention.Perry did not present his credentials until after he had observedMcNichols and Baldwin in the excavation and had taken at least onephotograph (Tr. 105, 109). Within a few minutes after Perry arrived atthe site, the foreman, David Schultz, arrived. There is no dispute overthe fact that Perry revealed his identity to Schultz (Tr. 205-206, 222,248). Concrete argues that the compliance officer commenced hisinspection from the time he got out of his car and began takingpictures. It further argues that he did not introduce himself to the twoemployees in the trench until they had exited the trench and the foremanarrived (Tr. 19, 206, 248-249). The dispute evolves over the fact thatPerry did not immediately identify himself when he arrived at theSouthwest excavation.It is undisputed that Perry presented his credentials to Schultz uponSchultz’s arrival at the site. It is apparent that, prior to Schultz’sarrival, Perry was engaged in trying to ascertain the whereabouts of theemployees’ foreman. Perry estimated that two or three minutes hadelapsed between the time he identified himself to the employees and thetime Schultz drove up (Tr. 39). The slight delay in identifying himselfto the employees in the excavation did not place Concrete at anydisadvantage in defending its case. He identified himself to the foremanupon the foreman’s arrival at the site and prior to conducting awalkaround of the site.Under the rationale set forth in _AccuNamics, Inc. v. OSHRC,_ 515 F.2d828 (5th Cir. 1975), there is no basis for dismissal even if Perry hadnot shown his credentials. The Southwest and Addison excavations were inpublic view. The jobsite was on a public road. There is no evidence thatPerry looked where he had no right to look. There has been no violationof Concrete’s fourth amendment rights.Concrete argues that it is company policy that, when an OSHA complianceofficer arrives at a work site to conduct an inspection, one of itssafety officers is to be notified to accompany the compliance officer onhis walkaround (Tr. 283). Schultz stated that he did not notify aConcrete safety officer because, \”I assumed he had already inspectedwhatever he was looking at, you know, and I didn’t see anything waswrong\” (Tr. 250).Considering that Perry had been on the site for only a matter ofminutes, it would seem that if Concrete had a complaint about lack ofnotification of a safety officer, it would be with Schultz and not withPerry. Indeed, Alfred Gallucci, the safety officer for Concrete,testified that he had disciplined Schultz for not contacting him (Tr.308). OSHA cannot be held responsible for a foreman’s failure to followhis company’s policy.Shultz stated that he did not accompany Perry on his walkaround(Tr.266-267), but this appears to be a matter of semantics; Schultzclaimed Perry followed him over to the Addison excavation (Tr. 250).Either way, Perry and Schultz were in each other’s company duringPerry’s inspection. Concrete was given an opportunity to accompanyOSHA’s compliance officer within the meaning of section 8(e) of the Act.The fact that no person from Concrete accompanied Perry is not cause fordismissal. The Commission has held the \”walkaround\” requirement to bedirectory rather than mandatory. _Chicago Bridge & Iron Co., _74 OSAHRC92\/A2, 2 BNA OSHC 1413, 1973-74 CCH OSHD ? 16,474 (No. 224, 1973);_Wright-Schuchart Harbor Contractors,_ 73 OSAHRC 4\/F13, 1 BNA OSHC 1138,1971-73 CCH OSHD? 15,473 (No. 559, 1973).Even if there was a failure to comply with sections 8(a) and 8(e) of theAct, the facts fail to support Concrete’s argument that its defense wasprejudiced by the Secretary’s action. In Pullman Power Products, Inc.,80 OSAHRC 77\/B11, 8 BNA OSHC 1930, 1932, _ CCH OSHD ? _ (No. 78- 4989,1980), the Commission set forth the following rationale for decidingsuch cases:[1] In determining that the inspection was not \”meaningful\” and vacatingthe citations on that basis, the judge applied an improper legal test.The test to be applied in determining whether to grant relief to anemployer because of the Secretary’s failure to meet the walkaroundrequirements of section 8(e) of the Act is whether the employer sufferedprejudice in the preparation and presentation of its defense. _S & HRiggers & Erectors, Inc_., 8 BNA OSHC 1173,1980 CCH OSHD ? 24 ,336(No.76-1104 & 76-1739, 1980), appeal filed, No. 80-7297 (5th Cir. April21, 1980); Titanium Metals Corp. of America, 7 BNA OSHC 2172, 1980 CCHOSHD ? 24,199 (No. 14080, 1980), _appeal filed_, No. 80-1333 (3d Cir.March 10, 1980).Concrete’s argument that the citation should be vacated because theinspection was conducted improperly is rejected_THE ALLEGATIONS_Item 1_Alleged Violation of 29 C.F.R. ? 1926.21(b)(2)_The Secretary alleges that Concrete violated ? 1926.21(b)(2) by allowingan employee to work in an excavation without proper instruction torecognize and avoid unsafe conditions. Section 1926.21(b)(2) provides:The employer shall instruct each employee in the recognition andavoidance of unsafe conditions and the regulations applicable to hiswork environment to control or eliminate any hazards or other exposureto illness or injury.Concrete argues that Perry chose to ignore the nature and extent ofsafety training which Concrete gives to its employees.Perry observed Brenda Baldwin in the Southwest excavation and took herphotograph (Ex. C-8). At the time of the inspection, Baldwin had workedfor Concrete for approximately ten days, which is the same amount oftime she had spent in the construction industry (Tr. 12-13). Prior toher job with Concrete, Baldwin had been employed as a cashier and as abartender (Tr. 11).When Perry interviewed Baldwin, she told him that she had received notraining in trench safety (Tr. 13, 50). At the hearing, Baldwin statedthat she was mistaken about the safety training: \”At the time, I wasupset. I had just forgotten that when I did get hired by the company,that Dominic Gallucci had given me a hard hat and a safety booklet and Ihad read it, but I didn’t really study it\” (Tr. 13).Concrete contends that Baldwin’s cursory reading of the safety bookletis adequate to fulfill the requirements of ? 1926.21(b)(2) that it\”instruct each employee in the recognition and avoidance of unsafeconditions.\” The safety booklet in question is 36 pages long.Approximately one page is devoted to trenching and excavating. The sumof the booklet’s \”training\” regarding excavations is as follows (Ex.R-1, pp. 20-21):TRENCHING AND EXCAVATING1. Do not enter a trench that is five feet more in depth unless it isshored, sheeted, boxed, layed-back or in solid rock.2. A ladder must be IN the trench, near the work area and extended 36inches above the top of the bank, unless a ramp or steps are provided.3. Install cross-braces against solid ground, not voids.4. Before entering a trench at the beginning of a new work day, inspectfor evidence of cracks, slides or wall failures.5. Know the location of utilities before digging. If in doubt call theutility or OUPS at 1-800-363-2764, 48 hours before digging.6. Excavated or other materials should not be stored closer than twofeet from the excavated edge.7. Be alert to possible contact with overhead power lines.8. Never enter a manhole until it has been checked for gases.The fact that Baldwin gave these skeletal rules a quick read does notinspire confidence in her ability to recognize and avoid unsafeconditions. Baldwin stated that no one had discussed with her thehazards associated with working in trenches. She had never entered atrench before that day (Tr. 14). The standard is explicit that theemployer _shall instruct each employee._ The fact that other employeesmay have received such instructions did not obviate the requirement thatinstruction be given to Baldwin.Concrete argues that, as a new employee, Baldwin could not be expectedto have the same training as other, more experienced employees. This maybe true, but it is not an excuse to allow her to enter into anexcavation without some training or instruction as to the hazards of thejob. Concrete contends that the other employee in the excavation, RitaMcNichols, was a trained employee who was looking out for Baldwin.McNichols stated that she allowed Baldwin in the excavation because, \”Iwanted to get her some experience\” (Tr. 204). The experience thatBaldwin was getting at this particular point was to help McNichols \”getready to take the bolts out and take the valve off\” (Tr. 204). Whilethis may have given Baldwin some work experience, it does not addressexperience in safety training. Concrete assigns McNichols the role ofbeing Baldwin’s protector, but nowhere in the record does it indicatethat McNichols was giving any kind of safety instructions to Baldwin.When McNichols was asked if it was part of her duties to train otheremployees, she stated, \”Well, it’s not really that you would train them.I mean, you just kind of help them — you know, show them — it’s justkind of like common sense. You just show them how to do other things\”(Tr. 208).The foreman, David Schultz, was not present when McNichols and Baldwinwere in the excavation. He had assigned them the job of cleaning outaround the valves in the excavation and obviously knew they had to gointo the excavation to accomplish the assignment (Tr. 270). He wasunaware if Baldwin had ever been in a trench prior to that occasion andconceded that he had never talked with her regarding the hazardsassociated with trenches (Tr. 271).The fact that other employees may have received some instruction in therecognition and avoidance of unsafe conditions does not satisfy therequirements of the standard. Section 1926.21(b)(2) requires that eachemployee must receive such instruction. It is clear that Ms. Baldwin didnot receive any such instruction. The fact that others may have receivedinstruction is a mitigating factor that can be taken into account in theassessment of an appropriate penalty.The Southwest excavation ran east to west and was 23 feet long, 12 feetwide in the middle, and approximately 8 feet wide at the east and westends. The south wall was 6 1\/2 feet deep. The trench had been previouslybackfilled (Ex. C-10). Baldwin was working in the excavation even thoughshe had not been trained in the recognition and avoidance of a potentialcave-in. The likely results of such a cave-in would be death or seriousphysical injury. Concrete was in serious violation of ? 1926.21(b)(2).Item 2_Alleged Violation of 29 C.F.R.? 1926.28(a)_It is alleged that the backhoe operator was operating a backhoe equippedwith rollover protective structures without wearing a seat belt inviolation of section 1926.28(a), which states:The employer is responsible for requiring the wearing of appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the needfor using such equipment to reduce the hazards to the employees.In order to establish a violation of ? 1926.28(a), \”the Secretary mustprove (1) exposure to a hazardous condition; (2) that some other sectionof Part 1926 indicates a need for the use of particular protectiveequipment in the circumstances presented; and that (3) the employerfailed to require the use of the equipment.\”_L.E. Myers Co., HighVoltage Systems Division, _86 OSAHRC 52\/A2, 12 BNA OSHC 1609, 1986 CCHOSHD ? 27,476, p. 35,604 (No. 82-1137, 1986).Perry observed the backhoe operator, Robert Willard, moving a backhoeaway from the edge of the excavation. He came around behind Perry andSchultz, to whom Perry was talking. Willard was not wearing a seat beltat the time. Perry told Willard that he should be wearing the seat beltbecause the backhoe had a roll-over protective structure (\”ROPS\”).Willard told Perry that he \”didn’t feel he needed to wear a seat beltbecause he was in a flat location\” (Tr. 126). According to Perry, in theevent the vehicle turns over, the operator is generally thrown from theseat and can be crushed by the ROPS. The seat belt is worn to keep theoperator inside the vehicle (Tr. 54).Perry stated that his conversation with Willard took place in front ofSchultz, that Schultz did not discipline Willard for not wearing thebelt, and that Willard then drove away into traffic on SouthwestBoulevard without fastening his seat belt (Tr. 55). Willard testifiedthat, as soon as he spoke to Perry, he put on his seat belt (Tr. 229).The unfastened safety belt is visible in Exhibits C-2 and C-3. It ishanging off the back of the operator’s seat. Perry testified that hetook the photographs after his discussion with Willard (Tr. 43, 57).This is inconsistent with his testimony on cross-examination where hestated that the photographs were taken before he talked to Willard (Tr.124-125). The inconsistency is not material to the finding of a violation.Willard and Schultz testified that Schultz was not present when Perryspoke to Willard about the seat belt (Tr. 227, 231, 272). Willard alsostated that, as soon as he finished speaking with Perry, he fastened hisseat belt to satisfy Perry (Tr. 224). Schultz stated that, after Perryspoke with Willard, he saw that Willard put the seat belt on (Tr.271-272). Exhibits C-2 and C-3 support the testimony of Perry thatWillard was not wearing a seat belt. The dispute over whether hefastened the belt after Perry spoke to him does not alter the undisputedfact that Willard was operating the backhoe without wearing a safetybelt. Willard’s lack of use of the seat belt was easily detected. IfConcrete had an effective enforcement procedure, it knew of theviolation or should have known of it since the violation was in plain view.The Secretary has established that Willard was exposed to a hazardouscondition. Concrete claims that, because the backhoe was operated onsolid, level ground, a seat belt was not needed (Tr. 224). Perry,however, observed Willard operating the backhoe within a few feet of theexcavation and on a heavily traveled street (Ex. C-8). The backhoe couldhave rolled into the excavation or been hit by oncoming traffic. Turningto the second element under L. E. Myers, that some other section of Part1926 indicate a need for the use this particular protective equipment,?1926.602 provides:(1) These rules apply to the following types of earthmoving equipment:scrapers, loaders, crawler or wheel tractors, bulldozers, off-highwaytrucks, graders, agricultural and industrial tractors, and similarequipment.(2) _Seat belts. _(i) Seat belts shall be provided on all equipmentcovered by this section…(iii) Seat belts need not be provided for equipment which does not haveroll-over protective structure (ROPS) or adequate canopy protection.The Secretary has established that seat belts were required by Part 1926since the backhoe had ROPS.The third element of _L. E. Myers_ requires proof that the employerfailed to require the use of the protective equipment. Concrete’s safetybooklet has a section entitled \”Motor Vehicles and MechanizedEquipment,\” which contains this rule: \”Buckle your seat belt beforeoperating\” (Ex. R-1, p.22). It was apparent from the testimony that thisrule was neither enforced nor obeyed.When asked if he’d used the safety belt while operating the backhoe onother occasions, Willard replied \”Not too often\” (Tr. 231). AlfredGallucci, who is in charge of safety for Concrete, stated: \”Theemployees are supposed to wear seat belts on their equipment,_especially in rough terrain, and with rocks in\”_ (Tr. 306). This is notin compliance with the standards. Section 1926.602(a) requires thatsafety belts be worn while the vehicle is in operation, regardless ofthe terrain.The Secretary has established that Concrete was in violation of ?1926.28(a). There was always the possibility that the vehicle could turnover, throwing the operator out and crushing him beneath the ROPS. Thelikely result of this occurrence would be death or serious injury.Concrete’s violation was serious.Item 3_Alleged Violation of 29 C.F.R. ? 1926.651(i)(1)_The Secretary alleges that the spoil removal from the Southwestexcavation was stored within two feet of the edge of the excavation.Section 1926.651(i)(1) provides:(i)(1) In excavations which employees may be required to enter,excavated or other material shall be effectively stored and retained atleast 2 feet or more from the edge of the excavation.Concrete argues that the allegation must be vacated \”since the Secretaryhas not shown the existence of a safety hazard.\” It also asserts thatthe Secretary has failed to establish any substantial employee exposure.The spoil pile from the Southwest excavation was stored at the edge ofthe north wall of the excavation (Exs. C-5, C-6, C-8; Tr. 57-58). Theweight of the spoil pile created a superimposed load on the wall of theexcavation (Tr. 61).Concrete concedes that part of the spoil pile was at the edge of theexcavation but argues that the bulk of it was more than two feet awayfrom the edge and was resting on asphalt (Tr. 221, 254). Concrete’sargument is contradicted by the photographic evidence. Exhibit C-8 showsthe spoil pile directly at the edge of the excavation, looming over thetwo employees.Concrete’s argument that the allegation must be vacated because theSecretary has not shown the existence of a safety hazard is withoutmerit. Section 1926.651(i)(1) does not require that employees besubjected to a hazard by virtue of violative conditions. The standardrequires only that \”employees may be required to enter\” an excavation._D. Federico Co_., 17 OSAHRC 13\/A2, 3 BNA OSHC 1970, 1974, 1975-76 CCHOSHD? 20,422 (No. 4395, 1976). McNichols and Baldwin were instructed bythe foreman to clean out around the valves in the excavation (Tr. 270).They were required to enter the excavation to carry out the assignment.The violation has been established.The argument that the Secretary has failed to establish any substantialexposure is not considered to be a serious argument on Concrete’s partfor vacating the allegation. McNichols and Baldwin were in theexcavation. This fact is undisputed. A cave-in is not caused by thelength of time one remains in an excavation or trench. Such acatastrophe can occur at anytime.A superimposed load on the walls of a trench that has been previouslybackfilled exacerbates the potential for a cave-in. In the event of acave-in, employees in the excavation would likely incur death or seriousphysical injury. Concrete was in serious violation of 1926.651(i)(1). Item 4_Alleged Violation of 29 C.F.R.? 1926.652(e)_The Secretary alleges that the Southwest and Addison excavations weretrenches that were not shored, sheeted, braced, sloped or otherwisesupported as required by section 1926.652(e), which states:Additional precautions by way of shoring and bracing shall be taken toprevent slides or cave-ins when excavations or trenches are made inlocations adjacent to backfilled excavations, or where excavations aresubjected to vibrations from railroad or highway traffic, the operationof machinery, or any other source.Concrete argues that ? 1926.652(e) is inapplicable because theexcavations are not trenches and that ? 1926.652(e) applies only totrenches, _citing Rick Koterzina Construction Co._, 85 OSAHRC 22\/B1O, 12BNA OSHC 1334, 1336, 1985 CCH OSHD ? 27,269 (No. 84-839, 1985). Itfurther contends that the standard under which Concrete has been citedis confusing and that the measurements made by Perry were inaccurate.Three measurements were taken across the top of the Southwestexcavation. The excavation was wider in the middle, which was 12 feet.The ends were approximately 8 feet in width (Ex. C-10; Tr. 121). Nomeasurements were made of the width at the bottom of the excavation (Tr.122-123). The excavation was 23 feet in length (Tr. 123). The depthmeasurement was made by dropping the measuring tape over the side of theexcavation (Tr. 81, 123). Perry was approximately one foot from thetrench wall when making the depth measurement (Tr. 81). Perry measuredthe depth to be 6 feet, 6 inches (Ex. C-10). He conceded that he did nottake into account the sloping of the walls (Tr. 81-82). He stated: \”WhenI took the measurements, they were approximate because they were notaccurate\” (Tr. 82). The Addison excavation was measured in the samemanner as the Southwest excavation. The Addison excavation was 6 feetdeep, 9 feet long, and 8-3\/4 feet wide (Ex. C- 11; Tr. 86-88). Perry didnot measure or feel any vibrations at the excavations (Tr. 127). Bothexcavations were in previously backfilled areas (Tr. 61-63, 211, 347).Each excavation was approximately 16 feet from a heavily traffickedhighway (Tr. 89). Concrete took no additional precautions to support thewalls. The walls were almost vertical.Concrete argues that the excavations in question were not trenches asdefined by ? 1926.653(n). This section provides:\”Trench\”–A narrow excavation made below the surface of the ground. Ingeneral, the depth is greater than the width, but the width of a trenchis not greater than 15 feet.Since the excavations in question were wider than they were deep,Concrete contends they are not subject to the requirements of ?1926.652(e).Section 1926.653(n) defines trenches as being \”in general\” deeper thanthey are wide. The Commission has held that this does not create anabsolute rule that trenches are always deeper than they are wide. Such arule would lead to the undesirable situation where an employer wouldneed only ensure that its excavations were always a foot wider than theywere deep, thus circumventing the intent of the trenching standard.In _West Coast Construction Co._, 76 OSAHRC 149\/F1, 4 BNA OSHC 1940,1976-77 CCH OSHD ? 21,419 (No. 7454, 1976),[[5]] the Commission stated(4 BNA OSHC at 1941):[1] We have held that, even though a ground opening is wider than it isdeep, it may still be properly classified as a trench. _Leone Const.Co.,_ Docket No. 4090, BNA 3 OSHRC 1979, CCH OSHD para. 20,387 (Feb. 10,1976); _D. Federico Co_., Docket No. 4395, BNA 3 OSHC 1970, CCH OSHDpara. 20,422 (Feb. 10, 1976). Indeed, as Respondent points out, anopening dug for the purpose of laying pipe is generally classified as atrench. _Leone Const. Co_., supra.Like _West Coast_, this case involves the laying of pipe. The Commissionalso pointed out that the cited excavation standard was functionallyequivalent to the trench standard under similar facts. The Commission,after finding the standards to be functionally equivalent, concluded (4BNA OSHC at 1941):Since the issue to be resolved is the same under both standards, whetheror not the more appropriate standard was cited is unimportant. If itshould be determined that the wrong standard was cited, the propercourse is to amend the pleadings to allege the proper standard. _D.Federico Co., supra_. Since the ultimate issue is the same under bothstandards, any possibility of prejudice from such an amendment is precluded.The Secretary cited ?1926.652(e), because both excavations were made inlocations adjacent to backfilled excavations. Section 1926.651(m) islabeled \”specific excavation requirements.\” Subsection (m) requiresspecial sloping or shoring shall be taken when an excavation is dugadjacent to a backfilled excavation. [[6]] Both sections are directedtoward preventing a cave-in in such situations. The depth measurementsare less than the width measurements but not to any great degree. Sincethe excavation was being used to lay a water line, it would generally bethought of as a trench as suggested by the Commission in _West CoastConstruction Co_., _supra._Sections 1926.652(e) and 1926.651(m) are functionally equivalent interms of protecting against a cave-in of excavations or trenches madeadjacent to backfilled excavations; therefore, it is unimportant whetherthe appropriate standard was cited. The end result is that Concrete didnot comply with either standard. An amendment under Fed. R. Civ. P.15(b) would be proper if it was determined that the excavation could notbe classified as a trench. Since the excavations were dug to lay a waterline, it is plausible to also refer to them as trenches.Concrete also takes issue with the accuracy of Perry’s measurements. Hetook measurements with a steel tape and contemporaneously recorded thesemeasurements in his notes (Exs. C-10, C-11; Tr. 58). Concrete’s attackon the measurements centers on Perry’s unfortunate choice of words,\”When I took the measurements, they were approximate because they werenot accurate\” (Tr. 82). Concrete also states that the reliability ofPerry’s measurements is impugned because he could not testify frommemory as to the measurements. This argument ignores the fact that theinspection took place on May 18, 1989, and the hearing took place onJanuary 8 and 9, 1990. Perry’s job is to inspect work sites and recordmeasurements. Since it was obvious Perry had not reviewed his filebefore testifying, it would be unrealistic to expect him to testify frommemory as to measurements taken eight months before. He would have beenbetter prepared to testify if he had reviewed his case file carefullybefore being called as a witness.While Concrete elicited testimony from several of its employees to theeffect that the trenches were not as deep as Perry states (Tr. 18, 207,220, 236), none of these employees took measurements of the trenches. Anapproximation made by a measuring tape is considered more realistic thanguesses by employees who might tend to favor their employer.Concrete also presented the testimony of Daniel Longo, a professionalsoils engineer. Longo attempted to re-create the excavation sites bydigging down to the water line. He then took measurements which hepurported proved that the Southwest and Addison trenches were only 4.9feet and 4.8 feet deep, respectively (Tr. 358-360). Longo conducted hisexperiment in \”late summer of ’89\” (Tr. 319). Perry conducted hisinspection in the middle of May. The photographs Concrete introduced insupport of Longo’s testimony show that the grade of the road had beencut down several feet (Exs. R-16, R-18, R-19, R-22; Tr. 323). Thesephotographs should be compared with Exhibit C- 5 which shows the site atthe time of inspection. Reference to C-8, taken on the day of theinspection, shows the trench walls to be well above the heads of the twoemployees. Concrete contends that the angle of the photograph makes thetrench look deeper than it is, but the photograph does not appear to begreatly distorted. The Secretary’s photographic evidence and Perry’srecorded measurements are accepted as factual representations of thetrenches.The standard requires additional precautions to be taken in locationsadjacent to backfilled excavations or where excavations are subjected tovibrations. Perry did not take measurements for vibrations and he didnot feel any vibrations at the trenches (Tr. 126- 127). This isinsufficient to prove that the trenches were subjected to vibrations. Itwas undisputed, however, that the areas around the trenches werebackfilled. Employees were working inside both trenches. Concrete was inviolation of ?1916.652(e). The violation was serious since a cave-incould have occurred at either of the locations.Item 5_Alleged Violation of 29 C.F.R.?1926.652(h)_The Secretary alleges that a ladder or other safe means of exit from theAddison and Southwest trenches was not provided for employees working inthe trenches. Section 1926.652(h) provides:When employees are required to be in trenches 4 feet deep or more, anadequate means of exit, such as a ladder or steps, shall be provided andlocated so as to require no more than 25 feet of lateral travel.A ladder was present lying on the ground above one of the trench walls(Tr. 257). It was undisputed that neither trench had a ladder in it (Tr.95).Concrete argues that the cited standard \”deals only with trenches, notexcavations.\” For this reason, it considered ? 1926.652(h) to beinapplicable. The argument is without merit in view of the ruling thatthe excavations can be classified as trenches.Concrete argues that there is no violation even if the standard ifapplicable. It submits that employees were afforded a safe and effectiveexit without a ladder. Concrete correctly points out that the standard\”does not require a ladder, but instead requires only the ‘adequate’means of exit.\” The Secretary concedes, the absence of a ladder is notper se a violation of the standard. All that is required is an \”adequatemeans of exit.\” Perry stated that he observed employees entering andexiting the trench \”using one of the walls of the trench, and with thegravel and material and backfill in the trench, they had to labor extrabecause the material kept moving under their feet as they exited andentered the trench\” (Tr. 93-94).All of the employees who testified regarding the exiting of the trenchesstated that they had no trouble doing so in asafe manner. Baldwin stated that she did not exit on the backfill:\”There was a water main there, a pipe, and you could climb on it. And,there was an old storm sewer down there, too, that you could climb down\”(Tr. 22-23). McNichols stated she had no trouble getting in and out ofthe trench (Tr. 205). She stated that she exited the trench by steppingup on the old water line, and that the backfill did not move beneath herfeet (Tr. 212). When told that Perry had asserted that the backfillmoved when people tried to get out, McNichols replied, \”It neverhappened to me\” (Tr. 212). Donald Stevens, a pipelayer’s helper,testified that he had no trouble exiting the trench and did not \”labor\”to get out (Tr. 238). Schultz observed employees entering and exitingthe trench and stated that they had no trouble getting out (Tr. 257).The Secretary has failed to establish that the trenches were notprovided with adequate means of exit. Concrete was not in violation of ?1926.652(h)._PENALTY DETERMINATION_The Commission is the final arbiter of penalties in all contested cases._Secretary v. OSAHRC and Interstate Glass Co_., 487 F.2d 438 (8th Cir.1973). Under 17(j) of the Act, the Commission is required to find andgive \”due consideration\” to the size of the employer’s business, thegravity of the violation, the good faith of the employer, and thehistory of previous violations in determining the assessment of anappropriate penalty. The gravity of the offense is the principal factorto be considered. _Nacirema Operating Co., _72 OSAHRC 1\/B10, 1 BNA OSHC1001, 1971-73 CCH OSHD ? 15,032 (No. 4, 1972).Concrete had approximately 150 employees. There was no evidencepresented of a prior history of violations. Concrete exhibited goodfaith in dealing with OSHA. It was cooperative during the inspection.The gravity of the four violations is severe. Items one, three and fourpresent the potential for a cave-in, a life-threatening occurrence. Itemtwo presented the hazard of the backhoe operator being crushed under theROPS of an overturned backhoe. The fact that Concrete has a safetymanual, holds weekly safety meetings (Tr. 281) and the fact thatMcNichols (Tr. 201), Willard (Tr. 216), Stevens (Tr. 234), and Schultz(Tr. 261) testified regarding Concrete’s safety training are consideredmitigating factors in assessing a penalty for item one.After due consideration of the relevant factors, it is determined thatthe following are appropriate penalties:Item 1 \t$400.00Item 2 \t$500.00Item 3 \t$600.00Item 4 \t$600.00_FINDINGS OF FACT AND CONCLUSIONS OF LAW_The findings of fact and conclusions of law contained in this opinionare incorporated herein in accordance with Rule 52(a) of the FederalRules of Civil Procedure._ORDER_In view of the foregoing and good cause appearing in support of thedeterminations, it isORDERED: That the allegations and proposed penalties set forth in theserious citation issued to Concrete on June 1, 1989, are vacated,modified and affirmed as follows:Item No. \tDisposition \tAssessed Penalty1 \tAffirmed \t$400.002 \tAffirmed \t$500.003 \tAffirmed \t$600.004 \tAffirmed \t$600.005 \tVacated \tNoneDated this 10th day of December, 1990.JAMES D. BURROUGHSJudgeFOOTNOTES:[[1]] Subsequent to the inspection here, the Secretary extensivelyamended Subpart P of Part 1926, which governs trenches and excavations.54 Fed. Reg. 45894 (1989). All references to Subpart P in this decisionare to the standards as they existed at the time of the inspection at issue.[[2]] The judge also affirmed citation items alleging that a backhoeoperator was not wearing a seatbelt as required by section 1926.28(a)and that excavated material was not stored at least 2 feet from the edgeof one trench, contrary to section 1926.651 (i). The judge vacated anallegation that Concrete failed to comply with section 1926.652(h) bynot providing an adequate means of exit from both trenches. Neitherparty takes exception to the judge’s disposition of these items, andthese portions of the judge’s decision are now a final order of theCommission.[[3]] Section 8(a) provides:In order to carry out the purposes of this Act, the Secretary, uponpresenting appropriate credentials to the owner, operator, or agent incharge, is authorized–(1) to enter without delay and at reasonable times any factory, plant,establishment, construction site, or other area, workplace orenvironment where work is performed…and(2) to inspect and to investigate during regular working hours and atother reasonable times, and within reasonable limits and in a reasonablemanner, any such place of employment and all pertinent conditions,structures, machines, apparatus, devices, equipment, and materialstherein, and to question privately any such employer, owner, operator,agent, or employer.Section 8(e) requires:Subject to regulations issued by the Secretary, a representative of theemployer…shall be given an opportunity to accompany the Secretary orhis authorized representative during the physical inspection of anyworkplace under subsection (a) for the purpose of aiding such inspection.The Secretary’s regulation at 29 C.F.R.? 1903.8, \”Representatives ofemployers and employees,\” essentially repeats the statutory language.[[4]] We reject Concrete’s contention in its brief before us that theSouthwest site itself was \”inaccessible\” to the public. The judge madeno such finding, and there is no evidence to support the contention.[[5]] Concrete also asserts that the judge found that Schultz wasjustified in concluding, when be arrived at the site, that Perry hadalready completed his inspection. The judge’s decision, however, doesnot contain any such finding, and there is no evidence of any basis onwhich Schultz could have reasonably determined that Perry had concludedhis inspection.[[6]] In characterizing section 8(e) as \”directory,\” Judge Burroughscited the Commission’s decision in \/Chicago Bridge,\/ where theCommission stated the following reason for its conclusion that section8(e) is \”nonmandatory\”.[[T]]here is not one scintilla of evidence that section 8(e) wasintended to establish an absolute right in the employer and employees,the denial of which deprives the Secretary of jurisdiction. On thecontrary, the legislative history establishes that section 8(e) wasintended to direct the Secretary to afford employees and employers theopportunity to accompany investigators ….1 BNA OSHC at 1089,1971-73 CCH OSHD at p. 20,644. Considering thecontext in which the Commission used the term \”nonmandatory,\” it isclear that there is no material difference between the Commission’sanalysis of the substance of section 8(e) and that of the court opinionson which Concrete relies.[[7]] Concrete does not argue that Perry’s taking a photograph of theexcavation before Schultz arrived violates section 8(e). In any event,the Commission has held that where the representative of the employer istemporarily absent from the site, section 8(e) does not preclude acompliance officer from taking steps to preserve evidence of atransitory violation to which employees are exposed. \/EnvironmentalUtils. Corp.\/, 5 BNA OSHC 1195, 1198, 1977-78 CCH OSHD ? 21,709, p.26,074 (No. 5324, 1977).[[8]] For example, while the booklet informs employees \”not [to] enter atrench that is five feet [or] more in depth unless it is shored,sheeted, boxed, layed- back or in solid rock,\” the booklet does notadvise employees that the amount of sloping necessary will varyaccording to the type of soil, nor does it give employees any guidancein determining soil type. The booklet also does not inform employeesthat shoring is required in trenches that are dug in backfilled areas orare subject to vibration, which is one of the requirements of Subpart Pthat is at issue in this case.[[9]]Concrete’s witness, soils engineer Longo, also measured theexcavations when Concrete reopened them after the inspection. The judgediscredited Longo’s measurements as not representative of the conditionsexisting at the time of the inspection. Concrete does not argue that thejudge erred in accepting Perry’s measurements rather than those made byLongo. In any event, Longo did not measure a width in excess of 15 feetat either site. Therefore, his testimony does not alter our conclusionthat these excavations can be considered trenches under the definition.[[10]]The cited standard also requires shoring or bracing where trenchesor excavation are subjected to vibration. The judge found that novibration was present, and the Secretary does not take exception to thisfinding.[[11]] \/CCI, Inc.,\/ 9 BNA OSHC 1169,1981 CCH OSHD ?25,091 (No.76-1228,1980),\/aff’d\/. 688 F.2d 88 (10th Cir. 1982), on which theseparate opinion relies, involves a violation of section 1926.652(c).Since that standard is a\/general \/trench provision, requiring protectivemeasures dug in all types of soils, not merely backfill, it isinapposite here.[[12]] Concrete relies on a prior decision of the Commission holdingthat the stability or compactness of backfill may be taken intoconsideration in determining whether a violation of 29 C.F.R.?1926.652(e) exists in the first instance\/. Shane, Inc.,\/ 5 BNA OSHC1217, 1977-78 CCH OSHD ?21,694 (No. 13136, 1977). Because we have reliedon the evidence of the compactness and stability of the backfill todetermine that the violation(continued … )was\/de minimis\/ and therefore requires no abatement and involves nopenalty, we need not reach Concrete’s argument.[[1]].Dodge Reports are provided as a private service created for constructioncontractors to use in bidding and scheduling construction projects. Thereport lists jobsites by location, dollar amount, and projectdescription (Tr. 173). OSHA contracted with the University of Tennesseeto assist in the general scheduling of inspections for the constructionindustry. Every month, the University of Tennessee sends 20 DodgeReports to each area office for OSHA (Tr. 172, 187). Each office usesthe reports to make their general schedule construction inspection list(Ex. R-2, p. 115). James Vaughn, the Area Director for OSHA’s Columbus,Ohio, office, testified that a new list is not started until theprevious list’s 20 inspections were completed (Tr. 189).[[2]]A compliance officer’s time is utilized on a priority system.Catastrophic inspections receive first priority and are followed bycomplaints and referrals. General schedule inspections receive lastpriority Tr. 34-35).[[3]]Section 8(a) states:(a) In order to carry out the purposes of this Act, the Secretary, uponpresenting appropriate credentials to the owner, operator, or agent incharge, is authorized–(1) to enter without delay and at reasonable times any factory, plant,establishment, construction site, or other area, workplace orenvironment where work is performed by an employee of an employer; and(2) to inspect and investigate during regular working hours and at otherreasonable times, and within reasonable limits and in a reasonablemanner, any such place of employment and all pertinent conditions,structures, machines, apparatus, devices, equipment, and materialstherein, and to question privately any such employer, owner, operator,agent or employee.[[4]]Section 8(e) states:(e) Subject to regulations issued by the Secretary, a representative ofthe employer and a representative authorized by his employees shall begiven an opportunity to accompany the Secretary or his authorizedrepresentative during the physical inspection of any workplace undersubsection (a) for the purpose of aiding such inspection. Where there isno authorized employee representative, the Secretary or his authorizedrepresentative shall consult with a reasonable number of employeesconcerning matters of health and safety in the workplace.[[5]] See also: _Health & Stich, Inc., _80 OSAHRC 65\/E12, 8 BNA OSHC1640, 1980 CCH OSHD? 24,580 (No. 14188, 1980) (trench 12 feet wide and10 to 11 feet deep). _Accord, D. Federico Co. v. OSHRC,_ 558 F.2d 614 (5OSHC 1528) (1st Cir. 1977), _aff’d_, 3 BNA OSHC 1970, 1975-1976 CCH OSHD? 20,422 (No. 4395, 1976) (trench 12 feet wide and 6 1\/2 feet deep)._Trumid Construction Co.,_ OSAHRC , 14 BNA OSHC 1784, 1786, 1990 CCHOSHD ? 28,013 (No. 86-1139, 1990).[[6]] Section 1926.651(m) provides:Special precautions shall be taken in sloping or shoring the sides ofexcavations adjacent to a previously backfilled excavation or a fill,particularly when the separation is less than the depth of theexcavation. Particular attention also shall be paid to joints and seamsof material comprising a face and the slope of such seams and joints.”