Lloyd C. Lockrem, Inc.

Plain-English summary

Lloyd C. Lockrem installed an underground concrete sewer line in a ground cavity that qualified as a trench. A front-end loader backfilled the cavity with its front wheels as close as 1.5 feet from the edge, and no stop logs or barricades were installed. The judge vacated the cited excavation requirements because he concluded that they did not apply to trenches. The Commission held that a trench is a type of excavation and that the mobile-equipment rule applies when no corresponding trench rule addresses the same hazard. It stated that the evidence established a prima facie violation but left the employer's impossibility defense for further proceedings. The Commission reversed vacation of the § 1926.651(s) item and remanded it for a merits decision; vacation of the separate § 1926.651(c) item was not under review.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.651(c), 1926.651(s), and 1926.652(e)
• Outcome: Vacation of the mobile-equipment item was reversed and that item was remanded; the separate ground-support item remained vacated.
• Key point: An excavation requirement addressing a hazard can apply to trenches when no specific trenching standard addresses that hazard.

Full text (OSHRC public release)

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EN-US
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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 4553

LLOYD C. LOCKREM, INC,

���������������������������������������������
Respondent.

February 24, 1976

�

DECISION

�

Before BARNAKO, Chairman; MORAN and
CLEARY, Commissioners.

CLEARY, Commissioner:

The
decision of Administrative Law Judge Thomas J. Donegan rendered on October 23,
1974, is before the Commission for review pursuant to section 12(j) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. � 651 et seq.
[hereinafter �the Act�].

In
his decision Judge Donegan ruled that the standards at 29 CFR � 1926.651(c) and
29 CFR � 1926.651(s) were not applicable to the work being performed by
respondent at the time of the inspection in this case. Accordingly, the
citation issued by the Secretary to respondent alleging violations of those
standards was vacated together with the notification of proposed penalty. The
Secretary petitioned the Commission for discretionary review, and the petition
was granted.

For
the reasons that follow we reverse the order of the Judge, and hold that 29 CFR
� 1926.651(s) is fully applicable to the trenching activity in issue in
this proceeding. [1] We therefore remand this
case for further proceedings consistent with this decision.

On
September 4, 1973, respondent�s employees were engaged in the installation of
an underground concrete sewer line in Helena, Montana. On that date,
respondent�s worksite was inspected by an OSHA compliance officer. As a result
of this inspection a citation was issued on September 5, 1973, specifying two
alleged violations of 29 CFR � 1926.651(c) [2]
and one violation of 29 CFR � 1926.652(e). [3]
On the same day, an �amended citation� was issued apparently for the purpose of
consolidating the two alleged violations of � 1926.651(c) so as to allege a single
serious violation of that standard. This amended citation repeated the alleged
violation of 29 CFR � 1926.652(e).

The
Secretary grouped these two alleged serious violations together for penalty
purposes and proposed a penalty of $500. Respondent timely filed a notice of
contest as to both the amended citation and the proposed penalty.

On
October 2, 1973, the complaint was issued by the Secretary. The complaint
stated that it was to constitute an amendment of the amended citation insofar
as the applicable standard was therein deemed to be 29 CFR � 1926.651(s) [4]
rather than 29 CFR � 1926.652(e) as was originally alleged. When the hearing
opened on January 10, 1974, respondent, through its attorney, moved that all
allegations in the complaint with reference to a violation of � 1926.651(s)
should be stricken and objected to the introduction of any evidence in
connection with this alleged violation.

Judge
Donegan reserved making a ruling on this matter until his decision on the
merits. In his decision he treated the amendment of the citation in the
complaint as a motion to amend, and accordingly granted the motion. He then
proceeded to vacate the alleged violations of 29 CFR � 1926.651(c) and (s)
finding that the ground cavity in question was a �trench� as that term is
defined at 29 CFR � 1926.651(n) and that as the cited standards set forth
�specific excavation requirements� they could not be applied to an alleged
violation involving a �trench.�

In
order or understand fully the nature of the problem in this case, it is
necessary to examine the relevant standards in their appropriate context. The
standards involved are found in Subpart P, Part 1926 of the Code of Federal
Regulations. This subpart contains occupational safety and health standards
applicable to: �Excavations, trenching, and shoring.� It is subdivided into the
following subsections:

� 1926.650
General Protection Requirements.

�

� 1926.651
Specific Excavation Requirements.

�

� 1926.652
Specific Trenching Requirements.

�

� 1926.653
Definitions Applicable to this Subpart.

The
standards in this Subpart distinguish between ground cavities that are
�excavations� and those that are �trenches.� A discussion of the nature and
scope of this distinction is a necessary prerequisite to the resolution of this
case.

Section
1926.653(f) defines �excavation� as:

Any manmade
cavity or depression in the earth�s surface , including its sides, walls, or
faces, formed by earth removal and producing unsupported earth conditions by
reasons of the excavation. If installed forms or similar structures reduce the
depth-to-width relationship, an excavation may become a trench (emphasis
added).

�

Section
1926.653(n) defines �trench� as:

A narrow
excavation made below the surface of the ground. In general, the depth is
greater than the width, but the width of a trench is not greater than 15 feet
(emphasis added).

�

Reading
the two definitions together, the conclusion is inescapable that the term
�excavation� is used in the broad sense and as such includes �trenches� within
its scope as a specific type of excavation, or a subclass thereof.

����������� Where a particular type of hazard is
addressed by a standard applying to the board class of �excavations� and no
corollary standard addressing such hazard specifically applies to �trenches,�
the protective provisions of the former will be extended to the latter. See Armor
Constr. & Paving Co ., No. 10198, BNA 3 OSHC 1204, CCH OSHD para. 19,642
(May 16, 1975) (Cleary, concurring). Indeed, a contrary interpretation would
ignore the declared purpose and policy of Congress in passing the Act, i.e.,
�to assure so far as possible every working man and woman in the Nation safe
and healthful working conditions.� 29 U.S.C. � 651.

The
particular hazard that � 1926.651(s) is designed to eliminate is that of mobile
equipment falling into excavations and causing injury not only to workers in
and around the excavation, but also to the operators of such equipment. There
is no corollary standard specifically applicable to trenches although it is
patently clear that the same dangers exist. We therefore hold that � 1926.651(s)
is entirely applicable to those excavations otherwise classified as �trenches.�
The Judge�s conclusion to the contrary on this issue is hereby expressly
overruled.

����������� Turning to the facts of the present
case, the ground cavity into which the sewer line was being placed was
approximately 19 feet wide at the top, 8 feet wide at the bottom, 12�14 � feet
deep and over 50 feet long. The Judge concluded that it was a trench as that
term is defined in � 1926.653(n) and we agree. [5]
Because of our holding that � 1926.651(s) applies to all excavations, whether
or not further classified as �trenches,� however, the inquiry as to the
violation cannot end there. Therefore, we are remanding this case for a
disposition on the merits.

For
the guidance of the parties on remand we note the following: the evidence
establishes a prima facie violation of � 1926.651(s); the evidence shows that
mobile equipment was operated adjacent to the excavation; [6]
that no stop logs or barricades were installed; and that employees in the
excavation as well as the operator of the vehicle were exposed to the risk of
injury sought to be prevented by this standard.

Also,
respondent has asserted that compliance with 29 CFR � 1926.651(s) is not
possible due to the nature of the work being performed. [7]
We point out, however, that the alleged violation involves a front-end loader
backfilling the excavation by dumping the fill over the side of the excavation,
and does not involve mobile equipment traveling into and out of the excavation
for the purpose of placing fill material therein.

Accordingly,
the Judge�s decision vacating the citation for an alleged violation of 29 CFR �
1926.651(s) is hereby reversed. As so modified by this decision, the case is
remanded for a disposition on the merits.

�

It is so ORDERED.

�

FOR THE
COMMISSION:

�

William S.
McLaughlin

Executive
Secretary

DATED: FEB 24,
1976

�

MORAN,
Commissioner, Dissenting:

In
my opinion Judge Donegan properly vacated the citation. It was his decision
that the standard for which respondent was cited was inapplicable to
respondent�s work situation. That well-reasoned decision, which is attached
hereto as Appendix A, should be affirmed.

The
standards contained in 29 C.F.R. � 1926.651 are entitled �Specific Excavation
Requirements,� while those in 29 C.F.R. � 1926.652 are entitled �Specific
Trenching Requirements.� Although my colleagues correctly find that
respondent�s cavity was a trench and that �[t]here is no corollary standard
specifically applicable to trenches,� they nevertheless conclude that respondent
was in violation of the excavation standard codified at 29 C.F.R. � 1926.651(s).
They justify this finding on the ground that since a trench is a type of
excavation, the �conclusion is inescapable� that the Secretary of Labor
intended the standards in � 1926.651 to apply not only to excavations but to
trenches as well.

Although
this �inescapable conclusion� escapes me, I must confess that I was not blessed
with the omnipotent gift of knowing exactly what the Secretary intended to say
when he did not in fact say it. Fortunately for the Secretary, however, my
colleagues have been so blessed, and we now know that when the Secretary uses
the term �Specific Excavation Requirements� he really means �Specific
Excavation and Trenching Requirements.� This is particularly enlightening in
view of the fact that there is a separate section dealing with trenching
requirements. Although I do not for a moment lack appreciation for my
colleagues� gifts, unfortunately I doubt that the employers of this country,
who are responsible for complying with a veritable plethora of standards,
possess similar gifts of clairvoyance.

The
fact that a trench might be a particular type of excavation does not lend
credence to the proposition that the standards are interchangeable. If they
were, there would be no need to have two separate subsections at all; in fact,
there would be no need to distinguish the two at all. If the Secretary did in
fact intend the excavation standards to apply to trenches, the employers of
this country are entitled, at the very least, to regulations that make this
clear. [8]

The
standard for which respondent was cited applies by its very wording to
excavations. Since respondent�s cavity is conceded by all to be a trench, it
was not bound to observe the requirements for excavations. See Secretary v.
Salem-Williamette General Contractors , 9 OSAHRC 227 (1974).

Furthermore,
it is improper to return this case to the Judge as he has already determined
that there was no violation of the standard even if it was applicable to the
cavity. Therefore, it is clear that the remand of this case is an attempt by my
colleagues to browbeat the Judge into agreeing with their conclusions. This is
particularly unfortunate because it could lead to the affirmance of a violation
which is entirely different from the one that was enumerated in the citation. [9]

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 4553

LLOYD C. LOCKREM, INC,

���������������������������������������������
Respondent.

FINAL ORDER DATE: November 22, 1974

�

DECISION AND ORDER

�

APPEARANCES:

For the Complainant: James H. Barkley, Attorney Office of
the Solicitor U. S. Department of Labor 15444 Federal Building 1961 Stout
Street Denver, Colorado 80202

For the Respondent: Dernard E. Longo, Attorney Moulton,
Bellingham, Longo & Mather Securities Building�Box 1016 Billings, Montana
59103

Thomas J.
Donegan, Judge

STATEMENT
OF THE CASE

This
is a proceeding pursuant to section 10(c) of the Occupational Safety and Health
Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as
the Act.)

The
respondent is engaged in the construction business and on September 4, 1973,
was maintaining a place of employment and worksite at Cedar Street and Harris
in Helena, Montana, for the purpose of installing concrete pipe. This worksite
was inspected on September 4, 1973, by Ronald T. Byrd, who was acting in the
capacity of an OSHA compliance officer (inspector) of the U. S. Department of
Labor pursuant to section 7(c)(1) of the Act.

As
a result of this inspection, this proceeding is concerned with an amended [10]
citation number one for serious violation issued to the respondent on September
5, 1973, and a notification of proposed penalty of $500 issued on September 6,
1973, for the violations alleged in this citation.

The
respondent timely contested amended citation number one for serious violation
and the proposed penalty of $500 for these alleged violations.

The
descriptions of the alleged violations and the dates of required corrections of
these violations as set forth in amended citation number one are as follows:

Item No.

Standard, regulation or section
of the Act allegedly violated

Description of
alleged violation

Date by which alleged violation
must be corrected

1

29 CFR 1926.651(c) and 29 CFR
1926.652(e)

On September 4, 1973, at approximately 10:45 a.m., south
of Cedar Street in Helena, Montana, two employees were working in an
excavation 12 feet deep, approximately 19 feet wide and more than 50 feet
long with its sides unshored, unsheeted, unbraced, unsloped or otherwise
protected. (1)

�

A Model 950 Caterpillar loader was working about employees
dumping gravel in west side of excavation. (1)

�

At approximately 11:15 a.m., two employees were working in
south end of excavation 14�1/2 feet deep, approximately 19 feet wide and more
than 50 feet long with its sides unshored, unsheeted, unbraced, unsloped or
otherwise protected. (1)�

Immediately upon receipt of this
Citation

Serious Citation
No. 1 issued on the 5th day of September, 1973, is amended to read as follows:

The
standards alleged in this amended citation to have been violated by the
respondent on September 4, 1973, prescribe as follows:

�

�29 CFR 1926.651(c)

�

� 1926.651�Specific
Excavation Requirements.

�

(c) The walls and
faces of all excavations in which employees are exposed to danger from moving
ground shall be guarded by a shoring system, sloping of the ground, or some
other equivalent means.�

�

�29 CFR 1926.652(e)

� 1926.652�Specific
Trenching Requirements.

�

(e) Additional
precautions by way of shoring and bracing shall be taken to prevent slides or
cave-ins when excavations or trenches are made in locations adjacent to
backfilled excavations, or where excavations are subjected to vibrations from
railroad or highway traffic, the operation of machinery, or any other source.�

�

The
complaint, which was filed on October 2, 1973, states that to the extent the
complaint differs from the citation and amended citation issued on September 5,
1973, it constitutes an amendment thereof. It is represented in the complaint
that the amendment is needed to clarify the citation and to set forth the
applicable standard as 29 CFR 1926.651(s) instead of 29 CFR 1926.652(e).

The
description of the alleged violation set forth in item 1 of the amended
citation [11] is amended by the
description set forth in paragraph IV of the complaint, [12]
which description is as follows:

�

�29 CFR 1926.651(s)

�

� 1926.651�Specific
Excavation Requirements.

�

(s) When mobile
equipment is utilized or allowed adjacent to excavations, substantial stop
longs or barricades shall be installed. If possible, the grade should be away
from the excavation.�

�

The
amended citation, issued on September 5, 1974, can be read to charge the
respondent with two violations of 29 CFR 1926.651(c), one violation occurring
at 10:45 a.m. at one location in the excavation, and the second violation
occurring at 11:15 a.m. at the south end of the excavation (T. 93�110). The
amendment in the complaint must be construed as an attempt to clarify the
amended citation and therefore it is concluded, and it is so ruled that the
respondent is charged, as a result of this amendment, with one violation of 29
CFR 1926.651(c) and one violation of 29 CFR 1926.651(s), a total of two
violations, each one of which are alleged to be of a serious nature affecting
three employees in the excavation. The complainant groups the two alleged
violations for the purpose of proposing a penalty of $500.

The
respondent�s answer, filed October 16, 1973, objects to this amendment of the
citation in the complaint and denies the allegations set forth as reasons for
an amendment.

At
the opening of the hearing, the respondent moved that allegations in the
complaint of a violation of 29 CFR 1926.651(s) be stricken and objected to the
introduction of evidence concerning a motion and the judge reserved a ruling
until this decision (T. 4�7).

The
amendment of the citation sought in the complaint must be considered with
reference to the requirements of The complainant represents that the complaint
represents that the amendment is necessary because the respondent was charged
in the amended citation with a standard, 29 CFR 1926.652(e), which is not
applicable to the evidence which the complainant intends to offer at the
hearing.

It
is clear that it has been the consistent intention of the complainant to charge
the respondent with violations involving an excavation and not a trench. The
respondent is equally consistent in maintaining that a trench is involved and
not an excavation. The respondent is not taken by surprise or prejudiced from
an amendment of the citation, which charges an excavation violation [29 CFR
1926.651(s)] instead of a trenching violation [29 CFR 1926.651(c)]. In this
case prejudice to the respondent is not likely to result from the amendment of
the citation which clarifies the ambiguity of the citation as to the number of
violations charged (T. 125�126).

Accordingly,
the complainant�s amendment of the citation in the complaint is considered a
motion to amend, and the motion is granted pursuant to Commission Rule
33(a)(3). The respondent�s related motion to strike is denied.

The
respondent admits in the answer that the Commission has jurisdiction in this
case, that it is a corporation having employees engaged in construction work,
and that its business affects commerce.

No
affected employees or authorized representatives of affected employees have
made an appearance or asserted party status in this proceeding.

The
respondent has filed a brief and a reply brief. The complainant has filed a
brief.

DISCUSSION
AND FINDINGS

The
respondent is charged with violations of standards, [29 CFR 1926.651(c) and 29
CFR 1926.651(s)], that set forth specific excavation requirements. In amending
the citation in the complaint, the complainant represents that the amendment is
needed to set forth the applicable standard, 29 CFR 1926.651(s), (a specific
excavation requirement), in place of the standard, 29 CFR 1926.652(e) cited in
the citation, (a specific trenching requirement).

Throughout
the hearing, the complainant contended that the alleged violations involved an
excavation and submitted evidence for the purpose of supporting this
contention.

By
objecting in the answer to the amendment of the citation and in contending
throughout the hearing that the site of the alleged violations was a trench,
the respondent has placed in issue the question as to whether the respondent
was charged with violations of standards which were not applicable.

In
order to resolve this issue it was necessary to consider and weigh evidence
submitted by the complainant and respondent concerning the alleged violations
of the excavation standards as charged. As a result the hearing was extended
beyond the issue of whether the respondent had been properly cited as to
violations of applicable standards.

The
submission and consideration of this evidence cannot be the basis for
concluding that the respondent consented to try the issue of his alleged
failure to comply with the standards cited, or that he consented to try the
issue of violations of standards concerned with specific trenching requirements
with which he was not charged. Amendment of the pleadings to conform to the
evidence submitted at the hearing in accordance with rule 15(b) of the Federal
Rules of Civil Procedure will not afford due process in this case.

It
is concluded from the credible and substantial evidence that the respondent was
not in violation of 29 CFR 1926.651(c) as charged because the sides of this
excavation were sloped to an approximate angle of repose as set forth in �Table
P�1� of the standards and the three employees in this excavation were not
exposed to danger from moving ground (T. 49�64, 131, 135�147, 211�281).

It
is also concluded from the credible and substantial evidence that the
respondent was not in violation of 29 CFR 1926.651(s) although the Caterpillar
front-loader was pushing gravel in the excavation and no substantial stop logs
or barricades had been installed. This piece of mobile equipment was pushing
the gravel in the trench at a distance of approximately eight feet away from
the employees in the trench. There is no evidence to support a finding that
this piece of equipment caused, or could have caused, the ground in the
excavation to move (T. 288�289). There is no evidence to support a finding that
it was possible to have the grade away from the excavation. There is no evidence
to support a finding that stop logs or barricades could have been installed at
a location adjacent to the excavation which would have made it possible to
utilize the Caterpillar front-loader for the purpose of pushing gravel in the
excavation (exhibit C�3) or for the purpose of backfilling the excavation
(exhibits R�5, R�7, R�9).

But
the first issue that must be decided in this case is whether or not the
respondent was charged with violating standards applicable to the alleged
violations.

In
determining the issue of whether the site of the alleged violations was an
excavation or a trench, it is necessary to apply the definitions set forth in
29 CFR 1926.653. [13]

It
is found that the contours of the site of the alleged violations are fairly
depicted in respondent�s exhibit 14. On this cross section the dimensions are
given as: width at the top 19 feet, width at the bottom 8 feet, and depth 14
1/2 feet.

The
inspector�s testimony concerning the depth of the excavation varied from 12 to
15 1/2 feet. He stated the excavation was approximately 19 feet wide and over
50 feet long (T. 11, 78�81). He did not measure the width at the bottom (T.
30�33). The testimony of the inspector is not clear as to the locations of
these dimensions, but apparently he was referring to two different locations in
the excavation (T. 84). The complainant argues in favor of the acceptance of
the inspector�s estimates of the dimensions of the excavation in the absence of
measurements (T. 37�38). Although the complainant objects to respondent�s
exhibit 14 as not being based on first-hand knowledge, with two of the
measurements taken from the complaint and the third from the testimony of Mr.
Lockrem; it is concluded that the testimonies of Mr. Lockrem, Mr. Scruton and
Mr. Nurse concerning this exhibit are entirely credible (T. 296�297). Mr.
Scruton is an experienced engineer who represented the firm retained by the
City of Helena, Montana to inspect the project for conformity with the plans
and specifications that the firm had prepared (T. 152, exhibit R�1, T. 246).
Mr. Nurse is a consulting engineer with extensive experience (T. 209�210). Mr.
Lockrem, who has been in the contracting business in Montana for many years,
was present during the excavating and placing of pipe in the trench and was present
at the site at the time of the inspection on September 4, 1973 (T. 188,
190�193).

Although
a trench is defined in the standards as a narrow excavation, it does not follow
that a standard which prescribes a specific excavation requirement may be
applied to an alleged violation which involves a trench.

There
was considerable discussion at the hearing in this case as to whether the
restriction of 15 feet in the width of a trench applied at the top or the
bottom of the trench. The complainant contended that the 15 feet restriction in
width was applied at the top by OSHA at the time of these alleged violations.
The attorney for the complainant stated that he understands this has been
changed and since the inspection in this case the 15 feet restriction in width
is now applied to the bottom of the trench (T. 23�24, 185�186).

In
this case this is not an instance where the standards are unenforceably vague
because of this lack of specificity in the definition of a trench.

There
can be no dispute with a determination that the excavation in this case is a
trench, as contended by the respondent, if the width restriction of 15 feet in
the trench definition is applied to the bottom of the excavation. The bottom of
the excavation was not more than 8 feet wide with vertical sides extending up
to an approximate distance of 4 1/2 feet which then sloped so that the width of
the excavation was not greater than 19 feet at the top. With the width measured
at the bottom, this excavation was also in accord with the definition of a
trench of the Secretary of Labor in that the depth, in general, was greater
than the width.

The
sloping of the vertical sides of a trench above the 4 1/2 feet level, so that
the width at the top exceeds 15 feet, does not require that the trench be
reclassified as an excavation. The width at the bottom in this example remains
the controlling factor.

The
Commission has held that the definition of a term can be clarified by the
special technical meaning ascribed in a particular industry. Secretary v.
Santa Fe Trail Transportation Co ., 5 OSAHRC 840 (1973). The standards which
are being considered in this case have been promulgated by the Secretary of
Labor as subpart P of Part 1926, which is entitled �Safety And Health
Regulations For Construction.�

The
witnesses Bass, Scruton, Lockrem and Nurse have had long experience in the
construction industry, particularly with reference to excavations and trenches.
Mr. Scruton and Mr. Nurse, because of their considerable experience as
consulting engineers in the construction industry, are particularly well
qualified to testify as to the meaning the construction industry ascribes to
the definition of an excavation and the definition of a trench. Although there
was a reference to the ambiguity of the Secretary�s definition they did agree,
and testified in substance, that the site of this alleged violation was a
trench.

It
is concluded and a finding is made that the violations as alleged by the
complainant involved a trench and not an excavation.

It
is also determined and findings are made that the cited standards, 29 CFR
1926.651(c) and 29 CFR 1926.651(s), which set forth specific excavation
requirements, are not applicable to a trench and the respondent has not
violated the cited standards.

CONCLUSIONS
OF LAW

1.
The respondent, Lloyd C. Lockrem, Inc., was at all times material to this
proceeding an employer engaged in business affecting interstate commerce within
the meaning of section 3 of the Act.

2.
The Occupational Safety and Health Review Commission has jurisdiction over the
parties and the issues in this proceeding as provided in section 10 of the Act.

3.
On September 4, 1973, an inspection was made of the respondent�s worksite in
Helena, Montana by an authorized employee of the Secretary of Labor in accordance
with the requirements of section 8 of the Act.

4.
The respondent was not in violation of 29 CFR 1926.651(c) and 29 CFR
1926.651(s), standards promulgated by the Secretary of Labor; and therefore the
respondent was not in violation of section 5(a)(2) of the Act on September 4,
1973, as charged in the amended citation and in the complaint.

ORDER

Based
on the foregoing, it is ORDERED:

1.
That amended citation number 1 for serious violations issued to the respondent
on September 5, 1973, be vacated, and that the complaint served on the
respondent on October 2, 1973, be dismissed.

2.
That the �Notification of Proposed Penalty�, issued to the respondent on
September 6, 1973, proposing a penalty of $500 for the serious violations
alleged in amended citation number 1, be vacated.

�

Dated: October
23, 1974

Seattle,
Washington

�

THOMAS J.
DONEGAN

Judge, OSAHRC

[1]
The petition for discretionary review filed by the Secretary did not challenge
the vacation of the alleged violation of � 1926.651(c). The direction for
review also limited review to the question of the applicability of �
1926.651(s).

[2] That standard reads:

� 1926.651 Specific
Excavation Requirements.

(c) The walls and
faces of all excavations in which employees are exposed to danger from moving ground
shall be guarded by a shoring system, sloping of the ground, or some other
equivalent means.

[3] That standard reads:

� 1926.652 Specific
Trenching Requirements.

(e) Additional
precautions by way of shoring and bracing shall be taken to prevent slides or
cave-ins when excavations or trenches are made in locations adjacent to
backfilled excavations, or where excavations are subjected to vibrations from
railroad or highway traffic, the operation of machinery, or any other source.

[4] That standard reads:

� 1926.651 Specific
Excavation Requirements.

(s) When mobile
equipment is utilized or allowed adjacent to excavations, substantial stop logs
or barricades shall be installed. If possible, the grade should be away from
the excavation.

[5]
The Judge correctly concluded that for purposes of the 15 foot width
restriction in � 1926.653(n), the measurement should be taken at the
bottom of the cavity. As I pointed out in Sheesly and Winters Constr. Co .,
No. 6824, 18 OSAHRC 856, BNA 3 OSHC 1340, CCH OSHD para. 19,756 (June 24,
1975),

It is important to
note, however, that the width of a trench is to be measured at the bottom.
Measuring the width at the top could lead to the absurd result whereby a
properly sloped trench would become an excavation, subject to the requirements
of the excavation rather than trenching standards. 18 OSAHRC 856, 859 n.8.

The Secretary had originally argued that the measurement should be made
at the top of the cavity, but in its brief before the Commission it is conceded
that the bottom is the correct place for this measurement.

[6] The front wheels of the
front-end loader came as close as 1 � feet from the edge of the excavation.

[7] Commissioner Cleary is of
the view that an assertion that compliance is impossible due to the nature of
the work being performed is, at most, an affirmative defense. Brennan v.
O.S.H.R.C. & Underhill Constr. Co. , 513 F.2d 1032 (2d Cir. 1975).

[8]
As the recently appointed Assistant Secretary of Labor for Occupational Safety
and Health told the Senate Labor and Public Welfare Committee on November 11,
1975, �the goals of the Act can be achieved only if a standard is clearly
expressed in a manner which is comprehensible to employers and employees ,
encourages voluntary compliance, and is legally enforceable.� (Emphasis added.)

[9] See Secretary v. Amory
Cotton Oil Company , OSAHRC Docket No. 10330, January 6, 1976.

[10]
The apparent difference between the amended and the original citation is the
consolidation of the alleged serious violations under one item in the amended
citation. The same violations are alleged as two items in the original citation
which also was issued to the respondent on September 5, 1973.

[11]
The original citation, which was issued on September 5, 1973, became a nullity
as a result of the issuance of the amended citation to the respondent on the
same date. There is only one item in the amended citation and the alleged
violations are grouped under this one item.

[12]
Complainant�s brief; paragraph 1 at page 2.

[13] ��� (f) �Excavation��Any manmade cavity or
depression in the earth�s surface, including its sides, walls, or faces, formed
by earth removal and producing unsupported earth conditions by reasons of the
excavation. If installed forms or similar structures reduce the depth-to-width
relationship, an excavation may become a trench.

(n) �Trench��A
narrow excavation made below the surface of the ground. In general, the depth
is greater than the width, but the width of a trench is not greater than 15
feet.