Zunker Contractors, Inc.

Plain-English summary

Zunker was installing sewer pipe in an approximately 11-foot-deep trench when a side collapsed, burying and seriously injuring an employee. The ALJ credited rescue personnel, city employees, and the Secretary's soil expert, finding that the trench was nearly vertical, dug in unstable soil, and lacked required shoring or sloping. The ALJ affirmed a serious violation and assessed the maximum $1,000 penalty. On review, Commissioner Arey would have affirmed based on the ALJ's credibility findings and the gravity of the cave-in hazard. Chairman Buckley would have vacated because he found the evidence on soil type and trench dimensions evenly balanced or more favorable to Zunker. Because the two members were at an impasse, they vacated the direction for review, leaving the ALJ's decision and $1,000 penalty as the final order.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(b)
• Outcome: Serious trench-support violation and $1,000 penalty left in place after the Commission vacated review.
• Key point: When the two-member Commission could not agree, the ALJ's ruling became final and retained only the precedential value of an unreviewed judge's decision.

Full text (OSHRC public release)

Docket No. 82-0936

SECRETARY OF LABOR,

Complainant

v.

ZUNKER CONTRACTORS, INC.,

Respondent.

OSHRC Docket No. 82-0936

DECISION

BEFORE: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

The basic issues are whether the judge erred in finding that
Zunker Contractors, Inc., violated the trench support requirements at 29 C.F.R. �
1926.652(b),[[1/]] and in assessing a $1,000 penalty. The two Commissioners are at an
impasse on the merits of the citation. To resolve the impasse, and permit the parties to
conclude this litigation, Chairman Buckley and Commissioner Arey agree to vacate the
direction for review. Texaco, Inc., 80 OSAHRC 74/B1, 8 BNA OSHC 1758, 1980 CCH OSHD �
24,634 (No. 77-3040, 1980). Their respective positions on the merits of the citation are
set forth below.

Commissioner Arey would affirm the judge's decision. The judge
summarized the basis for finding a serious violation of section 1926.652(b) as follows:

The evidence established that the sides of the trench were
virtually vertical with no angle of repose of any significance. The trench was
approximately 11 feet deep, 3 feet wide at its base and 6 to 8 feet wide at the top, and
was excavated in average, soft and/or unstable soil. Respondent had its employees, on a
regular basis, enter into the unshored or unsloped 11-feet-deep trench to perform the
leveling of gravel, the installation of sewer pipe and the further covering of the sewer
pipe with gravel . . . . Indeed it was . . . the president, owner and operator of
Respondent company, that directed the employees in their duties and was supervising these
employees in the trench five minutes prior to the side of the trench giving way,
collapsing on, burying, and seriously [injuring] employee Borgwardt

. . . .

The judge found that Zunker knew or should have known that the soil was unstable. He also
rejected Zunker's argument that the standard is unenforceably vague. He imposed the
maximum penalty allowed for a serious violation. He based that assessment on his finding
that Zunker consciously disregarded the cave-in hazard presented by this inadequately
sloped and wholly unsupported trench.

Commissioner Arey would adopt those findings because they were
based on the judge's evaluation of the credibility of the various witnesses, and those
credibility findings were proper. The basic principles governing Commission review of a
judge's credibility findings were restated in Inland Steel Co., 86 OSAHRC 39/A3, 12
BNA OSHC 1968, 1986-87 CCH OSHD � 27,647 (No. 79-3286, 1986):

Normally, we will accept the administrative law judge's
evaluation of the credibility of witnesses because it is the judge who has lived with the
case, heard the witnesses and observed their demeanor. . . . However, the judge should
identify the conflicting testimony and explain the reasons for failing to credit a
witness's testimony or for crediting the testimony of one witness over that of another.

12 BNA OSHC at 1978, 1986-87 CCH OSHD at p. 36,005 (citations
omitted). The judge's findings here that the trench walls were virtually vertical, and
that the soil was unstable, were based on credibility findings resolving conflicting
testimony on those issues.[[2/]] Commissioner Arey finds that the judge identified the
conflicting testimony and gave proper reasons for his credibility findings. Therefore,
under longstanding Commission precedent, the judge's credibility resolutions are entitled
to the Commission's deference.

The judge based his finding that the trench walls had no
significant slope on the testimony of "three disinterested on-the-scene
eyewitnesses" (two paramedics and a volunteer fireman), who entered the trench that
collapsed. All three reported seeing identical conditions. The judge found the testimony
of two corporate officers and two other employees of Zunker regarding the trench
dimensions and sloping to be "unreliable and indeed untruthful," stating as
follows:

The testimony of all these witnesses, each of whom had an interest in the results of these
proceedings, was at total odds with the testimony of the [paramedics and fireman] who were
disinterested and who truthfully reported their observations at the work site, and in
particular at the site of the cave-in. The demeanor of [Zunker's witnesses] as well as
their sworn testimony, leaves much to be desired as having any probative value in
determining the factual issues in this case. . . . What element of truth we do attribute
to these witnesses comes from Respondent's backhoe operator who indicated that it took him
20 minutes to dig the trench. . . . [I]t would be virtually impossible to excavate a
trench in accordance with the dimensions testified to by [Zunker's president] within a
20-minute period.

(Citations omitted.) The judge also noted that the
Superintendent of Public Works for the city (Sheboygan Falls, Wisconsin) and a city
inspector corroborated the testimony of the "three disinterested on-the-scene
eyewitnesses" concerning the dimensions of the trench that collapsed. The two city
employees testified that, during their visits to the worksite (the Superintendent had been
to the jobsite 15 to 20 times), the top width of Zunker's trenches had never been more
than five to eight feet. Thus, they had never seen a trench at the worksite excavated in
the manner described by Zunker's witnesses. The two city employees also testified that
they had never seen shoring or trench boxes in use for employee protection.

As to the soil conditions, the judge found that he could
resolve the issue without deciding between the conflicting views of the expert witnesses.
He noted that the eyewitnesses who entered the trench had testified that the soil was
compacted clay which, when dry, was crumbly and fractured easily, turning to small
particles or dust. This testimony was corroborated by the soil survey submitted into
evidence, a survey published by the United States Department of Agriculture, Soil
Conservation Service, which identified the soil in the area as mainly "clay
loam" or "silty clay loam glacial till."[[3/]] The judge was justified in
finding that the soil was "soft or unstable" under the cited standard, and
"average" soil under Table P-1, on this basis alone.

Nevertheless, the judge also credited the opinion of the
Secretary's expert, Dr. Painter, that the soil was unstable, over the opinion of Zunker's
expert, Dr. Bosscher, that it was hard and stable.[[4/]] He noted that Dr. Painter had
significant experience academically, as a geologist, and as a practicing soil and
foundation engineer. He also noted that Dr. Painter, an assistant professor of soil
mechanics at the University of Wisconsin, had done soil research in the area and was
"particularly familiar with the soil structure and content in Wisconsin and in the
area relevant to these proceedings[.]"

Respondent's expert, [Dr.] Bosscher, a professor of civil engineering at the University of
Wisconsin, developed his expertise solely with the academe and was without any real
practical experience within the field of soil engineering. After carefully listening to
the views of each expert, I find Complainant's expert, Dr. Painter, to present more of a
realistic, knowledgeable, and practical view, with precise conclusions concerning the
condition of the soil in issue and how it got that way . . . . I find Dr. Bosscher's
testimony to lack that degree of precision, accuracy and reliability to have any
persuasiveness or have impact upon deciding the issues in this case.

(Citations omitted.) Commissioner Arey concludes that the
judge's reasons for finding the soil to be "soft or unstable" within the meaning
of the cited standard are well explained and that the finding is supported by the clear
preponderance of the credible evidence. She therefore adopts that finding.

Commissioner Arey also rejects Zunker's contention that the
standard is unenforceably vague. The Commission has held that the standard is sufficiently
clear to be enforceable. Connecticut Natural Gas Corp., 78 OSAHRC 60/B3, 6 BNA OSHC
1796, 1798-99, 1978 CCH OSHD � 22,874, pp. 27,667-68 (No. 13964, 1978). Similarly, the
United States Court of Appeals that has jurisdiction in Wisconsin, where this case arose,
has held that the standard is sufficiently clear to be enforceable. Super Excavators,
Inc. v. OSHRC, 674 F.2d 592 (7th Cir. 1981), cert. denied, 457 U.S. 1133, 102
S.Ct. 2958 (1982). Commissioner Arey would apply this precedent here.[[5/]]

Finally, Commissioner Arey would affirm the judge's penalty
assessment due to the high gravity of the violation and Zunker's knowing disregard of the
clear hazard presented by the unprotected trench. See 29 U.S.C. � 666(j).

Chairman Buckley would reverse the judge's decision and vacate the citation because the
evidence is at best evenly balanced about whether the sloping was inadequate, and the
judge's findings about the weight and credibility of the evidence are unjustified. As to
the soil conditions, he notes that Zunker's expert, Dr. Bosscher, actually went to the
jobsite after the accident and performed tests on the soil. The Secretary's expert, Dr.
Painter, did not test the soil himself, but relied on information developed by Dr.
Bosscher and his general knowledge of the soil in the area.

Dr. Bosscher had a 9-foot-deep trench dug, with vertical walls.
He entered that trench, visually observed the walls, attempted to fracture the soil with
shovels, and took a series of readings with a "pocket penetrometer." He observed
no cracks or fissures in the soil. He concluded from first-hand observation that the soil
could be characterized as "hard clay," and that it was sufficiently cohesive
that the trench at issue here should not have collapsed in the amount of time it was open.
The bases for his opinions were well-supported by scientific studies he discussed.

There is no reason to prefer Dr. Painter's second-hand
observations to Dr. Bosscher's first-hand observations. Neither is there reason to prefer
the necessarily hasty observations of paramedics or volunteer firemen, performing a rescue
operation in the trench that collapsed, to Dr. Bosscher's thorough study. As to the
judge's finding that the evidence preponderates against Dr. Bosscher's position, that
finding was not based on demeanor or factors peculiarly observable by the hearing judge.

Here, we are in as good a position as the judge to evaluate the
qualifications of the experts and weigh their testimony in light of the other evidence of
record.

All Purpose Crane Inc., 87 OSAHRC 24/A3, 13 BNA OSHC
1236, 1239, 1986-87 CCH OSHD � 27,877, p. 36,550 (No. 82-284, 1987). Dr. Bosscher's
testimony is more persuasive than the Secretary's evidence. It should be noted that the
USDA soil survey relied on by the Secretary was a general-account of soil conditions over
a wide area, and did not pinpoint the area where this trench was dug. Dr. Bosscher's study
was precise. That the soil in the general area may have been predominately "silty
clay loam" does not show the condition of the actual soil involved here any better
than Dr. Bosscher did. The Secretary failed to prove that the soil was "soft or
unstable."

Based on Dr. Bosscher's analysis, the trench would have been in
compliance if sloped as provided for "hard or compact soil" under �
1926.652(c).[[6/]] To summarize, that type of soil must be sloped 1/2:1 (an angle of 63�
26') above the bottom five feet of the trench. The bottom five feet need not be sloped or
shored.

Zunker's witnesses testified to specific measurements they made
of each critical dimension of the trench. Based on those measurements, the trench was
sloped in compliance with � 1926.652(c). The Secretary's evidence included no
measurements. It consisted of recollections of visual estimates by various persons who
either did not recollect the particular trench at issue here, or clearly were
concentrating on something else -- the rescue of the injured worker.

The specific measurements to which Zunker's witnesses testified
were as follows. Zunker's president and vice-president testified that they measured the
width of the top of the trench immediately after the accident, using a graduated surveying
rod laid across the trench. The trench was 11 to 11 1/2 feet wide at the east end and 12
feet wide at the west end. They disagreed slightly about the depth of the trench. One
testified that it was about 12 feet deep. The other testified that it was 10 to 10 1/2
feet deep. They agreed, however, that the trench was 2 1/2 feet wide at the bottom,
because that was the width of the backhoe bucket used to dig the trench.

The backhoe operator who dug the trench also testified that it
was 12 feet deep and about 12 feet wide at the top. He based his estimate on the machine's
width, which he testified was a little over 11 feet wide, and testified that "I was
on the outside of either track with the top of the trench." Based on these
measurements, the width of the trench at ground level was sufficient under �
1926.652(c).[[7/]]

However, the judge discredited all this testimony by Zunker's
witnesses. His reasons for doing so were inadequate, in Chairman Buckley's view. As noted
above, the "disinterested on-the-scene eyewitnesses" whose recollections the
judge credited were emergency personnel who clearly were concentrating on the rescue
instead of the trench dimensions. Also, the city inspector and Superintendent of Public
Works merely recollected rough visual estimates they had made of trenches Zunker had dug.
Neither claimed to have seen the trench that collapsed. The measurements by Zunker's
witnesses were certainly no less probative than the recollections of rough estimates by
the Secretary's witnesses.

The judge's stated reasons for discrediting Zunker's witnesses
were that (1) they "had an interest in the results of these proceedings," (2)
their demeanor "leaves much to be desired," and (3) it would be virtually
impossible to excavate a trench like the one they described in 20 minutes --- the time the
backhoe operator testified it took to dig it. However, an employer's officers and
employees are not to be disbelieved merely because of their employment. Also, the judge
did not explain what it was about their "demeanor" that left "much to be
desired." Chairman Buckley would not accept such a blanket dismissal of four
witnesses' testimony based on "demeanor," without further explanation. As noted
above, the judge should "explain the reasons for failing to credit a witness's
testimony," to merit acceptance of a credibility finding.[[8/]]

As to the estimate that the trench was dug in 20 minutes, that
estimate relied on by the judge was provided by the backhoe operator, whose other
testimony he discredited entirely. The judge did not explain his apparently inconsistent
treatment of that testimony. Also, such an estimate clearly is the kind of rough estimate
that characterized the testimony of the Secretary's fact witnesses throughout the hearing.
There is no indication that the backhoe operator looked at a watch or had any other basis
for his recollection.

In any event, the specific measurement by Zunker's witnesses
were not very different from the rough estimates testified to by the Secretary's witnesses
based on their recollections.[[9/]] Even assuming, for purposes of argument, that the
measurements Zunker's witnesses testified to lack credibility, the Secretary only produced
rough estimates that the top width of the trench was slightly less than required -- 8 feet
as opposed to 9 1/2 or 10 feet. See supra n. 7. Those rough estimates simply are
insufficient to rely on as exact enough to serve as the basis for affirming this citation.
Thus, Chairman Buckley would conclude that the Secretary failed to prove that Zunker
violated either � 1926.652(b) or (c).[[10/]]

As noted above, to resolve their impasse, the Commissioners
agree to vacate the direction for review. Therefore, the judge's decision affirming a
serious violation of 1926.652(b), and assessing a $1,000 penalty, becomes the final order
of the Commission, and is accorded the precedential value of an unreviewed judge's
decision. E.g., Texaco, supra .

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: April 27, 1989

SECRETARY OF LABOR,

Complainant.

v.

ZUNKER CONTRACTORS, INC.,

A Corporation

Respondent.

DECISION AND ORDER

Appearances:

FRANCIS X. LILLY, Esquire, Solicitor of Labor,

JOHN SECARAS, Regional Solicitor,

CYRUS A. ALEXANDER, Esquire, Office of the Solicitor,

Chicago, Illinois, for Ford B. Ford, Under Secretary of Labor,

U.S. Department of Labor, Complainant.

THOMAS A. SCHUESSLER, Esquire,

Strub, Woodworth, Quincey & Becker

Beaver Dam, Wisconsin, for

Zunder Contractors, Inc., Respondent

BOBRICK, Judge

This proceeding was commenced pursuant to Section 10(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., (hereinafter
referred to as the "Act"), wherein Respondent, Zunker Contractors, Inc.,
contested a Citation issued by Complaint, Ford B. Ford, Under Secretary of Labor, U.S.
  Department of Labor.[[1]]  The Citation charged Respondent with a serious
violation of the Excavations, Trenching, and Shoring Standard, 29 C.F.R. � 1926.652(b),
[[2/]] as follows:

29 C.F.R. � 1926.652(b) The side(s) of the trench(es) in
unstable or soft material which were more than 5 feet in depth, were not shored, sheeted,
braced, sloped or otherwise supported in accordance with Tables P-1 and P-2:

(a) Slope of south side of lateral trench excavation extending
east from the north-south sanitary sewer trench, (adjacent to manhole 2 plus 32) located
at Highway PP and Chippewa Trail, Sheboygan Falls, WI., was not laid back adequately to
protect employees from the potential hazard of cave-in.

The citation was issued as a result of an investigation made by
the Occupational Safety and Health Administration, U.S. Department of Labor, which had
been prompted by a report of a trench cave-in at Respondent's jobsites in the Sheboygan
Falls, Wisconsin, area (Tr. 128).

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

FACTS OF CASE

Zunker Contractors, Inc., Respondent herein, is a Wisconsin
Corporation engaged in sewer construction and related activities. On July 21, 1982,
Respondent was digging trenches and laying sewer pipe in these trenches at a subdivision
development in Sheboygan Falls, Wisconsin.

On July 21, 1982, Respondent was installing sanitary sewers, storm sewers, and water main
installations at a subdivision known as K-Meadows Subdivision, Highway PP and Chippewa
Trails, for the City of Sheboygan Falls, Wisconsin. This work was done pursuant to a bid
and plan submitted by Respondent and accepted by the City of Sheboygan Falls. Respondent's
contract with the city called for it to, among other things, provide and install main
sewer lines and lateral sewer lines leading to the main line (Tr. II-395).[[3/]] The area
in which this excavation and sewer installation was to take place was a relatively flat
area where the soil consisted of red clay.

The work carried out by Respondent involved the excavation of a
large trench in which the main sewer line would be installed. Smaller trenches extending
perpendicularly from both sides of the main trench were excavated and were to accommodate
the installation of smaller sewer pipes which would connect to the larger sewer pipe.
These smaller trenches in which the smaller sewer pipe was to be located were referred to
as laterals. The main sewer line ran north and south and the smaller connecting laterals
were placed in an east-west direction from the main sewer line. The excavation and
placement of the sewer piping involved the digging of a trench to a specified depth, after
which it would be backfilled with gravel to a specified grade. The sewer pipe was then
placed on the gravel bed after which additional gravel would be placed into the trench to
cover the pipe to a specific depth. Once the sewer pipe was completely covered with gravel
the entire trench would then be backfilled to ground level.

With respect to the construction of the laterals, the work done
by Respondent's employees would involve the following: First, a backhoe operator would
begin to dig out the lateral trench starting from the main sewer. Once the lateral was dug
to its specified depth, gravel would be placed into the trench. This was accomplished with
use of a front-end loader bringing gravel to the trench and dumping the gravel into the
trench. An employee would go into the trench and level the stone insuring that it met the
designed grade and was of the appropriate thickness to form a proper resting surface for
the sewer pipe. Once the stone was at the proper grade and depth, the sewer pipe was
placed onto the gravel bed and then checked for proper grade and slope. At least two
employees would be in the trench installing the sewer pipe. After the sewer pipe was
appropriately installed into the trench and connected to the main sewer line, gravel was
again dumped into the trench by the front-end loader and again an employee would enter the
trench and level out the gravel insuring that the pipe was fully covered with gravel to a
predetermined height. After that the trench would be backfilled and compacted so as to be
level with the surface of the area (Tr. II-190-195).

Respondent began the work of installing the sanitary and storm sewer lines at the
K-Meadows Subdivision on July 16, 1982. By July 21, 1982, a large part of the main sewer
line had been constructed. Additionally, approximately 11 or 12 lateral sewer lines had
also been installed (Tr. II-164). It was on the morning of July 21, 1982, that a cave-in
took place, burying an employee, said employee sustaining severe injuries involving
complete paralysis from his chest down (Tr. II-199).

On July 21, 1982, the following sequence of events occurred.
Respondent's employees assembled at the work site at approximately 7:00 a.m. to begin
work. Mr. David L. Zunker, the president and owner of Respondent, gave the work orders to
several of his employees to install a lateral sewer line to lot 29 of the subdivision. He
was personally in charge of digging the laterals at the jobsite (Tr. II-157, 407, 408).
The crew which was to perform the work consisted of Mr. Theodore C. Washnieski, the
backhoe operator, Mr. Henry Conklin, Jr., the front-end loader operator, and Mr. Randy
Borgwardt, the plumber who was to level the gravel and install and connect the sewer
pipes. Mr. Washnieski began the work by digging out the trench. The excavation of this
trench was done in a similar manner to all the other trenches which had been dug for the
installation of the lateral sewer pipe. The trench was to measure 27 feet in length and 12
feet in depth. The very bottom of the trench was 30 inches wide. According to Mr.
Washnieski, the width at the top of the trench was 12 feet, and the sides above the 5-foot
level of the trench were sloped outward to form the 12-foot width of the top of the trench
(Tr. II-248-250). Mr. Washnieski indicated that it took him 20 minutes to dig this trench
(Tr. II-251). Once the trench was dug, Mr. Washnieski left the area and proceeded to
excavate a second lateral trench.

After the trench was fully excavated, Mr. Conklin, the
front-end loader operator, brought gravel in his loader to the trench, dumping same into
it. Once the gravel was placed into the trench, Mr. Borgwardt then entered the trench and
leveled the gravel to the proper depth and grade to accommodate the installation of the
lateral sewer pipe (Tr. II-221, 222). Once the gravel had been leveled and graded, Mr.
Conklin went into the trench to assist Mr. Borgwardt in installing the sewer pipe.
Thereafter, Mr. Conklin returned to his front-end loader to bring additional stone to the
trench to be placed over the pipe (Tr. II-220-222, 412). Mr. Conklin, operating his
front-end loader, brought and placed additional gravel into the trench to cover the sewer
pipe, whereupon Mr. Borgwardt went back into the trench to level off this second level of
gravel which was to cover the sewer pipe (Tr. II-413, 235, 245). It was at this point that
Mr. Conklin reported that he saw Mr. Borgwardt get into the trench, signaling his position
in the trench with an upraised shovel, and then he suddenly lost sight of the shovel. At
this point, Mr. Conklin became aware that something was wrong and that a possible accident
had occurred (Tr. II- 224-227). He left his front-end loader, ran to the edge of the
trench and found that Mr. Borgwardt had been totally buried beneath a cave-in caused by
part of the south wall of the trench giving way (Tr. II-231). Mr. Conklin then yelled for
help from other workers and jumped into the trench to begin uncovering the buried worker
(Tr. II-164, 228-231). The manner in which the excavation was to be done and the work
which was to take place in the excavation was directed by David L. Zunker (Tr. II-153,
166, 408). It was merely five minutes prior to the cave-in that Mr. David L. Zunker was
standing above the lateral trench observing the work being carried out within it (Tr.
II-164).

Immediately after the cave-in emergency calls were made for
medical and other emergency assistance. Responding to these calls were the Orange Cross
Ambulance Service of Memorial Hospital, and the Fire Department of the City of Sheboygan
Falls (Tr. I-82, 116, 157). Volunteer Fireman Thomas S. De Pagter, upon arriving at the
scene, was informed of the cave-in and that a man had been buried. He took his, oxygen
breathing equipment to the area of the cave-in. Once at the site of the cave-in, he found
the victim buried within, dirt had been removed from around the victim's head, but he was
encased in solid earth from his chest to each edge of the trench walls (Tr. I-157, 170).
Mr. De Pagter saw that the north wall of the trench was virtually vertical, "a
straight cut with no angle or taper to it" (Tr. I-159). He noticed that his oxygen
line dangled straight down into the trench (Tr. I-157). He further noticed that the trench
was approximately ten feet deep where the victim was standing and at that depth the trench
was only three to four feet wide. The top of the trench was only six to eight feet wide
(Tr. I-163). He found that the soil in the trench appeared to be dense clay which was well
packed and hard to move (Tr. I-162).

Two paramedics employed with the Orange Cross Ambulance
Service, upon their arrival at the work site, reported similar conditions to that observed
by Mr. De Pagter, the volunteer fireman who arrived at the scene before they did.

Mr. Larry Duenk, one of the paramedics at the scene, found a
man buried in a 12-feet-deep by 25-feet-long trench (Tr. I-83, 89). He observed that the
south wall of the trench had collapsed upon the victim and that a rescue operation was
underway to dig the man out (Tr. I-82). He noticed that the trench at the point of the
cave-in was only six to eight feet wide (Tr. I-84, 89). He entered the trench to aid the
victim and once in the trench he observed that the north wall of the trench was
"pretty much vertical" with no sloping of any "consequence" (Tr. 1-84,
94, 100). He could tell that the north wall was vertical since he also noticed that the
oxygen tubing and oxygen mask, which had been placed into the trench to aid the victim,
were dangling from the edge of the side of the trench straight down as though they were a
pendulum; it did not touch the edge of the trench at all (Tr. 1-84). Once in the trench he
found it to be extremely narrow, no more than four to five feet wide, with barely enough
room for one person to render aid (Ex. C-17; Tr. 1-89, 95, 99). He found the soil within
the trench to be clay but of an unusual nature since it would pulverize and turn into a
fine powder upon exerting any pressure upon the soil (Tr. 92, 93, 94, 99). In rendering
emergency aid to the victim, Mr. Borgwardt, he found him to be unconscious with
indications of serious injury (Tr. 113). He spent approximately ten to fifteen minutes in
the trench administering appropriate emergency aid until the victim was extricated.

The second paramedic, Mr. James W. Levi, an emergency medical technician with the Orange
Cross Ambulance Service, observed similar conditions as those observed by the two other
emergency service personnel (Tr. 115). Mr. Levi reported that as he approached the trench
he saw men digging out the buried victim, earth had been removed from around the victim's
head and from the front part of his body (Tr. I-116, 118). He observed that the south wall
had collapsed upon the victim but that the north wall was still intact (Tr. I-116, 117).
He further observed that the north wall was "exactly vertical" with no angle of
repose to it (Tr. I-116, 117, 123). Once in the trench he found that the soil would
crumble easily under foot and that he could hardly hold his balance on it by reason of its
instability. The soil would give way wherever he would step (Tr. I-117, 122). The soil was
of a clay-like texture with particles the size of a hand and smaller (Tr. I-122).

According to Mr. David L. Zunker and Mr. Wayne J. Zunker,
owners and operators of the Respondent business, once the injured employee had been
removed from the trench and taken from the work site to the hospital, they measured the
dimensions of the trench (Tr. II-411). According to these two individuals, the basic
measurements of the trench were 12 feet in width, approximately 11 feet in depth, with the
sides sloping out after the 5-foot level (Ex. R-8; Tr. II-158, 159, 160, 169, 408).

On July 22, 1982, a Compliance Officer with the Occupational
Safety and Health Administration made an investigation of the conditions at Respondent's
work site at the K-Meadows Subdivision, in particular as to those events occurring on July
21, 1982. When he arrived at the jobsite the trench which had caved-in had been covered
over and his investigation concerned a general view of the area. Additionally, he
interviewed the president of Respondent, some of the on-scene witnesses, and took soil
samples.

As part of his investigation, the Compliance Officer consulted
a soil survey of Sheboygan County, Wisconsin, made by the United States Department of
Agriculture, Soil Conservation Service, and consulted with a soil engineer. From this, he
determined that the soil at the Respondent's work site was average soil, was of unstable
nature, and ultimately determined that the trenching standard, 29 C.F.R. � 1926.652(b),
applied to the situation. Since his investigation revealed that the sides of the trench
were not sloped, but were vertical, that shoring was not used and that the trench was
approximately 11 to 12 feet in depth and 26 feet in length, he determined that a violation
of this standard occurred. As a result of this determination, a Citation was issued
alleging a serious violation of 29 C.F.R. � 1926.652(b).

ALLEGED VIOLATION OF THE EXCAVATIONS, TRENCHING, AND SHORING
STANDARD

29 C.F.R. � 1926.652(b)

A. CONDITION OF TRENCH

We find that the credible evidence submitted in this case
overwhelmingly established that the sides of the trenches excavated by Respondent in which
employees were required to work, one of which collapsed upon one of its employees, had
sides which were virtually vertical having no sloping component to them of any
significance. We further reach the conclusion that the width of the trenches, in
particular the one that collapsed, above their three-foot level were approximately five
feet and that the width of the trenches at their top ranged between six and eight feet. In
this case, it would be difficult to reach any other conclusion since three disinterested
on-the-scene eyewitnesses, who entered the trench that collapsed, all reported seeing
identical conditions, that being that the sides of the trench were essentially vertical
with no sloping of any consequence to them, and that the width of the trench at the very
top was six to eight feet, and no wider than that (Tr. I-84, 86, 89, 94, 95, 100, 116,
117, 123, 158, 159, 163).

We find the testimony of Mr. David Zunker and Mr. Wayne Zunker
together with two of its employees concerning the width of the trench, the dimensions of
the trench, and the existence of sloping to be unreliable and indeed untruthful. The
testimony of all these witnesses, each of whom had an interest in the results of these
proceedings, was at total odds with the testimony of the above discussed witnesses who
were disinterested and who truthfully reported their observations at the work site, and in
particular at the site of the cave-in. The demeanor of Messrs. Zunker together with their
two employees, as well as their sworn testimony, leaves much to be desired as having any
probative value in determining the factual issues in this case. Their testimony in chief
is found not credible or reliable and accordingly will be disregarded. What element of
truth we do attribute to these witnesses comes from Respondent's backhoe operator who
indicated that it took him 20 minutes to dig the trench (Tr. 11-251). As was pointed out
by Complainant's expert in soil engineering, who has significant practical experience as
well as significant technical and scientific expertise in soil engineering, and who had
been associated with sewer line installation, it would be virtually impossible to excavate
a trench in accordance with the dimensions testified to by Mr. David L. Zunker within a
20-minute period (Tr. ll-498). This view was confirmed by the Superintendent of Public
Works for the City of Sheboygan Falls in that, although he had been to the jobsite 15 to
20 times, he had never seen a trench that was constructed like that described by Mr.
Kenneth Zunker and Mr. David Zunker, each claiming that the sides were sloped and the
trench width at its top was 12 feet (Tr. 11-503, 508, 510).

Adding to the uncontroverted credible testimony of these
emergency service witnesses was the testimony of the Superintendent of Public Works of the
City of Sheboygan Falls, and one of its inspectors. Both of these individuals were
regularly at the work site, had viewed the excavation work and also found that the
condition of the trench which had caved-in, as well as other trenches at the work site,
was consistent with that reported by the three emergency personnel who appeared at the
cave-in scene. These two witnesses reported that throughout their visits to the work site
they never saw a lateral trench which was 12 feet wide at its top, and that the top width
of the trenches, including the one that caved-in, was no more than five to eight feet.
Likewise, they never saw a trench sloped in the manner as that described by Respondent's
owner; they had observed that the sides of the trenches excavated at the work site had
virtually no slope to them (Tr. I-43, 52, 53, 55, II-503, 509, 510, 511). Additionally,
these witnesses reported seeing no utilization of shoring or trench boxes prior to the
cave-in (Tr. I-449 II-509).

Having determined that the sides of the trench which caved-in,
as well as all other trenches excavated by Respondent at the work site, were straight up
and down, and that the dimensions of the trenches were as follows: 2 1/2 to 3 feet at its
base, 6 to 8 feet at its top, and 11 to 12 feet in depth, we now turn to the contested
issue concerning the condition of the soil in which the trench was dug.

B. CONDITION OF SOIL

Complainant in citing Respondent for a violation of 29 C.F.R.
� 1926.652(b) maintained that the soil in which the trench was excavated was unstable or
soft in nature. Respondent on the other hand maintained that the soil was hard and compact
and thus, under 29 C.F.R. � 1926.552(c), it was required only to slope the sides of the
trench above the five-foot level and that the angle of repose in the sloped portion of the
sides of the trench, would be a 63 degree angle under a ratio of one-foot rise to each
half-foot horizontal. Respondent argues that its construction of the trench, having a
width of 12 feet, complied with the requirements of 29 C.F.R. � 1926.652(c) and that it
was improperly cited for a violation of 29 C.F.R. � 1926.652(b). While we find
Respondent's argument purely academic in, nature, since we have determined that Respondent
constricted the trench with no angle of repose to its sides at all, and thus even
considering its argument, it would nonetheless be in violation of the standard it relies
upon, i.e., 29 C.F.R. � 1926.652(c), we find that the standard cited by the
Complainant is appropriate when considering the condition of the soil in which dug.

With respect to the issue concerning the condition of the soil,
i.e., whether it was soft and unstable or whether it was hard and compact, both
parties presented extended testimony of two soil engineering experts. Before reaching an
assessment of the persuasiveness of each expert's view and of their expertise and opinions
concerning the issues in this case, we find that we can resolve the basic issue as to the
condition of the soil from other testimony and documents submitted in evidence at trial.

First, looking to the testimony of the eyewitnesses who entered
the trench, they each reported finding the soil compacted clay, which when dry was crumbly
and fractured easily turning to small particles or dust (Tr. I-93, 94, 99, 117, 122, 162).
This observation seems consistent with the soil survey published by the United States
Department of Agriculture, Soil Conservation Service, which showed the soil to be of
average characteristics, made mainly of clay loam or silty clay loam glacial till (Ex.
C-20, 21). In viewing the provisions of 29 C.F.R. � 1926.652(b) and (c), it is important
to not that 1926.652(b), referring to Table P-1, specifically notes that clays, silts, and
loams require shoring and bracing, and furthermore is more in line with the definition of
average soil.

In attempting to identify just what is hard and compact soil, we must make reference to
1926.653(h) which defines hard compact soil as "all earth materials not classified as
running or unstable." Further referencing these regulations, 1926.653(q) entitled
"Unstable Soil" defines such as "earth material, other than running, that
because of its nature or the influence of related conditions, cannot be depended upon to
remain in place without extra support, such as would be furnished by a system of
shoring." By interpretation it is clear that by using Table P-1 in reference to clay,
silt and loam, which requires shoring and bracing, we would have to hold that the clay
found at the work site would fall within the term "unstable soil" as defined by
the regulations.

As above mentioned the evidence clearly portrayed the soil at
Respondent's work site and at the site of the trench which caved-in, as Kewaunee type soil
which is defined as silty clay loam. With the aid of the regulations, we must reach the
conclusion that the soil was soft and unstable and that trenching standard 79 C.F.R. �
1926.652(b) was applicable to the work site (Ex. R-6, C-20, C-21; Tr. 11-10).

Additionally, both parties presented the expert testimony and
opinions of two soil engineers concerning the condition of the soil. The complainant
presented the testimony of Dr. William T. Painter, Ph.D., P.E. Dr. Painter has significant
experience within the academic area and as a geologist and as a practicing soil and
foundation engineer. His experience was multi-faceted and covered almost every avenue of
soil mechanics in its practical sense (Ex. C-15; Tr. II-61-68, 69). As a soil engineer, he
has been involved in a multitude of field works such as stabilization of landslides,
construction of forest access ways, geological investigations associated with building
construction or remedial construction, foundation engineering, excavations for sewer and
other systems, as well as other activities dealing with the science of soil and foundation
engineering (Tr. II-62-67, 69, 496). Dr. Painter's academic achievement follows his
professional accomplishments in that he has been involved in many learned studies dealing
with soil research, soil mechanics and foundation analysis.

Significantly, Dr. Painter was an assistant professor of soil
mechanics with the University of Wisconsin and in that capacity he did soil research in
the, State of Wisconsin, and in particular within Sheboygan County where Respondent's work
site involved In this matter was located. His geological investigations made him
particularly familiar with the soil structure and content in Wisconsin and in the area
relevant to these proceedings (Tr. II-66, 67, 71).

Respondent's expert, Mr. Peter J. Bosscher, a professor of
civil engineering at the University of Wisconsin, developed his expertise solely within
the academe and was without any real practical experience within the field of soil
engineering. After carefully listening to the views of each expert, I find Complainant's
expert, Dr. Painter, to present more of a realistic, knowledgeable, and practical view,
with precise conclusions concerning the condition of the soil in issue and now it got that
way (Tr. II-107, 147). I find Dr. Bosscher's testimony to lack that degree of precision,
accuracy and reliability to have any persuasiveness or have impact upon deciding the
issues in this case.

We find reasonable and well founded Dr. Painter's view of the
geology of the Sheboygan County area as being created by glacial action and in geological
terms known as a glacial outwash plain (Tr. II-76). An outwash plain is one sheets that
existed at the glacial period. Different types of soils were then deposited as a result of
the streams running off the glaciers. These deposits consisted of silt, clay, sand and
gravel. The ice covering these deposits was approximately half mile thick. Following the
change of climates, the heating up of the area, and the melting of the glacial ice, lakes
were formed and streams picked up the clay, silt, sand and gravel making deposits at
particular areas. Coarser materials would be conveyed more distant from the source. The
latter mentioned material makes up the soil in Sheboygan County and surrounding areas.

As the ice melted and water receded and evaporated, the glacial
till was allowed to dry out and fissures and small cracks developed within the soil as the
moisture evaporated away from the surface. Understandably, this process took many
thousands of years (Tr. 73-80). As the soil dried out, it became fissured and granular in
nature so that soil would break into many small pieces upon disturbance from an
excavation. It is a characteristic of this type of soil to have fractures when disturbed
by excavations (Tr. II-80).

Without belaboring this opinion, Dr. Painter's ultimate
conclusion that the clay soil found in Sheboygan County is of low plasticity and as such
would not usually remain intact when disturbed, would tend to crumble, and would not have
much cohesion to it, is found to be a credible material fact herein. [[4/]] The various
studies and geological data and surveys made of the area were supportive of Dr. Painter's
conclusions.

Dr. Painter further indicated that as one excavates in clay, such as that found at
respondent's work site, stresses would be released in the soil which would cause the soil
to move toward the opening of the excavation. Because of the tiny fissures which are
present in the soil, this would cause very little strength to be exerted by the clay to
hold itself together and would tend not to stay intact but to lead to a massive collapse
when excavated without safety procedures in place (Tr. II-82-85). In reviewing all of Dr.
Painter's testimony, we find considerable support and persuasiveness to his ultimate
conclusions and accept same to resolve the contested issues herein. [[5/]] We find his
analysis of the geologic makeup of the area in question precise, knowledgeable and well
founded both from an academic standpoint and from his own practical and technical
experience. We accept as fact his opinion that the soil at the work site, and throughout
Sheboygan County and surrounding areas, which is composed of silty loam clay to be
unstable in nature. (See fn. 4, supra .) Accordingly, we again reach the conclusion
that any excavation into the clay soil in Sheboygan County must be done in accordance with
trenching standard 29 C.F.R. � 1926.652(b).

C. VIOLATION OF 29 C.F.R. � 1926.652(b)

As earlier discussed the trench constructed by Respondent was
not sloped or shored as prescribed by the cited standard, 29 C.F.R. � 1926.652(b). The
evidence established that the sides of the trench were virtually vertical with no angle of
repose of any significance. The trench was approximately 11 feet deep, 3 feet wide at its
base and 6 to 8 feet wide at the top, and was excavated in average, soft and/or unstable
soil. Respondent had its employees, on a regular basis, enter into the unshored or
unsloped 11-feet-deep trench to perform the leveling of gravel, the installation of sewer
pipe and the further covering of the sewer pipe with gravel (Tr. II-162, 192, 195, 222,
172, 412, 413). Indeed it was David L. Zunker, the president, owner and operator of
Respondent company, that directed the employees in their duties and was supervising these
employees in the trench five minutes prior to the side of the trench giving way,
collapsing on, burying, and seriously injurying employee Borgwardt (Tr. II-164, 166). By
reason of these facts, we find a serious violation of the cited standard and will affirm
same.

AFFIRMATIVE DEFENSES

A. 29 C.F.R. � 1926.652 Is Allegedly Vague And Unforceable

Respondent challenges the cited standard on the ground that the
regulation is void by reason of vagueness and and by reason that the standard is difficult
for an employer to understand especially in view of the provisions of 29 C.F.R. �
1926.652(c) which provides for an alternate method of sloping where hard soil is found.

We fail to follow the rationale of respondent's argument. The
cited standard has been considered by the Commission and has been found to be fully
enforceable. Marshall v. Connecticut Natural Gas Corp., 78 OSAHRC 60/83, 6 BNA OSHC
1796, 1978 CCH OSHD � 22,874 (No. 13964, 1978). In that case, the Commission rejected the
argument that the standard was vague stating "when the various terms of section
1926.652(b) are read in light of the other provisions of the trenching standards, their
meaning is sufficiently precise to put employers on notice of what the standard
requires" (6 BNA OSHC at 1799).

Accordingly, since the Commission has rejected the argument that the standard is vague, it
will likewise be rejected in this case.

B. The Respondent Was Allegedly Unaware Of The Serious
Condition

Respondent argues that there was no evidence to indicate that
the soil was unstable and was likely to cave-in. It argues that there was no substantial
probability that death or serious harm could result from the manner in which it excavated
the trench. It finds that the cave-in was an unforeseeable event caused by an enormous
complexity of forces and factors affecting the soil structure, analogous to an
unpredictable earthquake. We find respondent's argument disingenuous at best.

As pointed out by Dr. Painter's eloquent and knowledgeable
recitation of soil dynamics in the cited area, it was just a matter of time before a
cave-in would occur because of the method of excavation chosen by Respondent. The
instability of the soil was easily discernable to those who were interested in finding the
existence of that fact. As earlier discussed, we are not dealing herein with hard and
compact soil, and that fact was readily and reasonably apparent to all.

Moreover, Respondent's method of constructing the trench
invited disaster. The sides of the trench were not sloped but were vertical; Respondent
caused employees to enter into this 11-foot trench, measuring 3 feet at the bottom and 6
to 8 feet at the top, to perform numerous tasks. Indeed, five minutes prior to the
cave-in, the owner and operator of Respondent, Mr. David L. Zunker, was at the edge of the
dangerously constructed trench viewing and directing the activities of the employees
within the trench. We find Respondent's motive for constructing the trench as it did all
but too clear that it was one of economics. The backhoe operator indicated that he spent
20 minutes excavating the 25-feet-long by 12-feet-deep trench. As Dr. Painter pointed out,
this is hardly enough time to cut a trench to those dimensions, let alone excavate a
trench that would comply with the standard and indeed be anything close to that claimed to
have been done by the Respondent (Tr. II-496-499). Quite clearly Respondent chose to
create a dangerous and hazardous workplace by excavating a trench whose walls were
vertical not sloped nor shored, since this was a less expensive means of accomplishing
completion of the project involving installation of the sever lines. We reject
Respondent's argument in that we perceive from the evidence in this case that the safety
of employees was disregarded with reckless abandon on behalf of expediency and economy. We
believe the evidence well establishes the fact that had Respondent complied with the cited
standard it would have prevented a cave-in and would have prevented the serious injuries
to Mr. Borgwardt. We find that the conduct of Respondent in failing to comply with the Act
and the cited regulation, was a knowledgeable and voluntary one, and accordingly will be
characterized as serious, if not willful. Respondent's argument in this regard is
rejected.

PENALTY

We find in this case a conscious, if not willful, disregard by
Respondent of the requirement of the Act and the cited standard. For obvious expediency
purposes, Respondent constructed a trench whose sides were neither sloped nor shored. It
was obviously economically advantageous to Respondent to construct such a trench as it
did, than to construct one that complied with the Act and the cited standard. By reason of
this conduct, a dangerous work condition was established. Respondent, with knowledge of
this serious and dangerous condition, required its employees to enter into the 12-foot
trench whose sides were neither shored nor sloped and whose sides were cut in unstable
soil. It was a just a matter of time before a cave-in would have occurred, and in fact one
did occur seriously injuring an employee. Keeping in mind the requirements of section
17(j) of the Act, and due consideration being given to the serious nature and consequences
resulting from the violation, we find that a penalty of $1,000 is appropriate.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of
Law, as set out in my Decision and Order, and for good cause shown, it is ORDERED:

1. That item one of Serious Citation No. 1 is AFFIRMED.

2. That a penalty of $1,000 is ASSESSED.

EDWARD A. BOBRICK

Judge, OSHRC

Dated: May 2, 1985

FOOTNOTES:

[[1/]] That standard provides:

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

[[2/]] As Chairman Buckley suggests in his separate views, it
is unusual for a judge to make a credibility resolution that amounts to a "blanket
dismissal of four witnesses' testimony." However, this is a rare case. In essence,
the Secretary and Zunker presented two sets of witnesses who, insofar as the disputed
factual issues are concerned, testified to two totally different, and largely mutually
exclusive, sets of facts. The conflicting testimony for the most part could not be
reconciled. Realistically, the judge had only two options: (a) to credit the Secretary's
witnesses and discredit Zunker's, or (b) to credit Zunker's witnesses and discredit the
Secretary's. He chose option (a).

[[3/]] "Unstable soil" is defined at 29 C.F.R. �
1926.653(q) as "[e]arth material, other than running, that because of its nature or
the influence of related conditions, cannot be depended upon to remain in place without
extra support, such as would be furnished by a system of shoring." A note to Table
P-1 of 29 C.F.R. � 1926.652 states that " clays, silts , loams or
non- homogenous soils require shoring and bracing." (Emphasis added).

[[4/]] Dr. Painter corroborated the testimony of the on-site
eyewitnesses concerning the tendency of the soil to crumble easily when disturbed. He
testified that the type of soil found in the trench tends to break up when disturbed; this
is the natural result of the drying out process that occurs during excavation.

[[5/]] The direction for review included as an issue the
question of whether the standard was not validly promulgated as an "established
Federal standard" under 29 U.S.C. � 655(a). The direction for review noted a
possible ground for concluding that the standard is invalid. The basis for the standard
being considered an "established Federal standard" was that it had been
promulgated originally under the federal Construction Safety Act. Zunker argues, however,
that it was not validly promulgated under the Construction Safety Act because it was
promulgated less than 30 days before its effective date (promulgated April 17, 1971, with
an effective date of April 24, 1971).

Commissioner Arey would reject this contention on the basis of Commission precedent
holding that OSHA standards are not subject to attack during enforcement proceedings on
the ground that there may have been procedural defects during their previous adoption
under other federal statutes. E.g., Daniel Construction Co., 81 OSAHRC
41/A2, 9 BNA OSHC 1854, 1856, 1981 CCH OSHD � 25,385, pp. 31,622-23 (No. 12525, 1981).
She notes that, in enacting 29 U.S.C. � 655(a), Congress authorized the Secretary to
summarily adopt established federal standards "as soon as practicable;" it did
not require the Secretary to examine whether there were procedural defects when the
standards were initially promulgated under other federal laws. General Motors Corp., GM
Parts Div., 81 OSAHRC 13/C10, 9 BNA OSHC 1331, 1336-37 1981 CCH OSHD � 25,202 (No.
79-4478, 1981).

[[6/]] That standard provides:

Sides of trenches in hard or compact soil, including
embankments, shall be shored or otherwise supported when the trench is more than 5 feet in
depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the
5- foot level may be sloped to preclude collapse, but shall not be steeper than a 1- foot
rise to each 1/2-foot horizontal. . . .

[[7/]] Each trench wall would have to be sloped 1/2:1 (1/2 foot
horizontally for every foot vertically) above the bottom live feet. (As noted above, the
bottom five feet could be vertical, consistent with � 1926.652(c).) Assuming that the
trench was 12 feet deep (no witness testified that it was deeper), the top 7 feet would
have to be sloped 1/2:1. That means that each wall had to be sloped 3 1/2 feet
horizontally. The bottom width was 2 1/2 feet. Thus, the top width would have to be 2 1/2
feet + 3 1/2 feet + 3 1/2 feet, or 9 1/2 feet. Respondent's witnesses testified that it
measured 11 to 12 feet wide according to the surveying rod. Thus, it was wider than
required by 1926.652(c).

[[8/]] The grounds for a credibility finding based on
"demeanor" were illustrated in Inland Steel, supra. There, the
judge discredited one witness's testimony because his demeanor and manner of answering
questions on cross- examination "displayed bias" against the employer. 12 BNA
OSHC at 1278-79, 1986-87 CCH OSHD at pp. 36,005-06. He discredited certain other witnesses
where "on cross examination [their] account of particular events created a strong
impression that they were giving a wrong coloring to material facts so as to deprive them
of credit." 12 BNA OSHC at 1982, 1986-87 CCH OSHD at p. 36,009. Those demeanor
findings were properly explained and were consistent with other evidence.

[[9/]] Because the trench dimensions claimed by the parties
were not very different, Dr. Painter's testimony that a trench with the dimensions that
Zunker claims could not have been dug in 20 minutes is unpersuasive.

[[10/]] Because of his opinion on the merits of the citation,
Chairman Buckley does not need to address other arguments for vacating the citation,
including the standard's alleged vagueness and invalidity.

[[1]] Jurisdiction of the parties and the subject matter herein is confirmed upon the
Occupational Safety and Health Review Commission by Section 10(c) of the Act.

[[2/]] � 1926.652  Specific trenching requirements.

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

[[3/]] Trial in this matter was held in two sessions, the
transcript of each session having its own page numbers starting with page 1. Accordingly,
reference herein to the transcript will be- as follows: The transcript of the first
session of March 24 and 25, 1983, will be cited as (Tr. I- ). The transcript of the second
session of May 2, 3, and 4, 1983, will be cited as (Tr. II- ).

[[4/]] Viewing the specific cited work area, we find this area,
like all of Sheboygan County, was a glacial outwash area. By reason of the earth's
heating, the soil left from the glacier lost its moisture and began to harden with cracks
resulting internally due to shrinkage (referred to as desiccation) (Tr. II-77, 78). As the
soil further dried, fissures or cracks began to develop within the soil forming a network
of cracks through it and causing it to be granular in nature (Tr. II-79, 80), hence, the
powdery breakup of the soil mentioned by the paramedics. The soil had little plasticity to
it. By reason of these factors, the soil in the work area became very unstable when
disturbed by an excavation (Tr. II-80-86). This type of soil, according to the scientific
and technical expertise of Dr. Painter, could not be considered as hard or compact but at
best was average unstable soil (Tr. II-92). We find Dr. Painter's conclusion decisive as
to the issue of the nature of the soil at the cited work site.

[[5/]]We will not comment on Dr. Bosscher's conclusion that the
soil at the work site was hard and compact and stable, except to say that such conclusion
is contrary to the manifest weight of the considerable credible evidence herein showing
otherwise. We find that his reliance on certain documents to be inappropriate and his
overall experience something less than necessary in providing insight into underground
construction activities and soil analysis. For those very same reasons pointed out by Dr.
Painter's review of Dr. Bosscher's analysis, we find Dr. Bosscher's conclusion without
reliance or persuasion. and as such, are rejected in total.