D.A. & L. Caruso, Inc.

Plain-English summary

D.A. & L. Caruso employees worked in a 12-to-15-foot-deep trench without shoring, a trench box, or adequate sloping. Portions of the wall had collapsed the previous day while employees were inside, and water was entering near an existing sewer line. The judge vacated the citation after crediting evidence that the soil was as stable as materials that could stand vertically. The Commission reversed because the nearby soil borings did not reflect the actual trench conditions and testimony established sandy clay, backfill, water, and prior collapses. It found the violation willful because Caruso knew the trenching rule, had been cited under it before, knew protection was needed, and still allowed employees to reenter. The Commission assessed a $3,000 penalty; Chairman Rowland dissented on the soil-stability evidence.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(c) and related definitions in 29 C.F.R. § 1926.653
• Outcome: Willful trench-support violation affirmed; $3,000 penalty assessed.
• Key point: Remote soil borings do not overcome direct evidence of unstable trench conditions, especially prior wall collapses, backfill, and water intrusion.

Full text (OSHRC public release)

Docket No. 79-5676

SECRETARY OF LABOR,

Complainant,

v.

D.A. & L. CARUSO, INC.,

Respondent.

OSHRC Docket No. 79-5676

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health Act of
1970, 29 U.S.C. �� 651-678 ("the Act").  The Commission is an
adjudicatory agency, independent of the Department of Labor and the Occupational Safety
and Health Administration.  It was established to resolve disputes arising out of
enforcement actions brought by the Secretary of Labor under the Act and has no regulatory
functions.  See section 10(c) of the Act, 29 U.S.C. � 659(c).

The case involves the Secretary of Labor's ("Secretary") allegation
that D.A. & L. Caruso, Inc. ("Caruso") committed a willful violation of the
standard at 29 C.F.R. � 1926.652(c)[[1]] by failing to shore or otherwise support the
sides of a trench dug in hard or compact soil.  Administrative Law Judge Joseph
Chalk, finding that the Secretary had failed to prove that the sides of the trench were
located in hard or compact soil, vacated the citation.  The Commission reverses the
judge, finds a willful violation, affirms the citation, and assesses a $3000 penalty.[[2]]

I

On August 16, 1979, Caruso was constructing a storm sewer pipeline in Prospect
Park, Pennsylvania.  The work included excavating a trench for the 48-inch pipe,
pouring stones onto the trench floor to make a level bed, placing the pipe onto the
stones, and connecting the pipe to the adjoining pipe segment.  The pertinent portion
of the trench ran down the middle of Darby Crescent Road and was about 8 feet wide at the
top, 12 to 15 feet deep, and about 50 feet long.  One side of the trench was vertical
and the other was slightly sloped near the top of the trench.  An existing 12-inch
sewer pipe in a backfilled area ran along the unsloped wall of the trench and parallel to
that wall about 3 feet below the road surface.

At about 11:00 a.m., three OSHA compliance officers arrived at the trench site in response
to complaints that employees had been working in an unshored trench.  Compliance
officer Buchanan testified that when he arrived there were no employees in the trench. He
observed water in the bottom of the trench and that "portions of the side of the
trench was [sic] falling over ["fluffing"] into the water,. . . . at the bottom
of the trench."  Buchanan testified that he interviewed employees Cullen and
Sterling, who told him that they had been working in the trench that morning prior to his
arrival. Buchanan testified that he conferred with Caruso's on-site superintendent, Nenna,
who told him that Nenna was aware of the OSHA trenching standards and admitted the trench
should have been shored or protected.  Nenna told him that as a result of complaints
by the union field representative he had ordered that a trench box be brought to the site
prior to the inspection.  The compliance officer did not make any tests of the type
of soil in the trench.

Cullen, a laborer, testified that he had been in the trench for about an hour
on the morning of August 16.  He also testified that on August 15 the soil in the
trench had given way and employee Sterling, who was in the trench at the time, had to jump
inside the sewer pipe to avoid the falling soil.  The soil that fell covered part of
the entrance to the pipe and Cullen had to descend into the trench to dig Sterling out.
  Later that same day, Cullen was in the trench when the backhoe operator shouted at
him to get out and the trench "caved in while I was down there."  Cullen
escaped injury.  Cullen testified that on the morning of August 16 the trench was in
the same condition that it had been on August 15 except that some backfilling had been
done.

Union local field representative Freeman, who had worked intermittently on
trenching projects for about four years, testified that he went to the jobsite on August
16 and was taken to the trench by Cullen.  Two employees were then at work in the
trench pumping out water.  Freeman testified that he called the employees out of the
trench, told project superintendent Nenna that the trench was unsafe, and that Nenna
replied that he would take care of it.  Freeman testified that the trench was built
beside an existing sewer line that ran alongside the trench, about three feet below the
road surface.  Water was "seeping" in a "slow flow" downward from
a joint in the existing sewer line.  Freeman did not conduct any soil tests but
visually examined the soil and saw that the vertical side of the trench above the existing
sewer pipe contained fill soil and that the soil beneath the sewer pipe was clay, some of
which had fallen away from that side of the trench.

Nenna testified that he was at the jobsite every day and had the chance to
observe the soil they were digging in.  He testified that the soil material they were
encountering on the project consisted of sandy clays and rock.  When the job reached
Darby Crescent road, the rock was about six feet down from the top of the trench.  As
the work progressed, rock was encountered at increasingly lower levels.  Nenna
acknowledged that by the time of the inspection the rock had disappeared or was at the
lower part of the pipe being laid and the balance of the soil material was sandy clay.
  At this same time Caruso was unable to continue to slope the trench wall as a
result of the close proximity of the existing sewer line.  As a result, arrangements
were being made on August 15 to bring in the trench box that had been used earlier in the
project.  Nenna testified that he had been informed the night before the inspection
that part of the trench wall had collapsed while Sterling was in the trench.  He had
been told that the backhoe had knocked some dirt off the wall while it was being used to
slope the wall.  On the basis of his examination of the soil in the trench, Nenna,
who had experience with projects in which thousands of feet of pipes were laid, testified
that it was stable.

Caruso called Kondner, a registered professional engineer, as an expert witness.  He
testified that he visited Caruso's jobsite in early October, 1979, after the area had been
backfilled.  He requested soil borings and the borings were put down in July, 1980.
  Kondner testified that boring B-1 was taken about forty feet east of the original
trench opening and boring B-2 was taken about thirty feet off the center line of the
original trench opening.  The borings were taken at some distance from the site of
the trench because he wanted the borings to be clear of underground utility lines and
backfilled soil.

Boring B-1 revealed that the top portion of the earth at that site was
composed of five feet of very stiff sandy clay.  The clay was underlain by weathered
gneiss (rock) down to about 15-1/2 feet deep.  Boring B-2 revealed a top portion of
about 3-1/2 feet of very stiff sandy clay with some silt and below that weathered gneiss
rock down to about 15-1/2 feet.  Kondner testified that the sandy clay was very
dense, very hard, and very stable, and was safe enough for a vertical trench wall.  
He testified that, with reference to Table P-1 of section 1926.652, [[3]] the gneiss in
the soil samples was very similar to shale and that the shear strength of the soil in the
soil samples would be equivalent to Table P-1's "Solid Rock, Shale or Cemented Sand
and Gravels" category.  "In fact," Kondner testified, "this
[sample] material would be much better than cemented sand and gravel."  Kondner
testified that although the borings did not duplicate the conditions in the trench with
respect to water on the trench bottom, the water in the trench was a very minor
circumstance and would not have weakened the trench.

Caruso's general manager, Crandall, testified that prior to the commencement of the
project, of which this trench was just a small part, test borings were taken of the soil
to be encountered.  The soil tested was a sandy gravel clay material and weathered
gneiss. After those borings had been made Caruso used a backhoe to excavate in various
areas of the project to check further on the type of soil.  The material excavated
with the backhoe was very similar to the soil taken in the earlier borings.  The
record does not indicate where the material excavated with the backhoe or the
pre-commencement borings were taken in relation to the cited trench. Crandall testified
that he had viewed the trench in this case and had observed the water in it.  He
"felt we had a stable condition."

II

Judge Chalk vacated the section 1926.652(c) citation.  He stated that,
under Table P-1, the sides of trenches composed of solid rock, shale or cemented sand or
gravel, unlike hard or compact soil, require no protection and that the soil in this
trench was equivalent to shale and cemented sands and gravel.  The judge credited
Kondner's testimony that the test borings consisted of soil with a composition identical
in stability to shale and cemented sand and gravel and that the trench walls consisted of
material similar to that in the test borings, although Kondner never examined the material
in the trench walls.  The judge also credited Kondner's opinion that the backfill
material in the vertical trench side and the water in one side and the bottom of the
trench would not affect the stability of the trench.  The judge concluded that the
Secretary's evidence was not sufficient to establish that the sides of the trench
consisted of hard or compact soil.  The judge acknowledged the fact that portions of
the trench wall had collapsed into the trench on two occasions, but attributed this to the
operation of a backhoe.  This conclusion was based on Nenna's account of what he was
told about the incident, since Nenna was not present when the walls collapsed.

The Secretary petitioned for review of the judge's decision and review was
granted on whether the judge erred in vacating the citation on the ground that the
Secretary failed to establish that the sides of the trench were located in hard or compact
soil.

III

The Secretary argues on review that section 1926.652(c) requires a trench to be shored,
sloped, or otherwise protected regardless of soil stability, unless the trench falls
within one of the limited exceptions in Table P-1 which accompanies the trenching
standards. The Secretary contends that if a significant part of the material of a trench
is soil the trench must be supported under section 1926.652(c) even if some portion of the
trench wall is rock.  The Secretary argues that the soil in the trench was not safe,
as evidenced by the testimony of employee Cullen, who witnessed the trench walls cave in.
  The Secretary points out that the wall of the unsloped side of the trench contained
backfill and suggests that this is a further indication that the trench was unsafe.
 The Secretary next argues that the evidence demonstrates Caruso's violation of the
standard was willful because Caruso acted with an intentional disregard of the
requirements of section 1926.652(c).  The Secretary contends that Nenna knew that the
trench was dug in clay, knew that the trench had vertical walls, and admitted to
compliance officer Buchanan that the trench needed protective measures.

Caruso did not file a brief on review.

IV

The Commission concludes that a violation has been established because the trench was dug
in soil which is required by section 1926.652(c) to be "shored or otherwise supported
when the trench is more than 5 feet in depth and 8 feet or more in length." Caruso
essentially based its defense on testimony which attempted to show that the clay,
weathered rock, and backfill in the trench were as stable as solid rock, shale, or
cemented sand and gravels, the materials referred to in Table P-1 of section 1926.652
which do not require sloping or other protective measures.  See , e.g. , Frank
Irey Jr., Inc. , 77 OSAHRC 192/F11, 5 BNA OSHC 2030, 1977-78 CCH OSHD � 22,283 (No.
701, 1977).  However, the record does not support Caruso's argument that the soil in
which the trench was dug was as stable as solid rock, shale, or cemented sand and gravel.
 We find, as a matter of fact, that a preponderance of the evidence establishes that
the soil was not stable.

Nenna, the person with the greatest degree of experience with soil
characteristics who actually viewed the soil on the day of the inspection, testified that
the soil was sandy clay with, perhaps, some weathered rock at the bottom of the trench.
  A portion of the trench wall contained backfill.  This description is
different from that of the conditions found at the test boring sites.  Moreover,
Nenna admitted to the compliance officer that the trench needed to be supported and, in
fact, made arrangements to bring in a trench box on the day prior to the inspection.
 Cullen testified that the trench wall had caved in twice the day before the
inspection while an employee was in the trench, and that Cullen had to dig the other
employee out.  Freeman testified that water was seeping into the trench from a joint
in the adjacent sewer line.  We find this evidence decisive, in view of the scarcely
relevant and unpersuasive testimony of Caruso's expert witness, Kondner.  His soil
samples were taken from areas at least 30 feet from where the trench was dug and do not
reflect the unstable soil conditions in the walls of the trench as established by the
testimony of Nenna, Cullen and Freeman.

The Commission further determines that Caruso committed a willful violation
of the cited standard.  A violation is willful if it is committed with either an
intentional disregard of, or plain indifference to, the Act's requirements.  See ,
e.g ., S. Zara and Sons Contracting Co ., 82 OSAHRC 5/C9, 10 BNA OSHC
1334, 1982 CCH OSHD � 25,892 (No. 78-2125, 1982), aff'd , No. 82-4050 (2d Cir.
Sept. 17, 1982).

Caruso had been previously cited for violation of the same standard and was
therefore familiar with the standard's requirements. Further, an OSHA compliance officer
had explained the provisions of the trenching standards to Caruso's engineer, McCabe,
about four months prior to the inspection in the course of inspecting another unprotected
Caruso trench.  McCabe was the engineer on the project involved in this case.  
Nenna, Caruso's superintendent on this project, had been superintendent of construction
jobs in which many thousands of feet of pipe had been placed.  Nenna was at the
jobsite every day.  He knew the OSHA trenching standards, and that the trench wall
could no longer be sloped as before.  Further, Nenna had been told that the trench
had collapsed on August 15 while Sterling was in the trench and recognized by that date
that trench support was needed, yet Nenna permitted employees to go back into the trench
on August 16 without any protection.  These facts amply demonstrate that Caruso
either intentionally disregarded the terms of the cited standard or was plainly
indifferent to them.

The Commission assesses a $3000 penalty.  The gravity of the violation
was moderately high because the trench was 12-15 feet deep and could have seriously
injured employees if it had collapsed.  Caruso's good faith and history are
downgraded because this was a willful violation and Caruso had previously violated the
same standard.  Caruso is a small employer; its stipulated average number of
employees was 20.

Accordingly, the Commission finds a willful violation of the standard at
section 1926.652(c), affirms the citation, and assesses a $3000 penalty.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED:  JUL 20 1984

ROWLAND, Chairman, dissenting:

In this case the Secretary alleged a violation of 29 C.F.R. � 1926.652(c),
which requires that the walls of a trench dug in soil characterized as "hard or
compact" be supported or alternatively sloped to a specified degree.  The
administrative law judge concluded that the soil was not hard or compact within the
meaning of the cited standard because the evidence demonstrated that the materials
comprising the trench walls was equivalent in stability to solid rock, shale, or cemented
sand and gravel, which, as a table accompanying the standard recognizes, can stand
vertically without additional support or sloping.  Thus, the judge essentially
determined that the cited standard does not apply to the conditions in question.  The
majority reverses the judge based on its view that the evidence does not support the
judge's finding regarding the stability of the trench walls.  I respectfully dissent.

There is no dispute on the record regarding the composition of the trench
walls.  Freeman, the only witness for the Secretary who described the soil type,
characterized it as clay.  Although he took no soil samples, his testimony is not
inconsistent with that of Caruso's witnesses, all of whom indicated that the soil included
sand and clay with a layer of rock at some but not all locations. However, neither Freeman
nor compliance officer Buchanan were shown to have any particular expertise with regard to
determining soil stability.  Thus, Freeman indicated only that he has had prior
experience with trench excavation work; the record does not show the duration of this
experience or the specific type of work Freeman had performed.  At the time in
question here, Freeman was a field representative for the union; it does not appear he was
present on the jobsite on a daily basis.  Similarly, Buchanan had been a compliance
officer for less than a year and had previously been employed as an inspector for a
housing authority and as a fire inspector.  Caruso, on the other hand, presented the
testimony not only of Nenna, who had extensive experience with excavations for sewer
lines, but of two highly qualified engineers--Kondner, admitted as an expert, and
Crandall, a civil engineer with prior experience in soil inspection and testing.
 Nenna's opinion that the clay was like rock was based upon his familiarity with the
trench on a daily basis.  Nenna specifically testified that the trench was left open
at night and on weekends without any indications of collapse.  Crandall's opinion
similarly was based on observations as well as on actual tests.  Finally, while
Kondner did not view the trench during the time it was open, he was shown the photographs
taken by the compliance officers. Testifying from these photographs, he described in
considerable detail how characteristics of the trench walls reflected in the photographs
supported his conclusion that the soil had the shear strength of solid rock, shale or
cemented gravel.  In Kondner's opinion the sandy clay was "very dense and very
hard material, very stable material."  He opined that the soil was safe enough
for a vertical trench wall.

Despite the weight of Caruso's evidence, the majority finds the Secretary's
evidence "decisive" and the testimony of Kondner "unpersuasive" and
"scarcely relevant."  In my view, in reaching these conclusions the
majority misinterprets the record, and its reason for not crediting Kondner's testimony is
unsupportable.  Thus, the majority erroneously states that Nenna did not consider the
trench walls to be stable whereas all of Nenna's testimony indicates directly to the
contrary.  The majority relies on Buchanan's testimony of a statement made to him by
Nenna regarding a need for protecting employees and efforts made by Nenna to obtain a
trench box on the day prior to the inspection.  The majority neglects to mention that
Nenna specifically testified that he did not agree with the compliance officer that the
trench was unsafe[[1]] and that the purpose of securing the trench box on August 15 was to
protect the existing sewer line from being broken during the excavation.  Similarly,
the majority finds the trench not to have the stability of solid rock or cemented material
based on Freeman's testimony of a source of water in the trench without explaining why it
chooses to discredit Kondner's opinion that moisture from this source would not
appreciably weaken the trench walls.[[2]]  The majority also states no reasons for
its implicit rejection of the judge's finding that the loss of soil from the trench walls
described by Cullen was due to operation of the backhoe despite Nenna's testimony that the
backhoe was in the process of excavating the trench during the incident involving employee
Sterling[[3]] and despite Kondner's testimony of situations in which the operation of a
backhoe can pull material out of the side of a trench dug in material of the type in
question here.

Finally, the majority clearly errs in concluding that Kondner's soil samples
did not accurately reflect the conditions of the trench because they were taken in an area
away from the exact location where the trench had been dug and because they showed a
different soil composition than that to which Nenna testified.  The latter conclusion
presumably is based on the fact that the soil samples did not show any backfill, [[4]]
since in all other respects the soil samples show the same materials to which Nenna
testified.  The record, however, plainly demonstrates that backfill was not present
in the soil samples simply because Kondner elected to take samples in undisturbed soil.
 Furthermore, Kondner's samples otherwise were consistent with the description of the
trench material given by the other witnesses in the case as well as with the samples
described by Crandall, which were taken along the projected line of the trench.  
Kondner also related his opinion regarding the stability of the trench to the physical
characteristics of the trench as shown in the Secretary's photographs.  Considering
Kondner's qualifications, the basis for his opinion and the reasoning with which his
opinion is supported, and the overall consistency of the testimony, his opinion is clearly
entitled to weight.  See Horvitz Co ., 84 OSAHRC , 11 BNA OSHC 1881,
1883, 1984 CCH OSHD � 26,847, p. 34,388 (No. 81-992, 1984) (dissenting opinion). 
Accordingly, the judge properly determined that the trench walls were composed of
materials equivalent in stability to those materials which are not required under the
standards to have additional support or sloping.

In Wright & Lopez, Inc ., 81 OSAHRC 92/D10, 10 BNA OSHC 1108, 1981
CCH OSHD � 25,728 (No. 76-256, 1981), the Commission affirmed a judge's decision that the
list of materials not requiring sloping in Table P-1 was exclusive and that an employer
would be required to slope the walls of a trench dug in another material not specified in
the table regardless whether that material was shown to have the same stability
characteristics as those expressly excluded.  The Commission reasoned that to
conclude otherwise would be to question "the wisdom of the standard."  I
did not participate in this decision.

In my view, Wright & Lopez was wrongly decided.  "Hard
compact" soil is defined at section 1926.653(h) as "all earth materials not
classified as running or unstable."  Section 1926.653(q) defines "unstable
soil" 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 . . ." "Running" as used in these definitions is not itself
defined.  Read literally, these definitions would indicate that all trench materials
would have to come within one of three categories, "hard compact,"
"unstable," or "running."  Since substantive provisions of the
trench standards require a degree of sloping or other means of support for both hard or
compact soil and unstable soil, and since presumably "running" soil also would
require support, [[5]] applying these definitions to the provisions for trench protection
would lead to the conclusion that all trenches would have to be sloped or otherwise
supported regardless of the nature of the material comprising the trench walls.  Such
a conclusion, however, would be directly contrary to Table P-1, as well as to the
definition of "angle of repose," [[6]] both of which indicate that some
trenches, depending upon the nature of the material in which they are excavated, may not
require any sloping whatever. [[7]]  Since the definitions are not totally consistent
with the overall scheme of the standards, I conclude that it would be improper to apply
the definition of "hard compact soil" strictly in determining what is meant by
the phrase "hard or compact soil" appearing in section 1926.652(c).  There
are no other provisions which may be used to give guidance as to what is meant by
"hard or compact" except the language of section 1926.652(c) allowing trenches
to be "sloped to preclude collapse" and the table and definition previously
discussed regarding the concept of an "angle of repose."  Since section
1926.652(c) specifies a maximum slope of 1/2 to 1, or 63 degrees, I would conclude that to
the extent the term "hard or compact" can be defined, it is limited to those
materials which cannot stand at a steeper angle without support.  Accordingly, I
agree with the judge's decision that section 1926.652(c) cannot be considered applicable
to trenches dug in materials having an angle of repose, or maximum slope, greater than 63
degrees.  Since the evidence in this case established that the trench in question was
dug in such material, the judge's decision should be affirmed.

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected]
), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] The standard at section 1926.652(c) provides:

� 1926.652 Specific trenching requirements.

(c) Sides of trenches in hard or compact soil, including embankments, shall be shored or
otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in
length.  In lieu of shoring, the sides of the trench above the 5-foot level may be
sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot
horizontal.  When the outside diameter of a pipe is greater than 6 feet, a bench of
4-foot minimum shall be provided at the toe of the sloped portion.

[[2]] The citation for a willful violation of section 1926.652(c) read:

The side(s) of the trench(es) in hard or compact soil, including
embankment(s), were not shored or otherwise supported when the trench was more than 5 feet
in depth and more than 8 feet in length:

a) Darby Crescent Road, Prospect Park, Pennsylvania 19076 -- trench used for
sanitary storm sewer measuring approximately thirteen feet deep and fifty feet long
(observed 8/16/79).

An $8000 penalty was proposed.

[[3]] Table P-1 is entitled "Approximate Angle of Repose for Sloping of
Sides of Excavations."  Section 1926.653(b) defines "Angle of repose"
as "The greatest angle above the horizontal plane at which a material will lie
without sliding."  Table P-1 shows a 90 degree angle of repose for "Solid
Rock, Shale or Cemented Sand and Gravels."

[[1]] This testimony refers to a conversation Nenna had with another
compliance officer regarding a different portion of the trench which is not in issue in
the case now before us.  The judge's decision, however, indicates that he did not
consider Buchanan's testimony that Nenna admitted the trench was unsafe to be credible.
 Since Nenna's overall testimony clearly demonstrates that he considered the trench
in issue to be safe, the evidence supports the judge's credibility finding.

[[2]] The majority fails to note that Freeman's testimony regarding the
source of the moisture may itself be inadequate.  As previously indicated, Freeman
was not present at the jobsite on a daily basis.  Nenna, who was, stated that the
water in the trench was caused by a break in an existing storm sewer pipe located beneath
the base of the trench as well as by the high water table in the area.  Kondner, when
asked to testify regarding the effect of water entering the trench, explained that water
coming through the loose gravel bedding of the trench would not weaken the trench and did
not indicate any general ground water condition.  In his words, this water
"would have [a] very insignificant effect upon the cohesion."

[[3]] While as the majority indicates Nenna based his description of what had
occurred on information given him by the job foreman, it is clear that he considered the
foreman's statements reliable because he knew that the backhoe would have been in the
process of removing material from the trench at this time.  Cullen also described
another incident, which Nenna

did not specifically address, when soil fell while he was present in the trench.
 However, it appears the backhoe was in operation during this occasion as well.

[[4]] It is not clear from the majority's opinion whether it regards the
presence of backfill as diminishing the stability of the trench walls.  The record
indicates that the utility lines alongside the trench had been installed about 20 years
earlier.  According to Kondner, backfill for excavations of that age were subject to
very stringent compaction criteria and specifications.  Considering the degree of
original compaction, the length of time the backfill had been in place and the weight of
traffic passing by on the roadway, Kondner stated that there was "absolutely no
question" that the backfill material itself "would have reached total stability
and shear strength."

In this regard, I note that the Secretary contends that the Commission
presumes that backfilled areas are inherently less stable than virgin soil, citing Wright
& Lopez, Inc ., 81 OSAHRC 92/D10, 10 BNA OSHC 1108, 1981 CCH OSHD � 25,728 (No.
76-256, 1981) and Boh Bros. Constr. Co ., 76 OSAHRC 142/A2, 4 BNA OSHC 1879, 1976-77
CCH OSHD � 21,336 (No. 7184, 1976).

Wright & Lopez is distinguishable because there was no evidence in that case
demonstrating the stability of the fill and thus the Commission had no occasion to
consider whether backfill should be regarded as a less stable material in all situations.
  Boh Bros. consisted of three separate opinions; only Commissioner Cleary
relied on the presence of backfill in deciding the case.  In contrast, Commission
precedent clearly recognizes that backfill will not be presumed to present a hazard when
there is specific evidence in a particular case demonstrating the rigidity and strength of
the backfill.  See Seaward Constr. Co ., 77 OSAHRC 75/C5, 5 BNA OSHC
1422, 1977-78 CCH OSHD � 21,803 (No. 8684, 1977); Shane, Inc ., 77 OSAHRC 37/E11, 5
BNA OSHC 1217, 1977-78 CCH OSHD � 21,694 (No. 13136, 1977).

[[5]] The standard at issue in this case dealing with hard or compact soil is
quoted in note 1 of the lead opinion.  Section 1926.652(b) requires that trenches in
"unstable or soft material" be sloped or otherwise supported and refers to Table
P-1.  That table, as note 3 of the lead opinion indicates, is concerned with the
maximum angle at which a particular type of trench material will remain in place without
moving.  Using normal definitions of the term "running" one would have to
conclude that "running" soil, that is, soil in motion, is not properly sloped
and therefore requires some other means of support.

[[6]] See note 3 of the lead opinion.

[[7]] The Commission has said, and I agree, that Table P-1 is only
illustrative.  Seaward Constr. Co ., supra , note 4.  See
Pipe-Rite Utilities Ltd ., 82 OSAHRC 3/B1, 10 BNA OSHC 1289, 1982 CCH OSHD �
25,877 (No. 79-234, 1982).  This is not to suggest, however, that the table cannot be
used as a guide in determining the meaning of the substantive standards.