B.G. Danis Company

Plain-English summary

B.G. Danis employees installed pipe in a roughly nine-foot-deep trench dug through a mixture of sand, gravel, silt, and clay. OSHA alleged a willful violation because the trench walls were not sloped adequately for soft or unstable soil. The judge vacated the citation based on soil testing, expert testimony, experienced employees’ observations, and uncertainty about the trench dimensions and required angle. Chairman Buckley agreed that the Secretary had not proven either unstable soil or inadequate sloping. Commissioner Cleary would have found the soil unstable and the measured walls steeper than the approximately 45-degree angle he considered appropriate, though he would not have classified the violation as willful. The divided Commission withdrew review and left the judge’s vacation in place without precedential value on the merits.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(b)
• Outcome: Willful trench-sloping citation remained vacated after an equal division.
• Key point: Conflicting soil classifications, laboratory angle estimates, and trench measurements prevented a Commission majority from resolving whether the slope was adequate.

Full text (OSHRC public release)

Docket No. 80-6933

SECRETARY OF LABOR,

Complainant,

v.

B.G. DANIS COMPANY,

Respondent.

OSHRC Docket No. 80-6933

DECISION

Before:  BUCKLEY, Chairman; and CLEARY, Commissioner.

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
("OSHA").  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 issue on review is whether B.G. Danis Company violated the trenching standard at 29
C.F.R. � 1926.652(b).[[1]] Administrative Law Judge Paul L. Brady found that a violation
was not established and vacated the citation.  For the reasons stated below, Chairman
Buckley and Commissioner Cleary disagree on whether the judge's decision should be
affirmed. [[2]]

I

A compliance officer from OSHA inspected Danis's excavation of a trench in Trenton, Ohio,
and observed three employees working in the trench.  He examined the soil in the
trench and determined that it was composed of sand and gravel.  He concluded that the
soil was soft and unstable because it was composed partly of sand and because he saw soil
slough off the trench wall.  On the same day as the OSHA inspection, soil samples
were taken from the trench at Danis's direction by Bowser-Morner Testing
Laboratories.[[3]]  Bowser-Morner's report stated the soil was composed of sand and
gravel with traces of silt, though the percentages of these components were not stated.
[[4]]  Approximately one to two months after the inspection, Danis arranged to have
further sampling done by Geotechnical Consultants, Inc.  This sampling was done by
Daniel Longo, a professional soils engineer and president of Geotechnical Consultants.
  Longo stated that he attempted "to reconstruct some of the conditions"
that existed during the inspection by using a backhoe to excavate the soil at the original
trench site to a depth of five feet.  Longo's samples showed that the soil taken 10
feet west of the trench's center line was 50 percent sand and 50 percent gravel and that
soil taken eight feet east of this line was 50-60 percent sand, 25 percent gravel and
approximately 15 percent silt and clay.

Bowser-Morner and Geotechnical both performed angle of repose tests on the soil from the
area of the excavation.[[5]]  Two samples tested by Bowser-Morner showed that the
soil's angle of repose was between 41 and 45 degrees.  Based on Geotechnical's tests,
Longo stated that the angle of repose was "something like" 51 degrees and that
on Table P-1 it would be between 45 and 63 degrees.  Longo also stated that he had
"[n]o reason to disagree" with the Bowser-Morner report.

During his inspection, the compliance officer measured various dimensions of the trench
without entering it.  To obtain width estimates, he extended a tape measure across
the trench at a location 20 to 30 feet away from where employees were working.  He
then estimated that where the employees were working the trench was 19 1/2 feet wide at
the top and 9 feet wide at the bottom and that the horizontal components of the slopes of
the east and west walls were 6 and 4 1/2 feet respectively.

Danis's foreman, Bobby Slone, disputed the compliance officer's width measurement, stating
that his estimated measurements showed that the trench was 28 to 30 feet wide at the top.
  Employees who had worked in the trench also disagreed with the compliance officer
and contended that the trench was 5-6 feet wide at the bottom.  The employees who
worked in the trench assisted the backhoe operator in lowering each pipe section to the
completely excavated trench bottom and sealed the end of the section to the preceding pipe
section.  After the pipe section is installed, the backhoe dumps soil around the pipe
to "cradle" it in position.

The compliance officer determined that the depth of the trench was 9 feet 2 inches from a
measurement made by the employees with a depth stick.  The compliance officer,
however, noted that this measurement would "fluctuate a couple of inches depending on
where you're going to measure it."  Danis's employees agreed that the trench was
approximately nine feet deep.  The compliance officer also measured each trench wall
from the top of the trench to the "toe," i.e ., the point where the wall
met the bottom of the trench.  These distances were measured with a tape measure at
the part of the trench where employees were working.  These measurements showed that
the sloped east wall was 12 feet 4 inches from top to "toe" and the west wall
was 10 feet 8 inches.

Based on his estimates of the dimensions of the trench made from a distance of 20-30 feet
from where employees were working, the compliance officer concluded that the slope of the
east wall was approximately 56 degrees and that the slope of the west wall was
approximately 63 degrees.  In the compliance officer's view, the trench was
inadequately sloped and posed an imminent danger to Danis's employees.  He asked
Danis's supervisor to remove the employees from the trench and slope the walls to 33
degrees, which he considered appropriate for the soil involved.  Danis complied with
this request.

Employees of Danis working at the trench site testified that the slope of the trench was
not as steep as the compliance officer claimed.  Danis's project manager, Parrish,
who had a degree in civil engineering and who had studied soil mechanics, testified that
the slope was about 45 degrees.  In Parrish's view, the "toe" of each
trench wall was farther from the top of the wall than the compliance officer asserted.
  Parrish also noted that the toe of each trench wall was "rais[ed]" when
soil was returned to the trench to "cradle" the installed pipe.  Based on
his later excavation of the trench site, Longo estimated that the trench walls were sloped
between 45 and 33 degrees.  He also stated that the slope was approximately 39
degrees but "was not accurately defined."

The record also contains extensive testimony from soil expert Longo and from Danis's
witnesses on the composition of the soil and the stability of the trench walls.
 Longo testified from his examination of the soil that it was compact sand and gravel
and was "very stable".  After reviewing photographs of the trench, he also
stated that the trench walls were "stable."  Danis's project manager,
Parrish, stated that the material in the trench was "hard and compact" granular
soil composed of sand and gravel.  According to Parrish, the soil was sloped to its
angle of repose which, in his view, was the angle at which "the soil will support
itself."  Danis's foreman, Slone, who had worked in trenches for 15 years in
many types of soil, testified that the trench was dug in undisturbed,
"compacted" virgin soil and that it was safe.  Parrish and Slone also noted
that the stability of this trench was increased because it had been "benched," i.e .,
approximately 3-4 feet of top soil, which was less stable than the underlying soil, had
been removed before the trench was excavated.  An employee who worked in the trench,
Blondell Goosey, who had 20-years experience in trenching, stated that the trench had
"real good walls" and that he considered it safe.  Parrish, Slone, and
Goosey also testified that vibrations from a tamper being used nearby knocked a small
amount of soil into the trench.  Slone also noted that sloughing occurred even after
the trench was sloped to the angle requested by the compliance officer.

II

The judge vacated the citation.  He rejected the Secretary's assertion that Duane
Meyer d/b/a D.T. Construction Co ., 79 OSAHRC 57/D4, 7 BNA OSHC 1560, 1979 CCH OSHD �
23,742 (No. 16029, 1979), in which the Commission held that "predominately sandy
soils" are presumed to be "soft or unstable" within the meaning of section
1926.652(b), was controlling.  The judge determined that, although sand was present
in the soil at the excavation here, the record did not show that this soil was
"predominately sandy."  He concluded that the soil, therefore, could not be
considered "soft or unstable" under the Duane Meyer presumption.  
Even if the soil were presumed to be "soft or unstable," the judge alternatively
determined that the presumption was rebutted by the testimony of Longo, who, the judge
noted, was "the only expert on soils to testify in this case," and who stated
that the soil in the excavation was "very stable."  The judge further
reasoned that, even if the soil were irrebuttably considered soft or unstable, a violation
was not proven because the recommended angle of repose for the soil in question
"[was] not listed in Table P-1 and it [was] not shown that the sides of the trench
were improperly sloped for the material."  The judge determined that the soil
was compact and cohesive and that the unrefuted evidence "reveals that a slope with a
ratio of approximately 1 to 1 [45 degrees] is adequate for the soil involved."
 Although he did not enter findings as to the dimensions or slope of the trench, he
determined that "[t]he sides of the trench were adequately sloped to protect the
employees working in the trench."

III

On review, the Secretary contends that a violation was proven because Danis's trench was
dug in soft and unstable soil and was inadequately sloped.  The Secretary cites Connecticut
Natural Gas Corp ., 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1978 CCH OSHD � 22,874 (No.
13964, 1978), for the proposition that soils listed in Table P-1 as having an angle of
repose less steep than 63 degrees must be considered soft or unstable since the slope
required for hard and compact soil under section 1926.652(c) is 63 degrees.  Because
the angle of repose tests show that the appropriate angle of repose for the soil in
question was between 41 degrees and 50 degrees, the Secretary concludes that the soil must
be considered "soft or unstable" under Connecticut Natural Gas . The
Secretary further asserts that the Duane Meyer presumption that predominately sandy
soils, unless cemented, are soft or unstable was not rebutted because sand was the
predominant component of the soil and because soil with an angle of repose less than 63
degrees must be considered soft or unstable "as a matter of law."

The Secretary also argues that section 1926.652(b) required a slope of 45 degrees for the
walls of Danis's Trench.  According to the Secretary, the compliance officer's
measurements are more accurate than the measurements advanced by Danis and establish that
the trench was not sloped to this angle.  In the Secretary's view, the judge erred by
failing to explain why he credited the testimony of Danis's witnesses as to the dimensions
and slope of the trench over that of the compliance officer.  Finally, the Secretary
submits that the violation was willful because Danis failed to slope the trench walls to a
less steep angle after the representative of the Ohio Industrial Commission informed
Danis's foreman that the sloping of the trench walls was inadequate.

Danis argues that the judge's disposition was correct.  The soil in the trench walls
is not listed in Table P-1, since it was not sand but a mixture of sand, gravel and silt,
and one sample showed the presence of clay.  Therefore, Danis argues, the judge
correctly found that the Duane Meyer presumption does not apply to this soil. 
Even if it did, however, the presumption was rebutted by the expert testimony as to the
angle of repose of the soil samples and the on-the-scene observations of Danis's
experienced employees.  Danis asserts that the trench was not only sloped adequately
for the type of soil, but it was also "benched" for extra stability.  Danis
claims that the compliance officer's measurements were taken not where its employees were
actually working in the trench but rather were made near the end of the trench in a
location where excavation had not yet been completed.  Therefore, it contends that
the judge correctly rejected the compliance officer's measurements.

IV

Chairman Buckley would affirm the judge's decision.  Section 1926.652(b) states in
part that the "[s]ides of trenches in unstable or soft material, 5 feet or more in
depth, shall be shored, sheeted, braced [or] sloped . . . to protect the employees working
within them."  To prove a violation of section 1926.652(b), the Secretary
therefore must prove that an employer's trench was dug in "unstable or soft
material" and that it had not been "shored, sheeted, braced [or] sloped . . . to
protect the employees working within [it]."  Neither of these facts was
established.

The Secretary maintains for two reasons that Danis's trench was dug in "unstable or
soft material":  first, the angle, of repose of this soil was less than 63
degrees and thus "unstable or soft" as "a matter of law" under Connecticut
Natural Gas ; and second, the soil was "predominately sandy" and, therefore,
presumed to be "unstable or soft" under Duane Meyer .  Chairman
Buckley finds both of these arguments are without merit.  In Connecticut Natural
Gas , the Commission stated "that those materials listed in Table P-1 as
having a less steep angle of repose [than 63 degrees] must be considered soft or unstable,
and are therefore regulated by � 1926.652(b)."  6 BNA OSHC 1799, 1978 CCH OSHD
at p. 27,668 (emphasis supplied).  The soil in Danis's trench was composed of sand
and gravel in roughly equal proportions with some silt.  As the judge observed, this
material is not listed in Table P-1. Accordingly, this soil is not unstable or soft
as a matter of law under Connecticut Natural Gas .  Moreover, the presumption
created in Duane Meyer that "predominately sandy" soils are soft or
unstable is a rebuttable presumption.  The judge found that this presumption was
rebutted by the testimony of the soil expert Longo.  Chairman Buckley agrees with
this finding and notes that the extensive testimony of Danis's experienced employees that
this trench was stable or safe, discussed immediately below, is consistent with that of
the soil expert and rebuts any presumption of instability that may be drawn in this case.

The Chairman also finds insufficient evidence that the walls of this trench were not
sloped "to protect the employees working within them" as required by the
standard.  The judge found that "[t]he sides of the trench were adequately
sloped to protect the employees working in the trench."  This finding is well
supported in the record.  Soil expert Longo testified that the material in the trench
was compact and "very stable."  Danis's project manager, Parrish, an
engineer who had studied soil mechanics, stated that the soil was "hard and
compact."  He also stated that the sides of the trench were sloped to the angle
at which "the soil will support itself."[[6]] Danis employees Slone and Goosey,
both of whom had extensive trenching experience, stated that the trench was adequately
sloped and considered it safe.  The stability of this trench also was enhanced by the
initial "benching" operation, which involved the removal of 3-4 feet of top soil
from the excavation site.  Indeed, the only evidence that this trench was unsafe was
the opinion testimony of the compliance officer, whose training and experience, when
compared to the witnesses mentioned above, can best be described as limited.[[7]]  
Based on the testimony of Danis's better-trained and more-experienced witnesses, Chairman
Buckley would conclude that the judge correctly found that this trench met the standard's
requirement than walls be sloped "to protect employees working within them."

The muddled evidence on which the Secretary relies concerning sloping and angle of repose
does not show that the walls were inadequately sloped.  To prove his case the
Secretary must show what the proper angle of the slope should be for the soil in the
trench and that the trench was not sloped to this angle.  Section 1926.653(b) defines
a soil's "angle of repose" as "[t]he greatest angle above the horizontal
plane at which a material will lie without sliding."  It is clear from the title
of Table P-1, " Approximate Angle Of Repose For Sloping Of Sides Of
Excavations" (emphasis supplied) and from the testimony of the soil expert, Longo,
that any given angle of repose is only an approximation of the angle at which it will lie
without sliding.  It is also clear from the unrebutted testimony of Longo that the
angle of repose test is "very unsophisticated" and yields only an
"approximation" of the angle of repose.  In fact, as Longo observed, the
angle of repose of soil in its natural state would be 5 to 10% higher than the angle of
repose determined in a lab.  In sum, an angle of repose test yields little more than
a general range of appropriate slopes .[[8]]

This record contains five different estimates of
the angle of repose for the soil in Danis's trench.  During his inspection and later
at the hearing, the compliance officer stated that the walls should have been sloped to 33
degrees.  On review, the Secretary contends that, "[f]or purposes of this case
the Secretary will assume that a 1:1 [45 degree] slope would have been adequate."
 The Bowser-Morner laboratory angle of repose tests show that the angle of repose was
41 or 45 degrees and that this would be 10% higher in the field:  45 to 50
degrees.  Longo stated that Geotechnical's laboratory results showed that the angle
of repose was approximately 51 degrees, which would be approximately 10% higher in the
field or 56 degrees.  Longo also stated that the angle of repose of this soil was
between 45 and 63 degrees.

The Secretary argues on review that the
appropriate angle of repose for this soil is 45 degrees.  In view of this and the
lack of evidence that the compliance officer tested this soil or was qualified to estimate
a soil's angle of repose from visual observation, the Chairman would accord no weight to
his 33 degree estimate.  The remaining estimates, which are based on laboratory tests
and expert opinion, show that the angle of repose was in the range of 45 to 63 degrees.
  As adjusted for field conditions, the Bowser-Morner test shows the angle of repose
was 45 or 50 degrees.  The Geotechnical test shows that this angle was 56 degrees.
Longo's estimate that the angle of repose was between 45 and 63 degrees also stands
unrebutted.  Chairman Buckley finds no principled basis in this record for selecting
one of these estimates as the appropriate angle of repose for the soil in Danis's trench.
Given the state of this record, the only finding that may be entered as to this soil's
angle of repose is that this angle was somewhere in the range of 45 to 63 degrees.

The evidence on the slopes of the trench walls
is similarly uncertain.  The compliance officer made an estimate, based on
measurements he took at the site, that the slope was approximately 63 degrees.[[9]]  
Danis's project manager testified that the slope was approximately 45 degrees, while
Goosey, the pipelayer who was in the trench, testified that the slope was "a little
better than 1:1 [ i.e ., less steep than 45 degrees] because when the pipes were put
in, I could walk right up the side of the bank.  I never used the ladder." 
Longo testified that his tests determined that the slope was "between 1:1 [45
degrees] and 1-1/2:1 [33 degrees].  There was nothing sharper than 1:1." 
Given this disparity in estimates, Chairman Buckley would not disturb the judge's finding
that the trench was sloped adequately to satisfy even the Secretary's claim that a 45
degree slope was necessary.

The Secretary's claim of a violation hinges on the testimony of the compliance officer and
on the disputed measurements made by him at the site.  There is considerable conflict
in the record as to the width of the trench at both top and bottom.  The compliance
officer testified that one spot in the trench was measured as having a depth of 9 feet 2
inches.  It is generally agreed that this trench was approximately 9 feet deep.
 The compliance officer testified that the length of the east wall of the trench from
top to toe in one area where the employees worked was 12 feet 4 inches and that a
comparable measurement along the west wall was 10 feet 8 inches.  By applying
trigonometry to these dimensions, the slope of the east wall is calculated to be 46
degrees and the slope of the west wall to be 57 degrees.  In the Chairman's view, the
slopes obtained by this trigonometric determination may be somewhat more reliable than the
conflicting figures advanced by the parties, which are based on guesswork and estimations.
  Yet these trigonometrically-determined slopes are not sufficiently reliable to
support a finding as to the actual slope of Danis's trench on the day of the inspection.

First, it is clear that if the compliance
officer's depth and wall measurements are taken as correct, the trench would be almost 23
feet wide at the top and not 19 1/2 feet as the compliance officer claimed.  The
Chairman finds that this internal inconsistency in the Secretary's figures casts doubt on
the accuracy of the compliance officer's measurements.

Second, to measure or calculate slopes of a
trench, one must assume only the best of circumstances, i.e ., that the terrain was
perfectly level and that the dimensions of a relatively large trench were measured with
accuracy down to the inch.  Unlike certain material--such as lumber--mounds of dirt
do not lend themselves to precise measurement.  A failure to align a tape measure
precisely at the top of a trench wall--if such a sharply demarcated point exists--or the
presence of a clod of earth or a stone at the end of the tape measure on the bottom of the
trench could result in a measurement that is inaccurate by several inches.

Third, the photographic exhibits here clearly
show that the bottom of the trench wall was not sharply defined and it can fairly be said
that measurement of the top to "toe" distance could vary by as much as two feet
depending on what point is considered the "toe" of the trench.  Indeed,
project manager Parrish considered the "toe" of each trench wall to be farther
down the trench wall than the point urged by the Secretary at the hearing.  Yet, a
deviation of eight inches in the compliance officer's measurement of the height and
fifteen inches in his measurement of the steepest sloped side of the trench would yield a
slope that would be appropriate under the 45 degree angle of repose that the Secretary
deems adequate for this soil.  Given the accumulated uncertainties in the record and
the disputed dimensions of the trench, Chairman Buckley concludes that a finding that the
slope of this trench exceeded 45 degrees cannot be supported on this record.  The
Secretary has not carried his burden of proving that the actual slope at this site
exceeded his own estimate of a safe angle.

In sum, the Chairman would credit the extensive
testimony from experienced employees that the trench walls were stable and agree with the
judge's holding that the walls of Danis's trench were sloped to "protect employees
working within them," as required by the standard.  The Chairman further
concludes that the citation must be vacated because the Secretary failed to establish by a
preponderance of the evidence that the walls of the trench were not sloped to the
appropriate angle of repose.  Accordingly, Chairman Buckley would affirm the judge's
decision.

Commissioner Cleary would reverse the judge's
vacation of the citation, and would find that the soil in Danis's trench was soft or
unstable within the meaning of section 1926.652(b).  The trenching standard at 29
C.F.R. � 1926.652 compels the conclusion that this soil was soft and unstable.
 Under 29 C.F.R. � 1926.652, soil is classified as either soft or unstable, 29
C.F.R. � 652(b), or hard and compact, 29 C.F.R. � 652(c).[[10]]  CCI, Inc .,
80 OSAHRC 127/D4, 9 BNA OSHC 1169, 1173, 1981 CCH OSHD � 25,091, p. 30,993 (No. 76-1228,
1980), aff'd , 688 F.2d 88 (10th Cir. 1982).  Since the slope allowed for hard
and compact soil under section 1926.652(c) is 63 degrees, soil with an angle of repose of
less than 63 degrees must be soft or unstable.

The Bowser-Morner test results, which were not
questioned by Danis's soil expert, Longo, show that the angle of repose for the soil in
Danis's trench was between 41 and 45 degrees.  Since the angle of repose of this soil
is less than 63 degrees, the regulatory framework established by the trenching standard
compels the conclusion that is was unstable.[[11]]  This is borne out by Table P-1.
The table states that the angle of repose for "compacted angular gravel" is 63
degrees and that the angle of repose for "compacted sharp sand" is 33 degrees.
 Based on its angle of repose, soil composed entirely of "compacted angular
gravel" therefore would be considered "hard or compact."  The soil in
Danis's trench, however, was approximately 50 percent gravel and 50 percent sand with a
percentage of sand possibly as high as 60 percent.  Since this soil contained only 50
percent gravel with an equal if not greater percentage of unstable sand, its angle of
repose would be less than the 63 degree angle considered appropriate for homogeneous
"compacted angular gravel."  Accordingly, Commissioner Cleary would find
that the soil in Danis's trench was "unstable or soft" under the trenching
standard.

Commissioner Cleary considers the testimony of
Danis's expert and employees that the trench was "stable" or safe to be beside
the point.  This testimony amounts to a challenge to the wisdom of the standard,
which the Commission will not decide.  The Commission is not in a position to
re-write the standard.  See Heath & Stich, Inc ., 80 OSAHRC 65/E12,
8 BNA OSHC 1640, 1643, 1980 CCH OSHD � 24,580, p. 30,152 (No. 14188, 1980)(employer
impermissibly challenged wisdom of standard by arguing that hard and compact soil was
"so stable" that trench need not comply with section 1926.652(c)).  The
stability of trenches is not to be measured on the basis of employees' beliefs.  The
cases decided by this Commission are replete with instances of employee deaths in trenches
they thought to be safe.

Once it is shown that soil is "unstable or soft" within the meaning of section
1926.652(b), a determination must be made as to whether the sides were "shored,
sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect
the employees working within them."  The judge did not specifically determine to
what angle the trench walls were sloped.  Indeed, he never resolved the evidentiary
conflict over the trench's dimensions.[[12]]  In concluding that a violation was not
proven, however, the judge entered the following conclusion:

Testimony on behalf of [Danis], which is not
refuted, reveals that a slope with a ratio of approximately 1 to 1 [45 degrees] is
adequate for the soil involved.  Thus, improper sloping of the sides of the trench
has not been shown in this case.

In Commissioner Cleary's opinion, the judge's
conclusion that "improper sloping....has not been shown...."cannot be sustained
because he did not determine what the slope of each wall was nor did he explain the basis
for this conclusion.

As Chairman Buckley observes, the slopes of the
east and west trench walls may be calculated using trigonometry.  Commissioner Cleary
finds nothing in this record to suggest that the measurements of the compliance officer
which have been used in making this calculation are unreliable.  Although Danis's
witnesses sharply questioned the compliance officer's measurement of the trench's width,
they did not take issue with his measurement of the distance of the east and west walls of
this trench nor did they advance contradictory measurements.  The depth measurement
of 9 feet 2 inches also was not disputed and, indeed, was made by the employees who worked
in the trench.  In calculating the slopes of the trench walls, the proper assumption
is that the depth of this trench was 9 feet 2 inches and not "approximately 9
feet."  Based on the foregoing, the slopes of the east and west walls may be
reliably determined to be 48 and 59 degrees respectively.

To decide whether a violation of section
1926.652(b) was shown, it must be determined whether sloping of 48 and 59 degrees is
appropriate for soil containing a roughly equal mixture of sand and gravel.  The more
reliable Bowser-Morner angle of repose laboratory tests show that the angle of repose for
this soil is approximately 41 to 45 degrees.  The judge also found that the
appropriate angle of repose was 45 degrees.  The 48 and 59 degree sloping of the
walls of this trench clearly exceeds this angle of repose.[[13]]

Finally, the applicable standard of proof in
Commission proceedings is the preponderance of the evidence standard.  Astra Pharmaceutical
Products, Inc ., 81 OSAHRC 79/D10, 9 BNA OSHC 2126, 2131 nn.16 & 17, 1981 CCH OSHD
� 25,578, p. 31,901 nn.16 & 17 (No. 78-6247, 1981), aff'd in pertinent part and
remanded on other grounds , 681 F.2d 69 (1st Cir. 1982).  A preponderance of
evidence is that quantity of proof that convinces the trier of fact that a fact more
likely than not is true.  See id . To conclude that a fact is
established by a preponderance of the evidence, one is "not required to find the
facts to an absolute certainty or even beyond a reasonable doubt, as in a criminal
case."  Burch v. Reading Co. , 240 F.2d 574, 579 (3d Cir. 1957).  The
evidence shows that it is more likely than not that Danis dug its trench in unstable soil
and that it failed to slope the trench walls to the appropriate angle of repose.  To
conclude otherwise one necessarily must find that the employees' general assertions as to
the safety of the trench are more reliable than the undisputed measurements made by the
compliance officer.  More significantly, however, such a conclusion may be reached
only by viewing the evidence so skeptically as to require the Secretary to prove a
violation "beyond a reasonable doubt" or to an "absolute certainty."
  This approach is inappropriate in resolving civil disputes under remedial
legislation such as the Occupational Safety and Health Act.

Under section 12(f) of the Act, 29 U.S.C. �
661(e), official action can be taken by the Commission with the affirmative vote of at
least two members.  To resolve their impasse, and permit a resolution of this case,
Chairman Buckley and Commissioner Cleary agree to vacate the direction for review.  E.g .,
Texaco, Inc ., 80 OSAHRC 74/B1, 8 BNA OSHC 1758, 1980 CCH OSHD � 24,634 (Nos.
77-3040 & 77-3542, 1980).  The judge's decision in this case therefore becomes
the appealable final order of the Commission, but is accorded the precedential value of an
unreviewed judge's decision.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED:  APR 10 1985

FOOTNOTES:

[[1]] Section 1926.652(b) states as follows:

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 Table P-1, P-2 (following paragraph (g) of
this section).

Table P-1 is a guideline that suggests the approximate angles of repose for various types
of soil:

Solid rock, shale or cemented sand and gravel - 90�

Compacted angular gravels - 1/2:1 (63� 26')

Average Soils - 1:1 (45�)

Compacted Sharp Sand -1 1/2 :1 (33� 41')

Well rounded loose sand - 2:1 (26� 34')

Table P-1 lists, for certain specified soil
types, the ratio of horizontal feet to which a trench wall should be sloped to each foot
of the wall's depth.  For example, Table P-1 indicates that the approximate angle of
repose for compacted angular gravels is 1/2:1 or approximately 63 degrees.  For soil
with an angle of repose of 1/2:1, 1/2 foot of horizontal distance would be excavated for
each foot of depth.  Less stable compacted sharp sand, which has an angle of repose
of 1 1/2:1, or approximately 33 degrees, would be excavated 1 1/2 feet horizontally for
each foot of depth.

[[2]] As established by the Act, the Commission is composed of three members.  
Section 12(a) of the Act, 29 U.S.C. � 661(a). Currently, the Commission has two members
as a result of a vacancy.

[[3]] Danis had arranged to have the Bowser-Morner sampling done after the site was
visited by a safety consultant from the Ohio Industrial Commission.  That visit
occurred approximately one month before the OSHA inspection.  The safety consultant
told Danis's project manager that the trench walls should be sloped to approximately 26
degrees to conform with OSHA's trenching standard.  The safety consultant also
supplied Danis's project manager, Parrish, with a copy of the OSHA trenching standards.
Parrish reviewed the standards and Table P-1 and concluded that the standard did not apply
to Danis's trench.  He arranged, however, to have the soil sampled ''in case there
was any question [as] to what the slope should be ...."

[[4]] At the hearing, Danis objected to the introduction of the Bowser-Morner report into
the record.  This objection seems to have been sustained by the judge though the
exchange is unclear.  Portions of the report were read into the record, however, and
in post-hearing briefs to the judge, both Danis and the Secretary relied on the report.
 The judge also relied on the report in his decision.  The record certified to
the Commission by the judge after review was directed contains this report as Exhibit
G-16.  In its brief on review, Danis does not contend that this report is not
properly in the record.  Indeed, it cites the report in arguing for affirmance of the
judge's decision.  In view of the parties' and judge's reliance on this report and in
the absence of any objection from Danis on review, the Commission has considered this
report as part of the record.

[[5]] An angle of repose test is conducted in a laboratory.  The soil is first dried
to remove moisture then poured through a funnel onto a flat surface.  The natural
angle that soil will attain on the flat surface is considered the angle of repose.
 Longo stated that although this test was an accepted procedure it was an accepted
procedure it was "very unsophisticated" and yielded an "approximation"
of a soil's natural angle repose.  He explained that the "actual field angle of
repose" is five tested in the laboratory is in a "disturbed" state and
because the removal of moisture from the soil reduces its cohesiveness.

[[6]] Parrish's description of the manner in
which the trench was sloped is entirely consistent with the standard's definition of angle
of repose, i.e ., "[t]he greatest angle above the horizontal plane at which a
material will lie without sliding."  See 29 C.F.R. � 1926.653(b).

[[7]] The compliance officer previously had
inspected 15 excavation sites.  His training as a compliance officer included two
days of instruction in OSHA's trenching standards.  Before his employment as a
compliance officer, he worked as an intern at OSHA and received "on-the-job"
training in soil recognition from another compliance officer.  Although he had
received an undergraduate degree in "Safety Management," his course work did not
address soils or soil mechanics.  His only other experience in excavation work
consisted of one year's employment laying sewer lines before and while attending college.

[[8]] The uncertainty is also inherent in the
definition of "angle of repose" in section 1926.653(b).  See F. Yokel &
R. Stanevich, Development of Draft Construction Safety Standards for Excavations ,
vol. I, p. 58 (NBS/NIOSH, 1983)(recommending deletion of present definition as "too
vague").

[[9]] The Chairman notes that there is reason to
doubt the compliance officer's estimate that the slope was 1/2 to 1, i.e. , 63
degrees. That estimate was based on measurements whose accuracy is open to serious
question.  The compliance officer took the measurements at the end of the trench that
was being excavated, where the sloping had not been completed.  He stood 20-30 feet
away from where employees were working and ''eyeballed" the width of the trench.
 Using this technique, he decided that the trench was 9 feet wide at the bottom.
  All Danis's witnesses, however, testified that the trench was no more than 5 to

6 feet wide.  They stated that not only is there is no reason to take out more soil
than that, but that the soil removed must then be returned to the trench and compacted to
meet specifications which takes time and slows down the work.  There is therefore a
very good reason not to take out any more soil than necessary.  Given the unanimity
of this testimony, Chairman Buckley finds that the width of the bottom of the trench was
considerably less than the compliance officer's "measurement."  He
therefore questions the accuracy of the compliance officer's other estimates.

[[10]] The trenching standard, as amplified by Table P-1, provides one exception to the
general rule stated in the text:  solid rock, shale and cemented sand and gravels are
treated as "something other" than "hard or compact" or "soft and
unstable" soil.  They have a 90 degree angle of repose.  CCI, Inc .,
9 BNA OSHC at 1173, 1981 CCH OSHD at pp. 30,993-4.  In this case, Danis does not
contend that its trench was dug in solid rock, shale, or cemented sand and gravel.

[[11]] This conclusion also finds support in the
testimony of Danis's soil expert, Longo, who testified that the angle of repose was
approximately 51 degrees.  Longo alternatively stated that the angle of repose would
be in the range between 45 and 63 degrees. Longo's testimony also shows that a specific
measurement of the angle may be made in a laboratory but that the measurement would be an
"approximation" of the soil's angle of repose in the field.  Commissioner
Cleary agrees that a laboratory-determined angle of repose would only be an approximation
of a soil's natural angle of repose.  He nevertheless would note that Longo's
estimate that the angle of repose could range between 45 and 63 degrees would allow almost
20 degrees leeway in sloping.  Such a wide-ranging estimate is of little value in
determining the angle of repose of this soil.  Inasmuch as Longo was able to more
specifically state that the angle of repose was approximately 51 degrees, Commissioner
Cleary would disregard his alternative opinion that the angle of repose ranged between 45
and 63 degrees.  Although Commissioner Cleary considers the Bowser-Morner estimate of
the angle of repose more reliable because it was based on sampling done on the day of the
inspection, he notes that Longo's more specific estimate, which was based on sampling done
more than one month after the trench was refilled also tends to show that the angle of
repose was less than 63 degrees and, thus, supports the conclusion that this soil was
unstable.

[[12]] With respect to these disputed
dimensions, he stated that "[d]espite the conflicting testimony as to the width of
the trench, the measurements are not crucial to the decision in this case."

[[13]] The Secretary alleged that the violation
was willful.  A violation is willful if it is committed with intentional disregard
of, or plain indifference to the Act's requirements.  Kus-Tum Builders, Inc. ,
81 OSAHRC 97/B2, 10 BNA OSHC 1128, 1981 CCH OSHD � 25,738 (No. 76-2644, 1981).  
After a question was raised as to the sloping of the trench by the safety consultant from
the Ohio Industrial Commission, Danis arranged to have the soil tested by
Bowser-Morner.  Later, during the inspection, Danis removed its employees from the
trench and sloped to the angle requested by the compliance officer.  In Commissioner
Cleary's view, Danis's actions do not reflect plain indifference to or intentional
disregard of the standard's requirement or employee safety.