Before: Buckley, Williams and Henderson, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 1995
On Petition for Review of an Order of the Occupational Safety and Health Review Commission
Opinion for the court filed Per Curiam.
Conie Construction, Incorporated (Conie) petitions the Court to review and set aside an order of the Occupational Safety and Health Review Commission (Commission) upholding a citation issued by the Occupational Safety and Health Administration (OSHA). The Commission found that Conie willfully violated OSHA's regulations by inadequately sloping the walls of a trench and assessed a penalty of $21,000. We deny Conie's petition.
On November 6, 1991 Conie dug a trench to install a sewer manhole. That same day, an OSHA compliance officer inspected Conie's trench, took some measurements and concluded that the walls were sloped too steeply. The compliance officer was informed that Conie employees had worked in the trench that day.
Conie received a citation from OSHA alleging a violation of 29 C.F.R. 1926.652(a)(1), which requires employers to implement an adequate protective system for employees working in excavations. In particular, the citation alleged that Conie willfully failed to slope its trench in accordance with the applicable OSHA sloping standard as required by 29 C.F.R. Section(s) 1926.652(b). OSHA proposed a penalty of $21,000.
Conie contested the citation and a hearing was held before an administrative law judge (ALJ). The compliance officer testified that he had measured the trench to be 20 feet by 24 feet at the top and 21 feet deep and had estimated the bottom to be 4 feet wide. He further testified that Conie's foreman, Russell Kildarger, acknowledged that the walls were not sloped according to OSHA's regulations but that Kildarger believed the trench was safe nevertheless. Finally, he testified that in the past three years OSHA had twice before cited Conie for inadequately protecting the walls of excavations.
Several witnesses testified for Conie. A soils engineer opined that the soil in the trench was firm enough to allow the walls to be sloped safely at a ratio of 1/2:1 (that is, 1/2 foot horizontal to 1 foot vertical, or a 63ø angle). Foreman Kildarger testified, among other things, that he was familiar with OSHA's regulations, that he used a slope of 1/2:1 because he thought that would be safe and that the top of the trench "was about 22 foot wide." Joint Appendix (JA) 176. Joseph Conie, the company's co-owner and safety director, testified that he was familiar with OSHA's standards and that he "couldn't see anything wrong with the trench there." JA 244.
The ALJ ruled in Conie's favor and vacated the citation. The ALJ observed that, because the trench walls were dug in Type A soil (the most stable type of soil), OSHA's regulations allowed a maximum slope of 3/4:1 (53ø angle). See 29 C.F.R. Section(s) 1926.652(b)(2) and Subpart P, App. B, Table B-1.1 (maximum allowable slope in excavation less than 20 feet deep in Type A soil "shall be" 3/4:1). The ALJ found that the Secretary of Labor (Secretary) failed to show by a preponderance of the evidence that Conie did not meet that standard.
The Commission reversed the ALJ's decision after finding that Conie willfully failed to use a slope of 3/4:1 and assessed the Secretary's ...