CTM, Inc. v. Occupational Safety & Health Review Com'n, 76-1789
| Decision Date | 27 April 1978 |
| Docket Number | No. 76-1789,76-1789 |
| Parties | 6 O.S.H. Cas.(BNA) 1319, 1978 O.S.H.D. (CCH) P 22,534 CTM, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Ray Marshall, Secretary of Labor, Respondents. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Richard L. Bohanon, Oklahoma City, Okl. (Bohanon & Barth, Oklahoma City, Okl., of
counsel, with him on the brief), for petitioner.
William G. Staton, Atty., U. S. Dept. of Labor, Washington, D. C. (Alfred G. Albert, Acting Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety & Health, Michael H. Levin, Counsel for Appellate Litigation, and Allen H. Feldman, Assistant Counsel for Appellate Litigation, Dept. of Labor, Washington, D. C., with him on the brief), for respondents.
Before SETH, Chief Judge, and HOLLOWAY and BARRETT, Circuit Judges.
This is a petition to review the determination by the Occupational Safety and Health Review Commission that the petitioner had violated the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. This review is pursuant to 29 U.S.C. § 660(a), following a hearing and decision by an administrative law judge which was affirmed by a two-to-one vote of the Review Commission.
The standard of review as to the facts is set out in Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864 (10th Cir.), and also in Clarkson Construction Co. v. OSHRC, 531 F.2d 451 (10th Cir.). Thus we apply the substantial evidence rule and determine whether, based on the record, the findings are reasonable. There are also some substantial legal questions presented by this petition.
The petitioner is in the business of laying pipelines and digging trenches for utility lines. At the time of the violation charged the petitioner was digging a trench for a pipeline in Tulsa. The violation charged a failure to store the dirt excavated from the trench, and in failing to slope the sides of the trench in accordance with OSHA regulations, 29 C.F.R. § 1926.652(b). The trench was about thirteen feet deep, was four feet wide at the bottom, about seven feet wide at a depth of nine feet, and some twenty-three feet wide at the top.
The administrative law judge referred to the soil in his findings as "average soil," and not as unstable or soft. The Commission also apparently so regarded it. The regulation with attached tables describes a slope of 45 degrees as "recommended" in "average" soil. The 45 degrees is used as an "approximate angle." The Commission decision in part was that the trench here concerned was required to be shored or sloped to a "minimum angle of repose of 45 degrees."
There was no finding other than that the soil was "average" as to stability. There was an attempt to show that the soil was unstable, but this was not accepted. In the absence of a finding of unstability, the Secretary is left with no showing of a hazard, and only that the trench did not meet "recommendations" of the regulation. This cannot be a "violation."
Thus the Secretary did not prove that the soil was unstable, no hazard was shown, and, of course,...
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