Olin Const. Co., Inc. v. Occupational Safety and Health Review Com'n, 1134

• Decision Date: 09 September 1975
• Docket Number: D,No. 1134,1134
• Citation: 525 F.2d 464
• Parties: 3 O.S.H. Cas.(BNA) 1526, 1975-1976 O.S.H.D. ( 19,997 OLIN CONSTRUCTION COMPANY, INCORPORATED, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Peter J. Brennan, Secretary of Labor, Respondents. ocket 74--2516.
• Court: U.S. Court of Appeals — Second Circuit

Page 464

525 F.2d 464

3 O.S.H. Cas.(BNA) 1526, 1975-1976 O.S.H.D. ( 19,997

OLIN CONSTRUCTION COMPANY, INCORPORATED, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Peter J. Brennan, Secretary of Labor, Respondents.

No. 1134, Docket 74--2516.

United States Court of Appeals Second Circuit.

Argued June 24, 1975.

Decided Sept. 9, 1975.

Donald J. Ball, Syracuse, N.Y., for petitioner.

William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, and Michael H. Levin, U.S. Dept. of Labor, Washington, D.C., for respondents.

Before CLARK, Associate Justice, ^* and MANSFIELD and MULLIGAN, Circuit Judges.

PER CURIAM:

This is a petition for review by Olin Construction Company (Olin) ¹ of a final order of the Occupational Safety and Health Review Commission (Commission) entered in a proceeding by the Secretary of Labor against Olin for violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., 2 O.S.H.C. 3184. Petitioner raises four issues, claiming that: (1) the Administrative Judge and the Commission erroneously applied the 'substantial evidence' rather than a 'preponderance of the evidence' test as the quantum of proof necessary to meet the Secretary's burden of persuasion; (2) the Commission's findings and those of its Administrative Judge were not supported by 'substantial evidence'; (3) the presence of employees in the trench for the purpose of shoring it was not in violation of the standards required by 29 C.F.R. 1926.652(b); and (4) the penalties by the Commission were not 'proper and just.' We see no merit in any of the contentions and affirm.

1. Background of the Case:

On August 9, 1973, the Secretary's Occupational Safety and Health Act Area Director Chester Whiteside and Compliance Officer Harold Pauley inspected a 20-mile sanitary sewer project along Lake Oneida, New York, on which Olin was digging trenches and laying pipe. On approaching one particular job site, they noticed a 'flurry of activity,' heard Olin employees on the project say 'Here they come,' and then saw a worker hurry up a ladder from the trench in which it stood. The inspectors were told by the Olin foreman on the job, Timothy Duerr, that two Olin employees, Cristian and Spainglar, had been working in the trench. Some shovels and other equipment were lying at the bottom of the trench. Both employees confirmed Duerr's statement on being questioned. The trench was some 9 feet deep, 12 to 15 feet long, and 9 to 10 feet wide; it was dug in an unstable lake bottom soil composed of sand, silt and loam; its walls were practically vertical; and part of the trench had been cut through the fill of an old gas pipe trench. The excavated soil had been piled near the lip of the trench. ² The trench was not braced, save for two plywood sheets near where the ladder stood; these were secured by a single trench jack. Nor was the trench shored, sloped, or otherwise protected against collapse. As has been indicated there were 'shovels, crowbars, some material . . . used to join pipes together,' as well as other implements, at the bottom of the trench opposite the two plywood sheets.

Mr. Pauley is a graduate of Miami University at Oxford Ohio, with a B.S. and M.S. in geology. Before coming with the United States Department of Labor, he had worked eight years as a geologist and ten years with a large chemical firm. For two and one-half years he was Industrial Hygienist and Compliance Officer with the Secretary's OSHA division. He had engaged in extensive study of soils all during his professional career, including field work for eight years, and during college he had pursued courses in paleontology and conducted analyses of soil content, composition, and stability. Mr. Pauley testified as to the size and nature of the trench. He stated that the soil at the site of the trench was 'loose, unconsolidated' and made up of sand, silt, and loam, lake bottom material that is 'less stable than average soil.' He further gave testimony that the sides of the trench were approximately at a 90 degree angle because the width of the bottom of the trench was approximately the same as the top, with no angle of repose. He further stated that the excavated soil was not placed an appropriate distance from the edge of the trench and that hence there was danger that the sides of the trench would cave in, covering and suffocating the employees who might be in it. In recapitulating, he testified that 'this failure to slope or shore . . . this excavation could cause such serious injury or death.' Pauley and Whiteside took photographs that fully support their testimony, including the trench walls' angle of repose. While Whiteside's testimony on the physical layout, the angle of the sidewalls, and other matters was not as positive as that of Pauley, it in no way contradicts Pauley's testimony. As to the statements of Olin's Foreman Duerr and workmen Cristian and Spainglar about working in the trench on the morning of the inspection, Whiteside fully corroborated Pauley. In this connection, the Administrative Judge found:

In so far as credibility is concerned, I give full credibility to the testimony of complainant's witnesses in so far as their conversations with the respondent's employees on the day in question so far as exposure in the trench on August 9 is concerned.

This finding, in our view, is dispositive of the conflict in the evidence as between Olin's witnesses and those of the Secretary's, and we find the preponderance of the evidence fully supports the findings of the Administrative Judge.

2. The Failure of the Administrative Judge to Apply the Preponderance of the Evidence Test:

...