STANLEY, Senior District Judge.
Kent Nowlin Construction Company petitions for review of an order of the Occupational Safety and Health Review Commission.
The petitioner was cited by the Secretary of Labor for a number of alleged violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.) and specifically of regulations promulgated by the Secretary pursuant to the Act. All but two of the alleged violations have been resolved. The propriety of the decision of the Commission with respect to the two remaining citations is before us. There is no serious dispute as to the material facts. The petitioner and the Secretary differ as to the interpretation of the regulations and their application to the facts.
At all relevant times the petitioner was engaged in laying a 36-inch sewer line for the city of Albuquerque, New Mexico, in a cavity excavated by the petitioner in the median strip of a four lane highway in the city. The open segment of the cavity at the time of the claimed violations was about 50 feet long, 18½ to 19 feet deep, 28½ to 30 feet in width at the ground level and 6 feet in width at the bottom. The operation was an ongoing process, the cavity being filled as the pipe laying progressed. Materials excavated during the course of the work were stored and maintained less than two feet from the edge of the cavity. The petitioner did not at all times provide a ladder in the cavity located in such position "so as to require no more than 25 feet of lateral travel". Although there was a ladder in the cavity employees were observed working 35 feet from it.
In one of the citations here involved the Secretary alleged non-serious violation of 29 C.F.R. § 1926.562(h) for an asserted failure to provide an adequate means of exit in a trench. In the other citation the Secretary charged willful violation of 29 C.F.R. § 1926.651(i)(1) for an asserted failure to store and retain excavated material more than two feet from the edge of an excavation.
The petitioner was afforded a hearing on the charges before an administrative law judge who vacated the alleged non-serious violation of 29 C.F.R. § 1926.652(h) and affirmed the alleged willful violation of 29 C.F.R. § 1926.651(i)(1). The Commission, on review of the administrative law judge's decision, reversed his order vacating the citation for violation of 29 C.F.R. § 1926.652(h) and affirmed his assessment of a penalty for noncompliance with section 1926.651(i)(1).
29 U.S.C. § 655(a) authorizes the Secretary to promulgate occupational safety standards. Under this authority the Secretary
The term "trench" is defined by section 1926.653(n) as
Section 1926.651(i)(1) provides that
Section 1926.652(h) provides that
In their briefs counsel for the petitioner and for the Secretary are careful in their use of the words "trench" or "excavation", depending upon the thesis each is advancing. Whatever either may choose to call it, the asserted violations of regulations have to do with the same hole in the ground.
Section 1926.651 contains no requirement for the location of a ladder in excavations. Section 1926.652 does not require that excavated material be stored and retained at least two feet from the edge of a trench. The administrative law judge found that the cavity in question was not a trench and that section 1926.652(h) was not applicable. He vacated the citation alleging violation of that section. The Commission ruled that the cavity was a "trench" as that term is defined in section 1926.653(n). In a footnote to its decision the Commission states
Commissioner Moran concurred with his colleagues' disposition of the section 1926.652(h) charge but dissented from the affirmance of the spoils pile violation
He agreed with the majority that the cavity in question was a trench and opined that
We think it significant that there is disagreement among the Secretary's compliance officers, the administrative law judge, and even among the commissioners of the Review Commission as to the interpretation, interrelationship and application of the regulations involved. The Secretary, in citing the petitioner, treated the cavity as a trench for the purpose of one citation and as an excavation for the purpose of the other. The administrative law judge, remarking that while all trenches are also excavations all excavations are not trenches, held that the cavity in question was not a trench. Commissioners Barnako and Cleary ruled that the cavity clearly was a trench and in effect that it was also an excavation, so that the prescribed standards relating to excavations are equally applicable to trenches. Commissioner Moran,
We recognize that the interpretation by the Secretary of his own regulations is entitled to deference but we are not required to rubber stamp administrative decisions that frustrate the congressional policy underlying a statute. Volkswagenwerk v. Federal Maritime Com'n., 390 U.S. 261, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968); Marathon Oil Co. v. Kleppe, 556 F.2d 982 (10th Cir. 1977). Although it was the expressed intent of Congress
administrative regulations cannot be construed to mean what an agency intended but did not adequately express. Diamond Roofing v. Occupational S. & H. Rev. Com'n., 528 F.2d 645 (5th Cir. 1976).
In Usery v. Kennecott Copper Corp., 577 F.2d 1113 (10th Cir. 1977), we held that an employer is not required to assume the burden of guessing what the Secretary intended the safety regulations to mean. In that case we quoted from the opinion of Chief Judge Brown in Diamond Roofing v. Occupational S. & H. Rev. Com'n., supra:
The petitioner should not be penalized for deviation from a standard the interpretation of which, in relationship with kindred standards, cannot be agreed upon by those who are responsible for compelling compliance with it and with oversight of the procedures for its enforcement.
We reverse the Commission's decision affirming the citation for non-serious violation of 29 C.F.R. § 1926.652(h).
29 C.F.R. § 1926.653(f) defines an "excavation" as
No forms or similar structures were installed. Clearly the cavity came within the definition. 29 C.F.R. § 1926.651(i)(1) requires that
The petitioner concedes that the excavated material was stored within two feet of the edge of the excavation and that there was a technical violation of the standard, but asserts that the only possible purpose of the standard is to prevent spoiled materials from falling back into an excavation and that, because of the composition of the material removed, it was unlikely that any of it would fall or slide into the cavity. The administrative law judge found that, while none of the material excavated by the petitioner had at any time fallen into the cavity, it was not impossible that some of it might slide into the ditch. It does not require any stretch of the imagination to visualize the sloughing of freshly excavated earth from a mound or ridge eight feet high and nine feet wide at its base piled to the very edge of an excavation eighteen feet in depth. The Act is intended to prevent the first injury which might result from unsafe conditions and the regulations are designed to compel the maintenance of safe working conditions, not just to assess penalties for injuries already suffered by workmen.
Although some courts have held that willfulness, in the context of the Act, connotes defiance or reckless disregard to consequences "more than merely voluntary action or omission" [see Frank Irey, Jr., Inc. v. Occupational Safety & H. R. Com'n., 519 F.2d 1200 (3d Cir. 1974), aff'd en banc, 519 F.2d 1215 (1975)] others have held to the contrary. [See Goodman v. Benson, 286 F.2d 896 (7th Cir. 1961); F. X. Messina Const. Corp. v. Occupational S. & H. R. C., 505 F.2d 701 (1st Cir. 1974).]
In United States v. Dye Const. Co., 510 F.2d 78 (10th Cir. 1975), a criminal case brought under 29 U.S.C. § 666(c), this court approved the following jury instructions:
As in Messina, supra, the petitioner intentionally and voluntarily chose not to comply with the two-foot regulation rather than to disregard the directions of the city of Albuquerque that two traffic lanes be kept open. The Commission's conclusion of willfulness was fully warranted.
We direct the enforcement of the Commission's order assessing a penalty of $500 for willful violation of 29 C.F.R. § 1926.651(i)(1).
WILLIAM E. DOYLE, Circuit Judge, concurs in the part of the decision which approves the enforcement of the Commission's order assessing a penalty for willful violation of 29 C.F.R. § 1926.651(i)(1), and dissents from that part which reverses the Commission's decision affirming the citation for non-serious violation of 29 C.F.R. § 1926.652(h).