D. Federico Co., Inc. v. Occupational Safety and Health Review Commission and W. J. Usery, Jr., Secretary of Labor , 558 F.2d 614 ( 1977 )

COFFIN, Chief Judge,

concurring.

While I have some doubts about the ground on which the majority relies, I have no trouble in concurring in the result. If the commission had unequivocally found this hole in the ground to be a trench, its interpretation of the regulation would be entitled to great deference, but the commission did not rest on that theory, and the regulations alone do not support such a conclusion. The regulations state that a trench is, in general, deeper than it is wide. 29 C.F.R. § 1926.653(n). In contrast, this hole’s width was twice its depth. I see no reason to put aside the general rule here. To the contrary, one would expect the rule to have most force when a hole very nearly exceeds the absolute maximum width for trenches, as this one does. Moreover, to be a trench a hole must be “narrow”, id., and a 13' X 21' rectangle is hardly narrow.

The safety standards for excavations and trenches differ considerably. In excavations, wall supports are needed only when “the employees are exposed to danger from moving ground.” Id. § 1926.651(c). But when a deep trench is dug in unstable soil, its walls are apparently presumed to be dangerous, for all trench walls over five feet must be supported. Id. § 1926.652(b). These differing standards make sense in view of the general rule that a trench is deeper than its width. A collapsing trench wall is more likely to trap workmen than a similarly collapsing excavation wall.

For me, the critical question is whether this excavation’s walls exposed any employees to danger. Although the parties did not clearly focus on this issue, the administrative law judge and the commission did. The ALJ found no danger; the commission disagreed. Although weakened by the contrary conclusion of the ALJ, see Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 95 L.Ed. 456 (1951), the commission’s finding has substantial support in the record as a whole; it is therefore conclusive. 29 U.S.C. § 660(a); cf. Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 834-35 (5th Cir. 1975), cert. denied, 425 U.S. 903, 96 S.Ct. 1492, 47 L.Ed.2d 752 (1976). In the light of this finding, I concur.