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Date:     March 9, 1977

Reply to 
Attn of:  CO

Subject:  Enforcement Problems with 29 CFR 1926.652(c)

         Donald Shay, Director 
To:       Office of Compliance Programming

This memorandum concerns difficulties encountered in our office with the requirements of the above standard which specifies relevantly:

"Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2 foot horizontal . . . ."

Unfortunately, Area Offices have interpreted the standard to require that trenches in hard or compact soil be sloped above the 5 foot level to the point where sloping would have terminated if the trench had been sloped on a 1 to 1/2 foot basis from the bottom. While we recognize that such an interpretation would probably provide a greater margin of safety, the standard plainly requires only the 1 to 1/2 foot slope above the 5 foot level and cannot be stretched to require sloping as if from the bottom. Moreover, Commission law is now settled that sloping on a 1 to 1/2 foot basis above the 5 foot level is adequate. See Secretary v. Horowitz Bros., Inc., OSHRC Docket No. 3004, OSHD CCH 19,596.

For the foregoing reasons, we request a program directive to the field stating that citations for inadequate trench sloping in hard or compact soil under 29 CFR 1926.652(c) should not issue unless the trench is improperly sloped, i.e. less than a 1 foot vertical to 1/2 foot horizontal slope, above the 5 foot level. In the alternative, the inadequacy of the protection provided by the standard as written warrants the proper rewriting of the standard.

Baruch A. Fellner
Counsel for Regional Litigation