In short, substantial evidence supports the Commission's finding that Conie violated the applicable OSHA sloping standard. The short answer is that the regulations are performance oriented only insofar as they allow the employer to use alternative methods of protection in certain circumstances. For example, instead of relying on the maximum allowable slopes set forth in Appendix B, Conie could have used an alternative support system, e.g., id. B. Conie next challenges the Commission's finding of a willful violation. Here, the Commission found that Conie's violation was willful largely because Conie was aware of OSHA's excavation requirements but chose not to comply with them.
Substantial evidence supports the finding.
C. Conie next challenges the Commission's penalty. Conie challenges the Commission's gravity evaluation. In determining the gravity of the violation, the Commission credited the testimony of Conie's expert that the trench was not likely to collapse. If a wall were to collapse around an employee, serious injuries or death would most surely result. This is nothing new.