“SECRETARY OF LABOR,Complainant,v.BLAND CONSTRUCTION COMPANY,Respondent.OSHRC Docket No. 87-0992DECISIONBefore: FOULKE, Chairman; WISEMAN, Commissioner.BY THE COMMISSION:After an inspection at the site of a trenching fatality in Austin,Texas, the Secretary of Labor (\”the Secretary\”) issued to BlandConstruction Company (\”Bland\” or \”the company\”) a citation allegingfailure to slope or shore the topsoil and bedrock of the trench wallwhere the fatality occurred. The Secretary’s citation classified thealleged violation as repeated and proposed a penalty of $1,260. Blandcontested the citation, after which the parties attempted, withoutsuccess, to settle the case. The Secretary then filed a complaint withthis Commission, which assigned the case to Administrative Law JudgeLouis G. LaVecchia, for a hearing.One month prior to the hearing, the Secretary filed an amendedcomplaint. It reclassified the alleged violation as willful, and itadded a second allegation of willful violation, in a different trench,excavated entirely in soil, at the same worksite. The Secretary proposedpenalties of $10,000 for the two alleged violations. The judge permittedthe amendments and, after the evidentiary hearing, affirmed the twocitation items. He assessed the proposed penalties, for a total of $20,000.Bland petitioned the Commission for review of the judge’s decision, andreview was directed on the following issues:(1) Whether the Secretary’s second citation item, concerning differenttrench at the same worksite, was issued with reasonable promptness;(2) Whether the Secretary’s amendment to add the second citation itemwas proper;(3) Whether the Secretary established noncompliance as alleged in thefirst citation item, to the extent that it concerns the sloping orshoring of the bedrock;(4) Whether Bland knew or with the exercise of reasonable diligencecould have known that the bedrock was unstable;(5) Whether the two citation items were properly classified as willful; and,(6) Whether the penalties for the two citation items were appropriate.For the reasons set forth in this opinion, we affirm the judge’sdecision as to the first four issues, but we reverse it as to the fifthissue and make an appropriate modification of the penalty.I_The Bedrock Trench_We will separately address the two citation items. The issues relatingto the second citation item (that is, issues Nos. 1 and 2, which relateonly to it, and Nos. 5 and 6, insofar as they relate to it) will beaddressed in the next part (\”II\”) of our decision. In this part, we willaddress the issues relating to the first citation item (issues Nos. 3and 4, which relate only to it, and Nos. 5 and 6, insofar as they relateto it). We begin with the question of whether the Secretary proved thatthe bedrock of the trench where the fatality occurred was unstable andrequired protection (issue No. 3).[[1\/]]A_Was the Bedrock Unstable?_The cited standard is 29 C.F.R. ? 1926.652(b),[[2\/]] which refers to atable (\”Table P-1\”) of \”Approximate Angles of Repose for Sloping Sidesof Excavations.\” According to Table P-1, \”Solid Rock, Shale or CementedSand and Gravels\” can remain at 90 degrees; that is, solid rock canremain vertical. Rock that is not solid or, in the terminology of thestandard, rock that is \”unstable,\” must be shored or sloped.To establish a violation of a standard, the Secretary must show by apreponderance of the evidence that: (1) the cited standard applies, (2)its terms were not met, (3) employees had access to the violativecondition, and (4) the employer knew or could have known of it with theexercise of reasonable diligence._See_, _e.g._, _Trumid Construction Co_., 14 BNA OSHC 1784, 1788, 1990CCH OSHD ? 29,078, p. 38,859 (No. 86-1139, 1990). In this case, theparties do not dispute the cited standard’s applicability and thefatally injured employee’s access (exposure) to the bedrock trench.Also, as we will discuss in this section of our opinion, there is noreal dispute among the witnesses that the bedrock was unstable where itcollapsed. Having allowed it to remain vertical, Bland did not meet theterms of the cited standard. Bland’s knowledge of the instability is,however, a substantial question, which we will discuss in the next section.The evidence of instability can be briefly stated. One wall of thebedrock trench, which was fourteen feet deep, composed of ten feet oflimestone bedrock below four feet of topsoil, and excavated in anessentially vertical condition, suddenly collapsed due to relativelyslender but lengthy fractures in the rock, approximately two-thirds ofthe way down the wall. A large wedge of rock slid out of the wall,bringing with it a cascade of smaller pieces, rubble and soil. Theparties’ witnesses disputed whether fractures had been visible beforethe cave-in, but the witnesses did not substantially dispute that therock that caved-in must have been unstable. For example, one of theSecretary’s expert witnesses, William Howard, a civil engineer employedby Trinity Engineering and Testing Corporation, regarded the collapse asproof that the rock was not solid. One of Bland’s expert witnesses, PaulCravens, a manager of geotechnical engineering for Raba-KistnerConsultants, Inc., testified, \”It failed, and therefore it must havebeen unstable.\” Another of Bland’s witnesses, Al Haegelin, a trenchingcontractor who had worked on several projects in the immediate vicinity,and who had viewed Bland’s cave-in approximately a week to ten daysafterward, testified, \”If it collapsed, I assume it’s unstable.\”Bland adduced considerable testimony to show that the limestoneformation in which the bedrock trench was excavated, the \”Austin Chalk\”formation, was \”hard\” and generally \”solid,\” and that it hadsuccessfully withstood vertical trenching techniques for many years.Also, as we will describe in greater detail below, Bland adducedtestimony from many witnesses, laymen and experts, that there were novisible fractures on the surface of the trench walls subsequent to thecave-in. Accordingly, Bland argues, we must reverse the judge’s findingthat the bedrock was unstable where it collapsed. We disagree, however,because none of Bland’s evidence in any way controverts the soundtestimony to which we have referred, positing that the fact of thecollapse demonstrates an instability at that location. Moreover, Bland’sother expert witness, Dr. Carl Raba, a construction and environmentalconsultant with Raba-Kistner Consultants, Inc., testified that there areunstable areas in the Austin Chalk and that a lack of visible fracturesin the rock that remained intact after the collapse did not absolutelyprove anything about the condition of the rock that collapsed. In ourview, therefore, the record shows that Bland was excavating throughunstable rock, requiring sloping or shoring. The Secretary established afailure to comply with the cited standard’s terms.B_Could Bland Have Known of a Potential for Instability_?As we have indicated, the far more substantial question is whether theSecretary established knowledge of the bedrock’s instability (issue No.4). That Bland had no actual knowledge is clear and undisputed, but theparties vigorously dispute whether, with the exercise of reasonablediligence, Bland could have known of the unstable condition of the rockbeing excavated. The record on this issue is lengthy and detailed.Almost immediately after the cave-in, Bland’s backhoe operator beganenlarging the trench, by cutting back and sloping both walls, so thatvolunteer and professional rescuers could safely enter the trench torescue or remove the body of the employee. There were only two witnessesto the visual appearance of the trench walls prior to this work toenlarge the trench. One, Kevin MacDonnel, a volunteer firefighter,stated that the rock was \”fractured limestone,\” having [l]ots of cracksand fissures.\” The other witness, Artis Howard, an experienced employee,testified that he would not have entered the bedrock trench because itswalls were visibly stratified. That is, they were composed of visiblelayers.Many other witnesses viewed the cut-back walls and testified withoutexception that they showed no visible fractures. For example, theSecretary’s compliance officer, Juan Padron, of the Occupational Safetyand Health Administration (\”OSHA\”), described the rock as \”essentially auniform bed of material\” in which he noticed no fractures or other signsof instability. Joe Bland, president of the company, gave similartestimony as to his observations during the inspection. Brian Schnelle,a trenching contractor familiar with the Austin Chalk, gave similartestimony as to observations that he made during a visit the next day,by invitation of President Bland.Bland’s two experts gave the most detailed testimony along these lines.Within the week after the cave-in, they examined the cut-back walls.Scrutiny of their surfaces and the debris on the trench bottom disclosedone sign of instability: an iron stain, signifying a fracture, on theunderside of the large wedge of rock that slid out of the wall. Theexperts suggested, therefore, that the sole visible sign ofdiscontinuity might have been a narrow band of iron staining buried inthe trench wall, where it could not have been seen by the backhoeoperator as he excavated the trench.Experts for the Secretary never viewed the trench, as it had beenbackfilled by the time that they came to the worksite to take coreborings. Civil engineer Howard and Gardiner Atkinson, Jr., aself-employed geotechnical engineer, drilled three core borings ofundisturbed limestone, each sixteen to twenty feet deep, within severalfeet of where the trench walls had been. Immediately prior to thehearing, a third expert, Peter Allen, an associate professor of geologyat Baylor University, examined the core borings and the geologicalfeatures in the vicinity, in order to discuss them in his testimony.According to these experts, the borings contained many natural fracturesthat were close-spaced and inclined, indicating considerableinstability. There were iron stains and slickened sides, the latter ofwhich are grooves or traces of past movement at a discontinuity. Therock was highly weathered. The experts considered the fractured boringsrepresentative of the portion of Bland’s trench wall that collapsed.[[3\/]]Also, Professor Allen analogized to two exposed walls of Austin Chalk,which he had examined approximately one-half of a mile from Bland’strench. One was a natural wall along a creek. The other was an oldexcavation site. Both were severely weathered and greatly fractured,showing slickened sides and \”marly\” (mixed limestone, clay and sand)seams. The professor believed, and civil engineer Howard agreed, thatthe limestone around Bland’s trench would have had a similar appearanceif it were exposed.Bland’s trench was in a zone of earth faults, named the Balcones Faultzone, which Professor Allen described as being \”a series of faults, mostof which are down to the east, although there are some down to thewest.\” There was one mapped fault trace approximately 1,200 feet fromthe trench. Four others were more distant. According to geotechnicalengineer Atkinson, there might also have been unmapped ones. Along thesefaults, extensive movements of earth material have produced numerousfractures. According to Professor Allen, the incidence and spacing offractures vary throughout the Austin Chalk. In the vicinity of a faulttrace, there can be one or two fractures every two to three feet;farther away, there can be one fracture every ten feet. Throughout theformation, therefore, fractures might be widely spaced, but never absent.Other witnesses substantially agreed. Engineer Atkinson characterizedthe Austin Chalk as \”highly faulted.\” Engineer Howard submitted thatBland could generally have anticipated fractures due to the faultspassing through the Austin Chalk, for, although parts of the formationcan be solid and not inherently unstable, the formation is mainlyunstable. Walter Cunningham, an OSHA compliance officer who had madenumerous inspections of excavations in the area, testified that thereare solid portions, but that they become unstable during excavation bybackhoe. Contractor Haegelin disagreed, but his testimony was explicitlygeneral:[I]t’s fractured overburden typically in this area, thezone we are referring to where it gets into a solid mass,it generally has stayed in a solid mass with varyingdegrees of fractures above it.Engineering consultant Raba submitted that the Austin Chalk is a mainlystable formation, in which instability would be the exception ratherthan the rule. Upon cross-examination, however, he conceded \”aprobability\” that some portions are very unstable.Having closely examined the evidence, we decline to find that, prior tothe cave-in, there were visible fractures or other signs ofdiscontinuity in the bedrock of the trench wall. We do not rely on anyof the expert testimony or testimony from other persons who viewed thesite after the rescue work had been completed, as this work altered theconditions at the site and, therefore, cannot reveal what they werebefore the cave-in. Also, we do not rely on the testimony of the twoeyewitnesses in regard to the appearance of the area immediately afterthe cave-in, as we find that their testimony lacks the requisitespecificity.The testimony of Bland’s experts is soundly reasoned as far as it goes,and it leads us to believe that one vivid sign of a fracture was hiddenfrom view, inasmuch as the band of iron staining on the large rock wedgewas apparently buried in the wall prior to the cave-in. The testimony ofBland’s experts and that of other witnesses further indicates that therewere substantially unfractured sections of rock in the area throughwhich Bland was excavating, for the witnesses found what appeared to besolid rock walls during their examinations in the week or so after thecave-in. The crucial difficulty is that these walls are not necessarilyrepresentative of what had been visible either immediately before orimmediately after the cave-in. A short time after the cave-in, therescue work necessitated further excavation to widen the trench andaltered the trench walls to some unspecified extent. Although we havethe testimony of Bland’s experts that they could see where the wedge ofrock had come out of one wall, we have no other evidence clarifying whatparts of the walls would have been visible prior to the cave-in.The volunteer firefighter, Kevin MacDonnel, and the employee, ArtisHoward, who arrived at the worksite immediately after the cave-in,viewed the walls in an overall way and testified that the wallsdisplayed visible signs of discontinuity. The judge relied on theirtestimony, but we decline to do so. Employee Howard observed that therewere visible layers, called \”strata,\” in the rock of the trench walls.Therefore, he testified, he would not have entered the trench. However,the testimony of William Howard, an engineer and one of the Secretary’sexpert witnesses, indicates that stratification is a natural, geologicalcharacteristic of a sedimentary rock, such as limestone or chalk, whichis composed of materials deposited in layers. The cited standard andTable P-1 do not specify that stratified or sedimentary rock must besloped, or that stratification is an indicator of instability. An OSHAtraining pamphlet, in evidence in this case, states only that \”faults inthe strata\” (emphasis added) can render a rock formation unstable duringtrenching operations. Moreover, although there was some testimony inthis case obliquely suggesting that rock strata might not remain intact,there was no testimony that geologists, or other experts in the field ofexcavation safety recognize visible strata as clear evidence ofinstability. Professor Allen testified that he would want to closelyexamine all \”visible discontinuities,\” including horizontal ones, but healso testified that chalk \”probably would be hunky-dory\” for a verticalwall, as long as there were no fractures or discontinuities. Similarly,engineer Howard testified that strata or sedimentation does notnecessarily indicate instability. On the basis of this record, we simplydecline to find that an employer who observed that the rock wasstratified would have known that the rock was unstable. We note theabsence of any evidence that the strata contributed in any way to thetrench failure in this case.Volunteer firefighter MacDonnel’s testimony referred to fractures,cracks and fissures in the rock walls. He qualified his description ofthe rock walls, however, with the words, \”What I could see of them.\”When he made his observations, he was standing at the top of the trench,on the east side, facing the west wall that had collapsed. Because hewas observing a wall that had been affected by the cave-in, we do notknow whether he was seeing a surface that would have been visible priorto the collapse. Also, we must take into account that the upper fourfeet of the trench was topsoil and a material that contractor Haegelincalled \”fractured overburden.\” As contractor Haegelin indicated, andconsultant Raba explained in greater detail, the Austin Chalk isbecoming weathered and is deteriorating along its upper surface.Therefore, it is topped by a layer of fractured rock and clay, as wellas topsoil. Of course, all unstable material such as fractured rock,clay, and topsoil must be sloped or shored, but Bland was charged with aseparate violation for failure to protect the upper four feet oftopsoil. See note 1 supra. We therefore do not include evidencepertaining to the upper four feet in our consideration of the allegationrelating to the bedrock. Inasmuch as firefighter MacDonnel’s testimonyis qualified and does not specify that he noticed fractures extendingdown into lower portions of the trench, we decline to give itdispositive weight.We note that the particular fractures discussed by witnesses at thehearing, see n. 3 supra, seem to have been in the upper part of thetrench, and we also note that the photographs in which the Secretary’sexperts saw fractures present problems of angle and point of viewsimilar to the problems with firefighter MacDonnel’s testimony. Takinginto account these factors and the alteration of the trench walls as therescue proceeded, we conclude that the Secretary has failed to establishthat Bland could have known, from any signs in the trench, that the rockwas unstable.However, the Austin Chalk’s potential for instability was wellunderstood before the collapse, and on that basis we find that, with theexercise of reasonable diligence, Bland could have known of the unstablecondition of the rock. This record shows, virtually without dispute,that the Austin Chalk is extensively fractured due to earth movementalong fault lines passing through it. In fact, there were several mappedfault traces within a mile of Bland’s trench. Although consultant Rabatestified that the effects of a fault would not be significant at adistance of 3,000 feet, here there was one fault trace onlyapproximately 1,200 feet away, which is less than a quarter of a milefrom the trench site. The length of the portion of Bland’s trench thatwas affected by the cave-in was approximately fifteen feet. This couldinclude at least one fracture, and perhaps as many as five to ten, givenProfessor Allen’s testimony that, typically, there is one fracture everyten feet, and that nearer a fault the incidence rises to one or twoevery two to three feet. Therefore, even though there might berelatively solid and stable areas within the Austin Chalk as a whole, wefind that Bland could not reasonably have relied on an expectation thatsuch areas would exist or extend throughout the length of the bedrocktrench that the company was creating in this case.Bland argues that, before the cave-in, the trenching industry consideredthe Austin Chalk stable for vertical trench walls. Bland presentsconsiderable, substantial testimony in support of its position, which isexamined in our review of the issue of willfulness. For decisionalpurposes at this point, it is sufficient to note that contractorHaegelin’s testimony, asserting that the rock has \”generally stayed in asolid mass,\” is typical of the industry’s assessment of the AustinChalk’s condition.Whatever the practice of an industry, however, we must hold that membersof it are required to take into account all available, factualinformation relating to whether hazardous conditions exist, orreasonably could exist, where work is being performed. While we do notdoubt President Bland’s sincerity in conscientiously following industrypractice, his testimony at the hearing was that he knew about the faultzone and understood \”what a fault is.\” This testimony shows that, withthe exercise of reasonable diligence based on what he knew, PresidentBland could have recognized a need for protection along the length ofthe bedrock trench that his company was excavating. Neither an employernor its industry can afford to estimate the stability of a rockformation by the lack of collapses if, as here, there is a sufficientbody of knowledge about the geological conditions to predict asubstantial possibility of instability. _See_, _e.g._, _Union BoilerCo._, 11 BNA OSHC 1241, 1244, 1983-84 CCH OSHD ? 26,453, p. 33,606 (No.79-232, 1983), _aff’d_, 732 F.2d 151 (4th Cir. 1984) (employers must\”exercise[ ] reasonable diligence to detect\” conditions and must\”inspect and perform tests to discover safety-related defects\”); cf._AccuNamics, Inc.v. OSHRC_, 515 F.2d. 828, 835 (5th Cir. 1975), _cert.denied_, 425 U.S. 903 (1976) (knowing of nearby backfill, and being ableto discover crumbly sand in the trench walls, the employer could haveknown to provide more complete protection); _S. Zara and SonsContracting Co._, 10 BNA OSHC 1334, 1339, 1982 CCH OSHD ? 25,892, pp.32,398-32,399 (No. 78-2125, 1982), aff’d, 697 F.2d 297 (2d Cir. 1982)(culpability where an employer decided to slope all excavations to 45degrees, for it did not take into account the possibility of unstablesoil); _Frank Irey, Jr., Inc._, 5 BNA OSHC 2030, 2032, 1977-78 CCH OSHD? 22,283, p. 26,838 (No. 701, 1977) (knowing of wet soil, the employershould have made \”a more prudent analysis of the available soil data\”).Accordingly, the Secretary has established that, with reasonablediligence, Bland could have known of violative conditions throughout thearea of the bedrock trench. The Secretary has met her burden of prooffor the alleged violation.C_Was the First Citation item Willful?_Having upheld the allegations of the first citation item, we must decideits classification (issue No. 5), which the Secretary alleges waswillful. The meaning of the \”willful\” classification is well-settled:Although the Act itself does not define \”willful,\” we [inthe Fifth Circuit] recently joined a majority of theother circuits . . . in adopting the Commission’sdefinition of willful conduct. \”[F]or OSHA purposes, wedefine a willful violation as one involving voluntaryaction, done either with an intentional disregard of,or plain indifference to, the requirements of the statute[or regulation].\”_RSR Corp. v. Brock_, 764 F.2d 355, 362 (5th Cir. 1985), quoting_Georgia Electric Co. v. Marshall_, 595 F.2d 309, 319 (5th Cir. 1979)._AIso_, _Keco Industries, Inc._, 13 BNA OSHC 1161, 1163, 1986-87 CCHOSHD ? 27,860, p. 36,472 (No. 81-263, 1987), quoting _Simplex TimeRecorder_ _Co._, 12 BNA OSHC 1591, 1595, 1984-85 CCH OSHD ? 27,456, p.35,571 (No. 82-12, 1985), aff’d 766 F.2d 575 (D.C. Cir. 1985)(\”voluntarily with either an intentional disregard for the requirementsof the Act or plain indifference to employee safety\”); _D.A.&. L.Caruso, Inc._, 11 BNA OSHC 2138, 2142, 1984-85 CCH OSHD ? 26,985, p.34,694 (No. 79-5676, 1984) (the employer \”either intentionallydisregarded the terms of the cited standard or was plainly indifferentto them\”).\”[S]imple failure to discover or eliminate a violation is not sufficientto demonstrate that the violation is willful in nature.\” _Simplex TimeRecorder_,12 BNA OSHC at 1596, 1984-85 CCH OSHD at p. 35,572. Also,simple familiarity with the applicable standard is not proof ofwillfulness. _Wright and Lopez. Inc.,_ 8 BNA OSHC 1261, 1265, 1980 CCHOSHD ? 24,419, p. 29,777 (No. 76-3743, 1980).The parties’ evidence is extensive and complex. Our initial paragraphswill consider Bland’s understanding of the cited standard’s requirementsregarding treatment of rock. We will then review industry practice andthe Secretary’s enforcement practice.Bland’s understanding of the cited standard’s requirements had beenestablished by prior citations, a training seminar, and an OSHA trainingpamphlet. Approximately one year before Bland received the citation inthis case, Bland received two citations alleging various trenchingviolations, including two instances of failure to perform sloping orshoring, apparently in soil. After receiving the first of thesecitations, Bland asked the compliance officer who made that inspection,Walter Cunningham, to conduct a training seminar for Bland’s employees,to ensure that they understood the trenching requirements.[[4\/]]Compliance Officer Cunningham did conduct such a seminar concerning thetrenching standards, including the cited standard. The seminar wasattended by Bland’s equipment operators (including the backhoe operatorwho excavated the trench involved in this case), foremen,superintendents and officers (including President Bland).In testimony at the hearing in this case, Compliance Officer Cunninghamdescribed the substance of his instruction on sloping or shoring rock:I pointed out that the [cited] standard specificallystated that it had to be solid rock, and that in …the Austin area, I found that a lot of contractors seemedto feel that where it says rock on that [T]able P-1, it’sany type of rock. It has to be with solid rock . . . .Compliance Officer Cunningham recalled having explained that drillingand shooting can cause fractures in a solid area of rock. He did not,however, testify that he expressed the same view regarding the use of abackhoe. He also had not recommended taking core borings. In histestimony, Compliance Officer Cunningham explained that, during theinformal conference following his inspection of BIand’s operations andprior to the seminar, he had recommended that Bland take core bearingsbefore beginning a trenching project. During the later seminar, however,the compliance officer had not mentioned a need to perform preliminarycore borings.Other testimony at the hearing in this case indicates that Bland’spresident and vice president did not realize that Compliance OfficerCunningham meant that, in general, trenches in the Austin Chalk must besloped or shored if they were being excavated by backhoe. PresidentBland testified that, at the seminar, many questions were asked aboutsloping in rock, because trenching through rock comprised a substantialpercentage of the company’s work. According to President Bland,Compliance Officer Cunningham replied that rock could remain vertical.Also, the compliance officer did not give any special instructionsconcerning the presence of faults. Therefore, during the inspection thatgave rise to this case, President Bland and the company’s vicepresident, Johnny Ulmer, both told Compliance Officer Padron that theybelieved it was permissible to use vertical walls in the Austin Chalk.In his testimony, Compliance Officer Padron emphasized the apparentgenuineness of their belief.At the seminar, the participants received an OSHA training pamphletentitled, \”Excavating and Trenching Operations.\” It states:The types of soil must be identified to determine properprotective measures . . . . Even hard rock sometimes canbe hazardous; faults in the strata can make it unstablewhen cut.President Bland testified that, since the seminar, he has becomegenerally familiar with the pamphlet’s contents. Also, on the basis ofhis experience, he knew of the Balcones Fault zone, knew \”what a faultis,\” and knew that, \”[i]f rock shows any signs of being unstable, it canbe hazardous.\” As he stated in his testimony, \”That’s pretty commonknowledge.\”Because the depths at which rock could be encountered varied, PresidentBland relied on the company’s backhoe operators and foremen to evaluatethe conditions and create an adequate slope. President Bland held weeklysafety meetings with the foremen, and the foremen generally came to theworksites each day, to check the work.The backhoe operator who excavated the bedrock trench was Gregorio Reza.He had worked for Bland for twenty-five years, without an accident, andhad been trained primarily by experience and on-the-job instruction. Hisonly formal instruction had been the seminar concerning trenching, wherehe had received the OSHA training pamphlet. The seminar and the pamphletwere in English, which operator Reza could not understand. However,President Bland explained in his testimony that operator Reza would havelearned from the instructive diagrams drawn by Compliance OfficerCunningham at the seminar and that, back on the job, the company’sbilingual foreman, Isidoro Flores, would have \”shared the informationwithin that [OSHA training] booklet with Mr. Reza, as well as the manyother Mexican-American citizens that . . . work for our company.\”President Bland also thought that he had probably asked OSHA for apamphlet written in Spanish, but had been told that none was available.Industry practice emphasized on-the-job evaluation of rock stability.Two of the Secretary’s experts, engineer Howard and Professor Allen,gave testimony recommending that contractors take preliminary coreborings, rather than rely on on-the-job observation of conditions. Uponcross-examination, however, engineer Howard agreed that a contractorwould not be \”in error\” if a trench caved-in due to \”an unseen joint.\”This witness also suggested that a contractor could reasonably presumethe solidity of any rock that did not evidence any \”obvious\”discontinuities.This testimony, revealing engineer Howard’s acceptance of on-sitescrutiny, is representative of all of the testimony that was givenrelating to industry practice. Consultant Raba testified that hispractice was to study the depth and location of a trench, ascertain itsproximity to any fault, then \”leave it to the individual interpretationof people in the field to look for anomalies.\” Moreover, as heexplained, \”[t]hose people in the field would not necessarily beprofessional, or college educated.\” President Bland testified that hehad never retained a geologist and that he had always relied on thebackhoe operator’s observations. Compliance Officer Cunningham did notknow whether any Austin-area trenching contractor had ever consulted ageologist before beginning a trenching project. He gave extensivetestimony showing that he relied on on-site scrutiny during hisinspections. More importantly, upon cross-examination, ComplianceOfficer Cunningham firmly agreed that, if a backhoe operator does notsee any fractures \”after he lifts his bucket out,\” while excavating atrench, the operator can conclude that the rock is solid and does notrequire protection. Another witness, Richard Keskinen, employed by theDepartment of Labor as a safety supervisor for OSHA’s Austin areaoffice, gave testimony that, if a rock had no visible fractures, \”[i]twas solid.\”On the basis of the evidentiary record as a whole, Judge LaVecchia foundthat industry practice was to slope or shore \”when trench walls arefractured and cracked.\” Our review of the record confirms this finding.Testimony from the local trenching contractors, particularly Al Haegelinand Brian Schnelle, stated that contractors used vertical rock wallsunless there were visible discontinuities or other indicia ofinstability. Consultant Raba gave extensive testimony to this effect,based on his experience and on his own survey of local practices, whichwas made shortly before the hearing.[[5\/]] Also, upon cross-examination,the Secretary’s experts, civil engineer Howard and geotechnical engineerAtkinson, indicated awareness of vertical trenching practices in theAustin Chalk. Engineer Atkinson even agreed that it was a generallyaccepted practice. Neither witness mentioned having seen vertical wallswhere, because of visible fractures, sloping or shoring would obviouslyhave been required. Only Compliance Officer Cunningham suggested havingseen vertical rock walls in a unstable condition.[[6\/]]On the whole, the testimony regarding OSHA’s enforcement practiceindicates that it had been moving along much the same track as industrypractice. That is, OSHA had been requiring employers to slope or shorerock only if it had visible fractures. OSHA had not been consistentlyrequiring protection for rock in the vicinity of a fault, or rock beingexcavated by backhoe. In their testimony, the compliance officersmaintained that OSHAs policy was to require protection for all rock thathad not been excavated by rock saw. Compliance Officer Cunninghamtestified to this effect, and safety supervisor Keskinen testified thathe disallowed vertical rock walls altogether: \”I have never run intothat situation\” where they would be permissible. However, Jay Watkins,an employee of Lewis Contractors, testified concerning an occasion whenSupervisor Keskinen had not issued a citation for vertical rock walls.During an inspection conducted by Supervisor Keskinen, the employee hadpointed out that the company’s excavator was specially equipped to digsolid rock. At first, Supervisor Keskinen had explained that, \”if anexcavator could dig [the rock], it wouldn’t be considered solid.\” In theend, however, after he and at least one compliance officer had closelyexamined the walls, they merely instructed the contractor to watch forthe appearance of cracks.From a similar experience, trenching contractor Schnelle had interpretedOSHA’s standards to allow vertical rock walls if not visibly cracked. Heknew of several OSHA inspections permitting this practice. After onesuch inspection at his own worksite, he was notified that the citationfor vertical walls in the Austin Chalk \”would not be pursued.\”Compliance Officer Padron testified that, in his own opinion, Bland andany trenching contractor would be justified in leaving any rock wallsvertical as long as they showed no sign of instability. Geotechnicalengineer Atkinson was \”not aware\” of OSHA ever having prohibitedvertical walls in the Austin Chalk. Nor were Vice President Ulmer andPresident Bland, according to President Bland’s testimony regarding hisown understanding, and according to Compliance Officer Padron’stestimony regarding his discussions with the company’s managers duringthe inspection in this case. As we have mentioned, Compliance OfficerPadron emphasized that the managers had seemed to hold their belief ingood faith.President Bland testified that, because he read in newspapers that OSHAhad not issued citations for vertical rock walls, he thought that thecollapsed trench’s vertical walls were permissible in the Austin Chalk.More significantly, President Bland made independent observations oftrenching practices in the area.[[7\/]] Also, at some time prior to theinspection in this case, OSHA had inspected, but had not cited, anotherof Bland’s trenches, this one having thirteen-foot vertical walls oflimestone excavated by the same type of backhoe later being used at thecollapse.Judge LaVecchia upheld the Secretary’s willful classification. He foundthat Bland knew of the need to protect rock that is not solid, butfailed to assure that the backhoe operator received more than minimaltraining, in a way that effectively conveyed the requirements of thecited standard. \”Whether or not Reza understood the OSHA requirements isnot apparent.\” The judge inferred that the backhoe operator did notunderstand the requirements because \”Reza continued to trenchvertically\” even though the walls were \”visibly fractured.\” The judgerejected Bland’s contention that it \”believed it was conforming toindustry practice\” because \”area contractors do not vertically trenchwhen trench walls are fractured and cracked.\”Contrary to the reasoning of the judge, we have found that the evidencedoes not establish that the bedrock portions of the trench walls werevisibly fractured. If there were no visible fractures in the bedrock,Bland’s vertical trenching practices conformed to industry practice.Although conformance with industry practice is not a defense to a chargeof willfulness, the evidence also indicates that it was OSHA’s practicein the Austin area to require sloping or shoring in rock only if therewere visible fractures. Bland had learned of OSHA’s approach at theseminar OSHA gave at the company’s request and by paying close attentionto local trenching practices and the outcomes of OSHA inspections in theAustin Chalk. Based on this evidence we find that Bland had areasonable, good faith basis for believing that its own practicesconformed to OSHA’s requirements. Such belief by an employer negates afinding of willfulness. _Keco Industries_, 13 BNA OSHC at 1169, 1986-87CCH OSHD at p. 36,478, citing _RSR Corp._, 11 BNA OSHC 1163, 1172,1983-84 CCH OSHD ? 26,429, pp. 35,550-35, 551 (No. 79- 3813, 1983),_aff’d_, 764 F.2d 355 (5th Cir. 1985).[[8\/]] Thus, we reverse thejudge’s decision and find a violation, but we decline to characterize itas willful.D_An Appropriate Penalty_The penalty remains for our consideration. The Secretary did not allegethat, if not willful, the first citation item was serious. We note,however, that for either a serious or an other-than-serious violation,the maximum penalty is the same, $1,000. Bland, a family-owned company,has fewer than 100 employees, and its annual gross income variesconsiderably. The company has taken measures toward compliance with thetrenching requirements. Compliance Officer Padron testified that thefact that Bland correctly sloped part of the topsoil in the bedrocktrench demonstrates good faith. Furthermore, in his opinion, Bland wouldnot have known to slope the bedrock because it showed no signs ofinstability. However, President Bland did know of the danger that faultsin rock pose, and the company has a prior history of violation,including failure to comply with the sloping and shoring requirementswith respect to soil. Also, several employees, in addition to theemployee who died, had entered the bedrock trench on the morning of theaccident, and a collapse of rock indisputably presents a very grave riskof death or serious physical harm. Primarily because of the gravity ofthe violation, we assess the maximum penalty of $1,000.II_The Soil Trench_We turn now to the second citation item, which the Secretary interjectedinto this case by filing an amended complaint, along with a motion toamend the citation and the original complaint. Judge LaVecchia grantedthe motion to amend. Bland takes exception to that ruling, arguing thatthe amendment was prejudicial, particularly because the new citationitem was not added to the case with reasonable promptness. Whether thecitation item was issued with reasonable promptness and whether theamendment bringing it into the case was proper are issues Nos. 1 and 2of the Direction for Review (see our list, at the outset of thisopinion). We will now address these two issues.A_Was Bland Prejudiced by the Addition of a Second Citation Item?_The requirement that a citation be issued with reasonable promptness isfound in the governing statute, the Occupational Safety and Health Actof 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). Section 9(a) of the Actstates: \”If, upon inspection or investigation, the Secretary or hisauthorized representative believes that an employer has violated a . . .standard . . . he shall with reasonable promptness issue a citation tothe employer.\” Section 9(c) of the Act further provides: \”No citationmay be issued . . . after the expiration of six months following theoccurrence of any violation.\” Construed together, these provisionsindicate that a citation issued within the six-month limitation periodis generally considered to have been issued with reasonable promptnessunless an employer demonstrates that, in its particular case, the lengthof time taken to issue the citation was unreasonable.[[9\/]]To show a lack of reasonable promptness, an employer must establishprejudice to the defense of the case. A lapse of time of less than sixmonths \”cannot operate to exclude evidence obtained in [an] inspectionwhen there is no showing that the employer was prejudiced in any way,\”for \”[t]he manifest purpose of the Act, to assure safe and healthfulworking conditions, militates against such a result.\” _Accu-Namics, Inc.v. OSHRC_, 515 F.2d at 833, quoted in _Stephenson Enterprises. Inc. v.Marshal_l, 578 F.2d 1021, 1023 (5th Cir. 1978). Therefore, theCommission has held that a citation will not be vacated on \”reasonablepromptness\” grounds unless the employer shows prejudice. _E.g._,_Stripe-A-Zone, Inc._, 10 BNA OSHC 1694, 1982 CCH OSHD ? 26,069 (No.79-2380, 1982).The Commission has also held that the Secretary’s prehearing amendmentshould be permitted unless the employer’s preparations to defend wouldbe prejudiced. _Anoplate Corp._, 12 BNA OSHC 1678, 1687, 1986-87 CCHOSHD ? 27,519, p. 35,685 (No. 80-4109, 1986), citing _United CottonGoods, Inc._, 10 BNA OSHC 1389, 1390, 1982 CCH OSHD ? 25,928, p. 32,454(No. 77-1894, 1982). A judge’s order permitting an amendment will beupheld on review unless shown to have been an abuse of discretion._Anoplate_, 12 BNA OSHC at 1687, 1986-87 CCH OSHD at p. 35,685, citing_TRG Drilling Corp._, 10 BNA OSHC 1268, 1982 CCH OSHD ? 25,837, p.32,319 (No. 80-6008, 1981).Where an amendment adds new factual issues against which an employer isunprepared to defend, a judge may allow the amendment if the prejudicecan be cured. The question is whether, in the time remaining until thehearing, or during a reasonable continuance of it, the employer canprepare its defense. _See Anoplate_, 12 BNA OSHC at 1687, 1986-87 CCHOSHD at p. 35,685; _United Cotton Goods_, 10 BNA OSHC at 1390, 1982 CCHOSHD at p. 32,454; _Daniel International Corp._, 9 BNA OSHC 1980, 1984,1981 CCH OSHD ? 25,492, p. 31,790 (No. 15690, 1981), _rev’d_ _on__other_ _grounds_, 683 F.2d 361 (11th Cir. 1982); _Brown & Root, Inc.,Power Plant Division_, 8 BNA OSHC 1055, 1057-59, 1980 CCH OSHD ? 24,275,p. 29,569 (No. 76-3942, 1980); _P.A.F. Equipment Co._, 7 BNA OSHC 1209,1212-13, 1979 CCH OSHD ? 23,421 (No. 14315, 1979), _aff’d_, 637 F. 2d741 (10th Cir. 1980); _Pukall Lumber Co._, 2 BNA OSHC 1675, 1677-78,1974-75 CCH OSHD ? 19,433, pp. 23, 198-99 (No. 10136, 1975) (lead andconcurring opinions).Thus, the first two issues for review, the procedural issues relating tothe second citation item, present a single factual question. Blandcontends that the Secretary’s delay in citing conditions in a trenchdifferent from the one that had been the principal object of theinspection had the effect of prejudicing the company, for the Secretaryadded to the case new factual issues against which the company wasunable, because of changed conditions at the late date of the newcitation item, to prepare a defense.It is virtually undisputed on this record that substantially all of theSecretary’s evidence in support of the second citation item was gatheredduring discovery rather than during the inspection. The complianceofficer came to the worksite on April 21, 1987, because of the fatalitythat had occurred that morning, when the wall of the bedrock trench hadcaved-in. In the course of his inspection, Compliance Officer Padronwalked approximately 70 feet along the bedrock trench to the soiltrench, which adjoined the bedrock trench at an excavation for amanhole. The compliance officer visually examined the manhole excavationand a segment of the soil trench leading away from it. Approximately 100feet from the manhole, the soil trench had been backfilled.According to Compliance Officer Padron’s testimony at the hearing, hedid not make a further study of conditions in the manhole excavation andthe soil trench because he did not see any employees working in thearea. Therefore, in his discussions with Bland’s president and vicepresident, he did not direct their attention to any improper trenchingprocedures in the soil trench. He discussed the bedrock trench, only.He took samples and measurements of the bedrock trench, but not of thesoil trench. At the hearing, therefore, the compliance officer’stestimony about the soil trench consisted entirely of estimatesregarding its dimensions and soil conditions.Immediately after the inspection, Bland retained its two experts toperform their independent inspection and study of the bedrock trench.Consultant Raba and engineer Cravens came to the worksite within severaldays of the compliance officer’s inspection. They removed bedrocksamples and extensively videotaped and photographed the bedrock trench.Both experts entered the bedrock trench and walked in it to the manholeexcavation and soil trench. However, the experts did not study the soiltrench. As expert Raba testified, \”I looked at it in general terms,turned back, and principally worked in the area of the accident.\” Havingtaken no samples of the soil trench and having made no measurementsthere, the experts were unable at the hearing to give any specifictestimony about the soil trench’s condition. Expert Raba could stateonly that he had not seen any signs of improper trenching practices.Approximately one month after the compliance officer’s inspection, theSecretary retained her own experts to examine the topsoil and bedrockwhere the fatality had occurred. Geotechnical engineer Atkinson andcivil engineer Howard came to the site on May 18, 1987. By then, Bland’strenches had been entirely backfilled. The experts took one core boringin the vicinity of the cave-in. Thereafter, on June 9, 1987,approximately three weeks after the core boring and approximately 1 1\/2months after the compliance officer’s inspection, the Secretary issuedthe citation concerning the bedrock trench.Subsequent discovery disclosed to the Secretary that Bland’s employeeshad been in the soil trench. Therefore, on October 5, 1987,approximately 5 1\/2 months after the compliance officer’s inspection,the Secretary sent her experts back to the site to obtain more coreborings. The experts took two borings near the cave-in, and numerousothers in the vicinity of the manhole excavation, as well as in theadjoining soil trench. Thereafter, the Secretary brought the soil trenchinto this litigation by filing the amended complaint, on October 20,1987, only one day short of six months after the compliance officer’sinspection.[[10\/]]Bland filed a response, opposing the amendment on the basis of surprise,but Bland did not argue any prejudice.[[11\/]] Almost a full monthremained until the hearing, which was scheduled to begin on November 18,1987. Accordingly, Judge LaVecchia ruled: \”[T]he respondent has ampletime in which to prepare its defense to the amended complaint.\”[[12\/]]Two weeks after the amendment and two weeks before the hearing, theSecretary requested a postponement to conduct additional discovery.Bland opposed the request, indicating that discovery had been adequate:Respondent has identified the address[es] of all employeewitnesses. All employees who were present at theaccident site at the time of the accident have alreadybeen deposed. Complainant has indicated that it does notwish to depose Respondent’s expert witness. A delay ofone month or six weeks in this matter will prejudiceRespondent. First, it will result in increased expenseto Respondent. Second, it will perpetuate the burdensomeand oppressive tactics employed by Complainant.The judge denied the Secretary’s postponement request. On October 14,1987, just four days before the hearing began, the Secretary directedher experts to take another series of core borings, this time in thevicinity of the segment of the soil trench that had been backfilled atthe time of the compliance officer’s inspection. All of the core boringswere discussed in testimony by the Secretary’s experts.At the hearing, the Secretary presented the testimony of Claude Ricks,an investigator for the Travis County Attorney’s Office, and RobertoVelez, one of Bland’s employees. Neither party questioned the backhoeoperator about the soil trench. Bland’s president and vice president, intheir testimony, demonstrated limited knowledge of the conditions in thesoil trench.In short, Bland had scant evidence to defend against the Secretary’sallegations of violations in the soil trench. It does not necessarilyfollow, however, that Bland was prejudiced. Prejudice arises where themoving party achieves an unfair advantage or where the opposing party isdeprived of a fair opportunity to present evidence. _Secretary of Laborv. Arco Chemical Co._, 921 F.2d 484, 488 (3d Cir. 1990). It is only thisconsequent, undue imbalance that justifies disallowing an amendment._See_ _Wedgewood v. Fibreboard Corp._, 706 F.2d 541, 546 (5th Cir.1983). In this case, however, there was no such undue imbalance. Bothparties were compelled, by circumstances that developed without thefault of either party, to operate under basically the same set ofadvantages and disadvantages. _Compare_ _Dussouy v. Gulf CoastInvestment Corp._, 660 F.2d 594, 598-99 (5th Cir. 1981) (moving party’sdelay in amending resulted from a reasonable, though erroneous, beliefthat a legal theory was unnecessary to the case, not from a design togain tactical advantage).At the time of the inspection and thereafter, while one segment of thesoil trench was still open, apparently neither party was aware of a needfor experts or other knowledgeable representatives to make measurementsand perform other studies of the conditions in the soil trench. At thehearing, therefore, neither party had photographs, soil samples, ormeasurements to offer into evidence. The Secretary’s whole caseconsisted of certain indirect evidence only, which Bland could haveexamined, replicated, and countered. For example, the Secretary’sexperts had not seen the open trenches, but Bland’s experts had actuallywalked in them and, however briefly, had viewed the earth materials ofthe walls. Therefore, Bland’s experts had a potentially better basisthan did the Secretary’s experts for giving testimony indicating thatthe Secretary’s core borings corroborated their own impressions. Blandcould have enhanced this advantage by making its own soil studyimmediately following the Secretary’s amendment. Bland’s core boringswould have been approximately concurrent with the Secretary’s, at 5 1\/2to seven months after the compliance officer’s inspection. Moreover, ifnecessary, Bland could have joined the Secretary in requesting apostponement of the hearing for further discovery; the need \”to prepareits defense\” could have justified the judge’s favorable consideration ofa joint motion for postponement.The Secretary had the testimony of the investigator associated with theTravis County Attorney’s office, and Bland had no comparable witness.However, Bland’s supervisors and employees who had worked in thevicinity of the soil trench were, apparently, all available to testify.Bland asserted, in opposing the Secretary’s motion for postponement ofthe hearing that \”Respondent has identified the address[es] of allemployee witnesses\” and that \”[a]ll employees who were present at theaccident site at the time of the accident have already been deposed.\” Asthe Secretary stated in her brief, \”[T]he Secretary was able to findwitnesses,\” but Bland \”has not shown that it tried unsuccessfully tolocate any of its employees who may have had knowledge of the trench.\”Moreover, Bland neither contended nor established that the employees whoexcavated the soil trench could no longer recall its dimensions. Inparticular, as the Secretary suggests, the backhoe operator’savailability for questioning undercuts the company’s prejudice argument.We find that Bland has not shown any prejudice arising from the belatedaddition of the second citation item.[[13\/]] The belated introduction ofa new charge is not to be preferred, and we believe that the federalgovernment should avoid conducting its enforcement proceedings in anyway that may give the appearance of unfairness and result in unfairness.Finding no unfairness in this case, however, we affirm Judge LaVecchia’sdecision holding that the citation was issued with reasonable promptnessand allowing the Secretary’s amendment.B_Was the Second Citation Item Willful?_The merits of the violations alleged in the second citation item are notin issue on review. There remains for consideration, however, the issueof whether the item was properly classified as willful (issue No. 5).The record is not replete with evidence supporting the willfulclassification. As we have discussed, Bland had received two citationsprior to the citation in this case, which alleged failure to slope orshore trenches excavated in soil. Unquestionably, therefore, the companyknew of the standards. Bland’s supervisory personnel receivedinstruction in trench safety at the seminar conducted by ComplianceOfficer Cunningham. Also, as President Bland’s testimony indicates, theforemen were responsible for conveying safety instructions to theemployees. The fact that the backhoe operator had performed some correctsloping tends to indicate that the foremen had provided substantiallycorrect information to the employees concerning how to comply with thetrenching standards, and Table P-1, when making a trench in soil.At the hearing, the Secretary’s attorney questioned whether thecompany’s instruction had been sufficient: \”So that’s the words you use?Just slope it according to P-1?\” President Bland replied: \”Well, theO.S.H.A. booklet is the guideline for trenching operations throughoutthe United States of America, and that’s–that’s what we rely upon.\”President Bland, who had seen many of backhoe operator Reza’s trenches,believed they were correctly sloped. Employee Velez agreed that thebackhoe operator had been working safely, having observed in generalthat the trenches had been sloped and entry prohibited until the slopingwas finished.The Secretary finds significance in the facts that the walls of the soiltrench were \”silty clay,\” yet the backhoe operator \”trenched verticallywithout any support at all.\” This is not entirely correct. Although thebackhoe operator did not adequately slope the soil trench, the testimonytends to indicate that he did slightly slope some portions of it.Therefore, absent evidence of other, earlier instances of noncompliance,and absent evidence that supervisory personnel had observed them,thereby becoming aware that the backhoe operator lacked understanding ofthe requirements of OSHA’s trenching standard or was disobeying it, wedecline to uphold the Secretary’s willful classification regarding thepresent instance.C_An Appropriate Penalty_We turn, finally, to the penalty for the second citation item. TheSecretary did not allege that, if not willful, the second citation itemwas serious. As we have noted, however, the maximum penalty, $1,000, isthe same for either a serious or an other-than-serious violation. Weassess the maximum penalty because of Bland’s history of prior violationand the gravity of the conditions in the soil trench. The record showsthat one employee had entered the trench, which was eight to nine feetdeep, only three feet wide at the bottom, and only slightly sloped. Thelikelihood of death or serious injury to an employee in a cave-in ishigh. See Calang Corp., 14 BNA OSHC 1789, 1794, 1990 CCH OSHD ? 29,080,p. 38,873 (No. 85-0319, 1990).III_Order_Accordingly, we affirm the two citation items and assess a penalty of$1,000 for each item. We reverse the decision of the judge classifyingthe items as willful violations.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionDated: May 1, 1991————————————————————————SECRETARY OF LABORComplainant,v.BLAND CONSTRUCTION COMPANYRespondent.OSHRC DOCKET NO. 87-0992_DECISION AND ORDER_Appearances:Anthony G. Parham, Esq., of Dallas, Texas,for the Complainant.D. Douglas Brothers, Esq., and MichaelMcGinnis, Esq., of Austin, Texas, for theRespondent._DECISION AND ORDER_Louis G. LaVecchia, Judge:This proceeding arises under Section 10 of the Occupational Safety andHealth Act of 1970 (29 U.S.C. sec. 651 et seq.), also referred to as the\”Act.\”On April 21, 1987 Bland Construction Company was in the process ofconstructing a wastewater line at the 12200 block of Burnet Road,Austin, Texas, when a portion of a trench wall collapsed, killing one ofits employees. As a result of an inspection and investigation by theOccupational Safety and Health Administration (\”OSHA\”), Respondent wasissued a citation for a \”repeat\” violation of 29 CFR 1926.652(c). Theproposed penalty was $1260.00. Respondent timely contested the citation.A complaint, answer, and amended answer were subsequently filed.Thereafter, on October 20, 1987, the Secretary moved to amend thecitation and complaint to allege a \”willful\” violation of 29 CFR1926.652(c) or, alternatively, 29 CFR 1926.652(b), and a new \”willful\”violation of 1926.652(b). The total proposed civil penalty was raised to$20,000. The Secretary’s motion was granted, and the Respondent filed asecond amended answer.From November 18 to 20, 1987, and November 23 to 25, 1987, a hearing washeld in the matter in Austin, Texas. Both parties have filed posthearingbriefs. The theories and arguments advanced by each have been fullyconsidered. There were no intervenors in the action.The respondent has admitted that (i) it is an employer engaged in abusiness affecting commerce within the meaning of Section 3(5) of theAct; (ii) the Occupational Safety and Health Review Commission (\”theCommission\”) has jurisdiction over the parties and the case; and (iii)the Act and Occupational Safety and Health standards at 29 CFR Part 1926apply to Bland Construction Company. (Respondent’s Second AmendedAnswer, par. 2, 3, 9, 17, 25.)_The Standards_The specific trenching standard at 29 CFR 1926.652(b) provides: * * * *(b) Sides of trenches in unstable or soft material, 5feet or more in depth, shall be shored, sheeted, braced,sloped, or otherwise supported by means of sufficientstrength to protect the employees working within them.See Tables P-1. P-2 . . .The specific trenching standard at 29 CFR 1926.652(c) provides: * * * *(c) Sides of trenches in hard or compact soil, includingembankments, shall be shored or otherwise supported whenthe trench is more than 5 feet in depth and 8 feet ormore in length. In lieu of shoring, the sides of thetrench above the 5- foot level may be sloped to precludecollapse, but shall not be steeper than a 1-foot rise toeach 1\/2-foot horizontal. When the outside diameter of apipe is greater than 6 feet, a bench of 4-foot minimumshall be provided at the toe of the sloped portion._Preliminary Issues_In its brief and throughout the hearing Bland has argued that: (1) 29CFR 1926.652 is unconstitutionally vague; (2) the allegations in theamended citation are untimely; and (3), the amended complaint isimproper. These preliminary arguments will be considered at the outset.Respondent argues that the 1926.652 is vague and does not provide -reasonable notice of the conduct proscribed. (Respondent’s SecondAmended Answer, p. 4, par. 32, 33; (Tr. 754-757; 996; 1074-1076.)Respondent’s argument must be rejected. When 1926.652 is read togetherwith Tables P-1 and P-2, its meaning is sufficiently precise to putemployers on notice of what is required in terms of sloping, shoring orotherwise supporting particular trenches. Furthermore, the Commissionhas considered, construed, and enforced 1926.652(b) and (c) on numerousoccasions. E.g., _John R. Jurgensen Co._, 12 BNA OSHC 1889, 1986 CCHOSHD ? 27,641 (No. 83-1224, 1986); _D.A. & L. Caruso_, 11 BNA OSHC 2138,1984 CCH OSHD ? 26,985 (No. 79-5676, 1984); _Heath & Stich_, 8 BNA OSHC1640, 1980 CCH OSHD ? 24,580 (No. 14188, 1980); _Connecticut Natural GasCorp_., 6 BNA OSHC 1796, 1978 CCH OSHD ? 22,874 (No. 13964, 1978).Respondent attempts to buttress its contentions of vagueness by notingthat OSHA’s safety supervisor, Richard Keskinen, told two undergroundutility contractors that the standard was not all that certain (Tr. 996,1068-1070). However, the remarks of OSHA’s safety supervisor do notconstitute a concession by the Secretary that 1926.652 is unenforceablyvague. Keskinen’s statements appear to have been made informally and, inany case, do not have the force and effect of law. See _Power SystemsDivision, United Technologies Corp._, 9 BNA OSHC, 1813, 1981 CCH OSHD ?25,350 (No. 79-1552, 1981).For the above reasons, I dismiss Respondent’s \”vagueness\” argument asbeing without merit.Respondent next contends that the amended citation allegations violatesections 9(a) and 9(c) of the Act. (R. Br. 14-15.) Section 9(a) requiresthat citations be issued with \”reasonable promptness\” and section 9(c)places a six-month statute of limitations on the issuance of citations.Respondent notes the alleged violations occurred on April 21, 1987 andthe original citation was issued on June 6, 1987. On October 21, 1987,the Secretary moved to amend the citation and complaint. It isRespondent’s position that, although the motion to amend was madeexactly six months after the accident, \”the record is silent\” as to whenthe actual amendment was filed. (R.Br. 14-15.) Thus, Respondent believesthe amendment was untimely.There are several problems with Respondent’s position. First, regardingRespondent’s claim of untimeliness, it is clear that the Secretary filedthe motion to amend and the amendment on October 21, 1987, which isexactly six months from the date of the accident. Section 9(c) of theAct states, \”No citation may be issued under this section _after_ theexpiration of six months following the occurrence of any violation\”(emphasis added). Thus, the Secretary’s filing of the amendment onOctober 21, 1987 is within the six month statute of limitations. Even ifit were not, the Commission has held that section 9(c) of the Act doesnot prohibit the amendment of an already issued citation more than sixmonths after the occurrence of an alleged violation. _CMH Co._, 9 BNAOSHC 1048, 1980 CCH OSHD ? 24,967 (No. 78-5954, 1980). An amendment to aclaim arising out of conduct described in the original pleading relatesback to the date of those pleadings, in this case, June 6, 1987.Fed.R.Civ.P. 15(c); _Structural Painting Corp._, 7 BNA OSHC 1682, 1979CCH OSHD ? 23,817 (No. 15450, 1979).Second, regarding Respondent’s contention that the Secretary failed toissue the citation with \”reasonable promptness,\” it is Respondent’sburden to establish that it has been prejudiced by the delay in itsability to prepare and present its case. _Daniel International Corp.,Brown and Williamson Project_, 9 BNA OSHC 1980, 1981 CCH OSHD ? 25,492(No. 15690, 1981); _Stephenson Enterprises, Inc. v. Marshall_, 578 F.2d1021, 1023 (5th Cir. 1978). In this case, Bland has argued that theamendment alleges a new willful violation in an area of the worksitethat is not even in the area of the fatal accident. Respondent feels itwas not given prior notice that this new area would be involved in thedispute. It believes that the amendment factually alters the originalcharges and is manifestly unfair to Bland. (R.Br. 3-4; 15-16.)It should first be noted that the amended complaint alleges violationsat two of Respondent’s trenches at the Centrum Project: (i) a trenchmeasuring two feet and three inches at the top and bottom, 88 feet inlength and 10-14 feet in depth (Complaint, par. VII(C) and VIII(C)[hereinafter \”Item 1(a) of citation 1]), and (ii) a trench \”adjacent toand east of the 88 feet section of trench cited on June 6, 1987\”(Complaint, par. IX(C) [hereinafter \”Item 1(b) of citation 1\”]). Item1(a) encompasses the accident site. Item 1(b) encompasses the area fromStation 8+78.87 (Invert B-5), which was approximately 88 feet from thepoint of collapse, to approximately 65 feet east of Station 7+49.20(Invert B-4). In the original citation, Respondent was cited forallegedly violating trenching standards in the area described in Item 1(a).Despite Respondent’s claims to the contrary, it does not appear that theamendment changes the thrust of the Secretary’s claim. The originalcitation and complaint gave Respondent notice that the allegedlyhazardous condition was the employees’ exposure to a trench cave-in as aresult of the unshored and unsloped walls of the trench described inItem 1(a). In the amended citation, the Secretary reiterates the aboveallegation, although it pleads in the alternative a violation of1926.652(c) or 1926.652(b), and further alleges that the hazard of acave-in existed on this date at the trench area described in Item 1(b).The factual basis of the Secretary’s original and amended charges appearto be the same. However, it is Respondent’s position that its defensewould have been \”substantially different\” if it had known of the chargein the amended pleading. It contends that the alleged violationsdescribed in Item 1(b) involve new areas with different soil conditionsand trenching procedures. (R.Br. 16. )Assuming Respondent is correct, and the alleged violations described inItem 1(b) do not arise out of the same conduct or occurrence as theoriginal citation, the amendment is still proper. The Commission hasconsistently approved the granting of prehearing amendments where thereis no showing by the objecting party that it would be prejudiced._United Cotton Goods,_ 10 BNA OSHC 1389, 1982 CCH OSHD ? 25,928 (No.77-1894, 1982); _Western Massachusetts Electric Co._, 9 BNA OSHC 1940,1981 CCH OSHD ? 25,470 (No. 76-1174, 1981); _P.A.F. Equipment Co._, 7BNA OSHC 1209, 1979 CCH OSHD ? 23,421 (No. 14315, 1979),_aff’d_ 637 F.2d741 (10th Cir. 1980). In this case, the Respondent has failed todemonstrate how it was prejudiced by the amendment. It is clear thatRespondent was given fair notice of the alleged violations in the item1(b) areas. They are described in the amended complaint. If Respondentwas uncertain of what was being alleged, it could have filed a motionfor a more definite statement; however, it did not. It could have alsorequested a continuance to conduct discovery on these newallegations.[[1]] Again, it did not. (Indeed, in a prehearing telephoneconference, Bland opposed the Secretary’s motion for a continuance andasserted it was ready to try the case.) Consequently, it is difficult tosee how Respondent was prejudiced by the amendment.Finally, Respondent argues that the alleged violations of Item 1(b) werenot properly pleaded. Respondent argues that compliance officer JuanPadron (\”the CO\”) made no measurements of these areas, nor observed anyviolations of proper trenching techniques. (R. Br. 3-4; 15-16.)Respondent’s argument can be dismissed. The evidence establishes thatthe information regarding these areas was not available to the CO at thetime of the inspection. (Tr. 358-359; 415-418.) Additionally, even ifPadron did not actually observe the violations in question, thusviolating OSHA’s Field Operation Manual procedures (Tr. 381-384;411-412), the Commission has held that failure to follow the manual doesnot preclude the Secretary from citing an employer. _H-30, Inc._, 5 BNAOSHC 1715, 1977-78 CCH OSHD ?22,050 (No. 76-752, 1977), _rev’d on othergrounds_ 597 F.2d 234 (10th Cir. 1979). The manual, which contains onlyguidelines for the execution of enforcement operations, does not havethe force and effect of law, nor does it accord important procedural orsubstantive rights to individuals. _P.A.F. Equipment Company, Inc._,_supra_; _FMC Corporation_, 5 BNA 1707, 1977-78 CCH OSHD ? 22,060 (no.13155, 1977). If the violation alleged by the Secretary proved bycredible and substantial evidence, it matters not whether the COactually observed the conditions which are alleged to be violative ofthe Act. \”Noncompliance with the instructions in the manual is thereforenot a basis for invalidating a citation.\” _H-30_, _supra_.With these preliminary questions disposed of, the main dispute remainingbetween the parties involves the composition and stability of the trenchwalls. A summary of the relevant testimony follows._The Relevant Evidence_On April 21, 1987, Respondent’s machine operator, Gregorio Reza, wasoperating a backhoe at the trench described in Item 1(a) of thecitation. Between 8:30 am and 9:00 am, Reza stopped his excavating workin order to straighten out a light that was used to check the trench’ sgrade Victor Nazario, a laborer with Bland Construction Company, hadentered the trench at this time. He had just started taking grade polemeasurements when the west wall of the trench collapsed. Nazario waskilled. (Tr. 243-250; 367; 599-600.)It is undisputed that, at the place where Nazario stood, the trench was14 feet deep and 27 inches wide at the bottom for a distance of 10 feet.The walls of the trench were 10 feet high and vertical (90 degrees fromthe horizontal). (R.Br. 1-2; C.Br. 1; 4.) The trench walls were notshored, sloped or otherwise supported. From the ten foot level of thewalls to the surface (a distance of four feet) the trench wall wascomposed of silty clay. Although the top of the west wall of the trenchwas sloped, there was some disagreement whether the top of the east wallwas similarly laid back. (R.Br. 2, 6; C.Br. 7-8.)Eighty-eight feet from where Nazario was killed (at Station 8+78.87),the trench opened to a large circular depression that had been dug toinstall a manhole (Invert B-5). The vertical trench walls at thisposition were 14 feet deep and consisted of silty clay or stiff to verystiff clay. (R.Br. 16-17; C.Br. 2.) Further down the line of the opentrench, and approximately 65 feet east of Station 7+49.20 (Invert B-4),the trench consisted of vertical walls of silty clay for the entiredepth of seven to eight feet. (C.Br. 2; Tr., 905-906.)The Secretary alleges that Respondent violated 1926.652(b) or (c) atfour places. Point one denotes the two 10 foot high vertical trenchwalls at the point of collapse. (C.Br. 1; 4-7.) Point two denotes thetop four feet of the east wall at the place where Nazario stood in thetrench, (C.Br. 2; 7-8.) Point three denotes Invert B-5, and point fouridentifies the 65 foot area east of Invert B-4. (C.Br. 2; 8-9; Ex. C-36.)_Point One_Regarding the composition of the trench walls at the point of collapse,the testimony is in conflict.Juan Padron was the CO who inspected the site. Padron has been employedwith OSHA for four years. He inspects approximately 10 trenches eachyear, and has inspected five or six trenches in which accidents haveoccurred, (Tr. 352-356.) Padron testified that he took two soil samplesfrom the trench. Field Sample No. 1 (B24125) was obtained by hand andcame from the top 32 inches of the east wall of the trench (i.e., pointtwo), (Tr. 392-393; 430-431.) Field Sample No. 2 (B24126) came from thewest face of the trench, below the failure and four feet from the trenchbottom (point one). (Tr. 393; 430-431.) This sample was obtained byexcavator, and consisted of three pieces of rock and several smallerpieces of material. (Tr. 396-7.) Padron sent both samples to the OSHAlaboratory in Utah for analysis by Dr. Allen Peck.Although Padron said he could distinguish between rock and soil (Tr.390-391), his testimony was puzzling: Padron first said the material atpoint one was \”hard and compact soil\” and he could break it with hishands (Tr. 400-401; 404); however, he later testified that the materialwas \”hard as hell\” and was rock (Tr. 403-404). Padron did concede thathe knew little about soil analysis. (Tr. 397; 402.)Dr. Allen Simmons Peck analyzed the soil samples taken by Padron. Dr.Peck has been employed with the Laboratory Division of OSHA for 12years. He analyzes approximately 300 soil samples a year. Dr. Peck has aBachelor’s degree in Chemistry, and a Masters and Ph.D. in MetallurgicalEngineering, with a minor in mineralogy. (Tr. 207-209.)Dr. Peck analyzed the Bland soil samples on April 28, 1987. Afterperforming a gradation analysis, an X-ray defraction analysis, aninfrared analysis, as well as recording the percent of moisture, Dr.Peck classified Sample No. 1 as clay silt with an angle of internalfriction of 32 degrees. (Tr. 216-221; 227.) He did not take the angle ofrepose. (Tr. 229.)Field Sample No. 2, taken from the bottom four feet of the west wall,was run through similar tests. (Tr. 221-222; 228.) Additionally, Dr.Peck determined the material’s mineralogy and durability in water. (Tr.222.) He found the material to be fractured, durable in water, andclassified it as gravelly rock. (Tr. 223.) Dr. Peck determined theangle of repose for this sample from the smaller particles of materialbecause the three larger pieces would not stabilize. (Tr. 230-231.) Theangle of repose was 39 degrees. (Tr. 223-224.)Dr. Peck testified that, although Sample No. 2 contained solid rock, heconsidered the entire sample to be a collection of fractured rock. (Tr.225-226.) He admitted that, if the sample had been scraped from a wallof material by backhoe, thereby fracturing it, his soil report would notbe accurate. (Tr. 235-238.)Dr. Peter Martin Allen, an expert called by the Secretary, testifiedregarding the geology of the trench. Dr. Allen is an Associate Professorof Geology at Baylor University’s Department of Geology in Waco, Texas.(Tr. 77.) He has a B.A. and Master’s degree in Earth Science, and aPh.D. in Geology. He has worked as a private consultant for, amongothers, the City of Dallas and the Super Collider project. (Tr. 77-79.) Dr. Allen familiarized himself with the case by visiting the accidentsite and performing a reconnaissance of the site geology. Both he andWilliam Howard of Trinity Engineering found an excavation slope in closeproximity (geologically) to the accident site, examined the surfacematerials, made measurements, and took photographs. (Tr. 80- 82.) Theysecured a topographic map of the area, as well as an aerial photographfrom the City of Austin. (Tr. 81.) Dr. Allen said that he read severalarticles concerning fracture patterns and defects in rock as related toproximity to faulting. He also reviewed photographs of the site andviewed a video tape of recovery operations taken by the Austin FireDepartment. (Tr. 81; 83; Ex.R-24.)Dr. Allen’s testimony centered on his analysis and findings regardingseveral core borings taken from the site. The locations of the coreborings, Borings B-1, C-1 to C-5, and D-1 to D-6, are depicted onExhibit C- 36. Additionally, Gardner \”Tim\” Atkinson, a mechanicalengineer who was present when each boring was drilled, testified as tothe exact locations of each boring. (Tr. 269- 270; 274-280; 281;286-287.) Core Boring B-1 was obtained on May 18, 1987 (Tr. 274). The Cborings were taken on October 5-6, 1987 (Tr. 270), and the D boringswere taken on November 14, 1987 (Tr. 281).Borings B-1, C-1 and C-2 were approximately 16 feet deep (Tr. 101) andwere drilled in close proximity to (within 13.7 feet of) the area ofcollapse (Tr. 130-131; 274- 275; Ex. C-36). Dr. Allen testified that thematerial comprising these borings consisted of fill on the top (4.7 to6.7 feet), which was excluded from his analysis, and fractured limestone(highly weathered Austin Chalk) below the fill. (Tr. 94; 101-107;126-127; 129-131.) Dr. Allen said the rock quality of these threeborings was representative of the basic rock quality of the materialcomprising the trench walls, given the short distance between the trenchand the boring locations.[[2]] (Tr. 130-131.) The rock qualitydesignation (\”RQD\”) of the boring rock material ranged from very poor tofair.[[3]] (Tr.102, 105.) This was due to the number of fractures, ironstaining and slickened sides.[[4]] (Tr. 102-105.)On cross examination, Dr. Allen admitted that, at certain points,Borings B-1 and C-2 had an excellent RQD. (Tr. 179-181.) However, hesaid that he would not give the borings an overall excellent rating. Heexplained that vertical borings oftentimes miss vertical defects in therock and, consequently, the stability of the rock is overestimated. (Tr.563-565; 567.) In a run, one could find good RQD, but still find a lotof fractures. Thus RQD alone cannot be used to determine rock stability.(Tr. 566- 567.)Dr. Allen testified that, typically, the closer one gets to a fault, thegreater the number of fractures. He estimated Respondent’s trench to be1200 feet from a mapped fault. (Tr. 108-111.) Although he said theamount of fracturing in a rock is related to stability, he conceded thathe would need an engineer’s help in evaluating rock stability. (Tr. 153;163-164; 571.)Dr. Allen did not consider the limestone in Borings B-1, C-1 and C-2 tobe solid rock. (Tr. 141-142.) He classified Austin Chalk to be softrock, and said the stability of soft rock depended on the number ofdiscontinuities present. (Tr. 159-160.)Dr. Allen examined Exhibits C-6, C-7 C-8, C-23 and C-31 (photographs ofthe trench) as well . He said he could see fractures in the materialdepicted in the photographs that were similar to, and consistent withthe discontinuities and fractures of material in the borings. (Tr.131-132.) He believed that the discontinuities in Exhibits C-6 to C-8were visible to people digging the trench. (Tr. 143; 145-147.)William \”Bill\” Howard, a geotechnical engineer with Trinity Engineering,was another expert called by the Secretary. Howard has a B.S. andMasters degree in Civil Engineering. He has completed geotechnicalcourses for a Ph.D. (Tr. 616-616. ) Howard has worked with limestoneformations and studied their stability. (Tr. 617.) He admitted his lackof familiarity with the Austin area. (Tr. 659; 665-669; 676-679; 698-699.)Howard visited the Centrum project with Dr. Allen and was present whenthe core borings were drilled. (Tr. 620.) His conclusions are a resultof his analysis of the core borings and photographs of Bland’s trench.Howard testified that, although not all parts of the Austin ChalkFormation are inherently unstable, they are potentially so. (Tr. 681;695.) In his opinion, the trenches dug by Respondent at the Centrumproject were unstable. (Tr. 618.) He recited several factors he deemedimportant in determining stability, i.e., an examination of the coreborings; a visual observation of the trench; the experience of thecontractor with a particular formation; the available geotechnicalreports; the recommendations of engineers; and the relevant trenchinglaws. (Tr. 683-684.) The fact that a trench wall collapsed is anotherindication of its instability. (Tr. 731-732.) Difficulty in excavatingmaterial may also indicate instability. However, Howard noted thatdifficulty in excavating trench material does not necessarily mean thematerial is solid. (Tr. 716.)Regarding the trench walls at point one, Howard testified they werecomprised of highly fractured weathered limestone, which is potentiallyunstable material. (Tr. 626-627.) He noted that the instability of coreborings C-1 and C-2 was evidenced by the fracture zones and large numberof horizontal and inclined fractures. (Tr. 632-637; Ex. C-71.) He saidthe material composing the trench walls at point one was not hard andcompact soil, nor was it solid rock. (Tr. 636- 637; 690; 730-731.) Thematerial was limestone, which is a sedimentary rock. (Tr. 690; 693.)In order to abate the hazard of collapse, Howard suggested that theemployer slope the sides a minimum of 45 degrees from the horizontal(one-to-one), use trench shields, or shore the sides. (Tr. 640.)Gardner Atkinson testified that he had observed the walls of locatortrench and that they appeared to be weathered limestone. (Tr. 298.)Atkinson, who is an engineer formerly employed with Trinity Engineeringand Testing Corporation (Tr. 267), measured the locations of the coreborings. He testified that he is familiar with the geology of theCentrum Project and that the Austin Chalk Formation is highly faulted.(Tr. 306.)Carl F. Raba, a principal of the firm Raba-Kistner Consultants, wascalled as an expert witness for the Respondent. (Tr. 841-2.) Dr. Rabahas a B.S., Masters and Ph.D. in Civil Engineering, with majors in SoilMechanics and Foundation Engineering. (Tr. 843; Ex. R-21.) He firstvisited the Centrum site on April 25, 1987. (Tr. 845-846; 855.)While at the site, Dr. Raba and his staff surveyed the land, logged thetrench walls, obtained samples from the trench, and photographed thearea. (846-847.)Regarding the trench samples Dr. Raba obtained, R-3 was from the westwall (Tr. 875), R-25 was from the east wall (Tr. 876), and R-26 was fromthe piece of rock that slid out of the west wall to the bottom of thetrench. (Tr. 847; 877-878.) Dr. Raba said the coloration apparent onR-26 is iron staining, which indicates a discontinuity at this point.However, Dr. Raba believed that the operator would not have been able tosee this iron staining because he felt it probably was not exposed inthe trench prior to the failure. (Tr. 857; 879; 979.) He said he couldnot detect any other discontinuities in the west wall. (Tr. 853-854; 964.)Dr. Raba’s analyses of the samples taken from the trench are depicted onExhibits R-32 and R-33. He concluded that the material comprising thetrench walls was hard. (Tr. 800-801; 897-899; 951-952.) He classified itas rock, specifically limestone belonging to the the Austin ChalkFormation. (Tr. 895; 907.) In his opinion, the Austin Chalk hasdemonstrated its stability in the past (Tr. 902-905; 907; 942); however,he later admitted that some parts of the formation could be veryunstable. (Tr. 942-943.)Dr. Raba conceded that only a small percentage of his firm’s activities.involves slope stability analysis. (Tr. 925.) He said that his firm didnot do a RQD on the samples because they had not drilled any coreborings. (Tr. 926.) Although he said that the hardness of the materialis one indicator of whether or not a trench wall will fall, he concededthat the existence of fractures in a wall is an important factor. (Tr.927.) He admitted that there could have been discontinuities andfractures on the west trench wall that he did not uncover. (Tr. 931.)Paul Cravens, Raba-Kistner’s manager of geotechnical engineering for theAustin region, also testified for Respondent. He has a B.S. in CivilEngineering. (Tr. 1008-1009.) He has taken no courses in rock mechanicsand only one in geology. (Tr. 1023.)Cravens took measurements at the Centrum project on April 23, 1987. (Tr.1009.) Those measurements are reduced to representations on Ex. R-29 toR-31. Cravens testified that, when he entered the site, he observed thecondition of the trench walls in the failure area. He testified that theeast wall was nearly vertical and was composed of hard limestone. Thewest wall was inclined and also hard limestone. (Tr. 1014-1015.) He saidthat he saw nothing in the trench to give him cause for concern; hefound no iron staining in the intersection between the failure plane andtrench wall; he saw no evidence of a fracture plane. (Tr. 1015-1017.)The nonexpert witnesses who viewed the trench at point one testifiedthat the material in the trench was rock. Two of the witnesses -GregorioReza and Roberto Velez- were Bland employees who had worked at pointone. They claimed the material was hard rock. (Tr. 266; 495.) Reza saidit took him two hours to dig five to ten feet (Tr. 266).Kevin MacDonnel, a volunteer E.M.S. responder and firefighter who waspaged to the site shortly after the cave-in, testified that wall on theeast side of the trench appeared to him to be fractured limestone andcaliche. (Tr. 23-27; 33.) He said the wall contained \”lots of cracks andfissures\” and that it was \”gravelly, soft, basically the same type ofmaterial that had collapsed …\” (Tr. 33.)James Eliot, an Austin firefighter who took part in the recoveryoperations on April 21, 1987, described the material in the trench as\”mainly rock\” with \”some black dirt and debris.\” (Tr. 200.) He describedthe rock as ranging in size from pebbles to \”stones that would barelyfit in the trench.\” (Tr. 200; 202.)Artis Howard, a former Bland employee, was at the site shortly after theaccident. (Tr. 502-506; 508.) He said that the east wall had three feetof topsoil and, beneath that, one layer of rock. Howard testified thathis view of the wall was obstructed due to the cave-in. (Tr. 512-513.)Brian Schnelle, a utility contractor, viewed the trench on April 22,1987. He said that he saw no defects in the trench wall (Tr. 992-993.)Al Hagelin, an underground utility contractor, drove by the Centrum siteone week to 10 days after the accident. (Tr. 1052-1053.) He describedthe general rock material in the area as Austin Chalk limestone withvarying levels of overburden (topsoil, fragmented rock and clay). (Tr.1056.) He thought the limestone was solid._Point Two_Although the parties agree that the top four feet of the east wall atthe point two was composed of clay, they disagree as to whether it waslaid back. Three of the four witnesses who observed the trench prior tothe time its original configuration was obscured in recovery operations,testified that the east wall at point two was not sloped.Kevin MacDonnel said that after being paged to the site on April 21,1987, he approached the trench from the east side and walked to theedge. A worker was in the trench, attempting to dig Nazario out. (Tr.27; 38.) MacDonnel saw the collapsed west wall (Tr. 27.) and, althoughhe could not determine if the top of the west wall had been laid back(Tr. 69), he said that the east wall at point two was not sloped. (Tr.28; 30-32; Ex. C-1.) (He testified that the east wall north of theaccident site sloped at a 30-45 degree angle. (Tr. 30-32; 69.) MacDonnelremained on the site for two hours, and left before Nazario’s body wasrecovered. (Tr. 40.) He said that none of the photographic exhibits (Ex.C-3 to C-31) depicted the area as it existed at the time he observed thetrench. (Tr. 68.) He testified that the excavator used to recover thebody changed the original configuration of the site. (Tr. 39-40; 69.)James Eliot arrived at the worksite around 10:30 to 11 am on April 21,1987. (Tr. 197.) The excavator was not being used when Eliot firstarrived, and he stayed on the site until the end of the recoveryoperation. (Tr. 198). Eliot said, when he looked into the trench, he sawthat the west wall had collapsed. (Tr. 199.) He described the east wallat the point of collapse as not being as sloped as the northern portionof the wall. (Tr. 200; 206-207.)Gregorio Reza testified that, at the time of the cave-in, he had notcompleted sloping the east wall of the trench. (Tr. 257.) He admittedthat the east wall was not sloped very much, as he had only takenseveral bucketfuls of material from the east bank prior to the accident.(Tr. 258.)Artis Howard arrived at the site around 10 am on April 21, 1987. (Tr.508.) He walked within 10 feet of the edge of the wall that hadcollapsed. (Tr. 509.) He described the east wall as vertical, with a\”natural slope on it from the top.\” (Tr. 511.) He said that he had seenthe east wall prior to the time the backhoe was used to recoverNazario’s body from the trench, although he claimed some of the crew hadgone to the site with shovels prior to the time he had arrived. (Tr.525-526.) Howard’s testimony regarding if and how much the east wall wassloped was difficult to understand. He testified that the east wall wasvertical; however, he said that the top one and one-half to three feetwas composed of loose topsoil, thus the wall was not entirely vertical .(Tr. 532; 535.) He testified on recross that the wall was sloped. (Tr. 537.)The video taken at the trench site during rescue\/recovery operationsindicates some sloping; however, this video was made during recoveryoperations and the original configuration of the trench is not apparent,(Ex. R-24.)_Points Three and Four_The CO did not walk to the area described as point four (or the Dcores). (See Ex. C-36.) However, the CO did observe conditions at pointthree (station 8+78.87). (Tr. 360-2; 382-3.) He estimated the distancefrom the top of the trench to the bottom at station 8+78.87 to be 10-14feet. The material around invert B-5 was silty clay or soil-like sand.The sides of the trench were not sloped but vertical. (Tr. 360-362.)Dr. Allen examined the borings taken at points three and four. BoringsC-3 to C-5 were drilled east of point three. (Tr. 277-279; Ex. C-36.)The D core borings were drilled east of station 7+49.20. (Tr. 281;286-287; Ex. C-36.) Dr. Allen testified that Borings C-3, C-4 and the D-series all contained fill and below that, silty clay, or, according toTable P-1 of 1926.652, clays, silts, and loams. (Tr. 111-115; 120-126.)(Boring C-3 and C-4 contained approximately 5 feet of fill, while boringC-5 consisted entirely of backfill, Tr. 111-114. The D borings all hadless than two feet of backfill, (Tr. 120-126.) He felt that the siltyclay material found in these borings were unlikely to be \”radicallydifferent\” from the material at points three and four given theproximity of the borings to the actual trench sites (Tr. 140.) Thereason for the different soils found in these borings as compared toB-1, C-1 and C-2 was due to the fact that Borings C-3, C-4, C-5 and theD series were taken along an old stream course as evidenced by a lowspot from Station 8+78.87 to 7+49.20. (Tr. 127; 546-547.)Bill Howard also ran laboratory tests on borings C-3 to C-5 (Tr. 621.)Like Dr. Allen, Howard concluded that the material was a stiff to mediumfirm sandy and silty clay. (Tr. 625.) He testified that the materialfound in core boring C-3 was representative of the trench materialbetween stations 8+78.87 and 7+49.20. Boring C-3 consisted of a sandyand silty clay. Howard said that the proper slope would be 2 to 1 (26 or27 degrees from the horizontal). (Tr. 643-644.) In his opinion, thematerial in the trench was unstable. (Tr. 645-646.)Regarding the D cores, Howard testified that this material was clay,silty clay and backfill. (Tr. 647.) He felt that it, too, was notstable. An appropriate slope would be 27 degrees from the horizontal.(Tr. 648; 650.)Claude Ricks, an investigator for the Travis County Attorney’s Office,arrived at Respondent’s worksite at 11:35 am on April 21, 1987. (Tr.330.) He observed the walls of the trench at station 8+78.87 and saidthat the material comprising the walls appeared to be \”a loose-typesoil, sandy-type clay material -light kind of tannish color.\” (Tr.334-335; 339.) Ricks estimated the excavation to be approximately 10-12feet deep. (Tr. 335; 338.) The walls were not sloped, but \”straight upand down.\” (Tr. 339.) He said there was an inch or two of groundwater atthe bottom of the excavation. (Tr. 334; 350.)Ricks also observed the trench running from station 8+78.87 (Invert B-5)to station 7+49.20. The trench walls here were also vertical. (Tr.341-342; Ex. C-26.) He estimated the depth of this trench, whichcontained backfill, to be six to eight feet. (Tr. 342.) A pipe wasalready in place from station 7+49.20 (Invert B-4) to Invert B-5.Roberto Velez, an employee of Bland, testified that, on the day prior tothe accident, he and some other employees were laying 200 feet of pipein the area of station 8+78.87, and the area of the D-3, D-4 and D-5core borings as depicted on Exhibit C-36. (Tr. 491-494.) Velez estimatedthe width at the top of the trench running from D-3 to D-5 to be 5 feet.He said the depth of this same stretch of trench was 8-9 feet. (Tr. 494.)Carl Raba testified that he walked to the area of station 8+78.87 whenhe visited the site on April 25, 1987. He said the walls of the trenchwere sloped at one-to-one. (Tr. 858; 866-867.) Dr. Raba said that thetrench walls appeared to be composed of clays, \”stiff to very stiff inconsistency.\” (Tr. 905.) He classified the soils as hard and compactwith an angle of repose of 45 degrees, or one-to-one. (Tr. 905-906.)_Discussion_(a) Item 1(a): Points One and TwoThe main issue involves the composition of the trench walls at pointone. Witnesses for each side testified that the material was not \”hardand compact soil.\” (Tr. 141-142; 225-226; 298; 690; 895; 1014-1015.)Consequently, 1926.652(b) appears to be the applicable standard.[[5]]To establish noncompliance with 1926.652(b), the Secretary must showthat (1) the trench is at least five feet deep, (2) a significantportion of the trench wall is composed of soft or unstable soil, and (3)the trench is neither shored nor sloped appropriately from the bottom ofthe trench. _John Jurgensen Co._, _supra_ at 1986 CCH OSHD ? 27,641, p.35,964; _National Industrial Contractors_, _supra_ at 1981 CCH OSHD ?25,743, p. 32,132. \”Unstable soil\” is defined under 1926.653(q) as\”Earth material, other than running, that because of its nature or theinfluence of related conditions, cannot be depended upon to remain inplace without extra support, such as would be furnished by a system ofshoring.\”It is uncontroverted that the 88 foot trench referred to in item 1(a) ofthe citation was over five feet deep and was not shored or sloped fromthe bottom. The trench walls were vertical. Employee access to thetrench was established.[[6]]The first question to be resolved is whether the trench walls at pointone were unstable (fractured) limestone or solid rock? If the former,Respondent violated the standard by failing to shore or slope the trenchwalls; if the latter, Respondent was exempted from the shoring andsloping requirements of 1926.652(b) under Table P-1. _Austin BridgeCo._, 7 BNA OSHC 1761, 1766 n. 11, 1979 CCH OSHD ? 23,935 at 29,022 n.11 (No. 76-93, 1979).In determining the stability of the trench walls, it does not avail theRespondent that in the opinion of its employees the material at pointone was \”hard.\” The testimony of expert witnesses called by both theSecretary and the Respondent establishes that hardness is only onefactor in determining trench stability. Even Carl Raba (Respondent’sexpert) agreed that the presence of fractures in the wall is a decisivefactor. In examining the evidence, it is clear that the trench walls atpoint one were highly fractured.Both Peter Allen, a geologist, and Bill Howard, a geotechnical engineer,noted the presence of numerous fractures and discontinuities in the coreborings taken from the site. Although there is no evidence that theseborings were not representative of the actual trench materials, it mustbe noted that the C and D cores were drilled approximately six monthsafter the accident. Nonetheless, both men’s findings are corroborated byphotographic evidence taken of the trench at the time of the accident.These photographs reveal numerous fractures and discontinuities in thetrench wall. Similarly corroborative is Dr. Allen Peck’s soil analysisof Field Sample No. 2. Dr. Peck concluded that the material at point onewas fractured with an angle of repose of 39 degrees. (His findings areconsistent also with the testimony of CO Padron, who said he could breakthe material with his hands, and the testimony of Kevin MacDonnel, whosaid the material at point one was fractured.)Additionally, Bill Howard and Dr. Allen noted that the Austin ChalkFormation is potentially unstable. Carl Raba did not disagree. BothHoward and Dr. Allen stated that the amount of fracturing (andinstability) increases as one approaches a fault zone. Gardner Atkinson,a mechanical engineer familiar with the geology of the Centrum project,testified that the Austin Chalk Formation is highly faulted. In fact, amapped fault was located 1200 feet from the accident site.Finally, the fact that the trench wall did collapse is another indicatorof its instability.Although the trench walls at point one are found to be unstable, noviolation of 1926.652(b) can be established, however, unless it is alsoknown that Bland could reasonably have known of this instability.Although Cravens and Dr. Raba said they did not believe the operatorwould have seen any signs of instability, the Secretary’s evidence onthis issue is more persuasive. The defects in the trench walls areapparent in the photographs of the site as well as the video tape ofrecovery operations. (C.Br. 5.) Kevin MacDonnel, the volunteerfirefighter who observed the condition of the trench walls soon afterthe accident, described them as having \”lots of cracks and fissures.\”Although MacDonnel is not an expert, there is no reason to doubt hiscredibility. In any case, Dr. Allen testified that the fractures anddiscontinuities in the limestone were visible. More telling is thetestimony of a former Bland employee with years of trenching experience.Artis Howard stated that he would not have sent employees into thetrench given the condition of the trench walls. (Tr. 516-517.)Given the above, it follows that Gregorio Reza, the person responsiblefor sloping Respondent’s trenches (Tr. 261-262) and the person whoobserved the condition of the trench walls prior to the accident, knewor should have known of the hazard of a cave-in. Similarly, IsidorFlores, Reza’s foreman who had stopped by the accident site at leastonce that morning, was also on notice. (Tr. 260-261.) Because Reza andFlores are both supervisors at the site, their knowledge may be imputedto Bland Construction Company.Indeed, one may not even have to impute knowledge to Respondent:Respondent clearly established that it considered vertical trenchingthrough limestone to be a very safe and accepted practice. (R.Br. 9-10;14.) Respondent considered this procedure safe because it has had noinjuries or failures (that it was aware of) in the past. (R.Br. 9-10.)Be that as it may, the trenching standards are not based on how long atrench will remain safe and stable. Sections 1926.652(b) and (c)unambiguously inform employers that some protection is required in anytrench five feet or more in depth that is excavated in soil._Connecticut Natural Gas Corp_, 6 BNA OSHC 1796, 1978 CCH OSHD ? 22,874(No. 13964, 1978). The standards assume that the walls of any trenchexcavated in soft and unstable or hard and compact soil are subject to acave-in at any given time and without warning. The employer is not giventhe option of guessing how long the walls will remain stable. Theemployer is required to take protective measures whenever the standardsapply.Furthermore, even though Bland’s conduct may have conformed to normalindustry practice,[[7]] this is not relevant if the standardunambiguously prescribes different conduct. _Cleveland Consolidated,Inc._, 13 BNA OSHC 1114, 1117, 1987 CCH OSHD ? 27,829 p. 36,428 – 36,429(No. 84-696, 1987.) Inasmuch as the standard cited here is specific andunambiguous, the testimony as to industry practice is no defense to theviolation.Because a violation of 1926.652(b) was established at point one, adiscussion of a violation of the same standard at point two may appearneedless. Suffice it to say, even if the trench wall material at pointone were solid rock, therefore not required to be sloped under TableP-1, Respondent would still have been in violation of 1926.652(b). Threeof the four witnesses who saw the trench wall at point two said it wasnot laid back . The fourth witness, Artis Howard, equivocated on thisissue; consequently, his testimony can be accorded little weight. As forthe video taken by the Austin Fire Department, any apparent sloping ofthe east wall at the point of collapse was due to recovery efforts. Twowitnesses -Eliot and MacDonnel- viewed the trench prior to thecommencement of recovery operations, and both men stated that point twowas not sloped.Finally, the backhoe operator, Gregorio Reza, admitted that he had notfinished sloping the east wall prior to the cave-in.Because point two consisted of silty clay with an angle of repose of 32degrees, it was unstable material under Table P-1, and thus needed to besloped. As the weight of the evidence establishes that it was not, aviolation at point two has been established.(b) Item 1(b): Points Three and FourIt is conceded that the trench was over five feet deep and that it wasnot shored. Employee access to these trench areas was established byRoberto Velez, who had laid pipe at points three and four. TheSecretary’s expert witnesses testified that the material comprising thetrench walls was silty clay. Silty clay is considered unstable materialunder Table P-1 and is required to be shored and braced. Respondent’sexpert witness, Carl Raba, testified that the material at point threewas clays, \”stiff to very stiff in consistency.\” He classified it as\”hard and compact soil\” with an angle of repose of 45 degrees orone-to-one. However, clays are specifically listed under Table P-1 asunstable material, thus 1926.652(b) is the applicable standard.Even if Carl Raba’s classification of the material at point three iscorrect (and the applicable standard is 1926.652(c)), the weight of theevidence establishes that the trench walls were not sloped. Thewitnesses who viewed points three and four on April 21 or 22, 1987testified that the trench walls were vertical and not sloped. The onlywitness who testified otherwise was Carl Raba, and he visited the trenchsite on April 25, 1987. Thus, the evidence still favors the Secretaryeven if the standard at issue is 1926.652(c).Because the trench walls were not shored, sloped, or otherwisesupported, and because the employer was aware (through Reza and Flores)of the violative condition, yet did nothing to limit employee access tothe trench, a violation of 1926.652(b) has been proven._Nature of the Violation_The Secretary originally considered the alleged violation to be a\”repeat\” violation. As previously indicated, the citation and complaintwere amended to alleged two willful violations of the trenching standards.A willful violation is one that is \”committed voluntarily with either anintentional disregard for the requirements of the Act or with plainindifference to employee safety.\” _A.C. Dellovade, Inc._, 13 BNA OSHC—-, 1987 CCH OSHD ? 27,786 (No. 83-1189, 1987); _Asbestos TextileCo._, 12 BNA OSHC 1062, 1984 CCH OSHD ? 27,101 (No. 79-3831, 1984); _D.A. & L. Caruso, Inc._, 11 OSHC 2139, 1984 CCH OSHD ? 26,985 (No.79-5676, 1984.)A number of factors have been considered by the Commission deciding theissue of willfulness, including an employer’s knowledge of the standard;his reason for noncompliance; good faith efforts made to comply;established procedures for compliance; responsibility for compliance;previous violations of the same standard; warning from workers at thesite; precautions taken to protect employees; the isolated acts ofemployees or supervisors; and employee training. E.g., _Asbestos TextileCo., Inc._, _supra_., _Mobil Oil Corporation_, 11 BNA OSHC 1700, 1983-84CCH OSHD ? 26,699 (No. 79-4802, 1983).Bland had been previously cited for violation of the same standard inJuly 1986 (Ex.C-51; Tr. 447-450) and was therefore familiar with thestandard’s requirements. (Indeed, Joe Bland, the company president,testified that he read and understood OSHA’s trenching requirements. Tr.593-594.) Additionally, Walter Cunningham, the CO who had cited Blandfor the 1986 trenching violations, testified that he had held aninformal conference with Respondent regarding the citations (Tr.450-451), and that he had conducted a seminar for Bland employeesexplaining the trenching regulations. In that seminar, which was held inJuly 1986, Cunningham specifically discussed Table P-1 and how to trenchin rock. He informed Respondent that fractured rock is not solid rockand that Bland needed to take adequate protective measures. (Tr.453-454; 467-468.)Despite this, Respondent entrusted responsibility for sloping thetrenches to Gregorio Reza, who had received no trench safety training(other than Cunningham’s seminar), spoke no English and could not reador write. Whether or not Reza understood the OSHA requirements is notapparent. What is apparent is that Reza continued to trench verticallythrough fractured limestone, and that Respondent approved. No adequateexplanation was proffered for Bland’s failure to comply with thestandard, other than it believed it was conforming to industry practice.However, the evidence regarding industry practice indicates that areacontractors do not vertically trench when trench walls are fractured andcracked. (Tr. 993-994; 1059-1060; 1068; 1094-1102.) And, as discussed_supra_, the walls of Respondent’s trench at point one were visiblyfractured. No explanation was offered for Bland’s failure to slope thetrench at points three and four.The above facts demonstrate that Bland either intentionally disregardedthe terms of the cited standard or was plainly indifferent to them.Consequently, the willful violations of 1926.652(b) will be affirmed.The proposed penalty of $10,000 for item 1(a) and $10,000 for item 1(b)will similarly be affirmed._FINDINGS OF FACT_All findings of fact relevant and necessary to a determination of thecontested issues have been found specially and appear above. _See_ Rule52(a) of the Federal Rules of Civil Procedure. Proposed findings of factof conclusions of law that are inconsistent with this decision are DENIED._CONCLUSIONS OF LAW_1. The Commission has jurisdiction over the parties and subject matterof the proceedings.2. Respondent is engaged in a business affecting commerce and is anemployer within the meaning of the Act.3. Respondent was in willful violation of 29 CFR ?1926.652(b) at thearea described in Item 1(a).4. Respondent was in willful violation of 29 CFR ?1926.652(b) at thearea described in Item 1(b)._ORDER_Upon the basis of the foregoing findings of fact, conclusions of law,and the entire record, it is ORDERED that:Item 1(a) of the citation is affirmed, with a civil penalty of $10,000imposed for the violation.Item 1(b) of the citation is affirmed, with a civil penalty of $10,000imposed for the violation.Louis G. LaVecchiaJudge, OSHRCDated: September 23, 1988————————————————————————FOOTNOTES:[[1\/]]The first citation item also alleged that the topsoil where thefatality occurred required protection, and the judge so found. Reviewwas not directed as to that finding.[[2\/]]Since the citation, the Secretary has enacted new standardsgoverning excavation safety (new Subpart P, entitled \”Excavations\”). Theold standard, cited in this case, provided:Sides of trenches in unstable or soft material, 5 feet or more in depth,shall be shored, sheeted, braced, sloped, or otherwise supported bymeans of sufficient strength to protect the employees working withinthem. See Tables P-1, P-2 (following paragraph (g) of this section).[[3\/]] On the basis of a city fire department video tape of the rescueoperation, Professor Allen testified that he ”thought\” he noticedfractures–\”but the video tape is a little fuzzy.\” On the basis ofphotographs taken by the local police, Professor Allen and engineerHoward opined that there were visible fissures. President Blanddisagreed: \”They were in the very most upper portions . . . . [T]hebackhoe having dug for an hour and a half or two hours, [it] would haveprobably . . . made an untold number of digging passes out of thattrench, excavating a shallow pass each time . . . . \”[[4\/]] Compliance Officer Cunningham testified that Bland’s request wasthe first by an Austin-area contractor, and that it demonstratedinterest in understanding the safety regulations. President Blandexplained: \”I felt like we were probably unfamiliar with the laws asthey existed, and it would be necessary to have that seminar for us tobecome familiar.\” Attendance had been \”mandatory for anybody who wantedto stay with our company,\” for [w]e had to learn to abide by theO.S.H.A. standards.\”[[5\/]]Consultant Raba interviewed Raba-Kistner’s Austin staff, twocontractors, officials of Austin city agencies that employ trenchingcontractors and the director of the Associated General Contractors (AGC)of Austin. He had previously viewed several vertical trenches in theAustin Chalk where, having considered any nearby faults and visiblefractures, he had not recommended shoring or sloping.[[6\/]]The expert testimony affirmatively indicates that, in the Austinarea, prior to Bland’s cave-in, there had not been any trenchingfailures of vertical cuts, and we have no evidence of any failures.Bland had worked on nearby projects where trenches were approximately asdeep as the bedrock trench in this case. The limestone was similar inappearance and there had been no signs of instability. According toBland’s president, approximately 75-80% of the company’s trenching workduring the last three years, or approximately 1 million feet, had beenin the Austin Chalk. Also, the company had been doing utilitycontracting since the late 1940’s without any other fatality or\”disabling\” injury.[[7\/]] According to his testimony, President Bland, when bidding on aproject, judged the earth material by his own local experience and byobservation of nearby work by other trenching contractors. He, alongwith other local contractors, believed that it was safe to make verticaltrenches in the Austin Chalk because it was a \”commonplace practice,\”without any failures. In this vein, we note civil engineer Howard’stestimony that successful experience with vertical limestone couldsuggest that there was no reason to be concerned that it might prove tobe unstable.[[8\/]] The Secretary, citing Donovan v. Capital City Excavating Co., 712F.2d 1008, 1010 (6th Cir. 1982), and F.X. Messina Corp. v.OSHRC, 505F.2d 701, 702 (1st Cir. 1974), asserts that \”[g]ood faith isinapplicable to a determination of willfulness.\” We respectfullydisagree. As the Supreme Court recently stated, where \”the standard forthe statutory willfulness requirement is the ‘voluntary, intentionalviolation of a known legal duty,\”‘ the government has the burden of\”negating a defendant’s claim that because of a misunderstanding of thelaw, he had a good faith belief that he was not violating\” the law.Cheek v. U.S., 111 S.Ct. 604, 610 (1991). Good faith is not inapplicableto the analysis.[[9\/]] _Cf._, _Todd-Shipyards-Corp. v. Secretary of Labor_, 566 F.2d1327, 1330 (9th Cir. 1978) (\”the six month statute of limitations foundin section 658(c) protects the employer, while the ‘reasonablepromptness’ language of section 658(a) is designed to protect theemployee\”); _Coughlin Construction Co._, 3 BNA OSHC 1636, 1638, 1975-76CCH OSHD ? 20,106, p. 23,924 (No. 5303, 1975) (\”If anybody is adverselyaffected by a delay in issuance of a citation, it is the employees whoare exposed to the hazard [the Secretary] seeks to eliminate\”)[[10\/]] Rule 8(d) of the Commission’s Rules of Procedure, 29 C.F.R. ?2200.8(d), states: \”Filing is deemed effected at the time of mailing . .. .\” The Secretary mailed the amended complaint on October 20, 1987.[[11\/]] Bland argued that the amendment should not be allowed because,upon deposition, the compliance officer had testified that he had notfound any violations other than in the bedrock trench, examined duringhis inspection. Bland’s review brief argues that the inspection did notprovide notice to Bland that any area other than the bedrock trench wasbeing investigated. We note, however, that the Secretary has authorityto issue citations \”upon . . . investigation. . . . \” _See_ _H.B. ZachryCo. v. OSHRC_, 638 F.2d 812 (5th Cir. 1981); 29 U.S.C. ? 658(a).Moreover, surprise or delay alone, without a showing either of adilatory motive on the part of the moving party or of prejudice to theopposing party’s ability to prepare for trial, are insufficient groundsfor denying an amendment. U., 803 F.2d 202, 210 (5th Cir. 1986).[[12\/]]Bland asserts that the judge erred in ruling immediately, beforehaving received Bland’s response. However, Rule 40(c) of the CommissionRules of Procedure, 29 C.F.R. ? 2200.40(c), provides: \”A proceduralmotion may be ruled upon prior to the expiration of the time forresponse. A party adversely affected by the ruling may within five daysof service of the ruling seek reconsideration.\” The judge forwarded acopy of his order to Bland, and upon receiving Bland’s response, thejudge considered and overruled it.[[13\/]]Bland argues that the Secretary failed to file a \”formalamendment.\” However, neither the Commission Rules nor the Federal Rulesof Civil Procedure require anything more than the filing of a motion andan amended pleading, which the Secretary filed. Bland further arguesthat \”[n]o citation was ever issued, nor proper notice given, within sixmonths of April 21, 1987.\” However, having been filed within thestatutory limitations period, the Secretary’s \”Amended Complaint\”operated as a citation. See P & Z Co., 7 BNA OSHC 1589, 1591-92, 1979CCH OSHD ? 23,777, p. 28,830 (No. 14822, 1979) (an amendment serves as acitation to provide actual notice of a claim). The Secretary’s \”AmendedComplaint,\” together with the Secretary’s \”Motion for Leave to AmendComplaint and Citation,\” gave plain notice of an intent to cite a secondclaim relating to the one inspection. The Secretary described the claim\”with particularity [as to] the nature of the violation\” and the\”standard . . . alleged to have been violated.\” 29 U.S.C. ? 658(a). Ifthe description was insufficient, Bland could have filed a motion formore definite statement or a motion to dismiss for failure to state aclaim upon which relief could be granted. See Fed.R.Civ.P. 12(e) & (b),respectively. [[1]] In _United Cotton Goods_, _supra_, the Commission held that, inthe absence of employer prejudice, it is appropriate to grant a pretrialamendment and continuance to cure any resultant surprise.[[2]] Dr. Allen said these three borings were approximately the samedistance away from the fault as the trench in issue. Additionally, allthree borings had the same general relationship to the underlying shale,(Tr. 130.)[[3]] According to Dr. Allen, the rock quality designation measures thenumber of four inch pieces of intact rock all over the length of thecore. It is a ratio of these core lengths. A RQD of 0-25 denotes verypoor rock quality; 25-50, poor; 50-75, fair; 75-90, good; and, 90-100,excellent. (Tr. 96.)[[4]] The fracturing is due to the existence of underlying shale andpast Balcones faulting. The underlying shale causes the chalk on top tobecome brittle and fracture. As for the past faulting, Dr. Allentestified that, typically, the closer one gets to the fault, the greaterthe number of fractures. (Tr. 108-111.)[[5]] Even if the trench was dug in \”hard and compact soil,\” someprotection (e.g., shoring, sloping) would still be required under1926.652(c).[[6]] Although Gregorio Reza’s testimony indicated that Nazario shouldnot have been in the trench (Tr. 260), this vague allegation of employeemisconduct can be dismissed. Peza admitted that other employees had beenin the trench performing their work earlier that morning. (Tr. 248.)Additionally, Roberto Velez testified that he was working in that trenchon April 21, 1987. (Tr. 499.) Thus, it is most likely that Nazario wasonly performing his work duties at the time of the fatal accident. Inany case, there is insufficient evidence to establish employee misconduct.[[7]] Respondent called several area contractors who testified thatvertical trenching through limestone is a common practice. (Testimoniesof Brian Schnelle, Tr. 994; Al Haegelin, Tr. 1059-1060; Jay Watkins, Tr.1068-1069.) However, these individuals also stated that if the trenchwall was cracked or fractured, they would not trench vertically. (Tr.993-994; 1059-1060; 1068.) It might also be noted that the theSecretary’s rebuttal witness, Bob Long, a pipefitter welder with 25years’ experience, said that most contractors do slope or shore trenchesdug in hard limestone that are more than five feet deep. (Tr. 1094-1102.)”