“Docket No. 87-0992 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 inAustin, 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 wall where the fatalityoccurred. The Secretary’s citation classified the alleged violation as repeated andproposed a penalty of $1,260. Bland contested the citation, after which the partiesattempted, without success, to settle the case. The Secretary then filed a complaint withthis Commission, which assigned the case to Administrative Law Judge Louis G. LaVecchia,for a hearing.One month prior to the hearing, the Secretary filed an amendedcomplaint. It reclassified the alleged violation as willful, and it added a secondallegation of willful violation, in a different trench, excavated entirely in soil, at thesame worksite. The Secretary proposed penalties of $10,000 for the two alleged violations.The judge permitted the 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’sdecision, and review was directed on the following issues:(1) Whether the Secretary’s second citation item, concerningdifferent trench at the same worksite, was issued with reasonable promptness;(2) Whether the Secretary’s amendment to add the secondcitation item was proper;(3) Whether the Secretary established noncompliance as allegedin the first citation item, to the extent that it concerns the sloping or shoring of thebedrock;(4) Whether Bland knew or with the exercise of reasonablediligence could have known that the bedrock was unstable;(5) Whether the two citation items were properly classified aswillful; and,(6) Whether the penalties for the two citation items wereappropriate.For the reasons set forth in this opinion, we affirm thejudge’s decision as to the first four issues, but we reverse it as to the fifth issue andmake an appropriate modification of the penalty.IThe Bedrock TrenchWe will separately address the two citation items. The issuesrelating to the second citation item (that is, issues Nos. 1 and 2, which relate only toit, and Nos. 5 and 6, insofar as they relate to it) will be addressed in the next part(\”II\”) of our decision. In this part, we will address the issues relating to thefirst citation item (issues Nos. 3 and 4, which relate only to it, and Nos. 5 and 6,insofar as they relate to it). We begin with the question of whether the Secretary provedthat the bedrock of the trench where the fatality occurred was unstable and requiredprotection (issue No. 3).[[1\/]]AWas the Bedrock Unstable?The cited standard is 29 C.F.R. ? 1926.652(b),[[2\/]] whichrefers to a table (\”Table P-1\”) of \”Approximate Angles of Repose forSloping Sides of Excavations.\” According to Table P-1, \”Solid Rock, Shale orCemented Sand and Gravels\” can remain at 90 degrees; that is, solid rock can remainvertical. Rock that is not solid or, in the terminology of the standard, rock that is\”unstable,\” must be shored or sloped.To establish a violation of a standard, the Secretary must showby a preponderance of the evidence that: (1) the cited standard applies, (2) its termswere not met, (3) employees had access to the violative condition, and (4) the employerknew or could have known of it with the exercise of reasonable diligence.See, e.g., Trumid Construction Co., 14 BNAOSHC 1784, 1788, 1990 CCH OSHD ? 29,078, p. 38,859 (No. 86-1139, 1990). In this case, theparties do not dispute the cited standard’s applicability and the fatally injuredemployee’s access (exposure) to the bedrock trench. Also, as we will discuss in thissection of our opinion, there is no real dispute among the witnesses that the bedrock wasunstable where it collapsed. Having allowed it to remain vertical, Bland did not meet theterms of the cited standard. Bland’s knowledge of the instability is, however, asubstantial question, which we will discuss in the next section.The evidence of instability can be briefly stated. One wall ofthe bedrock trench, which was fourteen feet deep, composed of ten feet of limestonebedrock below four feet of topsoil, and excavated in an essentially vertical condition,suddenly collapsed due to relatively slender but lengthy fractures in the rock,approximately two-thirds of the way down the wall. A large wedge of rock slid out of thewall, bringing with it a cascade of smaller pieces, rubble and soil. The parties’witnesses disputed whether fractures had been visible before the cave-in, but thewitnesses did not substantially dispute that the rock that caved-in must have beenunstable. For example, one of the Secretary’s expert witnesses, William Howard, a civilengineer employed by Trinity Engineering and Testing Corporation, regarded the collapse asproof that the rock was not solid. One of Bland’s expert witnesses, Paul Cravens, amanager of geotechnical engineering for Raba-Kistner Consultants, Inc., testified,\”It failed, and therefore it must have been unstable.\” Another of Bland’switnesses, Al Haegelin, a trenching contractor who had worked on several projects in theimmediate 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 willdescribe in greater detail below, Bland adduced testimony from many witnesses, laymen andexperts, that there were no visible fractures on the surface of the trench wallssubsequent to the cave-in. Accordingly, Bland argues, we must reverse the judge’s findingthat the bedrock was unstable where it collapsed. We disagree, however, because none ofBland’s evidence in any way controverts the sound testimony to which we have referred,positing that the fact of the collapse demonstrates an instability at that location.Moreover, Bland’s other expert witness, Dr. Carl Raba, a construction and environmentalconsultant with Raba-Kistner Consultants, Inc., testified that there are unstable areas inthe Austin Chalk and that a lack of visible fractures in the rock that remained intactafter the collapse did not absolutely prove anything about the condition of the rock thatcollapsed. In our view, therefore, the record shows that Bland was excavating throughunstable rock, requiring sloping or shoring. The Secretary established a failure to complywith the cited standard’s terms.BCould Bland Have Known of a Potential for Instability?As we have indicated, the far more substantial question iswhether the Secretary established knowledge of the bedrock’s instability (issue No. 4).That Bland had no actual knowledge is clear and undisputed, but the parties vigorouslydispute whether, with the exercise of reasonable diligence, Bland could have known of theunstable condition of the rock being excavated. The record on this issue is lengthy anddetailed.Almost immediately after the cave-in, Bland’s backhoe operatorbegan enlarging the trench, by cutting back and sloping both walls, so that volunteer andprofessional rescuers could safely enter the trench to rescue or remove the body of theemployee. There were only two witnesses to the visual appearance of the trench walls priorto this work to enlarge the trench. One, Kevin MacDonnel, a volunteer firefighter, statedthat the rock was \”fractured limestone,\” having [l]ots of cracks andfissures.\” The other witness, Artis Howard, an experienced employee, testified thathe would not have entered the bedrock trench because its walls were visibly stratified.That is, they were composed of visible layers.Many other witnesses viewed the cut-back walls and testifiedwithout exception that they showed no visible fractures. For example, the Secretary’scompliance officer, Juan Padron, of the Occupational Safety and Health Administration(\”OSHA\”), described the rock as \”essentially a uniform bed ofmaterial\” in which he noticed no fractures or other signs of instability. Joe Bland,president of the company, gave similar testimony as to his observations during theinspection. Brian Schnelle, a trenching contractor familiar with the Austin Chalk, gavesimilar testimony as to observations that he made during a visit the next day, byinvitation of President Bland.Bland’s two experts gave the most detailed testimony alongthese lines. Within the week after the cave-in, they examined the cut-back walls. Scrutinyof their surfaces and the debris on the trench bottom disclosed one sign of instability:an iron stain, signifying a fracture, on the underside of the large wedge of rock thatslid out of the wall. The experts suggested, therefore, that the sole visible sign ofdiscontinuity might have been a narrow band of iron staining buried in the trench wall,where it could not have been seen by the backhoe operator as he excavated the trench.Experts for the Secretary never viewed the trench, as it hadbeen backfilled by the time that they came to the worksite to take core borings. Civilengineer Howard and Gardiner Atkinson, Jr., a self-employed geotechnical engineer, drilledthree core borings of undisturbed limestone, each sixteen to twenty feet deep, withinseveral feet of where the trench walls had been. Immediately prior to the hearing, a thirdexpert, Peter Allen, an associate professor of geology at Baylor University, examined thecore borings and the geological features in the vicinity, in order to discuss them in histestimony.According to these experts, the borings contained many naturalfractures that were close-spaced and inclined, indicating considerable instability. Therewere iron stains and slickened sides, the latter of which are grooves or traces of pastmovement at a discontinuity. The rock was highly weathered. The experts considered thefractured borings representative of the portion of Bland’s trench wall thatcollapsed.[[3\/]]Also, Professor Allen analogized to two exposed walls of AustinChalk, which he had examined approximately one-half of a mile from Bland’s trench. One wasa natural wall along a creek. The other was an old excavation site. Both were severelyweathered and greatly fractured, showing slickened sides and \”marly\” (mixedlimestone, clay and sand) seams. The professor believed, and civil engineer Howard agreed,that the limestone around Bland’s trench would have had a similar appearance if it wereexposed.Bland’s trench was in a zone of earth faults, named theBalcones Fault zone, which Professor Allen described as being \”a series of faults,most of which are down to the east, although there are some down to the west.\” Therewas one mapped fault trace approximately 1,200 feet from the trench. Four others were moredistant. According to geotechnical engineer Atkinson, there might also have been unmappedones. Along these faults, extensive movements of earth material have produced numerousfractures. According to Professor Allen, the incidence and spacing of fractures varythroughout the Austin Chalk. In the vicinity of a fault trace, there can be one or twofractures every two to three feet; farther away, there can be one fracture every ten feet.Throughout the formation, therefore, fractures might be widely spaced, but never absent.Other witnesses substantially agreed. Engineer Atkinsoncharacterized the Austin Chalk as \”highly faulted.\” Engineer Howard submittedthat Bland could generally have anticipated fractures due to the faults passing throughthe Austin Chalk, for, although parts of the formation can be solid and not inherentlyunstable, the formation is mainly unstable. Walter Cunningham, an OSHA compliance officerwho had made numerous inspections of excavations in the area, testified that there aresolid portions, but that they become unstable during excavation by backhoe. ContractorHaegelin disagreed, but his testimony was explicitly general:[I]t’s fractured overburden typically in this area, the zone we are referring to where it gets into a solid mass, it generally has stayed in a solid mass with varying degrees of fractures above it.Engineering consultant Raba submitted that the Austin Chalk isa mainly stable formation, in which instability would be the exception rather than therule. Upon cross-examination, however, he conceded \”a probability\” that someportions are very unstable.Having closely examined the evidence, we decline to find that,prior to the cave-in, there were visible fractures or other signs of discontinuity in thebedrock of the trench wall. We do not rely on any of the expert testimony or testimonyfrom other persons who viewed the site after the rescue work had been completed, as thiswork altered the conditions at the site and, therefore, cannot reveal what they werebefore the cave-in. Also, we do not rely on the testimony of the two eyewitnesses inregard to the appearance of the area immediately after the cave-in, as we find that theirtestimony lacks the requisite specificity.The testimony of Bland’s experts is soundly reasoned as far asit goes, and it leads us to believe that one vivid sign of a fracture was hidden fromview, inasmuch as the band of iron staining on the large rock wedge was apparently buriedin the wall prior to the cave-in. The testimony of Bland’s experts and that of otherwitnesses further indicates that there were substantially unfractured sections of rock inthe area through which Bland was excavating, for the witnesses found what appeared to besolid rock walls during their examinations in the week or so after the cave-in. Thecrucial difficulty is that these walls are not necessarily representative of what had beenvisible either immediately before or immediately after the cave-in. A short time after thecave-in, the rescue work necessitated further excavation to widen the trench and alteredthe trench walls to some unspecified extent. Although we have the testimony of Bland’sexperts that they could see where the wedge of rock had come out of one wall, we have noother evidence clarifying what parts of the walls would have been visible prior to thecave-in.The volunteer firefighter, Kevin MacDonnel, and the employee,Artis Howard, who arrived at the worksite immediately after the cave-in, viewed the wallsin an overall way and testified that the walls displayed visible signs of discontinuity.The judge relied on their testimony, but we decline to do so. Employee Howard observedthat there were visible layers, called \”strata,\” in the rock of the trenchwalls. Therefore, he testified, he would not have entered the trench. However, thetestimony of William Howard, an engineer and one of the Secretary’s expert witnesses,indicates that stratification is a natural, geological characteristic of a sedimentaryrock, such as limestone or chalk, which is composed of materials deposited in layers. Thecited standard and Table P-1 do not specify that stratified or sedimentary rock must besloped, or that stratification is an indicator of instability. An OSHA training pamphlet,in evidence in this case, states only that \”faults in the strata\” (emphasisadded) can render a rock formation unstable during trenching operations. Moreover,although there was some testimony in this case obliquely suggesting that rock strata mightnot remain intact, there was no testimony that geologists, or other experts in the fieldof excavation safety recognize visible strata as clear evidence of instability. ProfessorAllen testified that he would want to closely examine all \”visiblediscontinuities,\” including horizontal ones, but he also testified that chalk\”probably would be hunky-dory\” for a vertical wall, as long as there were nofractures or discontinuities. Similarly, engineer Howard testified that strata orsedimentation does not necessarily indicate instability. On the basis of this record, wesimply decline to find that an employer who observed that the rock was stratified wouldhave known that the rock was unstable. We note the absence of any evidence that the stratacontributed in any way to the trench failure in this case.Volunteer firefighter MacDonnel’s testimony referred tofractures, cracks and fissures in the rock walls. He qualified his description of the rockwalls, however, with the words, \”What I could see of them.\” When he made hisobservations, he was standing at the top of the trench, on the east side, facing the westwall that had collapsed. Because he was observing a wall that had been affected by thecave-in, we do not know whether he was seeing a surface that would have been visible priorto the collapse. Also, we must take into account that the upper four feet of the trenchwas topsoil and a material that contractor Haegelin called \”fracturedoverburden.\” As contractor Haegelin indicated, and consultant Raba explained ingreater detail, the Austin Chalk is becoming weathered and is deteriorating along itsupper surface. Therefore, it is topped by a layer of fractured rock and clay, as well astopsoil. Of course, all unstable material such as fractured rock, clay, and topsoil mustbe sloped or shored, but Bland was charged with a separate violation for failure toprotect the upper four feet of topsoil. See note 1 supra. We therefore do not includeevidence pertaining to the upper four feet in our consideration of the allegation relatingto the bedrock. Inasmuch as firefighter MacDonnel’s testimony is qualified and does notspecify that he noticed fractures extending down into lower portions of the trench, wedecline to give it dispositive weight.We note that the particular fractures discussed by witnesses atthe hearing, see n. 3 supra, seem to have been in the upper part of the trench, and wealso note that the photographs in which the Secretary’s experts saw fractures presentproblems of angle and point of view similar to the problems with firefighter MacDonnel’stestimony. Taking into account these factors and the alteration of the trench walls as therescue proceeded, we conclude that the Secretary has failed to establish that Bland couldhave known, from any signs in the trench, that the rock was unstable.However, the Austin Chalk’s potential for instability was wellunderstood before the collapse, and on that basis we find that, with the exercise ofreasonable diligence, Bland could have known of the unstable condition of the rock. Thisrecord shows, virtually without dispute, that the Austin Chalk is extensively fractureddue to earth movement along fault lines passing through it. In fact, there were severalmapped fault traces within a mile of Bland’s trench. Although consultant Raba testifiedthat the effects of a fault would not be significant at a distance of 3,000 feet, herethere was one fault trace only approximately 1,200 feet away, which is less than a quarterof a mile from the trench site. The length of the portion of Bland’s trench that wasaffected by the cave-in was approximately fifteen feet. This could include at least onefracture, and perhaps as many as five to ten, given Professor Allen’s testimony that,typically, there is one fracture every ten feet, and that nearer a fault the incidencerises to one or two every two to three feet. Therefore, even though there might berelatively solid and stable areas within the Austin Chalk as a whole, we find that Blandcould not reasonably have relied on an expectation that such areas would exist or extendthroughout the length of the bedrock trench that the company was creating in this case.Bland argues that, before the cave-in, the trenching industryconsidered the Austin Chalk stable for vertical trench walls. Bland presents considerable,substantial testimony in support of its position, which is examined in our review of theissue of willfulness. For decisional purposes at this point, it is sufficient to note thatcontractor Haegelin’s testimony, asserting that the rock has \”generally stayed in asolid mass,\” is typical of the industry’s assessment of the Austin Chalk’s condition.Whatever the practice of an industry, however, we must holdthat members of it are required to take into account all available, factual informationrelating to whether hazardous conditions exist, or reasonably could exist, where work isbeing performed. While we do not doubt President Bland’s sincerity in conscientiouslyfollowing industry practice, his testimony at the hearing was that he knew about the faultzone and understood \”what a fault is.\” This testimony shows that, with theexercise of reasonable diligence based on what he knew, President Bland could haverecognized a need for protection along the length of the bedrock trench that his companywas excavating. Neither an employer nor its industry can afford to estimate the stabilityof a rock formation by the lack of collapses if, as here, there is a sufficient body ofknowledge about the geological conditions to predict a substantial possibility ofinstability. See, e.g., Union Boiler Co., 11 BNA OSHC 1241, 1244,1983-84 CCH OSHD ? 26,453, p. 33,606 (No. 79-232, 1983), aff’d, 732 F.2d 151 (4thCir. 1984) (employers must \”exercise[ ] reasonable diligence to detect\”conditions and must \”inspect and perform tests to discover safety-relateddefects\”); 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 able to discovercrumbly sand in the trench walls, the employer could have known to provide more completeprotection); S. Zara and Sons Contracting Co., 10 BNA OSHC 1334, 1339, 1982 CCHOSHD ? 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 45 degrees, for it didnot take into account the possibility of unstable soil); Frank Irey, Jr., Inc., 5BNA OSHC 2030, 2032, 1977-78 CCH OSHD ? 22,283, p. 26,838 (No. 701, 1977) (knowing of wetsoil, the employer should have made \”a more prudent analysis of the available soildata\”).Accordingly, the Secretary has established that, withreasonable diligence, Bland could have known of violative conditions throughout the areaof the bedrock trench. The Secretary has met her burden of proof for the allegedviolation.C Was the First Citation item Willful?Having upheld the allegations of the first citation item, wemust decide its classification (issue No. 5), which the Secretary alleges was willful. Themeaning of the \”willful\” classification is well-settled:Although the Act itself does not define \”willful,\” we[inthe Fifth Circuit] recently joined a majority of the other circuits . . . in adopting the Commission’s definition of willful conduct. \”[F]or OSHA purposes, we define a willful violation as one involving voluntary action, 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 CCH OSHD ? 27,860, p.36,472 (No. 81-263, 1987), quoting Simplex Time Recorder Co., 12 BNA OSHC1591, 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 therequirements of 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 intentionally disregarded the terms of the citedstandard or was plainly indifferent to them\”).\”[S]imple failure to discover or eliminate a violation isnot sufficient to demonstrate that the violation is willful in nature.\” SimplexTime Recorder,12 BNA OSHC at 1596, 1984-85 CCH OSHD at p. 35,572. Also, simplefamiliarity with the applicable standard is not proof of willfulness. Wright and Lopez.Inc., 8 BNA OSHC 1261, 1265, 1980 CCH OSHD ? 24,419, p. 29,777 (No. 76-3743, 1980).The parties’ evidence is extensive and complex. Our initialparagraphs will consider Bland’s understanding of the cited standard’s requirementsregarding treatment of rock. We will then review industry practice and the Secretary’senforcement practice.Bland’s understanding of the cited standard’s requirements hadbeen established by prior citations, a training seminar, and an OSHA training pamphlet.Approximately one year before Bland received the citation in this case, Bland received twocitations alleging various trenching violations, including two instances of failure toperform sloping or shoring, 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 thetrenching requirements.[[4\/]] Compliance Officer Cunningham did conduct such a seminarconcerning the trenching standards, including the cited standard. The seminar was attendedby Bland’s equipment operators (including the backhoe operator who excavated the trenchinvolved in this case), foremen, superintendents and officers (including President Bland).In testimony at the hearing in this case, Compliance OfficerCunningham described 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 seemed to feel that where it says rock on that [T]able P-1, it’s any type of rock. It has to be with solid rock . . . . Compliance Officer Cunningham recalled having explained thatdrilling and 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 a backhoe. He also had notrecommended taking core borings. In his testimony, Compliance Officer Cunningham explainedthat, during the informal conference following his inspection of BIand’s operations andprior to the seminar, he had recommended that Bland take core bearings before beginning atrenching project. During the later seminar, however, the compliance officer had notmentioned a need to perform preliminary core borings.Other testimony at the hearing in this case indicates thatBland’s president and vice president did not realize that Compliance Officer Cunninghammeant that, in general, trenches in the Austin Chalk must be sloped or shored if they werebeing excavated by backhoe. President Bland testified that, at the seminar, many questionswere asked about sloping in rock, because trenching through rock comprised a substantialpercentage of the company’s work. According to President Bland, Compliance OfficerCunningham replied that rock could remain vertical. Also, the compliance officer did notgive any special instructions concerning the presence of faults. Therefore, during theinspection that gave rise to this case, President Bland and the company’s vice president,Johnny Ulmer, both told Compliance Officer Padron that they believed it was permissible touse vertical walls in the Austin Chalk. In his testimony, Compliance Officer Padronemphasized the apparent genuineness of their belief.At the seminar, the participants received an OSHA trainingpamphlet entitled, \”Excavating and Trenching Operations.\” It states:The types of soil must be identified to determine proper protective measures . . . . Even hard rock sometimes can be hazardous; faults in the strata can make it unstable when cut.President Bland testified that, since the seminar, he hasbecome generally familiar with the pamphlet’s contents. Also, on the basis of hisexperience, he knew of the Balcones Fault zone, knew \”what a fault is,\” and knewthat, \”[i]f rock shows any signs of being unstable, it can be hazardous.\” As hestated in his testimony, \”That’s pretty common knowledge.\”Because the depths at which rock could be encountered varied,President Bland relied on the company’s backhoe operators and foremen to evaluate theconditions and create an adequate slope. President Bland held weekly safety meetings withthe foremen, and the foremen generally came to the worksites each day, to check the work.The backhoe operator who excavated the bedrock trench wasGregorio Reza. He had worked for Bland for twenty-five years, without an accident, and hadbeen trained primarily by experience and on-the-job instruction. His only formalinstruction had been the seminar concerning trenching, where he had received the OSHAtraining pamphlet. The seminar and the pamphlet were in English, which operator Reza couldnot understand. However, President Bland explained in his testimony that operator Rezawould have learned from the instructive diagrams drawn by Compliance Officer Cunningham atthe seminar and that, back on the job, the company’s bilingual foreman, Isidoro Flores,would have \”shared the information within that [OSHA training] booklet with Mr. Reza,as well as the many other Mexican-American citizens that . . . work for our company.\”President Bland also thought that he had probably asked OSHA for a pamphlet written inSpanish, but had been told that none was available.Industry practice emphasized on-the-job evaluation of rockstability. Two of the Secretary’s experts, engineer Howard and Professor Allen, gavetestimony recommending that contractors take preliminary core borings, rather than rely onon-the-job observation of conditions. Upon cross-examination, however, engineer Howardagreed that a contractor would not be \”in error\” if a trench caved-in due to\”an unseen joint.\” This witness also suggested that a contractor couldreasonably presume the solidity of any rock that did not evidence any \”obvious\”discontinuities.This testimony, revealing engineer Howard’s acceptance ofon-site scrutiny, is representative of all of the testimony that was given relating toindustry practice. Consultant Raba testified that his practice was to study the depth andlocation of a trench, ascertain its proximity to any fault, then \”leave it to theindividual interpretation of people in the field to look for anomalies.\” Moreover, ashe explained, \”[t]hose people in the field would not necessarily be professional, orcollege educated.\” President Bland testified that he had never retained a geologistand that he had always relied on the backhoe operator’s observations. Compliance OfficerCunningham did not know whether any Austin-area trenching contractor had ever consulted ageologist before beginning a trenching project. He gave extensive testimony showing thathe relied on on-site scrutiny during his inspections. More importantly, uponcross-examination, Compliance Officer Cunningham firmly agreed that, if a backhoe operatordoes not see any fractures \”after he lifts his bucket out,\” while excavating atrench, the operator can conclude that the rock is solid and does not require protection.Another witness, Richard Keskinen, employed by the Department of Labor as a safetysupervisor for OSHA’s Austin area office, gave testimony that, if a rock had no visiblefractures, \”[i]t was solid.\”On the basis of the evidentiary record as a whole, JudgeLaVecchia found that industry practice was to slope or shore \”when trench walls arefractured and cracked.\” Our review of the record confirms this finding. Testimonyfrom the local trenching contractors, particularly Al Haegelin and Brian Schnelle, statedthat contractors used vertical rock walls unless there were visible discontinuities orother indicia of instability. Consultant Raba gave extensive testimony to this effect,based on his experience and on his own survey of local practices, which was made shortlybefore the hearing.[[5\/]] Also, upon cross-examination, the Secretary’s experts, civilengineer Howard and geotechnical engineer Atkinson, indicated awareness of verticaltrenching practices in the Austin Chalk. Engineer Atkinson even agreed that it was agenerally accepted practice. Neither witness mentioned having seen vertical walls where,because of visible fractures, sloping or shoring would obviously have been required. OnlyCompliance Officer Cunningham suggested having seen vertical rock walls in a unstablecondition.[[6\/]]On the whole, the testimony regarding OSHA’s enforcementpractice indicates that it had been moving along much the same track as industry practice.That is, OSHA had been requiring employers to slope or shore rock only if it had visiblefractures. OSHA had not been consistently requiring protection for rock in the vicinity ofa fault, or rock being excavated by backhoe. In their testimony, the compliance officersmaintained that OSHAs policy was to require protection for all rock that had not beenexcavated by rock saw. Compliance Officer Cunningham testified to this effect, and safetysupervisor Keskinen testified that he disallowed vertical rock walls altogether: \”Ihave never run into that situation\” where they would be permissible. However, JayWatkins, an employee of Lewis Contractors, testified concerning an occasion whenSupervisor Keskinen had not issued a citation for vertical rock walls. During aninspection conducted by Supervisor Keskinen, the employee had pointed out that thecompany’s excavator was specially equipped to dig solid rock. At first, SupervisorKeskinen had explained that, \”if an excavator could dig [the rock], it wouldn’t beconsidered solid.\” In the end, however, after he and at least one compliance officerhad closely examined the walls, they merely instructed the contractor to watch for theappearance of cracks.From a similar experience, trenching contractor Schnelle hadinterpreted OSHA’s standards to allow vertical rock walls if not visibly cracked. He knewof several OSHA inspections permitting this practice. After one such inspection at his ownworksite, he was notified that the citation for vertical walls in the Austin Chalk\”would not be pursued.\”Compliance Officer Padron testified that, in his own opinion,Bland and any trenching contractor would be justified in leaving any rock walls verticalas long as they showed no sign of instability. Geotechnical engineer Atkinson was\”not aware\” of OSHA ever having prohibited vertical walls in the Austin Chalk.Nor were Vice President Ulmer and President Bland, according to President Bland’stestimony regarding his own understanding, and according to Compliance Officer Padron’stestimony regarding his discussions with the company’s managers during the inspection inthis case. As we have mentioned, Compliance Officer Padron emphasized that the managershad seemed to hold their belief in good faith.President Bland testified that, because he read in newspapersthat OSHA had not issued citations for vertical rock walls, he thought that the collapsedtrench’s vertical walls were permissible in the Austin Chalk. More significantly,President Bland made independent observations of trenching practices in the area.[[7\/]]Also, at some time prior to the inspection in this case, OSHA had inspected, but had notcited, another of Bland’s trenches, this one having thirteen-foot vertical walls oflimestone excavated by the same type of backhoe later being used at the collapse.Judge LaVecchia upheld the Secretary’s willful classification.He found that Bland knew of the need to protect rock that is not solid, but failed toassure that the backhoe operator received more than minimal training, in a way thateffectively conveyed the requirements of the cited standard. \”Whether or not Rezaunderstood the OSHA requirements is not apparent.\” The judge inferred that thebackhoe operator did not understand the requirements because \”Reza continued totrench vertically\” even though the walls were \”visibly fractured.\” Thejudge rejected Bland’s contention that it \”believed it was conforming to industrypractice\” because \”area contractors do not vertically trench when trench wallsare fractured and cracked.\”Contrary to the reasoning of the judge, we have found that theevidence does not establish that the bedrock portions of the trench walls were visiblyfractured. If there were no visible fractures in the bedrock, Bland’s vertical trenchingpractices conformed to industry practice. Although conformance with industry practice isnot a defense to a charge of willfulness, the evidence also indicates that it was OSHA’spractice in the Austin area to require sloping or shoring in rock only if there werevisible fractures. Bland had learned of OSHA’s approach at the seminar OSHA gave at thecompany’s request and by paying close attention to local trenching practices and theoutcomes of OSHA inspections in the Austin Chalk. Based on this evidence we find thatBland had a reasonable, good faith basis for believing that its own practices conformed toOSHA’s requirements. Such belief by an employer negates a finding of willfulness. KecoIndustries, 13 BNA OSHC at 1169, 1986-87 CCH 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 the judge’sdecision and find a violation, but we decline to characterize it as willful.D An Appropriate PenaltyThe penalty remains for our consideration. The Secretary didnot allege that, 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 thesame, $1,000. Bland, a family-owned company, has fewer than 100 employees, and its annualgross income varies considerably. The company has taken measures toward compliance withthe trenching requirements. Compliance Officer Padron testified that the fact that Blandcorrectly sloped part of the topsoil in the bedrock trench demonstrates good faith.Furthermore, in his opinion, Bland would not have known to slope the bedrock because itshowed no signs of instability. However, President Bland did know of the danger thatfaults in rock pose, and the company has a prior history of violation, including failureto comply with the sloping and shoring requirements with respect to soil. Also, severalemployees, in addition to the employee who died, had entered the bedrock trench on themorning of the accident, and a collapse of rock indisputably presents a very grave risk ofdeath or serious physical harm. Primarily because of the gravity of the violation, weassess the maximum penalty of $1,000.IIThe Soil TrenchWe turn now to the second citation item, which the Secretaryinterjected into this case by filing an amended complaint, along with a motion to amendthe citation and the original complaint. Judge LaVecchia granted the motion to amend.Bland takes exception to that ruling, arguing that the amendment was prejudicial,particularly because the new citation item was not added to the case with reasonablepromptness. Whether the citation item was issued with reasonable promptness and whetherthe amendment bringing it into the case was proper are issues Nos. 1 and 2 of theDirection for Review (see our list, at the outset of this opinion). We will now addressthese two issues.AWas Bland Prejudiced by the Addition of a Second CitationItem?The requirement that a citation be issued with reasonablepromptness is found in the governing statute, the Occupational Safety and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”). Section 9(a) of the Act states:\”If, upon inspection or investigation, the Secretary or his authorized representativebelieves that an employer has violated a . . . standard . . . he shall with reasonablepromptness issue a citation to the employer.\”\u00a0 Section 9(c) of the Act furtherprovides: \”No citation may be issued . . . after the expiration of six monthsfollowing the occurrence of any violation.\” Construed together, these provisionsindicate that a citation issued within the six-month limitation period is generallyconsidered to have been issued with reasonable promptness unless an employer demonstratesthat, in its particular case, the length of time taken to issue the citation wasunreasonable.[[9\/]]To show a lack of reasonable promptness, an employer mustestablish prejudice to the defense of the case. A lapse of time of less than six months\”cannot operate to exclude evidence obtained in [an] inspection when there is noshowing that the employer was prejudiced in any way,\” for \”[t]he manifestpurpose of the Act, to assure safe and healthful working conditions, militates againstsuch a result.\” Accu-Namics, Inc. v. OSHRC, 515 F.2d at 833, quoted in StephensonEnterprises. Inc. v. Marshall, 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 prehearingamendment should be permitted unless the employer’s preparations to defend would beprejudiced. Anoplate Corp., 12 BNA OSHC 1678, 1687, 1986-87 CCH OSHD ? 27,519, p.35,685 (No. 80-4109, 1986), citing United Cotton Goods, Inc., 10 BNA OSHC 1389,1390, 1982 CCH OSHD ? 25,928, p. 32,454 (No. 77-1894, 1982). A judge’s order permittingan amendment will be upheld 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., 10BNA OSHC 1268, 1982 CCH OSHD ? 25,837, p. 32,319 (No. 80-6008, 1981).Where an amendment adds new factual issues against which anemployer is unprepared to defend, a judge may allow the amendment if the prejudice can becured. The question is whether, in the time remaining until the hearing, or during areasonable continuance of it, the employer can prepare its defense. See Anoplate,12 BNA OSHC at 1687, 1986-87 CCH OSHD at p. 35,685; United Cotton Goods, 10 BNAOSHC at 1390, 1982 CCH OSHD at p. 32,454; Daniel International Corp., 9 BNA OSHC1980, 1984, 1981 CCH OSHD ? 25,492, p. 31,790 (No. 15690, 1981), rev’d on othergrounds, 683 F.2d 361 (11th Cir. 1982); Brown & Root, Inc., Power PlantDivision, 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. 2d 741 (10th Cir. 1980); Pukall Lumber Co., 2BNA OSHC 1675, 1677-78, 1974-75 CCH OSHD ? 19,433, pp. 23, 198-99 (No. 10136, 1975) (leadand concurring opinions).Thus, the first two issues for review, the procedural issuesrelating to the second citation item, present a single factual question. Bland contendsthat the Secretary’s delay in citing conditions in a trench different from the one thathad been the principal object of the inspection had the effect of prejudicing the company,for the Secretary added to the case new factual issues against which the company wasunable, because of changed conditions at the late date of the new citation item, toprepare a defense.It is virtually undisputed on this record that substantiallyall of the Secretary’s evidence in support of the second citation item was gathered duringdiscovery rather than during the inspection. The compliance officer came to the worksiteon April 21, 1987, because of the fatality that had occurred that morning, when the wallof the bedrock trench had caved-in. In the course of his inspection, Compliance OfficerPadron walked approximately 70 feet along the bedrock trench to the soil trench, whichadjoined the bedrock trench at an excavation for a manhole. The compliance officervisually examined the manhole excavation and a segment of the soil trench leading awayfrom it. Approximately 100 feet from the manhole, the soil trench had been backfilled.According to Compliance Officer Padron’s testimony at thehearing, he did not make a further study of conditions in the manhole excavation and thesoil trench because he did not see any employees working in the area. Therefore, in hisdiscussions with Bland’s president and vice president, he did not direct their attentionto any improper trenching procedures in the soil trench.\u00a0 He discussed the bedrocktrench, only. He took samples and measurements of the bedrock trench, but not of the soiltrench. At the hearing, therefore, the compliance officer’s testimony about the soiltrench consisted entirely of estimates regarding its dimensions and soil conditions.Immediately after the inspection, Bland retained its twoexperts to perform their independent inspection and study of the bedrock trench.Consultant Raba and engineer Cravens came to the worksite within several days of thecompliance officer’s inspection. They removed bedrock samples and extensively videotapedand photographed the bedrock trench. Both experts entered the bedrock trench and walked init to the manhole excavation and soil trench. However, the experts did not study the soiltrench. As expert Raba testified, \”I looked at it in general terms, turned back, andprincipally worked in the area of the accident.\” Having taken no samples of the soiltrench and having made no measurements there, the experts were unable at the hearing togive any specific testimony 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’sinspection, the Secretary retained her own experts to examine the topsoil and bedrockwhere the fatality had occurred. Geotechnical engineer Atkinson and civil engineer Howardcame to the site on May 18, 1987. By then, Bland’s trenches had been entirely backfilled.The experts took one core boring in the vicinity of the cave-in.\u00a0 Thereafter, on June9, 1987, approximately three weeks after the core boring and approximately 1 1\/2 monthsafter the compliance officer’s inspection, the Secretary issued the citation concerningthe bedrock trench.Subsequent discovery disclosed to the Secretary that Bland’semployees had been in the soil trench. Therefore, on October 5, 1987, approximately 5 1\/2months after the compliance officer’s inspection, the Secretary sent her experts back tothe site to obtain more core borings. The experts took two borings near the cave-in, andnumerous others in the vicinity of the manhole excavation, as well as in the adjoiningsoil trench. Thereafter, the Secretary brought the soil trench into this litigation byfiling the amended complaint, on October 20, 1987, only one day short of six months afterthe compliance officer’s inspection.[[10\/]]Bland filed a response, opposing the amendment on the basis ofsurprise, but Bland did not argue any prejudice.[[11\/]] Almost a full month remained untilthe hearing, which was scheduled to begin on November 18, 1987. Accordingly, JudgeLaVecchia ruled: \”[T]he respondent has ample time in which to prepare its defense tothe amended complaint.\”[[12\/]] Two weeks after the amendment and two weeks before thehearing, the Secretary requested a postponement to conduct additional discovery. Blandopposed the request, indicating that discovery had been adequate:Respondent has identified the address[es] of all employee witnesses. All employees who were present at the accident site at the time of the accident have already been deposed. Complainant has indicated that it does not wish to depose Respondent’s expert witness. A delay of one month or six weeks in this matter will prejudice Respondent. First, it will result in increased expense to Respondent. Second, it will perpetuate the burdensome and oppressive tactics employed by Complainant.The judge denied the Secretary’s postponement request. OnOctober 14, 1987, just four days before the hearing began, the Secretary directed herexperts to take another series of core borings, this time in the vicinity of the segmentof the soil trench that had been backfilled at the time of the compliance officer’sinspection. All of the core borings were discussed in testimony by the Secretary’sexperts.At the hearing, the Secretary presented the testimony of ClaudeRicks, an investigator for the Travis County Attorney’s Office, and Roberto Velez, one ofBland’s employees. Neither party questioned the backhoe operator about the soil trench.Bland’s president and vice president, in their testimony, demonstrated limited knowledgeof the conditions in the soil trench.In short, Bland had scant evidence to defend against theSecretary’s allegations of violations in the soil trench. It does not necessarily follow,however, that Bland was prejudiced. Prejudice arises where the moving party achieves anunfair advantage or where the opposing party is deprived of a fair opportunity to presentevidence. Secretary of Labor v. Arco Chemical Co., 921 F.2d 484, 488 (3d Cir.1990). It is only this consequent, undue imbalance that justifies disallowing anamendment. See Wedgewood v. Fibreboard Corp., 706 F.2d 541, 546 (5th Cir.1983). In this case, however, there was no such undue imbalance. Both parties werecompelled, by circumstances that developed without the fault of either party, to operateunder basically the same set of advantages and disadvantages. Compare Dussouy v.Gulf Coast Investment Corp., 660 F.2d 594, 598-99 (5th Cir. 1981) (moving party’sdelay in amending resulted from a reasonable, though erroneous, belief that a legal theorywas unnecessary to the case, not from a design to gain tactical advantage).At the time of the inspection and thereafter, while one segmentof the soil trench was still open, apparently neither party was aware of a need forexperts or other knowledgeable representatives to make measurements and perform otherstudies of the conditions in the soil trench. At the hearing, therefore, neither party hadphotographs, soil samples, or measurements to offer into evidence. The Secretary’s wholecase consisted of certain indirect evidence only, which Bland could have examined,replicated, and countered. For example, the Secretary’s experts had not seen the opentrenches, but Bland’s experts had actually walked in them and, however briefly, had viewedthe earth materials of the walls. Therefore, Bland’s experts had a potentially betterbasis than did the Secretary’s experts for giving testimony indicating that theSecretary’s core borings corroborated their own impressions. Bland could have enhancedthis advantage by making its own soil study immediately following the Secretary’samendment. Bland’s core borings would have been approximately concurrent with theSecretary’s, at 5 1\/2 to seven months after the compliance officer’s inspection. Moreover,if necessary, Bland could have joined the Secretary in requesting a postponement of thehearing for further discovery; the need \”to prepare its defense\” could havejustified the judge’s favorable consideration of a joint motion for postponement.The Secretary had the testimony of the investigator associatedwith the Travis County Attorney’s office, and Bland had no comparable witness. However,Bland’s supervisors and employees who had worked in the vicinity of the soil trench were,apparently, all available to testify. Bland asserted, in opposing the Secretary’s motionfor postponement of the hearing that \”Respondent has identified the address[es] ofall employee witnesses\” and that \”[a]ll employees who were present at theaccident site at the time of the accident have already been deposed.\” As theSecretary stated in her brief, \”[T]he Secretary was able to find witnesses,\” butBland \”has not shown that it tried unsuccessfully to locate any of its employees whomay have had knowledge of the trench.\” Moreover, Bland neither contended norestablished that the employees who excavated the soil trench could no longer recall itsdimensions. In particular, as the Secretary suggests, the backhoe operator’s availabilityfor questioning undercuts the company’s prejudice argument.We find that Bland has not shown any prejudice arising from thebelated addition of the second citation item.[[13\/]] The belated introduction of a newcharge is not to be preferred, and we believe that the federal government should avoidconducting its enforcement proceedings in any way that may give the appearance ofunfairness and result in unfairness. Finding no unfairness in this case, however, weaffirm Judge LaVecchia’s decision holding that the citation was issued with reasonablepromptness and allowing the Secretary’s amendment.BWas the Second Citation Item Willful?The merits of the violations alleged in the second citationitem are not in issue on review. There remains for consideration, however, the issue ofwhether 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 citations prior to thecitation in this case, which alleged failure to slope or shore trenches excavated in soil.Unquestionably, therefore, the company knew of the standards. Bland’s supervisorypersonnel received instruction in trench safety at the seminar conducted by ComplianceOfficer Cunningham. Also, as President Bland’s testimony indicates, the foremen wereresponsible for conveying safety instructions to the employees. The fact that the backhoeoperator had performed some correct sloping tends to indicate that the foremen hadprovided substantially correct information to the employees concerning how to comply withthe trenching 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 slopeit according to P-1?\” President Bland replied: \”Well, the O.S.H.A. booklet isthe guideline for trenching operations throughout the United States of America, andthat’s–that’s what we rely upon.\” President Bland, who had seen many of backhoeoperator Reza’s trenches, believed they were correctly sloped. Employee Velez agreed thatthe backhoe operator had been working safely, having observed in general that the trencheshad been sloped and entry prohibited until the sloping was finished.The Secretary finds significance in the facts that the walls ofthe soil trench were \”silty clay,\” yet the backhoe operator \”trenchedvertically without any support at all.\” This is not entirely correct. Although thebackhoe operator did not adequately slope the soil trench, the testimony tends to indicatethat he did slightly slope some portions of it. Therefore, absent evidence of other,earlier instances of noncompliance, and absent evidence that supervisory personnel hadobserved them, thereby becoming aware that the backhoe operator lacked understanding ofthe requirements of OSHA’s trenching standard or was disobeying it, we decline to upholdthe Secretary’s willful classification regarding the present instance.C An Appropriate PenaltyWe turn, finally, to the penalty for the second citation item.The Secretary did not allege that, if not willful, the second citation item was serious.As we have noted, however, the maximum penalty, $1,000, is the same for either a seriousor an other-than-serious violation. We assess the maximum penalty because of Bland’shistory of prior violation and the gravity of the conditions in the soil trench. Therecord shows that one employee had entered the trench, which was eight to nine feet deep,only three feet wide at the bottom, and only slightly sloped. The likelihood of death orserious injury to an employee in a cave-in is high. See Calang Corp., 14 BNA OSHC 1789,1794, 1990 CCH OSHD ? 29,080, p. 38,873 (No. 85-0319, 1990).IIIOrderAccordingly, we affirm the two citation items and assess apenalty of $1,000 for each item. We reverse the decision of the judge classifying theitems as willful violations.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionDated: May 1, 1991SECRETARY OF LABORComplainant, v. BLAND CONSTRUCTION COMPANY Respondent.OSHRC DOCKET NO. 87-0992DECISION AND ORDERAppearances:Anthony G. Parham, Esq., of Dallas, Texas, for the Complainant.D. Douglas Brothers, Esq., and Michael McGinnis, Esq., of Austin, Texas, for the Respondent.DECISION AND ORDERLouis G. LaVecchia, Judge:This proceeding arises under Section 10 of the OccupationalSafety and Health 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 processof constructing a wastewater line at the 12200 block of Burnet Road, Austin, Texas, when aportion of a trench wall collapsed, killing one of its employees. As a result of aninspection and investigation by the Occupational Safety and Health Administration(\”OSHA\”), Respondent was issued a citation for a \”repeat\” violation of29 CFR 1926.652(c). The proposed penalty was $1260.00. Respondent timely contested thecitation. A complaint, answer, and amended answer were subsequently filed. Thereafter, onOctober 20, 1987, the Secretary moved to amend the citation and complaint to allege a\”willful\” violation of 29 CFR 1926.652(c) or, alternatively, 29 CFR 1926.652(b),and a new \”willful\” violation of 1926.652(b). The total proposed civil penaltywas 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, ahearing was held in the matter in Austin, Texas. Both parties have filed posthearingbriefs. The theories and arguments advanced by each have been fully considered. There wereno intervenors in the action.The respondent has admitted that (i) it is an employer engagedin a business affecting commerce within the meaning of Section 3(5) of the Act; (ii) theOccupational Safety and Health Review Commission (\”the Commission\”) hasjurisdiction over the parties and the case; and (iii) the Act and Occupational Safety andHealth standards at 29 CFR Part 1926 apply to Bland Construction Company. (Respondent’sSecond Amended Answer, par. 2, 3, 9, 17, 25.)The StandardsThe specific trenching standard at 29 CFR 1926.652(b) provides:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(b) Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. See Tables P-1. P-2 . . .The specific trenching standard at 29 CFR 1926.652(c) provides:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(c) Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5- foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each 1\/2-foot horizontal. When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion.Preliminary IssuesIn its brief and throughout the hearing Bland has argued that:(1) 29 CFR 1926.652 is unconstitutionally vague; (2) the allegations in the amendedcitation are untimely; and (3), the amended complaint is improper. These preliminaryarguments will be considered at the outset.Respondent argues that the 1926.652 is vague and does notprovide – reasonable notice of the conduct proscribed. (Respondent’s Second AmendedAnswer, p. 4, par. 32, 33; (Tr. 754-757; 996; 1074-1076.) Respondent’s argument must berejected. When 1926.652 is read together with Tables P-1 and P-2, its meaning issufficiently precise to put employers on notice of what is required in terms of sloping,shoring or otherwise supporting particular trenches. Furthermore, the Commission hasconsidered, construed, and enforced 1926.652(b) and (c) on numerous occasions. E.g., JohnR. Jurgensen Co., 12 BNA OSHC 1889, 1986 CCH OSHD ? 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 OSHC 1640, 1980 CCH OSHD ? 24,580 (No. 14188, 1980); ConnecticutNatural Gas Corp., 6 BNA OSHC 1796, 1978 CCH OSHD ? 22,874 (No. 13964, 1978).Respondent attempts to buttress its contentions of vagueness bynoting that OSHA’s safety supervisor, Richard Keskinen, told two underground utilitycontractors that the standard was not all that certain (Tr. 996, 1068-1070). However, theremarks of OSHA’s safety supervisor do not constitute a concession by the Secretary that1926.652 is unenforceably vague. Keskinen’s statements appear to have been made informallyand, in any case, do not have the force and effect of law. See Power Systems Division,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 as being without merit.Respondent next contends that the amended citation allegationsviolate sections 9(a) and 9(c) of the Act. (R. Br. 14-15.) Section 9(a) requires thatcitations be issued with \”reasonable promptness\” and section 9(c) places asix-month statute of limitations on the issuance of citations. Respondent notes thealleged violations occurred on April 21, 1987 and the original citation was issued on June6, 1987. On October 21, 1987, the Secretary moved to amend the citation and complaint. Itis Respondent’s position that, although the motion to amend was made exactly six monthsafter the accident, \”the record is silent\” as to when the actual amendment wasfiled. (R.Br. 14-15.) Thus, Respondent believes the amendment was untimely.There are several problems with Respondent’s position. First,regarding Respondent’s claim of untimeliness, it is clear that the Secretary filed themotion to amend and the amendment on October 21, 1987, which is exactly six months fromthe date of the accident. Section 9(c) of the Act states, \”No citation may be issuedunder this section after the expiration of six months following the occurrence ofany violation\” (emphasis added). Thus, the Secretary’s filing of the amendment onOctober 21, 1987 is within the six month statute of limitations. Even if it were not, theCommission has held that section 9(c) of the Act does not prohibit the amendment of analready issued citation more than six months after the occurrence of an alleged violation.CMH Co., 9 BNA OSHC 1048, 1980 CCH OSHD ? 24,967 (No. 78-5954, 1980). An amendmentto a claim arising out of conduct described in the original pleading relates back to thedate of those pleadings, in this case, June 6, 1987. Fed.R.Civ.P. 15(c); StructuralPainting Corp., 7 BNA OSHC 1682, 1979 CCH OSHD ? 23,817 (No. 15450, 1979).Second, regarding Respondent’s contention that the Secretaryfailed to issue the citation with \”reasonable promptness,\” it is Respondent’sburden to establish that it has been prejudiced by the delay in its ability to prepare andpresent its case. Daniel International Corp., Brown and Williamson Project, 9 BNAOSHC 1980, 1981 CCH OSHD ? 25,492 (No. 15690, 1981); Stephenson Enterprises, Inc. v.Marshall, 578 F.2d 1021, 1023 (5th Cir. 1978). In this case, Bland has argued that theamendment alleges a new willful violation in an area of the worksite that is not even inthe area of the fatal accident. Respondent feels it was not given prior notice that thisnew area would be involved in the dispute. It believes that the amendment factually altersthe original charges and is manifestly unfair to Bland. (R.Br. 3-4; 15-16.)It should first be noted that the amended complaint allegesviolations at two of Respondent’s trenches at the Centrum Project: (i) a trench measuringtwo feet and three inches at the top and bottom, 88 feet in length 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 to and 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 from Station 8+78.87(Invert B-5), which was approximately 88 feet from the point of collapse, to approximately65 feet east of Station 7+49.20 (Invert B-4). In the original citation, Respondent wascited for allegedly violating trenching standards in the area described in Item 1(a).Despite Respondent’s claims to the contrary, it does not appearthat the amendment changes the thrust of the Secretary’s claim. The original citation andcomplaint gave Respondent notice that the allegedly hazardous condition was the employees’exposure to a trench cave-in as a result of the unshored and unsloped walls of the trenchdescribed in Item 1(a). In the amended citation, the Secretary reiterates the aboveallegation, although it pleads in the alternative a violation of 1926.652(c) or1926.652(b), and further alleges that the hazard of a cave-in existed on this date at thetrench area described in Item 1(b). The factual basis of the Secretary’s original andamended charges appear to be the same. However, it is Respondent’s position that itsdefense would have been \”substantially different\” if it had known of the chargein the amended pleading. It contends that the alleged violations described in Item 1(b)involve new areas with different soil conditions and trenching procedures. (R.Br. 16. )Assuming Respondent is correct, and the alleged violationsdescribed in Item 1(b) do not arise out of the same conduct or occurrence as the originalcitation, the amendment is still proper. The Commission has consistently approved thegranting of prehearing amendments where there is no showing by the objecting party that itwould 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 CCHOSHD ? 25,470 (No. 76-1174, 1981); P.A.F. Equipment Co., 7 BNA OSHC 1209, 1979 CCHOSHD ? 23,421 (No. 14315, 1979), aff’d 637 F.2d 741 (10th Cir. 1980). In thiscase, the Respondent has failed to demonstrate how it was prejudiced by the amendment. Itis clear that Respondent was given fair notice of the alleged violations in the item 1(b)areas. They are described in the amended complaint. If Respondent was uncertain of whatwas being alleged, it could have filed a motion for a more definite statement; however, itdid not. It could have also requested a continuance to conduct discovery on these newallegations.[[1]] Again, it did not.\u00a0 (Indeed, in a prehearing telephone conference,Bland opposed the Secretary’s motion for a continuance and asserted it was ready to trythe case.) Consequently, it is difficult to see how Respondent was prejudiced by theamendment.Finally, Respondent argues that the alleged violations of Item1(b) were not properly pleaded. Respondent argues that compliance officer Juan Padron(\”the CO\”) made no measurements of these areas, nor observed any violations ofproper trenching techniques. (R. Br. 3-4; 15-16.)Respondent’s argument can be dismissed. The evidenceestablishes that the information regarding these areas was not available to the CO at thetime of the inspection. (Tr. 358-359; 415-418.) Additionally, even if Padron did notactually observe the violations in question, thus violating OSHA’s Field Operation Manualprocedures (Tr. 381-384; 411-412), the Commission has held that failure to follow themanual does not 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 other grounds 597F.2d 234 (10th Cir. 1979). The manual, which contains only guidelines for the execution ofenforcement operations, does not have the force and effect of law, nor does it accordimportant procedural or substantive 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 by credible andsubstantial evidence, it matters not whether the CO actually observed the conditions whichare alleged to be violative of the Act. \”Noncompliance with the instructions in themanual is therefore not a basis for invalidating a citation.\” H-30, supra.With these preliminary questions disposed of, the main disputeremaining between the parties involves the composition and stability of the trench walls.A summary of the relevant testimony follows.The Relevant EvidenceOn April 21, 1987, Respondent’s machine operator, GregorioReza, was operating a backhoe at the trench described in Item 1(a) of the citation.Between 8:30 am and 9:00 am, Reza stopped his excavating work in order to straighten out alight that was used to check the trench’ s grade Victor Nazario, a laborer with BlandConstruction Company, had entered the trench at this time. He had just started takinggrade pole measurements when the west wall of the trench collapsed. Nazario was killed.(Tr. 243-250; 367; 599-600.)It is undisputed that, at the place where Nazario stood, thetrench was 14 feet deep and 27 inches wide at the bottom for a distance of 10 feet. Thewalls of the trench were 10 feet high and vertical (90 degrees from the horizontal).(R.Br. 1-2; C.Br. 1; 4.)\u00a0 The trench walls were not shored, sloped or otherwisesupported. From the ten foot level of the walls to the surface (a distance of four feet)the trench wall was composed of silty clay. Although the top of the west wall of thetrench was sloped, there was some disagreement whether the top of the east wall wassimilarly laid back. (R.Br. 2, 6; C.Br. 7-8.)Eighty-eight feet from where Nazario was killed (at Station8+78.87), the trench opened to a large circular depression that had been dug to install amanhole (Invert B-5). The vertical trench walls at this position were 14 feet deep andconsisted of silty clay or stiff to very stiff clay. (R.Br. 16-17; C.Br. 2.) Further downthe line of the open trench, and approximately 65 feet east of Station 7+49.20 (InvertB-4), the trench consisted of vertical walls of silty clay for the entire depth of sevento eight feet. (C.Br. 2; Tr., 905-906.)The Secretary alleges that Respondent violated 1926.652(b) or(c) at four places. Point one denotes the two 10 foot high vertical trench walls at thepoint of collapse. (C.Br. 1; 4-7.) Point two denotes the top four feet of the east wall atthe place where Nazario stood in the trench, (C.Br. 2; 7-8.) Point three denotes InvertB-5, and point four identifies the 65 foot area east of Invert B-4. (C.Br. 2; 8-9; Ex.C-36.)Point OneRegarding the composition of the trench walls at the point ofcollapse, the testimony is in conflict.Juan Padron was the CO who inspected the site. Padron has beenemployed with OSHA for four years. He inspects approximately 10 trenches each year, andhas inspected five or six trenches in which accidents have occurred, (Tr. 352-356.) Padrontestified that he took two soil samples from the trench. Field Sample No. 1 (B24125) wasobtained by hand and came from the top 32 inches of the east wall of the trench (i.e.,point two), (Tr. 392-393; 430-431.) Field Sample No. 2 (B24126) came from the west face ofthe trench, below the failure and four feet from the trench bottom (point one). (Tr. 393;430-431.)\u00a0 This sample was obtained by excavator, and consisted of three pieces ofrock and several smaller pieces of material. (Tr. 396-7.)\u00a0 Padron sent both samplesto the OSHA laboratory 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 at point one was\”hard and compact soil\” and he could break it with his hands (Tr. 400-401; 404);however, he later testified that the material was \”hard as hell\” and was rock(Tr. 403-404).\u00a0 Padron did concede that he knew little about soil analysis. (Tr. 397;402.)Dr. Allen Simmons Peck analyzed the soil samples taken byPadron. Dr. Peck has been employed with the Laboratory Division of OSHA for 12 years. Heanalyzes approximately 300 soil samples a year. Dr. Peck has a Bachelor’s degree inChemistry, and a Masters and Ph.D. in Metallurgical Engineering, with a minor inmineralogy. (Tr. 207-209.)Dr. Peck analyzed the Bland soil samples on April 28, 1987.After performing a gradation analysis, an X-ray defraction analysis, an infrared analysis,as well as recording the percent of moisture, Dr. Peck classified Sample No. 1 as claysilt with an angle of internal friction of 32 degrees. (Tr. 216-221; 227.) He did not takethe angle of repose. (Tr. 229.)Field Sample No. 2, taken from the bottom four feet of the westwall, was run through similar tests. (Tr. 221-222; 228.) Additionally, Dr. Peck determinedthe material’s mineralogy and durability in water. (Tr. 222.) He found the material to befractured, durable in water, and classified it as gravelly rock. (Tr. 223.)\u00a0 Dr. Peckdetermined the angle of repose for this sample from the smaller particles of materialbecause the three larger pieces would not stabilize. (Tr. 230-231.)\u00a0 The angle ofrepose was 39 degrees. (Tr. 223-224.)Dr. Peck testified that, although Sample No. 2 contained solidrock, he considered the entire sample to be a collection of fractured rock. (Tr. 225-226.)\u00a0 He admitted that, if the sample had been scraped from a wall of material bybackhoe, thereby fracturing it, his soil report would not be accurate. (Tr. 235-238.)Dr. Peter Martin Allen, an expert called by the Secretary,testified regarding the geology of the trench. Dr. Allen is an Associate Professor ofGeology at Baylor University’s Department of Geology in Waco, Texas. (Tr. 77.)\u00a0 Hehas a B.A. and Master’s degree in Earth Science, and a Ph.D. in Geology. He has worked asa private consultant for, among others, the City of Dallas and the Super Collider project.(Tr. 77-79.)\u00a0 Dr. Allen familiarized himself with the case by visiting the accidentsite and performing a reconnaissance of the site geology. Both he and William Howard ofTrinity Engineering found an excavation slope in close proximity (geologically) to theaccident site, examined the surface materials, made measurements, and took photographs.(Tr. 80- 82.)\u00a0 They secured a topographic map of the area, as well as an aerialphotograph from the City of Austin. (Tr. 81.)\u00a0 Dr. Allen said that he read severalarticles concerning fracture patterns and defects in rock as related to proximity tofaulting. He also reviewed photographs of the site and viewed a video tape of recoveryoperations taken by the Austin Fire Department. (Tr. 81; 83; Ex.R-24.) Dr. Allen’s testimony centered on his analysis and findingsregarding several core borings taken from the site. The locations of the core borings,Borings B-1, C-1 to C-5, and D-1 to D-6, are depicted on Exhibit C- 36. Additionally,Gardner \”Tim\” Atkinson, a mechanical engineer who was present when each boringwas drilled, testified as to the 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 C borings weretaken on October 5-6, 1987 (Tr. 270), and the D borings were taken on November 14, 1987(Tr. 281).Borings B-1, C-1 and C-2 were approximately 16 feet deep (Tr.101) and were drilled in close proximity to (within 13.7 feet of) the area of collapse(Tr. 130-131; 274- 275; Ex. C-36). Dr. Allen testified that the material comprising theseborings consisted of fill on the top (4.7 to 6.7 feet), which was excluded from hisanalysis, 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 three borings wasrepresentative of the basic rock quality of the material comprising the trench walls,given the short distance between the trench and the boring locations.[[2]] (Tr. 130-131.)The rock quality designation (\”RQD\”) of the boring rock material ranged fromvery poor to fair.[[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 certainpoints, Borings B-1 and C-2 had an excellent RQD. (Tr. 179-181.) However, he said that hewould not give the borings an overall excellent rating. He explained that vertical boringsoftentimes miss vertical defects in the rock and, consequently, the stability of the rockis overestimated. (Tr. 563-565; 567.) In a run, one could find good RQD, but still find alot of fractures. Thus RQD alone cannot be used to determine rock stability. (Tr. 566-567.)Dr. Allen testified that, typically, the closer one gets to afault, the greater the number of fractures. He estimated Respondent’s trench to be 1200feet from a mapped fault. (Tr. 108-111.) Although he said the amount of fracturing in arock is related to stability, he conceded that he would need an engineer’s help inevaluating rock stability. (Tr. 153; 163-164; 571.)Dr. Allen did not consider the limestone in Borings B-1, C-1and C-2 to be solid rock. (Tr. 141-142.) He classified Austin Chalk to be soft rock, andsaid the stability of soft rock depended on the number of discontinuities present. (Tr.159-160.)Dr. Allen examined Exhibits C-6, C-7 C-8, C-23 and C-31(photographs of the trench) as well . He said he could see fractures in the materialdepicted in the photographs that were similar to, and consistent with the discontinuitiesand fractures of material in the borings. (Tr. 131-132.) He believed that thediscontinuities in Exhibits C-6 to C-8 were visible to people digging the trench. (Tr.143; 145-147.)William \”Bill\” Howard, a geotechnical engineer withTrinity Engineering, was another expert called by the Secretary. Howard has a B.S. andMasters degree in Civil Engineering. He has completed geotechnical courses for a Ph.D.(Tr. 616-616. ) Howard has worked with limestone formations and studied their stability.(Tr. 617.) He admitted his lack of familiarity with the Austin area. (Tr. 659; 665-669;676-679; 698-699.)Howard visited the Centrum project with Dr. Allen and waspresent when the core borings were drilled. (Tr. 620.) His conclusions are a result of hisanalysis of the core borings and photographs of Bland’s trench.Howard testified that, although not all parts of the AustinChalk Formation are inherently unstable, they are potentially so. (Tr. 681; 695.) In hisopinion, the trenches dug by Respondent at the Centrum project were unstable. (Tr. 618.)He recited several factors he deemed important in determining stability, i.e., anexamination of the core borings; a visual observation of the trench; the experience of thecontractor with a particular formation; the available geotechnical reports; therecommendations of engineers; and the relevant trenching laws. (Tr. 683-684.) The factthat a trench wall collapsed is another indication of its instability. (Tr. 731-732.)Difficulty in excavating material may also indicate instability. However, Howard notedthat difficulty in excavating trench material does not necessarily mean the material issolid. (Tr. 716.)Regarding the trench walls at point one, Howard testified theywere comprised of highly fractured weathered limestone, which is potentially unstablematerial. (Tr. 626-627.) He noted that the instability of core borings C-1 and C-2 wasevidenced by the fracture zones and large number of horizontal and inclined fractures.(Tr. 632-637; Ex. C-71.) He said the material composing the trench walls at point one wasnot hard and compact 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 thatthe employer slope the sides a minimum of 45 degrees from the horizontal (one-to-one), usetrench shields, or shore the sides. (Tr. 640.)Gardner Atkinson testified that he had observed the walls oflocator trench and that they appeared to be weathered limestone. (Tr. 298.) Atkinson, whois an engineer formerly employed with Trinity Engineering and Testing Corporation (Tr.267), measured the locations of the core borings. He testified that he is familiar withthe geology of the Centrum Project and that the Austin Chalk Formation is highly faulted.(Tr. 306.)Carl F. Raba, a principal of the firm Raba-Kistner Consultants,was called as an expert witness for the Respondent. (Tr. 841-2.) Dr. Raba has a B.S.,Masters and Ph.D. in Civil Engineering, with majors in Soil Mechanics and FoundationEngineering. (Tr. 843; Ex. R-21.) He first visited the Centrum site on April 25, 1987.(Tr. 845-846; 855.)While at the site, Dr. Raba and his staff surveyed the land,logged the trench walls, obtained samples from the trench, and photographed the area.(846-847.)Regarding the trench samples Dr. Raba obtained, R-3 was fromthe west wall (Tr. 875), R-25 was from the east wall (Tr. 876), and R-26 was from thepiece of rock that slid out of the west wall to the bottom of the trench. (Tr. 847;877-878.) Dr. Raba said the coloration apparent on R-26 is iron staining, which indicatesa discontinuity at this point. However, Dr. Raba believed that the operator would not havebeen able to see this iron staining because he felt it probably was not exposed in thetrench prior to the failure. (Tr. 857; 879; 979.) He said he could not detect any otherdiscontinuities in the west wall. (Tr. 853-854; 964.)Dr. Raba’s analyses of the samples taken from the trench aredepicted on Exhibits R-32 and R-33. He concluded that the material comprising the trenchwalls was hard. (Tr. 800-801; 897-899; 951-952.) He classified it as rock, specificallylimestone belonging to the the Austin Chalk Formation. (Tr. 895; 907.) In his opinion, theAustin Chalk has demonstrated its stability in the past (Tr. 902-905; 907; 942); however,he later admitted that some parts of the formation could be very unstable. (Tr. 942-943.)Dr. Raba conceded that only a small percentage of his firm’sactivities. involves slope stability analysis. (Tr. 925.) He said that his firm did not doa RQD on the samples because they had not drilled any core borings. (Tr. 926.) Although hesaid that the hardness of the material is one indicator of whether or not a trench wallwill fall, he conceded that the existence of fractures in a wall is an important factor.(Tr. 927.) He admitted that there could have been discontinuities and fractures on thewest trench wall that he did not uncover. (Tr. 931.)Paul Cravens, Raba-Kistner’s manager of geotechnicalengineering for the Austin region, also testified for Respondent. He has a B.S. in CivilEngineering. (Tr. 1008-1009.) He has taken no courses in rock mechanics and only one ingeology. (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 to R-31.Cravens testified that, when he entered the site, he observed the condition of the trenchwalls in the failure area. He testified that the east wall was nearly vertical and wascomposed of hard limestone. The west wall was inclined and also hard limestone. (Tr.1014-1015.) He said that he saw nothing in the trench to give him cause for concern; hefound no iron staining in the intersection between the failure plane and trench wall; hesaw no evidence of a fracture plane. (Tr. 1015-1017.)The nonexpert witnesses who viewed the trench at point onetestified that the material in the trench was rock. Two of the witnesses -Gregorio Rezaand Roberto Velez- were Bland employees who had worked at point one. They claimed thematerial was hard rock. (Tr. 266; 495.) Reza said it took him two hours to dig five to tenfeet (Tr. 266).Kevin MacDonnel, a volunteer E.M.S. responder and firefighterwho was paged to the site shortly after the cave-in, testified that wall on the east sideof the trench appeared to him to be fractured limestone and caliche. (Tr. 23-27; 33.) Hesaid the wall contained \”lots of cracks and fissures\” and that it was\”gravelly, soft, basically the same type of material that had collapsed …\”(Tr. 33.)James Eliot, an Austin firefighter who took part in therecovery operations on April 21, 1987, described the material in the trench as\”mainly rock\” with \”some black dirt and debris.\” (Tr. 200.) Hedescribed the rock as ranging in size from pebbles to \”stones that would barely fitin the trench.\” (Tr. 200; 202.)Artis Howard, a former Bland employee, was at the site shortlyafter the accident. (Tr. 502-506; 508.) He said that the east wall had three feet oftopsoil and, beneath that, one layer of rock. Howard testified that his view of the wallwas obstructed due to the cave-in. (Tr. 512-513.)Brian Schnelle, a utility contractor, viewed the trench onApril 22, 1987. He said that he saw no defects in the trench wall (Tr. 992-993.)Al Hagelin, an underground utility contractor, drove by theCentrum site one week to 10 days after the accident. (Tr. 1052-1053.) He described thegeneral rock material in the area as Austin Chalk limestone with varying levels ofoverburden (topsoil, fragmented rock and clay). (Tr. 1056.) He thought the limestone wassolid.Point TwoAlthough the parties agree that the top four feet of the eastwall at the point two was composed of clay, they disagree as to whether it was laid back.Three of the four witnesses who observed the trench prior to the time its originalconfiguration was obscured in recovery operations, testified that the east wall at pointtwo was not sloped.Kevin MacDonnel said that after being paged to the site onApril 21, 1987, he approached the trench from the east side and walked to the edge. Aworker was in the trench, attempting to dig Nazario out. (Tr. 27; 38.) MacDonnel saw thecollapsed west wall (Tr. 27.) and, although he could not determine if the top of the westwall 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 the accident sitesloped at a 30-45 degree angle. (Tr. 30-32; 69.) MacDonnel remained on the site for twohours, and left before Nazario’s body was recovered. (Tr. 40.) He said that none of thephotographic exhibits (Ex. C-3 to C-31) depicted the area as it existed at the time heobserved the trench. (Tr. 68.) He testified that the excavator used to recover the bodychanged the original configuration of the site. (Tr. 39-40; 69.)James Eliot arrived at the worksite around 10:30 to 11 am onApril 21, 1987. (Tr. 197.) The excavator was not being used when Eliot first arrived, andhe stayed on the site until the end of the recovery operation. (Tr. 198). Eliot said, whenhe looked into the trench, he saw that the west wall had collapsed. (Tr. 199.) Hedescribed the east wall at the point of collapse as not being as sloped as the northernportion of the wall. (Tr. 200; 206-207.)Gregorio Reza testified that, at the time of the cave-in, hehad not completed sloping the east wall of the trench. (Tr. 257.) He admitted that theeast wall was not sloped very much, as he had only taken several bucketfuls of materialfrom 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 had collapsed. (Tr.509.) He described the east wall as vertical, with a \”natural slope on it from thetop.\” (Tr. 511.) He said that he had seen the east wall prior to the time the backhoewas used to recover Nazario’s body from the trench, although he claimed some of the crewhad gone to the site with shovels prior to the time he had arrived.\u00a0 (Tr. 525-526.)Howard’s testimony regarding if and how much the east wall was sloped was difficult tounderstand. He testified that the east wall was vertical; however, he said that the topone and one-half to three feet was composed of loose topsoil, thus the wall was notentirely vertical . (Tr. 532; 535.) He testified on recross that the wall was sloped. (Tr.537.)The video taken at the trench site during rescue\/recoveryoperations indicates some sloping; however, this video was made during recovery operationsand the original configuration of the trench is not apparent, (Ex. R-24.)Points Three and FourThe CO did not walk to the area described as point four (or theD cores). (See Ex. C-36.) However, the CO did observe conditions at point three (station8+78.87). (Tr. 360-2; 382-3.) He estimated the distance from the top of the trench to thebottom at station 8+78.87 to be 10-14 feet. The material around invert B-5 was silty clayor 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.Borings C-3 to C-5 were drilled east of point three. (Tr. 277-279; Ex. C-36.) The D coreborings were drilled east of station 7+49.20. (Tr. 281; 286-287; Ex. C-36.) Dr. Allentestified that Borings C-3, C-4 and the D- series all contained fill and below that, siltyclay, or, according to Table 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 boring C-5consisted entirely of backfill, Tr. 111-114. The D borings all had less than two feet ofbackfill, (Tr. 120-126.) He felt that the silty clay material found in these borings wereunlikely to be \”radically different\” from the material at points three and fourgiven the proximity of the borings to the actual trench sites (Tr. 140.) The reason forthe different soils found in these borings as compared to B-1, C-1 and C-2 was due to thefact that Borings C-3, C-4, C-5 and the D series were taken along an old stream course asevidenced by a low spot 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 medium firmsandy and silty clay. (Tr. 625.) He testified that the material found in core boring C-3was representative of the trench material between stations 8+78.87 and 7+49.20. Boring C-3consisted of a sandy and silty clay. Howard said that the proper slope would be 2 to 1 (26or 27 degrees from the horizontal). (Tr. 643-644.) In his opinion, the material in thetrench was unstable. (Tr. 645-646.)Regarding the D cores, Howard testified that this material wasclay, silty clay and backfill. (Tr. 647.) He felt that it, too, was not stable. Anappropriate slope would be 27 degrees from the horizontal. (Tr. 648; 650.)Claude Ricks, an investigator for the Travis County Attorney’sOffice, arrived at Respondent’s worksite at 11:35 am on April 21, 1987. (Tr. 330.) Heobserved the walls of the trench at station 8+78.87 and said that the material comprisingthe walls appeared to be \”a loose-type soil, sandy-type clay material -light kind oftannish color.\” (Tr. 334-335; 339.) Ricks estimated the excavation to beapproximately 10-12 feet deep. (Tr. 335; 338.) The walls were not sloped, but\”straight up and down.\” (Tr. 339.) He said there was an inch or two ofgroundwater at the 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, which contained backfill, to be six toeight feet. (Tr. 342.) A pipe was already in place from station 7+49.20 (Invert B-4) toInvert B-5.Roberto Velez, an employee of Bland, testified that, on the dayprior to the accident, he and some other employees were laying 200 feet of pipe in thearea of station 8+78.87, and the area of the D-3, D-4 and D-5 core borings as depicted onExhibit C-36. (Tr. 491-494.) Velez estimated the width at the top of the trench runningfrom D-3 to D-5 to be 5 feet. He said the depth of this same stretch of trench was 8-9feet. (Tr. 494.)Carl Raba testified that he walked to the area of station8+78.87 when he visited the site on April 25, 1987. He said the walls of the trench weresloped at one-to-one. (Tr. 858; 866-867.) Dr. Raba said that the trench walls appeared tobe composed of clays, \”stiff to very stiff in consistency.\” (Tr. 905.) Heclassified the soils as hard and compact with an angle of repose of 45 degrees, orone-to-one. (Tr. 905-906.)Discussion(a) Item 1(a): Points One and TwoThe main issue involves the composition of the trench walls atpoint one. Witnesses for each side testified that the material was not \”hard andcompact 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 mustshow that (1) the trench is at least five feet deep, (2) a significant portion of thetrench wall is composed of soft or unstable soil, and (3) the trench is neither shored norsloped appropriately from the bottom of the trench. John Jurgensen Co., supraat 1986 CCH OSHD ? 27,641, p. 35,964; National Industrial Contractors, supraat 1981 CCH OSHD ? 25,743, p. 32,132. \”Unstable soil\” is defined under1926.653(q) as \”Earth material, other than running, that because of its nature or theinfluence of related conditions, cannot be depended upon to remain in place without extrasupport, such as would be furnished by a system of shoring.\”It is uncontroverted that the 88 foot trench referred to initem 1(a) of the citation was over five feet deep and was not shored or sloped from thebottom. The trench walls were vertical. Employee access to the trench wasestablished.[[6]]The first question to be resolved is whether the trench wallsat point one were unstable (fractured) limestone or solid rock? If the former, Respondentviolated the standard by failing to shore or slope the trench walls; if the latter,Respondent was exempted from the shoring and sloping requirements of 1926.652(b) underTable P-1. Austin Bridge Co., 7 BNA OSHC 1761, 1766 n. 11, 1979 CCH OSHD ? 23,935at 29,022 n. 11 (No. 76-93, 1979).In determining the stability of the trench walls, it does notavail the Respondent that in the opinion of its employees the material at point one was\”hard.\” The testimony of expert witnesses called by both the Secretary and theRespondent establishes that hardness is only one factor in determining trench stability.Even Carl Raba (Respondent’s expert) agreed that the presence of fractures in the wall isa decisive factor. In examining the evidence, it is clear that the trench walls at pointone were highly fractured.Both Peter Allen, a geologist, and Bill Howard, a geotechnicalengineer, noted the presence of numerous fractures and discontinuities in the core boringstaken from the site. Although there is no evidence that these borings were notrepresentative of the actual trench materials, it must be noted that the C and D coreswere drilled approximately six months after the accident. Nonetheless, both men’s findingsare corroborated by photographic evidence taken of the trench at the time of the accident.These photographs reveal numerous fractures and discontinuities in the trench wall.Similarly corroborative is Dr. Allen Peck’s soil analysis of Field Sample No. 2. Dr. Peckconcluded that the material at point one was fractured with an angle of repose of 39degrees. (His findings are consistent also with the testimony of CO Padron, who said hecould break the material with his hands, and the testimony of Kevin MacDonnel, who saidthe material at point one was fractured.)Additionally, Bill Howard and Dr. Allen noted that the AustinChalk Formation is potentially unstable. Carl Raba did not disagree. Both Howard and Dr.Allen stated that the amount of fracturing (and instability) increases as one approaches afault zone. Gardner Atkinson, a mechanical engineer familiar with the geology of theCentrum 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 anotherindicator of its instability.Although the trench walls at point one are found to beunstable, no violation of 1926.652(b) can be established, however, unless it is also knownthat Bland could reasonably have known of this instability.Although Cravens and Dr. Raba said they did not believe theoperator would have seen any signs of instability, the Secretary’s evidence on this issueis more persuasive. The defects in the trench walls are apparent in the photographs of thesite as well as the video tape of recovery operations. (C.Br. 5.) Kevin MacDonnel, thevolunteer firefighter who observed the condition of the trench walls soon after theaccident, described them as having \”lots of cracks and fissures.\” AlthoughMacDonnel is not an expert, there is no reason to doubt his credibility. In any case, Dr.Allen testified that the fractures and discontinuities in the limestone were visible. Moretelling is the testimony of a former Bland employee with years of trenching experience.Artis Howard stated that he would not have sent employees into the trench given thecondition of the trench walls. (Tr. 516-517.)Given the above, it follows that Gregorio Reza, the personresponsible for sloping Respondent’s trenches (Tr. 261-262) and the person who observedthe condition of the trench walls prior to the accident, knew or should have known of thehazard of a cave-in. Similarly, Isidor Flores, Reza’s foreman who had stopped by theaccident site at least once that morning, was also on notice. (Tr. 260-261.) Because Rezaand Flores are both supervisors at the site, their knowledge may be imputed to BlandConstruction Company.Indeed, one may not even have to impute knowledge toRespondent: Respondent clearly established that it considered vertical trenching throughlimestone to be a very safe and accepted practice. (R.Br. 9-10; 14.) Respondent consideredthis procedure safe because it has had no injuries or failures (that it was aware of) inthe past. (R.Br. 9-10.) Be that as it may, the trenching standards are not based on howlong a trench will remain safe and stable. Sections 1926.652(b) and (c) unambiguouslyinform employers that some protection is required in any trench five feet or more in depththat is excavated in soil. Connecticut Natural Gas Corp, 6 BNA OSHC 1796, 1978 CCHOSHD ? 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 a cave-in at anygiven time and without warning. The employer is not given the option of guessing how longthe walls will remain stable. The employer is required to take protective measureswhenever the standards apply.Furthermore, even though Bland’s conduct may have conformed tonormal industry practice,[[7]] this is not relevant if the standard unambiguouslyprescribes 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 standardcited here is specific and unambiguous, the testimony as to industry practice is nodefense to the violation.Because a violation of 1926.652(b) was established at pointone, a discussion of a violation of the same standard at point two may appear needless.Suffice it to say, even if the trench wall material at point one were solid rock,therefore not required to be sloped under Table P-1, Respondent would still have been inviolation of 1926.652(b). Three of the four witnesses who saw the trench wall at point twosaid it was not laid back . The fourth witness, Artis Howard, equivocated on this issue;consequently, his testimony can be accorded little weight. As for the video taken by theAustin Fire Department, any apparent sloping of the east wall at the point of collapse wasdue to recovery efforts. Two witnesses -Eliot and MacDonnel- viewed the trench prior tothe commencement of recovery operations, and both men stated that point two was notsloped.Finally, the backhoe operator, Gregorio Reza, admitted that hehad not finished sloping the east wall prior to the cave-in.Because point two consisted of silty clay with an angle ofrepose of 32 degrees, it was unstable material under Table P-1, and thus needed to besloped. As the weight of the evidence establishes that it was not, a violation at pointtwo has been established.(b) Item 1(b): Points Three and FourIt is conceded that the trench was over five feet deep and thatit was not shored. Employee access to these trench areas was established by Roberto Velez,who had laid pipe at points three and four. The Secretary’s expert witnesses testifiedthat the material comprising the trench walls was silty clay. Silty clay is consideredunstable material under Table P-1 and is required to be shored and braced. Respondent’sexpert witness, Carl Raba, testified that the material at point three was clays,\”stiff to very stiff in consistency.\” He classified it as \”hard and compactsoil\” with an angle of repose of 45 degrees or one-to-one. However, clays arespecifically listed under Table P-1 as unstable material, thus 1926.652(b) is theapplicable standard.Even if Carl Raba’s classification of the material at pointthree is correct (and the applicable standard is 1926.652(c)), the weight of the evidenceestablishes that the trench walls were not sloped. The witnesses who viewed points threeand four on April 21 or 22, 1987 testified that the trench walls were vertical and notsloped. The only witness who testified otherwise was Carl Raba, and he visited the trenchsite on April 25, 1987. Thus, the evidence still favors the Secretary even if the standardat 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 violativecondition, yet did nothing to limit employee access to the trench, a violation of1926.652(b) has been proven.Nature of the ViolationThe Secretary originally considered the alleged violation to bea \”repeat\” violation. As previously indicated, the citation and complaint wereamended to alleged two willful violations of the trenching standards.A willful violation is one that is \”committed voluntarilywith either an intentional disregard for the requirements of the Act or with plainindifference to employee safety.\” A.C. Dellovade, Inc., 13 BNA OSHC —-, 1987CCH OSHD ? 27,786 (No. 83-1189, 1987); Asbestos Textile Co., 12 BNA OSHC 1062,1984 CCH OSHD ? 27,101 (No. 79-3831, 1984); D. A. & L. Caruso, Inc., 11 OSHC2139, 1984 CCH OSHD ? 26,985 (No. 79-5676, 1984.)A number of factors have been considered by the Commissiondeciding the issue of willfulness, including an employer’s knowledge of the standard; hisreason for noncompliance; good faith efforts made to comply; established procedures forcompliance; responsibility for compliance; previous violations of the same standard;warning from workers at the site; precautions taken to protect employees; the isolatedacts of employees or supervisors; and employee training. E.g., Asbestos Textile Co.,Inc., supra., Mobil Oil Corporation, 11 BNA OSHC 1700, 1983-84 CCH OSHD? 26,699 (No. 79-4802, 1983).Bland had been previously cited for violation of the samestandard in July 1986 (Ex.C-51; Tr. 447-450) and was therefore familiar with thestandard’s requirements. (Indeed, Joe Bland, the company president, testified that he readand understood OSHA’s trenching requirements. Tr. 593-594.) Additionally, WalterCunningham, the CO who had cited Bland for the 1986 trenching violations, testified thathe had held an informal conference with Respondent regarding the citations (Tr. 450-451),and that he had conducted a seminar for Bland employees explaining the trenchingregulations. In that seminar, which was held in July 1986, Cunningham specificallydiscussed Table P-1 and how to trench in rock. He informed Respondent that fractured rockis not solid rock and that Bland needed to take adequate protective measures. (Tr.453-454; 467-468.)Despite this, Respondent entrusted responsibility for slopingthe trenches to Gregorio Reza, who had received no trench safety training (other thanCunningham’s seminar), spoke no English and could not read or write. Whether or not Rezaunderstood the OSHA requirements is not apparent. What is apparent is that Reza continuedto trench vertically through fractured limestone, and that Respondent approved. Noadequate explanation was proffered for Bland’s failure to comply with the standard, otherthan it believed it was conforming to industry practice. However, the evidence regardingindustry practice indicates that area contractors do not vertically trench when trenchwalls are fractured and cracked. (Tr. 993-994; 1059-1060; 1068; 1094-1102.) And, asdiscussed supra, the walls of Respondent’s trench at point one were visiblyfractured. No explanation was offered for Bland’s failure to slope the trench at pointsthree and four.The above facts demonstrate that Bland either intentionallydisregarded the terms of the cited standard or was plainly indifferent to them.Consequently, the willful violations of 1926.652(b) will be affirmed. The proposed penaltyof $10,000 for item 1(a) and $10,000 for item 1(b) will similarly be affirmed.FINDINGS OF FACTAll findings of fact relevant and necessary to a determinationof the contested issues have been found specially and appear above. See Rule 52(a)of the Federal Rules of Civil Procedure. Proposed findings of fact of conclusions of lawthat are inconsistent with this decision are DENIED.CONCLUSIONS OF LAW1. The Commission has jurisdiction over the parties and subjectmatter of the proceedings.2. Respondent is engaged in a business affecting commerce andis an employer within the meaning of the Act.3. Respondent was in willful violation of 29 CFR ?1926.652(b)at the area described in Item 1(a).4. Respondent was in willful violation of 29 CFR ?1926.652(b)at the area described in Item 1(b).ORDERUpon the basis of the foregoing findings of fact, conclusionsof law, and the entire record, it is ORDERED that:Item 1(a) of the citation is affirmed, with a civil penalty of$10,000 imposed for the violation.Item 1(b) of the citation is affirmed, with a civil penalty of$10,000 imposed for the violation. Louis G. LaVecchia Judge, OSHRCDated: September 23, 1988FOOTNOTES:[[1\/]]The first citation item also alleged that the topsoilwhere the fatality occurred required protection, and the judge so found. Review was notdirected as to that finding.[[2\/]]Since the citation, the Secretary has enacted newstandards governing excavation safety (new Subpart P, entitled \”Excavations\”).The old standard, cited in this case, provided:Sides of trenches in unstable or soft material, 5 feet or morein depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means ofsufficient strength to protect the employees working within them. See Tables P-1, P-2(following paragraph (g) of this section).[[3\/]] On the basis of a city fire department video tape of therescue operation, Professor Allen testified that he ”thought\” he noticedfractures–\”but the video tape is a little fuzzy.\” On the basis of photographstaken by the local police, Professor Allen and engineer Howard opined that there werevisible fissures. President Bland disagreed: \”They were in the very most upperportions . . . . [T]he backhoe having dug for an hour and a half or two hours, [it] wouldhave probably . . . made an untold number of digging passes out of that trench, excavatinga shallow pass each time . . . . \”[[4\/]] Compliance Officer Cunningham testified that Bland’srequest was the first by an Austin-area contractor, and that it demonstrated interest inunderstanding the safety regulations. President Bland explained: \”I felt like we wereprobably unfamiliar with the laws as they existed, and it would be necessary to have thatseminar for us to become familiar.\” Attendance had been \”mandatory for anybodywho wanted to stay with our company,\” for [w]e had to learn to abide by the O.S.H.A.standards.\”[[5\/]]Consultant Raba interviewed Raba-Kistner’s Austin staff,two contractors, officials of Austin city agencies that employ trenching contractors andthe director of the Associated General Contractors (AGC) of Austin. He had previouslyviewed several vertical trenches in the Austin Chalk where, having considered any nearbyfaults and visible fractures, he had not recommended shoring or sloping.[[6\/]]The expert testimony affirmatively indicates that, in theAustin area, prior to Bland’s cave-in, there had not been any trenching failures ofvertical cuts, and we have no evidence of any failures. Bland had worked on nearbyprojects where trenches were approximately as deep as the bedrock trench in this case. Thelimestone was similar in appearance and there had been no signs of instability. Accordingto Bland’s president, approximately 75-80% of the company’s trenching work during the lastthree years, or approximately 1 million feet, had been in the Austin Chalk. Also, thecompany had been doing utility contracting since the late 1940’s without any otherfatality or \”disabling\” injury.[[7\/]] According to his testimony, President Bland, whenbidding on a project, judged the earth material by his own local experience and byobservation of nearby work by other trenching contractors. He, along with other localcontractors, believed that it was safe to make vertical trenches in the Austin Chalkbecause it was a \”commonplace practice,\” without any failures. In this vein, wenote civil engineer Howard’s testimony that successful experience with vertical limestonecould suggest that there was no reason to be concerned that it might prove to be unstable.[[8\/]] The Secretary, citing Donovan v. Capital City ExcavatingCo., 712 F.2d 1008, 1010 (6th Cir. 1982), and F.X. Messina Corp. v.OSHRC, 505 F.2d 701,702 (1st Cir. 1974), asserts that \”[g]ood faith is inapplicable to a determination ofwillfulness.\” We respectfully disagree. As the Supreme Court recently stated, where\”the standard for the statutory willfulness requirement is the ‘voluntary,intentional violation of a known legal duty,\”‘ the government has the burden of\”negating a defendant’s claim that because of a misunderstanding of the law, he had agood faith belief that he was not violating\” the law. Cheek v. U.S., 111 S.Ct. 604,610 (1991). Good faith is not inapplicable to the analysis.[[9\/]] Cf., Todd-Shipyards-Corp. v. Secretaryof\u00a0 Labor, 566 F.2d 1327, 1330 (9th Cir. 1978) (\”the six month statute oflimitations found in section 658(c) protects the employer, while the ‘reasonablepromptness’ language of section 658(a) is designed to protect the employee\”); CoughlinConstruction Co., 3 BNA OSHC 1636, 1638, 1975-76 CCH OSHD ? 20,106, p. 23,924 (No.5303, 1975) (\”If anybody is adversely affected by a delay in issuance of a citation,it is the employees who are exposed to the hazard [the Secretary] seeks toeliminate\”)[[10\/]] Rule 8(d) of the Commission’s Rules of Procedure, 29C.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 allowedbecause, upon deposition, the compliance officer had testified that he had not found anyviolations other than in the bedrock trench, examined during his inspection. Bland’sreview brief argues that the inspection did not provide notice to Bland that any areaother than the bedrock trench was being investigated. We note, however, that the Secretaryhas authority to issue citations \”upon . . . investigation. . . . \” See H.B.Zachry Co. 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 a dilatory motive on the part of themoving party or of prejudice to the opposing party’s ability to prepare for trial, areinsufficient grounds for denying an amendment. U., 803 F.2d 202, 210 (5th Cir. 1986).[[12\/]]Bland asserts that the judge erred in rulingimmediately, before having received Bland’s response. However, Rule 40(c) of theCommission Rules of Procedure, 29 C.F.R. ? 2200.40(c), provides: \”A proceduralmotion may be ruled upon prior to the expiration of the time for response. A partyadversely affected by the ruling may within five days of service of the ruling seekreconsideration.\” The judge forwarded a copy of his order to Bland, and uponreceiving Bland’s response, the judge considered and overruled it.[[13\/]]Bland argues that the Secretary failed to file a\”formal amendment.\” However, neither the Commission Rules nor the Federal Rulesof Civil Procedure require anything more than the filing of a motion and an amendedpleading, which the Secretary filed. Bland further argues that \”[n]o citation wasever issued, nor proper notice given, within six months of April 21, 1987.\” However,having been filed within the statutory limitations period, the Secretary’s \”AmendedComplaint\” 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 a citation toprovide actual notice of a claim). The Secretary’s \”Amended Complaint,\” togetherwith the Secretary’s \”Motion for Leave to Amend Complaint and Citation,\” gaveplain notice of an intent to cite a second claim relating to the one inspection. TheSecretary described the claim \”with particularity [as to] the nature of theviolation\” and the \”standard . . . alleged to have been violated.\” 29U.S.C. ? 658(a). If the description was insufficient, Bland could have filed a motion formore definite statement or a motion to dismiss for failure to state a claim upon whichrelief could be granted. See Fed.R.Civ.P. 12(e) & (b), respectively.\u00a0[[1]] In United Cotton Goods, supra, theCommission held that, in the absence of employer prejudice, it is appropriate to grant apretrial amendment and continuance to cure any resultant surprise.[[2]] Dr. Allen said these three borings were approximately thesame distance away from the fault as the trench in issue. Additionally, all three boringshad the same general relationship to the underlying shale, (Tr. 130.)[[3]] According to Dr. Allen, the rock quality designationmeasures the number of four inch pieces of intact rock all over the length of the core. Itis a ratio of these core lengths. A RQD of 0-25 denotes very poor 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 underlyingshale and past Balcones faulting. The underlying shale causes the chalk on top to becomebrittle and fracture. As for the past faulting, Dr. Allen testified that, typically, thecloser one gets to the fault, the greater the number of fractures. (Tr. 108-111.)[[5]] Even if the trench was dug in \”hard and compactsoil,\” some protection (e.g., shoring, sloping) would still be required under1926.652(c).[[6]] Although Gregorio Reza’s testimony indicated that Nazarioshould not have been in the trench (Tr. 260), this vague allegation of employee misconductcan be dismissed. Peza admitted that other employees had been in the trench performingtheir work earlier that morning. (Tr. 248.) Additionally, Roberto Velez testified that hewas working in that trench on April 21, 1987. (Tr. 499.) Thus, it is most likely thatNazario was only performing his work duties at the time of the fatal accident. In anycase, there is insufficient evidence to establish employee misconduct.[[7]] Respondent called several area contractors who testifiedthat vertical trenching through limestone is a common practice. (Testimonies of BrianSchnelle, Tr. 994; Al Haegelin, Tr. 1059-1060; Jay Watkins, Tr. 1068-1069.) However, theseindividuals also stated that if the trench wall was cracked or fractured, they would nottrench vertically. (Tr. 993-994; 1059-1060; 1068.) It might also be noted that the theSecretary’s rebuttal witness, Bob Long, a pipefitter welder with 25 years’ experience,said that most contractors do slope or shore trenches dug in hard limestone that are morethan five feet deep. (Tr. 1094-1102.)”