“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78-4725 CAPITAL CITY EXCAVATING CO., INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 August 22, 1980DECISIONBefore CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge Cecil L. Cutler, Jr. is before theCommission for review pursuant to section 12(j), 29 U.S.C. ? 661(i), of theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?).The judge?s decision in this case was directed for review by CommissionersBarnako and Cottine. Inasmuch as it is dispositive of the case, we address onlythe question of whether the judge erred in concluding that Respondent?s noticeof contest was timely filed under section 10(a) of the Act, 29 U.S.C. ? 659(a).We find that Respondent?s notice of contest was untimely and vacate the judge?sorder.??????????? Therecord discloses, and the judge found, that the citation and notice of proposedpenalty, sent to Respondent by certified mail, where delivered to a clericalemployee and receipt was acknowledged by her on September 13, 1978, aWednesday.[1] In an affidavit,Respondent?s corporate secretary stated that he received the citation andnotification of proposed penalty on September 15. Respondent?s written noticeof contest was dated October 6, 1978, and postmarked October 7, 1978. Relyingon Rule 4(d) of the Federal Rules of Civil Procedure[2] and the Commission?sholding in B.J. Hughes, Inc., 79 OSAHRC 49\/E6, 7 BNA OSHC 1471, 1979 CCHOSHD ? 23,675 (No. 76?2165, 1979) (?B.J. Hughes, Inc.?), thatcommencement of the period within which a notice of contest must be filedbegins with service upon an employee who is situated to bring the citation tothe attention of the appropriate corporate official, the judge concluded thatthe date of receipt by the corporate secretary on September 15, was the date ofeffective service. He found that the notice of contest was mailed October 6 andheld it to be timely.??????????? Whileconceding that one of its clerical employees received the citation andnotification on September 13, Respondent argues that an appropriate companyofficial did not receive the documents until two days later, so that thefifteen-day period did not begin to run until September 15. Respondent thusasserts that its notice of contest was timely filed.??????????? Thejudge?s reliance on Federal Rule 4(d) was misplaced and he misapplied theCommission?s holding in B.J. Hughes, Inc. We have held that, whenservice of a citation and notice of proposed penalty is made by certified mailas provided by section 10(a) of the Act, Rule 4(d)(3) is not applicable. JosephWeinstein Electric Corp., 78 OSAHRC 28\/A2, 6 BNA OSHC 1244, 1978 CCH OSHD ?22,526 (No. 14839, 1978). Section 10(a) of the Act provides:If, after an inspection or investigation,the Secretary issues a citation under section 9(a), he shall, within areasonable time after the termination of such inspection or investigation,notify the employer by certified mail of the penalty, if any, proposed to beassessed under section 17 and that the employer has fifteen working days withinwhich to notify the Secretary that he wishes to contest the citation orproposed assessment of penalty. If, within fifteen working days from thereceipt of the notice issued by the Secretary the employer fails to notify theSecretary that he intends to contest the citation or proposed assessment ofpenalty, and no notice is filed by any employee or representative of employeesunder subsection (c) within such time, the citation and the assessment, as proposed,shall be deemed a final order of the Commission and not subject to review byany court or agency.???????????? Whena notice of contest is filed untimely, the Commission is without jurisdictionto review the citation, which is final by operation of law pursuant to section10(a). Kerr-McGee Chemical Corp., 76 OSAHRC 129\/C14, 4 BNA OSHC 1739,1976?77 CCH OSHD ? 21,161 (No. 9890, 1976). Delivery of the citation and noticeof proposed penalty to an employer?s place of business and receipt by anemployee who accepts delivery of certified mail constitutes service on thecompany as of the date of initial receipt. See Henry C. Beck Co., 80OSAHRC ??, 8 BNA OSHC 1395, 1980 CCH OSHD ? 24,484 (No. 11864, 1980); B.J.Hughes, Inc., supra.??????????? Underthe facts of this case Respondent received the notice issued by the Secretaryon September 13. The fifteenth working day after Respondent received thecitation and notice of proposed penalty was Wednesday, October 4. Even ifRespondent?s notice of contest had been postmarked October 6, the day it isdated, it would not have been timely.??????????? Accordingly,we conclude that the Commission is without jurisdiction. The judge?s decisionin this case is vacated because the citations and proposed penalties becamefinal by operation of law.?SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: AUG 22, 1980?CLEARY, Chairman, concurring:I concur.\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78-4725 CAPITAL CITY EXCAVATING CO., INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 September 6, 1979DECISION AND ORDERAPPEARANCES:William S. Kloepfer, Associate RegionalSolicitor, U. S. Department of Labor, Cleveland, Ohio, by Benjamin Chinni,Esquire, for the complainant.\u00a0Roger L. Sabo, Esquire, Knepper, White,Arter and Hadden, Columbus, Ohio, for the respondent.\u00a0Cutler, Judge??????????? Followingan inspection of its work site on September 5, 1978, in Columbus, Ohio, CapitalCity Excavating Company, Inc., (hereinafter Capital City) was cited fortrenching violations pursuant to section 9(a) of the Occupational Safety andHealth Act of 1970 (29 U.S.C. 651, et seq., hereinafter the ?Act?).??????????? Specifically,Capital City is charged as follows:1a ?29 CFR 1926.652(c):[3] The side(s) of thetrench(es) in hard or compact soil, including embankment(s), were not shored orotherwise supported when the trench was more than 5 feet in depth and more than8 feet in length:a) For the north and east walls at thenorth end of the trench.?1b ?29 CFR 1926.652(e):[4] Additional precautions byway of shoring or bracing were not taken to prevent slides or cave-ins wheretrench(es) were made adjacent to backfilled excavations, or where excavationswere subjected to vibrations from railroads or highway traffic, operation ofmachinery, or any other source(s):a) For the west wall at the north end ofthe trench.????????????? Theviolations are alleged as serious with a proposed penalty of $550.??????????? Ahearing was held in Columbus, Ohio, on May 1, 1979. No affected employee orauthorized employee representative elected to participate as a party.??????????? Thereis no issue as to jurisdiction in that respondent admits that its employeeswere and are regularly and customarily engaged in the handling and working onof steel, aluminum and other materials which have been moved in interstatecommerce (Respondent?s Answer).I??????????? Priorto filing his complaint, the Secretary filed a Motion to Dismiss Respondent?sNotice of Contest. It is alleged that Capital City?s Notice of Contest wasmailed three days subsequent to the expiration of 15 working days from the dateof serviced of the citation upon it.[5]??????????? Thefile reflects a date of delivery of September 13, 1978, with a signature of?Sharon Fiest? on the citations. The Notice of Contest is dated October 6,1978, and its envelope is postmarked October 7, 1978.??????????? Respondent?sopposition to the motion contains the affidavit of Mr. Ralph Walls, who deposesthat he is respondent?s secretary and, as such, is responsible for reviewingincoming mail and distributing it to the proper personnel within the company.He avers that he received the citation on September 15, 1978, as evidenced bythe date stamp he used. In the normal course of events, he would then havetransmitted the notice to the president of the company. Sharon Fiest is anoffice clerical employee and not an authorized agent, managing officer, orofficial of the company.??????????? Mr.Walls further deposes that the Notice of Contest was prepared by the company onOctober 6, 1978, and deposited in the postal substation that evening. Saturday,October 7, was not a work day for the company.??????????? Complainant?sMotion to Dismiss was denied by Judge Irving Sommer on November 21, 1978. Atthe hearing, the parties had no additional evidence or argument on the motionor ruling.??????????? Subsequentto the hearing of the case, the Commission in Keppel?s Incorporated, ??OSAHRC ??, (Docket No. 77?3020, dec. June 12, 1979,) overruled its priordecisions to the effect that filing a notice of contest after the 15-day periodprescribed in section 10 of the Act was not necessarily an ?impenetrablebarrier? to Commission jurisdiction. Keppel?s now mandates that a notice ofcontest must be in writing and a notice of contest not filed within 15 workingdays from receipt of the notice issued by the Secretary is invalid unless theemployer can show the delay in filing its notice of contest was caused by theSecretary?s deception or failure to follow proper procedures.??????????? Accordingly,since a jurisdictional issue is involved, it is appropriate to reevaluate theprior ruling in this case.??????????? First,as to the date of receipt of the citation, the Secretary points to the date itwas delivered to the company. However, Mr. Walls, the first responsibleofficial of the company authorized to receive service of process, did not getthe notice until September 15, two days later. Rule 4(d) of the Federal Rulesprovides that Service shall be made . . . (3) Upon a . .. corporation . . . by delivering a copy of the summons and of the complaint toan officer, a managing or general agent, or to any other agent authorized byappointment or by law to receive service of process . . ..\u00a0This is consistent with the Commission?s view thatservice upon an employee who is situated to bring the citation to the attentionof the appropriate corporate official will satisfy the test for proper service.B. J. Hughes, Inc., ??, OSAHRC ?? (Docket No. 76?2165, dec. June 29,1979).??????????? Therefore,using September 15 as the starting date, the first working day thereafter wouldbe September 18. By computation, thereafter the fifteenth day would fall onFriday, October 6, 1978. According to Mr. Walls, the Notice of Contest wasdeposited in the post office that evening although not postmarked until thefollowing day.??????????? TheAct requires Notices of Contest to be filed within 15 days. However, theCommission has ruled that, when an employer?s letter of contest was mailed onthe 15th day following receipt of citation but not postmarked until thefollowing day, this constitutes a timely Notice of Contest within section 9(a)of the Act. J. D. Blum Construction Co., 76 OSAHRC 58\/D14.4 BNA OSHC1255, 1976?77 CCH OSHD ?20,735.??????????? Consideringthe foregoing, I find respondent?s Notice of Contest to have been timely filed.II??????????? Turningto the substantive matters in issue, respondent is charged with a two-prongedtrenching violation which stemmed from an inspection of its work site inColumbus, Ohio, on September 5, 1978. On that day, OSHA Compliance OfficerRobert Compton visited the location where Capital City, a general constructioncontractor, was engaged in setting manholes in sewer lines (Tr. 12?13).??????????? Accordingto Mr. Compton, at this spot location Capital City had employees working in a90-foot-long trench paralleling an adjacent roadway. At the north end of thetrench, he observed and photographed two Capital City employees cementing amanhole. By measurement he ascertained that that portion of the trench was 14feet deep, 14 feet wide at the top, and 6 feet wide at the bottom (Ex. 5?7; Tr.13, 29). He took no measurements at the five-foot level of the trench and hewas only concerned with the 13-foot segment of the north end (Tr. 64). The soilat the west wall of the north end, having been previously backfilled, was amixture of sand and grit. The east and north walls were composed of hardcompact soil (Tr. 13?14).??????????? Mr.Compton also testified he observed undercutting on the northwest corneradjacent to where the manhole was being installed. At that location, the trenchwas not sloped or shored (Ex. 10; Tr. 30?31). The west wall, which ran parallelto the roadway, was not sloped, had an overhang and was not shored. The soilwas composed of loose sand and grit because it had been previously backfilledfrom a prior excavation (Ex. 11; Tr. 33, 39, 85). He observed vehicles thatemployees were driving and one or two dump trucks traveling past the area (Tr.40). A backhoe was parked at the north end of the trench which he determinedhad been used to open the trench (Tr. 41). In his opinion, the vibrations fromthe moving vehicles could cause a slide, collapse or cave-in of the walls (Tr.45). However, he stated on cross-examination that he neither felt vibrationsnor tested for any (Tr. 82).??????????? Respondentpresented evidence to rebut the allegations that the hazardous conditions existedand that it was in violation of the cited standards.??????????? Themanhole being constructed was two to three feet from the north wall (Tr. 108).A four-foot section had already been put in place over a six-inch base and theemployees were working on the next segment (Tr. 105). The manhole was beingplaced directly next to an existing manhole that dominated the west wall of thearc of the trench in question (Tr. 39, 165). This existing manhole was made ofconcrete and its measurements ranged from two feet, two inches, at the top tofour feet at the bottom (Tr. 113, 122).??????????? Atrench box and sheeting were available at the jobsite, but the company did notdeem these protective provisions were necessary because the trench was dug inaccordance with proper procedures. Its employees would not have worked in atrench they thought was unsafe (Tr. 99, 110?111, 121, 129).??????????? Asfor the adjacent roadway, respondent?s evidence is to the effect that thestreet was barricaded to halt through traffic. At the time of the inspection,no equipment was running through the project and the backhoe was not in use(Ex. 10; Tr. 74, 109, 111, 128). No vibration test was taken of the area andthe compliance officer felt no vibrations (Tr. 82).III??????????? Itemla of the citation alleges that the north and east walls at the north end ofthe trench in question were not shored or otherwise supported as required under29 C.F.R. ? 1926.652(c). The cited regulation requires that sides of trenchesin hard or compact soil should be shored and, if not, should be sloped abovethe five-foot level on a ratio no steeper than a one-foot rise to eachhorizontal one-half foot. Measurements taken by Mr. Compton indicate the13-foot length of the trench with which he was concerned was 6 feet wide at thebottom and 14 feet wide at the top.??????????? Giventhese dimensions, the trench would have had to be 15 feet wide at the top tocomply with the regulations.??????????? Fromexamination of the photographs and evaluation of the evidence, it appears thatthe west wall was properly graded but that the east wall was not sloped to theone-half-to-one ratio required by the regulation. This is in effect conceded bytwo Capital City witnesses. One testified the slope was two or three feet (Tr.122) and the other said it was about four feet (Tr. 136). The complianceofficer testified the wall was vertical (Tr. 19, 65, 80, 91?92). Examination ofthe photographs depicting the east wall (Exs. 1, 4, 5, 8) clearly indicates theangle was, if not vertical, at least close to it. In any event, it was not slopedto the angle required by the regulations.??????????? Asfor the north wall, Mr. Compton testified that it was not sloped and it wasundercut which resulted in an overhang (Tr. 21, 39?31). However, according torespondent?s foreman and another worker on the site, the north end was sloped.It was necessary that this be done in order for the backhoe operator to see thetrench (Tr. 108, 128). The photographs (Exs. 5, 6, 9, 10) are of littleassistance in determining whether the wall was sloped.??????????? Consideringthe conflicting evidence, I cannot conclude that the Secretary has establishedthat the north wall was not sloped.??????????? Item1b of the citation charges that respondent did not take additional precautionsby way of shoring or bracing for the west wall at the north end of the trenchto prevent slides, or cave-ins caused by backfilled excavations or vibrationsfrom traffic or machinery operation.??????????? Accordingto Mr. Compton, the west wall was not sloped and it had an overhang. He alsotestified that the soil was composed of loose sand and grit although he took nosamples of the soil[6](Tr. 82).??????????? Mr.Compton testified that he observed vehicles of employees and one or two dumptrucks traveling on the adjacent roadway. However, he neither felt vibrationsnor tested for any.??????????? Respondentpresented evidence that the road was closed and no traffic was passing by. Thebackhoe was sitting back several feet (Tr. 128). The west wall was sloped asevidenced by the position of a ladder depicted in exhibit 11.??????????? Inorder to establish a violation of 29 C.F.R. ? 1926.652(e), the Secretary mustprove the existence of a hazard which would require additional precautions inthe west wall of the trench. In E. L. Dalton & Co., 77 OSAHRC 41\/A2,5 BNA OSHC 1215, 1977?78 CCH OSHD ?21,690, the Commission ruled that evidencethat two large cement trucks traveling on an adjacent road and a rail linelocated 50 feet away from the trench in question was not sufficient toestablish a need for shoring or bracing of the trench in order to comply with29 C.F.R. ? 1926.652(e), absent evidence that the inspector tested forvibrations or felt vibrations in the area at the time of the inspection.??????????? Thislack of evidence that actual vibrations were created led to the Commissiondecision affirming the vacation of a violation of 29 C.F.R. ? 1926.651(q).[7]??????????? Thereis no evidence in this case that the minor traffic that passed in the adjacentroadway or the operation of the backhoe caused any vibrations such as wouldcause a cave-in or collapse of the trench. There is evidence of an overhang,but this appears at the top of the trench, and the photographs (Ex. 6, 8, 11)indicate it is minimal. Further, it appears that in the area where the men wereobserved to be working by Mr. Compton, the existing manhole afforded protectionsimilar to shoring (Tr. 95).??????????? Althoughcomplainant?s case is premised upon the vibration theory, the cited regulationalso specifies that shoring or bracing should be done where trenches were madenext to backfilled excavations.??????????? Sincehe did not go down into the trench (Tr. 17), Mr. Compton based his conclusionthat the soil was sand and grit because the west wall was previously backfilled(Tr. 14, 39). Other than this passing reference, the record is devoid ofevidence as to any prior backfilling other than the obvious fact thatinstallation of the existing manhole and pipe at some point in time in the pastrequired some excavation work. Thus, there is no evidence as to when theprevious excavation was done[8] or how.[9]??????????? Consideringall of the evidence, I cannot conclude that a violation has been established.IV??????????? Subsequentto the hearing, both sides presented various motions. One by respondent tocorrect the transcript was not objected to by complainant and it is,accordingly, granted. Complainant moved for leave to file findings of fact andconclusions of law out of rule. Respondent has not filed an objection to thismotion. Accordingly, it is granted. Finally, respondent filed a motion thatthis judge be disqualified alleging that he had predetermined the results ofthe case to the detriment of respondent. This motion is specious and is denied.Careful examination of the transcript reflects that the inquiries made did notreflect a predetermined attitude and were aimed only to develop the record.V??????????? Asheretofore noted, respondent has been found to have failed to comply with theprovisions of 29 C.F.R. ? 1926.652(c). The violation is alleged as serious.Respondent argues, however, that there is no showing of the probability ofdeath or serious bodily harm. In his testimony, Mr. Compton stated there wasdefinite hazard from collapse, slide or cave-in of the walls (Tr. 45). Commonsense dictates that collapse of a trench wall 14 feet high would cause death orserious injury.??????????? TheSecretary has proposed a penalty of $550 for the combined violations alleged.One of these has been vacated as well as the part of the other relative to thenorth end of the trench. Respondent produced evidence concerning its safetytraining program which is conducted on a regular weekly basis (Tr. 109, 110,126). Also, respondent?s foreman in good faith believed the trench to be safeenough that shoring or other support was unnecessary. Finally, it is noted thatthe width of the trench at the top fell only one foot short of that requiredunder the regulations. The probability of an accident occurring is, therefore,low. Considering the above and the statutory factors, I conclude that a penaltyof $50 is appropriate.??????????? Ireach the following findings of fact and conclusions of law:FINDINGS OF FACT??????????? 1.Respondent, Capital City Excavating Company, Inc., a general constructioncontractor, was engaged in setting manholes in a sewer project in Columbus,Ohio, on September 5, 1978, when it was inspected by a compliance officer forthe Secretary.??????????? 2. Onthat date, two of respondent?s employees were installing a sewer next to anexisting sewer in the north end of a 90-foot-long trench. At the point wherethey were working, the trench was 6 feet wide at the bottom, 14 feet wide atthe top and had a depth of 14 feet. The soil was hard and compact.??????????? 3. Atthe 13-foot end of the trench at the north wall, the west wall was not slopedto an angle of one-half to one. Although the probability was very low, acave-in or collapse of the wall could result in death or serious bodily harm.??????????? 4.The evidence is insufficient to establish that the north wall also was notsloped to that angle.??????????? 5.The trench at that point was not shored or otherwise supported by artificialmeans except for some protection afforded by the existing manhole.??????????? 6.The west wall which ran parallel to a roadway south from the location of theexisting sewer was not sloped, shored or braced. At the time of the inspection,one or two dump trucks and employee vehicles had been operated on the roadway,but it was closed to other traffic. A backhoe was parked several feet from thenorth end. There was no evidence of vibration from the traffic or equipment.There is also no evidence as to when or how a previous excavation was done.??????????? 7.Respondent conducted safety meetings with employees on a regular weekly basis.CONCLUSIONS OF LAW??????????? 1.Respondent is an employer engaged in a business affecting interstate commerceand this Commission has jurisdiction over the subject matter and parties tothis action.??????????? 2. Onthe date and place in question, respondent was in violation of article 5(a)(2)of the Act by failing to comply with provisions of 29 C.F.R. ? 1926.652(c) withrespect to the east wall of the north end of the trench in issue but not withrespect to the north wall.??????????? 3. Onthe date and place in question, respondent was not in violation of article5(a)(2) of the Act by failing to comply with the provisions of 29 C.F.R. ?1926.652(e).??????????? Basedupon the foregoing findings of fact and conclusions of law, Item 1a, asamended, of Citation Number 1 for a serious violation is affirmed and a penaltyof $50 is assessed therefor. Item 1b of Citation Number 1 is vacated.?SO ORDERED.?Dated this 6th day of September, 1979.CECIL L. CUTLER, JR.Judge[1] Respondent arguesthat the photocopy of the certified mail receipt signed by Sharon Feist andattached to the Secretary?s motion to dismiss is not in evidence and was notauthenticated. We disagree.The photocopy was attached to theSecretary?s motion to dismiss, was marked as ?Exhibit A,? and Specifically wasreferred to in the Secretary?s memorandum in support of his motion. Rule 71(b)of the Commission?s Rules of Procedure, 29 C.F.R. ? 2200.71(b), provides, ?Inthe absence of objection by another party or intervenor, exhibits shall beadmitted into evidence as a part of the record, unless excluded by the Judgepursuant to ? 2200.72.? The photocopy was marked as an exhibit and wassubmitted to the judge in support of the motion to dismiss. There was noobjection to the exhibit, and the judge did not exclude it. The motion, alongwith its exhibit, is part of the record in this case and, thus, is before us.?Hearings before the Commission andits Judges . . . insofar as practicable shall be governed by the rules of evidenceapplicable in the United States District Courts.? Commission Rule 72; 29 C.F.R.? 2200.72. Rule 1003 of the Federal Rules of Evidence provides that, ?Aduplicate is admissible to the same extent as an original unless (1) a genuinequestion is raised as to the authenticity of the original or (2) in thecircumstances it would be unfair to admit the duplicate in lieu of theoriginal.? Under Rule 901 of the Federal Rules of Evidence, ?The requirement ofauthentication . . . is satisfied by evidence sufficient to support a findingthat the matter in question is what its proponent claims.? Only a generousreading of Respondent?s brief on review would support the notion that a genuinequestion of authenticity has been raised concerning the photocopy at issue. Inany event, we conclude that the record supports a finding that the photocopy iswhat the Secretary claims. The affidavit of Mr. Walls acknowledges that SharonFeist is an office clerical employee of Respondent. Respondent does not claimthat Sharon Feist did not receive the citation and sign for it on September 13,1978. The requirement of authentication has been satisfied, and the photocopyis otherwise admissible. Furthermore, we conclude that it would not be unfairto admit the photocopy under the circumstances of this case.[2] Rule 4(d)provides in pertinent part:(d)Service shall be made as follows: . . .(3)Upon a domestic or foreign corporation . . . by delivering a copy of thesummons and of the complaint to an officer, a managing or general agent, or toany other agent authorized by appointment or by law to receive service ofprocess . . ..[3] This subsection,29 C.F.R. ? 1926.652(c), states:Sidesof trenches in hard or compact soil, including embankments, shall be shored orotherwise supported when the trench is more than 5 feet in depth and 8 feet ormore in length. In lieu of shoring, the sides of the trench above the 5-footlevel may be sloped to preclude collapse, but shall not be steeper than a1-foot rise to each 1\/2-foot horizontal. When the outside diameter of a pipe isgreater than 6 feet, a bench of 4-foot minimum shall be provided at the toe ofthe sloped portion.[4] 29 C.F.R. ?1926.652(e) states:Additionalprecautions by way of shoring and bracing shall be taken to prevent slides or cave-inswhen excavations or trenches are made in locations adjacent to backfilledexcavations, or where excavations are subjected to vibrations from railroad orhighway traffic, the operation of machinery, or any other source.[5] Section 10(a) ofthe Act provides, as pertinent here, thattheemployer has fifteen working days within which to notify the Secretary that hewishes to contest the citation or proposed assessment of penalty.? Further, ifno notice is so filed, ?the citation and the assessment, as proposed, shall bedeemed a final order of the Commission and not subject to review by any courtor agency.[6] Respondentobjected to any characterization of the soil and claimed surprise. However, aspointed out at the hearing, 29 C.F.R. ? 1926.652(e) does not mention any typeof soil as does subparagraph (c). Consideration of the type of soil is veryrelevant in connection with factors of vibration and undercutting.[7] This section, 29C.F.R. ? 1926.651(q), reads:Ifit is necessary to place or operate power shovels, derricks, trucks, materials,or other heavy objects on a level above and near an excavation, the side of theexcavation shall be sheet-piled, shored, and braced as necessary to resist theextra pressure due to such superimposed loads.[8] In the recentlyissued decision, W. G. Stang Construction, ?? OSAHRC ??, (Docket No.78?4835, dec. August 20, 1979), Judge Burroughs found no violation of 29 C.F.R.? 1926.652(e) where evidence was presented that, after a number of years thesoil in a backfilled trench had resumed its critical undisturbed degree ofcompaction.[9] In CedarConstruction, 77 OSAHRC 63\/A2, 5 BNA OSHC 1311, 1977?78 CCH OSHD?\u00a021,772, the Commission affirmed a violation where a gas line ranperpendicular to the trench. However, where there would only be a cross-sectionof a previous excavation, the danger of a slide or cave-in would be minimalwhen compared to a backfill excavation which runs for some distance adjacent tothe trench.”