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The Judge relied on our decision in\t\t\t\t\t\tChicago Bridge & Iron Company, 6 OSAHRC 244,\t\t\t\t\t\tBNA\t\t\t\t\t\t1 OSHC 1485, CCH E.S.H.G. para. 17,187 (1974), appeal docketed, No. 74\u20131214 (7th Cir., March 18, 1974), where we held that, absent exceptional circumstances, a citation should issue within three working days of the time that Labor\u2019s authorized representative forms his belief that a violation exists. We have reviewed the record and conclude that the citation was timely issued within the rule of\t\t\t\t\t\tChicago Bridge & Iron. We therefore reverse the judge\u2019s decision.\t\t\t\t\t\t\t\t\t\tThe relevant facts are as follows. Two of Respondent\u2019s worksites were inspected by Labor\u2019s compliance officer on November 1, 1973. Trenching operations were being conducted at both locations. During the inspections, the compliance officer concluded that the trenches failed to comply with 29 C.F.R. 1926.652(b), which prescribes requirements for shoring or sloping the sides of trenches dug in soft or unstable soil. He took soil samples from both trenches. The samples were sent to a laboratory for analysis.\t\t\t\t\t\t\t\t\t\tOn the same day he conducted the\t\t\t\t\t\tinspections,\t\t\t\t\t\tthe compliance officer reported to Labor\u2019s area director and stated his belief that violations existed. The area director testified that he probably \u2018agreed in substance,\u2019 but that he also thought \u2018there would have to be other things taken into consideration.\u2019 Specifically he wanted to wait for the results of the soil tests and he said that the tests could influence his judgment as to whether a violation existed. The results were received on November 16, a Friday. On November 20, the following Tuesday, the area director issued two citations alleging serious violations of the trenching standards at the worksites.\t\t\t\t\t\t\t\t\t\tThe judge concluded that the area director decided to issue the citations where he discussed the matter with the compliance officer on November 1. We have noted, however, that the rule of\t\t\t\t\t\tChicago Bridge & Iron\t\t\t\t\t\tshould not be construed to involve the Commission or its judges in second guessing as to the time a person authorized to issue citations should have formed his belief that a violation existed.\t\t\t\t\t\tJulius\t\t\t\t\t\tNasso\t\t\t\t\t\tConcrete Corp., 15 OSHRC 459, BNA 2 O.S.H.C. 1590 CCH E.S.H.G. para. 16,526. (Feb. 6, 1975). In this case it appears that the area director formed a tentative belief that violations existed on November 1. The belief was tentative as opposed to being final since the results of the soil tests could have persuaded him not to issue one or both citations. Thus even though a tentative belief had been formed the investigative process was not completed by November 1. To vacate in these circumstances is to second guess the investigative process merely because the citations did issue.\t\t\t\t\t\t\t\t\t\tAs the citations were issued within three working days of the date the area director received the soil test report, we conclude that they were issued with reasonable promptness.1\t\t\t\t\t\tWe reverse the judge\u2019s holding to the contrary. The judge did not reach the merits of the citation, and we cannot do so on this record. The evidence as to the dimensions of the trenches, and the nature and stability of the soil is conflicting. These issues must be resolved on credibility findings, and these are to be made by the trial judge.\t\t\t\t\t\t\t\t\t\tAccordingly, the matter is remanded for such further proceedings as are necessary and consistent with this decision. It is so ORDERED.\t\t\t\t\t\t\t\t\t\tCLEARY, COMMISSIONER, concurring:\t\t\t\t\t\t\t\t\t\tI concur with Commissioner Van\t\t\t\t\t\tNamee\t\t\t\t\t\tin the disposition of this matter for the reasons set forth in my dissenting opinion in\t\t\t\t\t\tChicago Bridge & Iron Co., No. 744 (January 23, 1974), petition for review docketed, No. 74\u20131214, 7th Cir., March 18, 1974.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMORAN, CHAIRMAN, dissenting:\t\t\t\t\t\t\t\t\t\tThe lead opinion makes a strained reading of the evidence in order to reverse the decision below. I believe an objective analysis of the testimony mandates affirmance.\t\t\t\t\t\t\t\t\t\tOn November 1, 1973, complainant\u2019s authorized representative inspected the worksite herein, concluding therefrom that \u2018violations had occurred.\u2019 That conclusion was reported to the area director (his immediate superior) that afternoon and he concurred therewith at that time. The citation, however, was not issued until November 20.\t\t\t\t\t\t\t\t\t\tDespite the 20 day lapse between inspection and the issuance of a citation, Commissioner Van\t\t\t\t\t\tNamee\t\t\t\t\t\tconcludes that the area director did not formulate his\t\t\t\t\t\tbelief that violations existed2\t\t\t\t\t\tuntil November 16, because prior thereto his opinion was\t\t\t\t\t\t\t\t\t\ttentative\t\t\t\t\t\tas opposed to being final since the results of the soil tests could have persuaded him not\t\t\t\t\t\tto issue one or both citations.3\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tI submit that this conclusion results from a misreading of the testimony. The record shows that (1) the determination to issue a citation was made on November first, and (2) no exceptional circumstances existed for delaying its issuance until November twentieth.4\t\t\t\t\t\t\t\t\t\tThe area director gave the following testimony in regards to the 20 day lapse between inspection and issuance of the citations:\t\t\t\t\t\t\t\t\t\tQ. Were there any particular problems why we have a lapse from November 1 to November 20 . . . ?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. No, the circumstances were such that we didn\u2019t give this particular inspection priority treatment and we were waiting for the soil sample to get back.\t\t\t\t\t\tHad we not gotten the soil sample, we would have sent [the citation] . . . out without the soil sample within the time frame. (emphasis\t\t\t\t\t\tadded)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. In other words, you would have issued a citation whether you got a soil sample or not?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA.\t\t\t\t\t\tIf the soil sample was different from the citation, we would amend it.\t\t\t\t\t\t(emphasis\t\t\t\t\t\tadded)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tHe further testified as follows:\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tQ. Is there a possibility that the citation would not have been issued after examining the soil analysis report?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. Possibly, yes, possibly.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. Did this influence your thinking at all?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. No.5\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThis testimony clearly indicates that the area director decided to issue the citation on November 1. If the soil test results were different than expected, an amendment to the citation he issued would have been offered at a later date.\t\t\t\t\t\t\t\t\t\tIt therefore becomes a question of whether the record indicated that \u2018exceptional circumstances\u2019 existed for this delay. I find no such evidence. In fact, testimony from the area director indicates a general disregard of the three day rule set forth in Chicago Bridge, supra. He stated that\t\t\t\t\t\t\t\t\t\t[w]e have an administrative policy passed on to us from higher headquarters, the Regional, that we must develop these cases and mail it to the employers within\t\t\t\t\t\tfifteen working days.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThis policy neither comports with issuing a citation with reasonable promptness, nor does it constitute \u2018exceptional circumstances\u2019 for not so issuing.\t\t\t\t\t\t\t\t\t\tI therefore believe that Judge\t\t\t\t\t\tRisteau\u2019s\t\t\t\t\t\tdismissal below was correct and should be affirmed.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Complainant,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t v.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOSHRC DOCKET NO. 5724, 5725\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCHARLES COHEN, INC.,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Respondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tAugust 29, 1974\t\t\t\t\t\t\t\t\t\tRISTEAU, JUDGE:\t\t\t\t\t\t\t\t\t\tThese are proceedings pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act), contesting citations issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of that Act. The citations allege that as the result of inspections on November 1, 1973, of workplaces under the ownership, operation or control of the respondent, located at: 1. (No. 5724) Lone Star Park, Hampton and Commerce, Dallas, Texas, and described as \u2018Charles Cohen, Inc.\u2019 and 2. (No. 5725) East of Westmoreland, south of Toll Road, Dallas, Texas, and described as \u2018Charles Cohen, Inc.,\u2019 respondent violated section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.1\t\t\t\t\t\t\t\t\t\tThe citations, which were issued November 20, 1973, allege that violations resulted from a failure to comply with the following standards promulgated by the Secretary by publication in the Federal Register, and codified in 29 CFR 1926.\t\t\t\t\t\t\t\t\t\tSERIOUS VIOLATION (No. 5724)\t\t\t\t\t\t\t\t\t\tStandard\u2014Description\u201429 CFR 1926.652(b)\u2014Sides of trench in unstable material at the following location were not shored, sheeted, braced, sloped, or otherwise supported to protect the employees working within it: Lone Star Park, Hampton Road, west of Commerce.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe cited Regulation reads as follows:\t\t\t\t\t\t\t\t\t\tStandard\u2014Description\u20141926.652(b)\u2014Sides 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. . . .\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tSERIOUS VIOLATION (No. 5725)\t\t\t\t\t\t\t\t\t\tStandard\u2014Description\u201429 CFR 1926.652(b)\u2014Sides of trench in unstable material at the following location were not shored, sheeted, braced, sloped, or otherwise supported to protect the employees working within it: East of Westmoreland and south of Toll Road, Dallas Exit.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe cited Regulation is the same as for No. 7524.\t\t\t\t\t\t\t\t\t\tPursuant to the enforcement procedure set forth in section 10(a) of the Act, respondent was notified by letters dated November 20, 1973, from Charles J. Adams, Director of Area 1730, Occupational Safety and Health Administration (OSHA), U.S. Department of\t\t\t\t\t\tLabor, that\t\t\t\t\t\the proposed to assess penalties in the following amounts.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tSERIOUS VIOLATION (No. 5724)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0$ 500\t\t\t\t\t\t\t\t\t\tSERIOUS VIOLATION (No. 5725)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0$ 500\t\t\t\t\t\t\t\t\t\tTotal\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0$1000\t\t\t\t\t\t\t\t\t\tAfter respondent contested these actions and complaints had been filed, the matter came on for hearing at Dallas, Texas, on April 16\u201317, 1974. No question concerning the respondent\u2019s status as an employer as defined in the Act or the jurisdiction of this Commission has been raised.\t\t\t\t\t\t\t\t\t\tDISCUSSION, FINDINGS, AND CONCLUSIONS\t\t\t\t\t\t\t\t\t\tRespondent has timely moved to dismiss these cases on the ground that complainant did not issue the citations with \u2018reasonable promptness\u2019 as required by section 9(a) of the Act. The Commission decision in\t\t\t\t\t\tSecretary v. Chicago Bridge and Iron Company, No. 744, January 24, 1974, interprets that term in the following manner:\t\t\t\t\t\t\t\t\t\t. . .\t\t\t\t\t\tabsent\t\t\t\t\t\texceptional circumstances Complainant or his authorized representative must perform the ministerial tasks involved in issuing a citation within 72 hours from the time he has formed his belief that a violation has occurred. We assume that Congress did not intend weekends or holidays to be included within the 72 hour period so the period prescribed here is three working days.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe inspections here were made on November 1, 1973. On the same date the complainant\u2019s compliance officer determined that the Act had been violated and reported that fact to the OSHA Area Director, who concurred with his recommendations.\t\t\t\t\t\t\t\t\t\tOn November 20, 1973, some 11 work days after this decision, Mr. Adams issued the citation. No \u2018exceptional circumstances\u2019 were shown for the issuance of the citation after the 72 hour period. In fact the Area Director testified that his office, as a matter of policy, attempts to process and issue citations within 15 working days, as was done in the present case.\t\t\t\t\t\t\t\t\t\tOn these facts, the undersigned is constrained to find that the citations were not issued with reasonable promptness, as that term is construed in Chicago Bridge and Iron. In view of this finding, which requires dismissal of the citations, other defenses raised by respondent will not be discussed.\t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\tFor the foregoing reasons and on the entire record, it is hereby ORDERED, that the citations issued to respondent on November 20, 1973, which form the basis of Commission Docket Nos. 5724 and 5725 be DISMISSED and the proposed penalties vacated.\t\t\t\t\t\t\” \t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1 \t\t\t\t\tLabor also contends that Respondent did not raise the reasonable promptness defense in a timely manner and therefore waived it. It is true that the issue was not raised in the issue formulation stage, as required by\t\t\t\t\t\tChicago Bridge & Iron Co., supra. Labor, however, fully participated in the trial of the facts relevant to this issue, and can be considered to have tried the issue by consent. Because of our disposition, we need not consider whether the question is properly presented on this record.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2 \t\t\t\t\tWe held in\t\t\t\t\t\tChicago Bridge, supra, that \u2018reasonable promptness\u2019 under 29 U.S.C. \u00a7 658(a) means that citations must be issued within three working days after the area director formulates his belief that a violation occurred unless the record indicates exceptional circumstances for the delay.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3 \t\t\t\t\tThe issue of \u2018reasonable promptness\u2019 was first raised at the trial. Because complainant \u2018fully participated in the trial of the facts relevant [thereto],\u2019 Commissioner Van\t\t\t\t\t\tNamee\t\t\t\t\t\tconsiders the issue to be tried by consent. I believe this issue to be jurisdictional, and therefore may be raised at any stage of the proceeding. See my dissenting opinion in\t\t\t\t\t\tSecretary v. E. C. Ernst, 14 OSAHRC 579 (1975), and\t\t\t\t\t\tSecretary v. Advance Air Conditioning, Inc., 7 OSAHRC 736 (1974).\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4 \t\t\t\t\tI believe that due process of law requires that complainant have the burden of establishing that the delay resulted from exceptional circumstances.\t\t\t\t\t\tSee Allstate Finance Corporation v. Zimmerman, 330 F.2d 740 (5th Cir. 1974); 9\t\t\t\t\t\tWigmore, Evidence\t\t\t\t\t\t\u00a7 2486 (3d ed. 1940).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t5 \t\t\t\t\tThe court below sustained an objection to this testimony apparently because of its relevancy. This was error. The testimony clearly tends to indicate when the area director decided to issue these citations, the date set forth in\t\t\t\t\t\tChicago Bridge, supra, from which the three day period begins to run.\t\t\t”