“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 5303 & 5304 (Consolidated) COUGHLAN CONSTRUCTION COMPANY, INC. \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0DECISION\u00a0October 28, 1975Before BARNAKO, Chairman;MORAN and CLEARY, CommissionersBARNAKO, CHAIRMAN:Thiscase arose upon Respondent?s (Coughlan) contest of two separate citationsissued pursuant to the Occupational Safety and Health Act of 1970 (29 U.S.C.651 et seq., hereinafter ?the Act?) alleging nonserious violations of 29 C.F.R.1926.652(h).[1]Coughlan defended on the grounds that (a) the standard was invalidlypromulgated; (2) the standard is unenforceably vague; (3) it was in fact incompliance with the standard; and (4) the citations were not issued withreasonable promptness as required by Section 9(a) of the Act. Judge Donald K.Duvall resolved these issues adversely to Coughlan and affirmed both citations.He assessed penalties of $45 for each violation. We have reviewed the record.For the reasons which follow, we affirm the Judge?s disposition.Theessential facts are not in dispute. Coughlan was engaged in trenchingoperations in Boston, Massachusetts. On September 20, 1973, a representative ofComplainant inspected Coughlan?s worksite on West Second Street. Two ofCoughlan?s employees were working in a trench 11 feet deep, 9 feet 4 incheswide, and 10 feet 4 inches long. The sides of the trench were supported againstcollapse by a shoring system. The shoring members on each side of the trenchwere held in place by 6 6 inch cross braces running horizontally across thewidth of the trench. The vertical separation of the cross braces was aboutthree feet. There was no ladder leading out of the trench. During theinspection, one employee was observed leaving the trench by climbing up thecross braces and, upon reaching the top one, walking along it out of thetrench. This method of exiting trenches was commonly employed by Coughlan onjobs of this type.Aninspection of a trench at Kneeland Street and Harrison Avenue was conducted bythe same compliance officer on September 25, 1973. This trench was 5 feet 9inches deep, 3 feet 10 inches wide, and 8 feet long. Only one side of thistrench was supported by shoring; there were no cross braces between the twosides. Two employees were working in the trench. There was no ladder availableto provide a means of exit from the trench. In order to leave the trench, theworkers simply pulled themselves up and over the side.Withinseveral days of the September 25 inspection, the compliance officer conferredwith a construction specialist in his office concerning whether the conditionshe observed were in violation of C.F.R. 1926.652(h). Shortly thereafter, hesubmitted his report to the Area Director, recommending that the citationsissue. Several weeks passed before the Area Director reviewed the report anddecided to issue the citations. The citations were issued on October 26, 1973.Coughlanclaims that the standard was invalidly promulgated insofar as it purports to beapplicable to construction work that is not federally subsidized or assisted.The standard was originally promulgated under the Construction Safety Act (40U.S.C. 333), and that Act only regulated federally supported construction. Asnow published, however, the standard applies to all construction. Coughlanargues that the expansion of the scope of the standard was improper because itwas accomplished without resort to required rulemaking procedures.Asimilar argument, involving a standard promulgated under the Walsh-Healey Act(41 U.S.C. 35 et seq) was made in Lee Way Motor Freight, Inc., 7 OSAHRC1128 (1974); aff?d 511 F. 2d 864 (19th Cir. 1975). It was rejected inthat case because Congress itself prescribed that the Walsh-Healey standards?shall be deemed to be occupational safety and health standards issued underthis Act.?[2] The same is true of theConstruction Safety Act standards. [3] Furthermore, the standardat issue is an ?established Federal standard,?[4] and Congress authorizedComplainant to promulgate such standards as standards of general applicabilitywithout further rulemaking proceedings.[5] Thus, the standard wasvalidly promulgated and is enforceable against Coughlan.Coughlanalso argues that the standard is unenforceably vague in its use of the term?adequate means of exit.? It claims that persons of common intelligence candiffer as to what means are ?adequate,? and are thus not put on notice as towhat conduct is required by the standard. The Judge rejected this argument,holding that the standard should be interpreted to require conduct reasonableunder the circumstances and that, as so interpreted, it was not too vague.Weagree with the Judge?s reasoning. Standards written in broad terms are notunenforceably vague if interpreted to require employers to act reasonably. Cape& Vineyard Division of the New Bedford Gas and Edison Light Company v.OSHRC, 512 F.2d 1148 (1st Cir., 1975); Ryder Truck Lines, Inc. v.Brennan, 497 F.2d 230 (5th Cir., 1974); Plessey-Burton, Inc., 12OSAHRC 577 (1974). In this case, the broad phrase ?adequate means of exit? isclarified by the additional language ?such as a ladder or steps.? An employerneed not guess as to how to comply with this standard. If he is otherwiseuncertain as to what is required, he can utilize a ladder or steps. The generallanguage of the standard simply allows extra flexibility when the circumstancesare such that a means of exit other than a ladder or steps is adequate. Seee.g., Callahan Brothers, Inc., 6 OSAHRC 355 (A.L.J. 1974) (earth ramp atend of trench is adequate means of exit).Thus,whether the means of exit used by Coughlan?s employees were adequate under thestandard depends on whether reasonable people familiar with sound trenchingpractices would consider them adequate. Both parties presented evidence on thispoint and the Judge, after evaluating this evidence in light of the physicalcircumstances, found that the means employed were not adequate. The Judge?sdecision is supported by the record and no persuasive reason is given fordisturbing it on review.Coughlanargues that the citations should be vacated because they were not issued withreasonable promptness, citing our decision in Chicago Bridge & Iron Co.,6 OSAHRC 244 (1974).[6] Complainant claims thatthe citations were timely issued within the rule set forth in that case.Subsequent to the time these arguments were made, the decision in ChicagoBridge & Iron was reversed on appeal. Brennan v. Chicago Bridge &Iron Co., 514 F.2d 1082 (7th Cir. 1975). The Court did not preclude ourgiving some effect to the reasonable promptness requirement of the Act. It did,however, reject the approach taken in that case.Wesee no reason to vacate these citations on grounds of reasonable promptness. Inthe usual case, a delay in the issuance of the citation is not prejudicial tothe employer. The time for abatement is prolonged and, if evidence becomesstale, it may become more difficult for Complainant to prove a violation. Ifthe employer is prejudiced because evidence becomes unavailable or if theemployer is prejudiced from some other cause, then the citation can properly bevacated. E.C. Ernst, Inc., 14 OSAHRC 579 (1975). In this case, however,Coughlan has not alleged prejudice, and the record reveals none.Ifanybody is adversely affected by a delay in issuance of a citation, it is theemployees who are exposed to the hazard Complainant seeks to eliminate.Coughlan?s employees, however, have not appeared and sought relief. We need notconsider what relief might be appropriate had they done so.Weturn now to the assessment of appropriate penalties. The gravity of theviolations was low, as only relatively minor injuries were likely to resultshould an accident have occurred. Respondent is of moderate size, with 150employees and an annual gross income approximating two million dollars. Itsgood faith is demonstrated by an effective safety program, and it has no prioradverse history under the Act. On balance, we conclude that the proposedpenalties of $45 are appropriate for each violation.Accordingly,the citations for violation of 29 C.F.R. 1926.652(h) and the correspondingproposed penalties are affirmed. It is so ORDERED.?CLEARY, COMMISSIONER,concurring:Ijoin in my colleague?s discussion and disposition of respondent?s claim that 29CFR ? 1926.652(h) was invalidly adopted. For my own views on the question ofthe Commission?s power to entertain the issue of whether a standard was validlyadopted, see United States Steel Corp., Nos. 2975 & 4349 (November 14,1974) (Cleary, Commissioner, concurring). My colleague?s views on thereasonable promptness issue are consonant with those expressed in UnitedStates Steel Corp., Am. Bridge Div., No. 3010 (July 29, 1975) (separateopinion of Commissioner Cleary). I expressed there the view that inasmuch asthe benefits of section 9(a) run primarily to employees, vacation of citationswould be an inappropriate remedy, and all others would seem inadequate.??????????? The remainder of my comments concern the vaguenessquestion. As stated in the dissenting opinion in Santa Fe Trail TransportCo., No. 331 (December 18, 1973), rev?d 505 F.2d 869 (10th Cir.1974), the Commission has no power to declare a standard unenforceable byreason of vagueness. I adhere to that view, but in the absence of dispositivejudicial guidance on the matter, the question of whether 29 CFR ? 1926.652(h)is unenforceably vague should be addressed.Mycolleague concludes that this standard is not vague because ?reasonable peoplefamiliar with sound trenching practices would consider them adequate.? This?reasonable man? test is arguably consistent with the precedents relied upon,[7] and I agree with theresult. After careful and thorough examination of the precedents, however, Iconclude that we should depart from them to the extent that they may be read asapplying the ?reasonable man? test familiar in the law of negligence. It is aninappropriate aid in the interpretation of occupational safety and healthstandards.Inmy view, the proper test to apply in determining whether a standard is vague isthat set forth in the recent Supreme Court decisions in United States CivilService Commission v. National Ass?n of Letter Carriers, AFL-CIO, 413 U.S.548, 577?580 (1973) and Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 16633,1647 (1974). An administrative regulation will withstand a Fifth Amendment dueprocess vagueness attack so long as it prohibitions ?are set out in terms thatthe ordinary person [or the person regulated; see National Ass?n ofIndependent Television Producers & Distributers v. F.C.C., 516 F.2d526, 539 (2d Cir. 1975)] exercising ordinary common sense can sufficientlyunderstand and comply with, without sacrifice to the public interest? inmanageable brevity. 413 U.S. 578?579. As the Court stated in Colten v.Kentucky, 407 U.S. 104, 110 (1972), ?The root of the vagueness doctrine isa rough idea of fairness.? It is plain that the Constitution requires fairnotice. It does not require a particular standard of conduct. In Ryder TruckLines, Inc v. Brennan, 497 F.2d 230 (5th Cir. 1974), the court relied on UnitedStates v. Petrillo, 332 U.S. 1 (1947) and United States v. NationalDairy Corp., 372 U.S. 29, 36 (1963) as authority for its ?reasonable man?test. These cases simply hold that a statute of uncertain meaning may becomedefinite when viewed against either common practices or the facts to which itis applied. Neither case holds this to be the only permissible test forvagueness, nor do they require that the ?reasonable man? test be elevated toconstitutional dimension. The Supreme Court?s Letter Carrier opinion, notedabove, strongly suggests that regulations may be upheld when judged againstother vagueness tests.??????????? When applied as a standard to care[8] under the Act the ?reasonableman? test derogates from the purpose of the Act. In adopting the general dutyclause in section 5(a)(1), Congress rejected common law principles inestablishing the standard of care thereunder. National Realty & Constr.Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1265 n.34 (D.C. Cir. 1973). Itwould be incongruous to apply common law principles to this end in theinterpretation of standards comprising the duty of employers under section5(a)(2), particularly in light of the statutory purpose expressed in section2(b) and the definition of the term ?occupational safety and health standard?in section 3(8).[9]The use of the ?reasonable man? test therefore detracts from the relatedCongressional objective of raising the level of safety consciousness above thatcommon before the passage of the Act. See S. Rep. No. 91?1282, 91stCong., 2d Sess. 2?5 (1970).[10] It signals a retreat fromthe predominant Congressional purpose of assuring so far as possible, and notmerely so far as we or industry believe reasonable, every working man and womanin the Nation safe and healthful working conditions. Itis against this background that I approach the question of the vagueness of theterm ?adequate? in the standard before us.[11] The term is not vague. Bollv. Condie-Bray Glass & Paint Co., 321 Mo. 92, 11 S.W. 2d 48, 52?53(1928). This is especially so when it is defined as requiring means sufficientto meet a specific need.[12] State v. Davis,469 S.W. 2d 1, 4 (Mo. 1971). See State v. Clark, 234 N.C. 192, 66 S.E.2d 669 (1951); Words & Phrases, ?Adequate,? at 545.Evenif the term ?adequate? is nevertheless of uncertain meaning, interpretationsissued by an administrative agency may cure deficiencies that may exist. SantaFe Trail Transport Co., supra (dissenting opinion). Arnett v. Kennedy, 94S. Ct. at 1647. See Jordan v. DeGeorge, 341 U.S. 223, 229?232 (1951)(clarified by case law). Such interpretations may use a performance criterion.[13] Cf. Minnesota v.Probate Court, 309 U. S. 270, 273?274 (1940).Thepurposes of the standard?s requirement of adequate means of exit are apparentlytwo-fold: (1) to afford employees working in trenches an accessible means ofexit that is easy to use in case of cave-ins, so that employees will not betrapped by falling earth; and (2) to require the use of exits which employeesmay use without causing them strains and injuries.Solong as the means that are used meet this level of performance, the employerwill be in compliance. If he is uncertain, he may simply use steps or ladders,as the standard expressly provides. Under this interpretation, the standard isnot vague.?MORAN, COMMISSIONER,dissenting:Inmy opinion, the two citations which were issued in this case should be vacatedbecause their issuance did not conform with the mandatory requirement of theAct that each citation shall be issued ?with reasonable promptness.? 29 U.S.C.? 658(a).Congressmade it clear that, in the absence of exceptional circumstances, each citationwas to be issued within 72 hours after a violation is detected by an inspector.[14] It did not relieve thecomplainant from complying with this rule when a cited employer does notestablish that he is prejudiced by a delay in excess of 72 hours. Since therecord in these cases establishes delays of more than 10 times longer thanCongress allowed and fails to show any exceptional circumstances, the citationsshould be vacated because of the complainant?s failure to comply with thereasonable promptness requirement of section 658(a). My views on this matterare set forth in greater detail in Secretary v. Underhill Construction Corp.,20 OSAHRC 534 (1975); Secretary v. Plastering, Inc., 8 OSAHRC 150(1974); and Secretary v. Advance Air Conditioning, Inc., 7 OSAHRC 736(1974).Thelead opinion?s reliance on the failure of the respondent?s employees to seekrelief in this case is not well taken. Although a vast number of cases beforethe Commission have involved undue delays in the issuance of citations, I amunaware of any case in which an employee has sought relief for such a delay.This is not surprising because there is simply no beneficial relief which theCommission could provide an employee in the particular case before it. However,this does not excuse the Commission from taking stringent action to enforce therequirements of the Act. Such action by the Commission, like the invocation ofthe exclusionary rule in criminal cases, would prompt enforcement officials tocomply with the law and, thus, provide greater protection to employees who aresubjected to hazardous conditions in future cases.[15] But for as long as thisCommission allows the Secretary of Labor to ignore the law requiring promptservice of citations, employees on the job will continue to be exposed to thedangers which result from sub-standard working conditions.Finally,I am constrained to comment briefly on the concurring opinion?s assertion that?the Commission has no power to the declare a standard unenforceable by reasonof vagueness.? The Commission has asserted its authority to determine thevalidity of standards in numerous cases. Further questioning of that authorityseems to have been obviated by several appellate decisions which have dealtwith the correctness of the Commission?s action in some of those cases withoutquestioning the Commission?s authority to so act. Cape and Vineyard Divisionof the New Bedford Gas and Edison Light Company v. OSAHRC, 512 F.2d 1148(1st Cir. 1975); Brennan v. OSAHRC & Santa Fe Trail Transport Company,505 F.2d 869 (10th Cir. 1974); McLean Trucking Company v. OSAHRC, 503F.2d 8 (4th Cir. 1974); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230(5th Cir. 1974).\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 5303 & 5304 (Consolidated) COUGHLAN CONSTRUCTION COMPANY, INC. \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August9, 1974DECISIONDUVALL, JUDGE:Thisis a proceeding pursuant to Sections 9 and 10 of the Occupational safety andHealth Act of 1970 (29 USC 651, et seq., hereinafter ?the Act?) contesting twoCitations and Notifications of Proposed Penalty in the total amount of $90.00relating to two alleged non-serious violations of Sec. 5(a)(2) of the Act andthe occupational safety and health standard set forth at 29 CFR 1926.652(h).The Citations, issued on October 26, 1973, were based on inspections made ofworksites whereat Respondent was engaged in trenching operations, to-wit, onSeptember 20, 1973, at the worksite located on West Second Street, Boston,Massachusetts, and on September 25, 1973, at the worksite located at KneelandStreet and Harrison Avenue, Boston, Massachusetts.TheCitations, which called for immediate abatement, described the allegedviolations as follows:Employer failed to assurethat when employees are required to be in trenches 4 feet deep or more, anadequate means of exit such as a ladder or steps, shall be provided and locatedso as to require no more than 25 feet of lateral travel.Onmotion of Complainant, I consolidated the aforesaid two Citations andNotifications of Proposed Penalty under the provisions of Commission Rule 9,and presided at a hearing of this consolidated matter on March 29, 1974, atBoston, Massachusetts. No affected employee or representative of affectedemployees of Respondent asserted party status in this matter, although givenadequate notice and opportunity to do so in accordance with the Commission?sRules of Procedure. Subsequent to hearing, the parties submitted proposedfindings of fact and conclusions of law supported by briefs.Theprincipal issues raised for determination herein are:(1)Were the Citations issued with reasonable promptness within the meaning ofSection 9(a) of the Act?(2)Is the cited occupational safety and health standard unenforceable as a matterof law by reason of vagueness?(3)Is the cited occupational safety and health standard unenforceable because itwas not properly promulgated as to projects not federally financed or federallyassisted?(4)On September 20 and 25, 1973, was Respondent in violation of cited occupationalsafety and health standard?(5)If so, are the proposed penalties appropriate under Section 17 of the Act?DISCUSSIONOnthe first issue of whether the Citations herein were issued with ?reasonablepromptness,? Section 9(a) of the Act provides in pertinent part as follows:If, uponinspection or investigation, the Secretary or his authorized representativebelieves that an employer has violated a requirement of section 5 of this Act,of any standard, rule or order promulgated pursuant to section 6 of this Act,or of any regulations prescribed pursuant to this Act, he shall with reasonablepromptness issue a citation to the employer . . .?Respondenthaving raised this issue in its amended answer well over a month prior tohearing, it is consistent with the procedural requirements prescribed in theCommission?s decision in Chicago Bridge & Iron Co., OSHRC Docket No.744, p. 6, footnote 7 (1?23?74). On the merits, a preponderance of the evidenceof record supports a finding that the Citations here contested were issued byComplainant with reasonable promptness under Section 9(a) of the Act.Respondent?sreliance on the Chicago Bridge & Iron Co., case is misplaced sincethe evidence herein clearly shows that the citations and proposed penaltieswere issued within 3 working days after the Area Director?s review and approvalof them, consistent with the holding in the cited case. As in the Chicago case,due to the Area Director?s workload three weeks were required by him to act onthe compliance officer?s recommendations. Unlike the Chicago case, where anadditional delay of 9?16 days was unexplained on the record, the additionaldelay here of 8 to 11 working days, which occurred prior to submission of therecommended Citations and penalties to the Area Director, was reasonablyexplained in terms of the compliance officer?s consultation with an OSHAconstruction specialist (Mr. Dolan) within the week of the second inspectionand writing up two separate reports with recommendations.Respectingthe second issue (vagueness of standard), the Commission has held thatstandards promulgated under the Act must be sufficiently specified as to put anemployer on notice as to what is required (Secretary v. McDowell-Purcell,Inc., OSHRC Docket No. 507(11?10?72)), and stated clearly and plainly,uncolored by additional or subjective criteria. See Secretary v. CaliforniaStevedoring Co., OSHRC Docket No. 72 (6?16?27). Respondent here contendsthat the word ?adequate? in the standard language requiring an ?adequate meansof exit? is fatally vague because it is subject to as many interpretations as thereare inspectors (Respondent?s brief, p. 4). Respondent argues that since theComplainant?s three witnesses at the hearing were unable to identify what anadequate means of exit other than a ladder would be, this constitutes clearevidence that the standard does not set forth ?a sufficiently definite warningof the proscribed activity.? See Santa Fe Trail Trans. Co., OSHRC DocketNo. 331 (12?20?73).Thefact is that the cited standard has been upheld as valid by the Commission. D.Federico Company, Inc., OSHRC Docket No. 4395 (5?14?74) (under review onother grounds); Cecil Sand & Gravel Company, OSHRC Docket No. 3667(4?11?74); Staley & Lawrenz, Inc., OSHRC Docket No. 4145 (4?8?74). Icannot find the language of the standard unduly or unreasonably vague. Thestandard involves an application of the Act to the means of exit from deeptrenches for the purpose of protecting employees from the hazards associatedwith such trenches. The standard has a direct and reasonable relationship tothe accomplishment of this proper legislative purpose.Thewords ?adequate means of exit, such as a ladder or steps? is reasonably clearand informative. As applied in the construction industry, these wordsreasonably mean a safe and reliable way to get out of a trench. Indeed, Ibelieve that it even meets the due process requirement of a criminal statute[16] cited by Respondent, to-wh-it,that the statute neither forbids nor requires the doing of an act ?in terms sovague that men of common intelligence must necessarily guess at its meaning anddiffer as to its application.? Respondent?s Brief, p. 4, citing Connally v.General Construction Company, 269 U.S. 385, 391 (1925). The very fact thatComplainant?s three witnesses could not think of any means of exit other than aladder as complying with the standard under the circumstances of this caseshows that intelligent men need not necessarily disagree on the standard?sapplication.Thefact that many instances may occur when the standard?s application may bedifficult merely emphasizes the nature of the administrative problem. It ispractically impossible to encompass in one standard the degree of specificityRespondent suggests which would contain all the variable factors calling fordifferent conclusions by different employers under different or even the samecircumstances. Consequently, the standard must necessarily be expressed in generalterms and depend for its application upon the circumstances of each case. Seegenerally, Union Camp Corporation, OSHRC Docket No. 3905, pp. 11?12(5?1?74). As stated by Judge Burroughs in Union Camp Corporation, supraat 12 (concerning a noise control standard):The employer is requiredto think and use his expertise gained in the operation of his business in orderto comply with the Standard. This is not grounds for declaring a standard vagueand unenforceable. Due process does not require that an employer be informed asto every course of action he is to take.Inany event, a standard does not violate substantive due process merely becauseit is imperfect. Union Camp Corporation, supra at 11, citing Dandridgev. Williams, 397 U.S. 471 (1970); Ryder Truck Lines, Inc. v. Secretaryof Labor, No. 73?3341 U.S.C.A., 5th Cir. (1974).Wherean employer takes a course of action pursuant to a standard which is general innature (such as in this case), he will be judged on the basis of whether hisaction was reasonable under the facts. Union Camp Corporation, supra at15. The Commission, speaking through Judge Burroughs, has fully stated itsposition on the doctrine of reasonableness:Thestandard of reasonableness as applied to conduct or actions is an old one and longaccepted in the law of this nation. It is based on the assumption that theactions of the reasonable average person may be used as a standard by which tomeasure conduct. While it attempts to measure subjective reaction of theassumed reasonable person in certain circumstances, the test is external andobjective.Theemployer who takes a reasonable course of action in complying with a generalstandard is fully protected by the Act from arbitrary or unreasonablerequirements deemed essential by the complainant. He can bring his case beforethe Commission to seek an impartial determination of whether his course ofaction was reasonable. Union Camp Corporation, supra at 15?16.Inthe present case, it would appear that Respondent is an experienced contractorwell-versed in the need for adequate exit in the trench circumstances hereinvolved. Respondent?s Vice President testified that ladders were available(but not in use) at both worksites and that the shoring for the trenches wasconstructed with a view to providing a means of exit. Furthermore, Mr.Coughlan?s testimony that reliance on laid pipes and shoring as means of exitfrom trenches over four feet deep was acceptable practice in the constructionindustry was substantially rebutted, at least in the circumstances of the citedtrenches, by the contrary creditable testimony of James Dolan, a civil andsafety engineer with over 35 years? experience in the construction industry(Complainant?s Exhibit C?5).Respectingthe third issue (validity of promulgation of standard), contrary toComplainant?s contention (Complainant?s Brief, p. 7), this issue was properlyraised by Respondent by pleading, in effect, an affirmative defense in itsanswer (Case File, Item J?6) and argued at the hearing and in the briefs (Respondent?sBrief, pp. 12?13; Complainant?s Brief, pp. 6?7).Whilethe Act does not expressly vest jurisdiction in the Commission to review thestandards of the Secretary for validity of promulgation, Section 2(b)(3) of theAct created the Commission ?for carrying out adjudicatory functions under theAct?. This statutory provision has been deemed ample authority for theCommission to determine the validity of the promulgation of a standard underthe Act. Oberhelman?Ritter Foundry, Incorporated, OSHRC Docket No. 1572(7?30?73).Complainantfurther contends that Respondent is estopped from raising the issue of validityof the standard by Section 6 of the Act, subparagraph (f) thereof, whichprovides in part that ?Any person who may be adversely affected by a standardissued under this action may at any time prior to the 60th day after suchstandard is promulgated file a petition challenging the validity of suchstandard with the U.S. court of appeals for the circuit wherein such personresides or has his principal place of business, for a judicial review of suchstandard.? The standard cited herein having been first promulgated as anoccupational safety and health standard under the Act on October 4, 1972 at 29CFR 1910.12 (37 F.R. 22102?22104 (October 18, 1972, I agree with Complainant?scontention that Respondent is now precluded from attacking the validity of thecited standard on the grounds that is was not properly promulgated over 11months prior to issuance of the subject citations.Evenif Respondent could legally raise this issue now, it has not clearly shown by apreponderance of the evidence of record, including its brief, the improprietyof the promulgation of the cited standard in light of Section 6(a) of the Actwhich provides in part that ?Without regard to chapter 5 of title 5, U.S. Code,or to the other subsections of this section, the Secretary shall, as soon aspracticable during the period beginning with the effective date of this Act andending two years after such date, by rule promulgate, as an occupational safetyand health standard and national consensus standard, and any establishedFederal standard, unless he determines that the promulgation of such a standardwould not result in improved safety or health for specifically designated employees.?Furthermore, the federal safety and health regulations for construction whichwere subsequently adopted as occupational safety and health standards, were thesubject of rule making proceedings duly conducted by the Secretary in 1971 (29CFR Part 1518; 36 F.R. 7340, April 17, 1971).Respectingthe fourth issue (alleged violations), the cited standard clearly can besatisfied by an ?adequate means of exit?, such as a ladder or steps, withoutlimitation to those means. Complainant?s witnesses Bojakian (OSHA complianceofficer for 2 years, 200 inspections performed) Fiatarone (OSHA Area Director2?1\/2 years, Assistant head of safety at Boston Naval Shipyard 15 years,including trenching) and Dolan (OSHA safety engineer 2?1\/2 years: 450inspections conducted, 98% in construction or trenching, including comparabletrenches in Boston; 35 years? experience in construction and trenching businessas civil professional engineer, Complainant?s Exhibit C?5), testified that aladder (portable or affixed to the trench side), in their opinions, was theonly adequate means of providing exit from the two trenches herein cited.Respondentcontends that the cited trenches had adequate means of exit in that the shoringof said trenches, consisting of 6 by 8 foot cross braces spaced verticallyabout 3 feet apart, plus the horizontal pipes in the trenches, provided aladder like means of exit which, on the testimony of Mr. Coughlin (Respondent?sVice President with civil engineer degree and over 20 years? experience inconstruction with Respondent) has never caused any difficulty for Respondent?semployees. Mr. Coughlan further testified that putting a ladder in the West 2dStreet trench would have congested the trench so that its employees could notwork in it; and in the Kneeland Street trench a ladder would have increased thehazard to employees due to the heavy vehicular traffic there.TheWest 2d Street trench was 11 feet deep, 9 feet 4 inches wide, and 8 feet long.Two of Respondent?s employees were working in this trench at the time ofinspection. They were standing on a steam pipe at the bottom of the trenchbreaking up the concrete casing of the pipe with air hammers. One of theemployees was observed exiting the trench by standing on the steam pipe whichhad broken cement on it and climbing the cross braces of the trench shoring and?drag themselves up to the top of the cross members and walk across and get outof the trench.? There was no ladder in the trench. Mr. Bojakian testified thatthe means of exit here used was not adequate because footing on thedebris-covered steam pipe was unstable and climbing the cross-braces of theshoring spaced 3 feet apart without rails or posts to grasp increased thehazards of falling or injury due to muscle strains.ButtressingRespondent?s contention of adequacy, there was unrebutted testimony by Mr.Coughlan that in his opinion, employee exit from such a trench using this typeof shoring as a step ladder would take 5 to 10 seconds, versus 30?45 seconds byuse of a ladder located 25?30 feet away in another less congested part of thetrench. The probative value of this testimony hinges on Respondent?s argumentthat the trench (for at least its 8 foot length) was too congested to permituse of a ladder. The record indicates that the trench contained, in addition toan air duct hose, a 2 foot steam pipe at the bottom of the trench and a gaspipe in the upper portion of the trench, both running the length of the trench.Mr. Coughlan considered the congestion particularly bad in the 3 foot by 4 footarea where photograph C?2 shows the hard hat of an employee working. But histestimony suggests that a ladder could have been placed in the larger area ofthe manhole excavation (forefront of C?2), even though it would have requiredemployees in the more confined area to duck down under the bracing above thesteam main and drop 3?4 feet down to the lower level of the trench in thelarger area before reaching a ladder that might be placed there (Respondent?sExhibit R?1). Even crediting the testimony of Mr. Coughlan (who did not see thecited trenches on the dates of inspection) with respect to the situation in theconfined area, based on the credible testimony of Mr. Bojakian, the inspectingofficer, and Mr. Dolan, and the photographs of the trench on the critical date,there appears to be adequate space for a ladder of a portable or permanent(cleated to the wall of the trench) type.Undercross examination Mr. Bojakian admitted the possibility that said trench mighthave been 2?3 feet deep at its end away from where the employees were working,suggesting an adequate means of exit within 25 feet in accordance with thecited standard. In this connection, Respondent cites Judge Chalk?s decision in D.Federico Co., OSHRC Docket No. 4395 (4?11?74, under Commission review).However, there is no affirmative evidence of record proving the depth of theother end of this 8 foot trench and the differing circumstances of the Federicocase clearly distinguish it from the one at bar, to wit, in Federico the employeewas only a step or two away from a level that was two feet higher and had nodifficulty in scaling the remaining 4?1\/2 feet that was sloped. Here the trenchheight was 11 feet and the trench was not sloped in the area where theemployees were.Respondent?scontention that the means of exit it employed here was consistent with industrypractice is substantially rebutted by the contrary expert testimony of Mr.Dolan.Respectingthe Kneeland Street trench, it was 5 feet 9 inches deep, 3 feet 10 inches wide,and 8 feet long. Two of Respondent?s employees were working in this trench,which was located at a busy vehicular intersection, requiring part of thetrench to be covered with metal covers and protected by barricades. There wasno ladder or pipes in the trench. At the time of inspection the shoringconsisted of 3 by 10 sheeting that went down into the ground on the left sidewith no cross braces or whalers, and similar shoring was in process on theright side of the trench.Mr.Bojakian testified that there was no adequate means of exit from this trench;that employees had to pull themselves up over the side of the trench and crawlout. He further testified that there was adequate space to have used aconventional ladder or a vertical ladder cleated to the existing shoring andthat such a ladder would not have increased the existing hazard of inadequatemeans of exit in event of emergency. Mr. Fiatarone and Mr. Dolan concurred inthis testimony. Respondent?s further contention that a ladder projecting 3 feetabove ground (as required) would imperil employees at such a busy intersectionlacks creditability given proper placement of barricades and steel plates andthe fact that such a projection might constitute another protective dangersignal to errant motorists.Mr.Coughlan?s testimony that the Kneeland Street trench was in the process ofbeing shored (with cross braces, comparable to the other trench), whilecredible, does not excuse the absence of any adequate means of exit at thetime, especially in view of Mr. Coughlan?s admission that there was room for aladder in the trench.NotwithstandingRespondent?s active safety program and the apparent satisfaction of its utilitycompany clients with its safety procedures, I believe, on balance, that apreponderance of the evidence of record shows that the means of exit used byRespondent in the cited trenches on the dates of inspection were not adequatewithin the meaning of the cited standard (29 CFR 1926.652(h)) and thereforeconstitute violations under Section 5(a)(2) of the Act.Theproposed penalties for the two cited violations ($45.00 each), based onconsideration of the gravity of the violation, and Respondent?s size, goodfaith and history of previous violations under the Act, are deemed appropriatewithin the meaning of Section 17 of the Act.FINDINGSOF FACTTherecord herein as a whole contains reliable, probative and substantial evidenceto support the following findings of fact:1.Respondent is a relatively small Massachusetts Corporation with approximately150 employees which had a gross volume of business of approximately $2 millionin 1973 engaged in construction and trenching, including the receipt, handlingand work in goods moving in interstate commerce (Complaint and Answer).2.As a result of OSHA inspections of Respondent?s trenching worksites at West 2dStreet, between D Street and E Street, Boston, Massachusetts on September 20,1973, and at Kneeland Street and Harrison Avenue, Boston, Massachusetts onSeptember 25, 1973, Complainant issued to Respondent on October 26, 1973, twoCitations for nonserious violations of the occupational safety and healthstandard set forth at 29 CFR 1926.652(h) under Section 5(a)(2) of the Act,together with two related notifications of proposed penalties, issued on thesame date, in the total amount of $90.00 ($45.00 for each violation) (Citationsand Notifications of Proposed Penalty, Case File, Items 1 & 2).3.Respondent filed its notices of contest respecting both citations on October31, 1973. (Notice of Contest, Case File Item 3).4.On October 20, 1973, the West 2d Street trench was 11 feet deep, 9 feet 4inches wide, and 8 feet long, with a 24 inch steam pipe in the bottom portionand a gas pipe in the upper portion running the length of the trench; thetrench was shored with sheeting, 6 6 cross braces and whalers, with the lowestcross brace about 18 inches above the steam pipe and thereafter cross braces at3 foot intervals vertically upward to the top of the trench (Complainant?sExhibits C?1 & 2).5.Two of Respondent?s employees were working in this trench using air hammers tochip away the cement casing of the steam pipe on which they were standing.6.Employees exited this trench by stepping on the steam pipe and climbing up thecross braces of the shoring to the gas pipe or braces at the top of the trenchfrom which they could walk or crawl out. There was no ladder or other type ofsteps in this trench.7.The aforesaid means of exit from this trench required stepping on adebris-covered steam pipe and taking upward steps on the cross braces rangingfrom 18 inches to 3 feet per step-up, and climbing out of the trench withoutthe benefit of rails or posts projecting above the top of the trench to grasp,thus presenting the hazard of injury by falling or muscle rupture or strain dueto unstable footing, insufficient self-support, and the excessive space betweenvertical cross braces substantially exceeding the normal 12 inch step.8.There was sufficient space to place a portable or permanent (cleated to atrench side) ladder in the larger portion of this trench without inhibiting thework of Respondent?s employees therein or adding substantial hazards to themeans of exit.9.In determining the proposed penalty for the alleged violation respecting thistrench, Complainant considered the gravity of the violation, the size ofRespondent?s business, Respondent?s good faith and history of violations underthe Act.10.On September 25, 1973, the Kneeland Street trench was 5 feet 9 inches deep, 3feet 10 inches wide, and 8 feet long; it was in the process of being shored,with sheeting already installed on one side, no cross braces, and partiallycovered on top with steel plates because of its location at an intersectioncarrying heavy vehicular traffic from which it was barricaded.11.Two of Respondent?s employees were in this trench, which had no ladder orsteps.12.Employees exited this trench by pulling themselves up over the side of thetrench and crawling out, thus incurring substantial hazard of injury due tofalls or strains or inability to exit quickly in case of emergency.13.There was sufficient space to place a portable or permanent (cleated to thetrench side) ladder in this trench without inhibiting the work of Respondent?semployees therein or substantially increasing the hazards of exit.??????????? 14. In determining the proposed penalty for the allegedviolation respecting this trench, Complainant considered the gravity of theviolation, the size of Respondent?s business, Respondent?s good faith and historyof violations under the Act.CONCLUSIONSOF LAW1.At all times relevant hereto Respondent was and is an employer engaged in abusiness affecting commerce within the meaning of Section 3(5) of the Act, andthe Commission has jurisdiction of the parties and the subject matter herein.2.At all times relevant hereto Respondent was and is subject to the requirementsof the Act.3.The two Citations and Notifications of Proposed Penalty, issued on October 26,1973 to Respondent herein, were issued with reasonable promptness under Section9(a) of the Act.4.Respondent has not shown by a preponderance of the evidence of record that thecited occupational safety and health standard set forth at 29 CFR 1926.652(h),as applied to the circumstances of this consolidated case, is unenforceable byreason of vagueness under the Act and the due process clause of the FifthAmendment to the U.S. Constitution.5.Respondent?s collateral attack on the validity of the promulgation of theStandard cited herein is precluded under Sec. 6(f) of the Act. Additionally,Respondent has not shown by a preponderance of the evidence of record hereinthat the occupational safety and health standard cited herein is unenforceablebecause it was not properly promulgated under the Act as to projects notfederally financed or assisted.??????????? 6. On September 20 and 25, 1973, Respondent violated theoccupational safety and health standard set forth at 29 CFR 1926.652(h) and thecitations and notifications of proposed penalty pertaining thereto should byaffirmed as reasonable and appropriate under Sections 5(a)(2), 6 & 17 ofthe Act.ORDERBasedon the foregoing Findings of Fact and Conclusions of Law and the record as awhole, good cause appearing, it is hereby ORDERED, that:1.Respondent?s pending notion to dismiss is denied.2.Complainant?s Citation Number 1, based on inspection conducted on September 20,1973, and Citation Number 1, based on inspection conducted September 25, 1973,both issued to Respondent on October 26, 1973, are affirmed.3.Complainant?s Notifications of Proposed Penalty relating to the aforesaidCitations, issued to Respondent on October 26, 1973, each in the total amountof $45.00, are affirmed.[1] This standardstates:When employees arerequired to be in trenches 4 feet deep or more, an adequate means of exit, suchas a ladder or steps, shall be provided and located so as to require no morethan 25 feet of lateral travel.[2] 29 U.S.C.653(b)(2).\u00a0[3] Ibid.[4] 29 U.S.C.652(10).\u00a0[5] 5 U.S.C. 655(a).[6] In Chicago Bridge & Iron, weheld that a citation was not issued with reasonable promptness if, absentexceptional circumstances, it was issued more than three working days after thetime the Area Director formed his belief that a violation existed.[7] Other court decisions thatinterpret standards in light of the ?reasonable man? test are McLeanTrucking Co. v. O.S.H.R.C., 503 F.2d 8, 10?11 (4th Cir. 1974) and Brennanv. O.S.H.R.C. & Sante Fe Trail Transport Co., 505 F.2d 869 (10th Cir.1974)[8] Significantly,the Ryder court never applied the ?reasonable man? test as a standard of care,but only to prescribe the level of hazard recognition expected of employers.The first use of the ?reasonable man? test as a standard of care was in Cape& Vineyard Div. of New Bedford Gas & Edison Light Co. v. O.S.H.R.C.,512 F.2d 1148, 1152 (1st Cir. 1975). The First Circuit relied heavily upon Ryderbut went further on the standard of care.\u00a0[9] Section 3(8)reads as follows:(8) The term?occupational safety and health standard? means a standard which requiresconditions, or the adoption or use of one or more practices, means, methods,operations, or processes, reasonably necessary or appropriate to provide safeor healthful employment and places of employment.\u00a0[10] A careful distinction should bedrawn here between the duty of employers to ascertain hazards, and to abatethem. The level of hazard recognition required by the general duty clause insection 5(a)(1) is measured against industry experience and employer knowledge.National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1265 n.32(D.C. Cir. 1973); Brennan v. OSHRC & Vy Lactos Laboratories, Inc.,494 F.2d 460 (8th Cir. 1974). But under the special duties required undersection 5(a)(2), employers may be required to take more stringent steps toascertain hazards than industry practice may call for. See e.q., IndustrialUnion Department, AFL-CIO v. Hodgson, 499 F.2d 467, 481?482, 484?488 (D.C.Cir. 1974). But cf., Cape & Vineyard Div. of New Bedford Gas& Edison Light Co. v. OSHRC, 512 F.2d 1148, 1152 (1st Cir. 1975).\u00a0However, both theSecretary?s standards and the general duty clause may require that workpractices and safety precautions be radically altered or upgraded in theinterest of employee safety and health. Society of the Plastics Industry,Inc. v. OSHA, 509 F.2d 1301, 1309 (2d Cir.), cert. denied 95 S. Ct.1998 (1975) (section 5(a)(2)); National Realty, 489 F.2d at 1265 n.34,1266 n.37 (section 5(a)(1)); cf. Associated Industries of New York State,Inc. v. United States Department of Labor, 487 F.2d 342, 352 (2d Cir.1973).\u00a0[11] The word is usedin the Act itself, albeit in a different context. See section 6(b)(5) (firstsentence).\u00a0[12]Interestingly,?adequate? care requires more than the amount of care exercised by a reasonableman. Nagle v. City of Billings, 250 P. 445 (Mont. 1926).\u00a0[13] An interpretation of a standardwhich uses performance criteria as clarifying aids is consistent with the Act.See the last sentence of section 6(b)(5).[14] Staff of the Senate Comm. on Laborand Public Welfare, 92d Cong., 1st Sess., Legislative History of theOccupational Safety and Health Act of 1970, at 1191 (Comm. Print 1971).[15] An employer isnot required to abate a hazardous condition until a citation is served upon him.Secretary v. Pleasant Valley Packing Co., 2 OSAHRC 185, 188?189 (1973).\u00a0[16] While Section 17(c) of theOccupational Safety and Health Act is penal in nature, the Act as a whole isprimarily designed to regulate civil conduct. Union Camp Corporation, OSHRCDocket No. 3905, p. 8 (5?1?74).”