“SECRETARY OF LABOR,Complainant,v.FORD DEVELOPMENT CORPORATION,Respondent.OSHRC Docket No. 90-1505ORDER AMENDING DECISIONThe Secretary of Labor having moved for an amendment of the Commission’sdecision in the above matter, the Commission hereby amends its decisionin the following respect. The last sentence of the second paragraph ofsection \”I. Motion to Dismiss\” is amended to read:For her part, without conceding that TRG Drilling was correctly decidedor that a contumacy test applies here, the Secretary denies that thefacts in this case reflect contumacious conduct. She expressesacquiescence in the application of a contumacy test only to violationsof purely procedural rules of the Commission which do not have a directstatutory origin, but argues that all others require a finding of prejudice.SO ORDERED.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: December 29, 1992————————————————————————SECRETARY OF LABOR,Complainant,v.FORD DEVELOPMENT CORPORATION,Respondent.OSHRC Docket No. 90-1505*DECISION *BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:This action arose as a result of an accident occurring on March 22,1990, while a Ford Development Corporation (\”Ford\”‘) construction crewwas laying new drainage pipe along the side of a road in Ohio. On thatday, the wall of a newly dug trench shifted, trapping an employee’s footbetween the pipe and the side of the trench. With the help of otheremployees and the local fire department, the employee was freed. Shortly after the accident, Compliance Officers Stephen Brunette andDennis Collins (\”‘CO’s\”) from the Occupational Safety and HealthAdministration (\”OSHA\”) of the Department of Labor inspected the worksite.Following this inspection, the Secretary of Labor (\”Secretary\”) issuedthree citations consisting of nine items. Ford contested each item, andat the hearing before Review Commission Administrative Law Judge Paul L.Brady, moved to dismiss the Secretary’s complaint on the ground that shewas late in forwarding Ford’s notice of contest (\”NOC\”) to theCommission. Judge Brady denied Ford’s motion to dismiss, finding noprejudice to Ford or contumacy on the part of the Secretary. The judgeaffirmed five and vacated four of the nine citation items.[[1]] Thedirection for review involves four items and Ford’s motion.*I. Motion to Dismiss*Ford challenges the judge’s denial of its motion to dismiss thecomplaint on the ground that the Secretary failed to transmit Ford’s NOCto the Commission within fifteen working days, as required by theCommission Rule.[[2]] The Secretary stipulates that she failed toprovide the Commission with timely notice of her receipt of Ford’s NOC. The Secretary explains that a regional office secretary, relativelynew to her position, had apparently misunderstood the procedure fornotifying the Review Commission, resulting in improper documentation anda late filing. As a result, the NOC was transmitted seven days late.Upon receipt by the Commission, the matter was docketed and theadministrative process commenced. After conducting a hearing, the judgefound that this delay was \”innocuous… the result of a clerical error,plain and simple,\” and denied Ford’s motion.Ford contends that the citation should be vacated upon a showing eitherthat the employer was prejudice in preparing or presenting its defenseor that the Secretary’s conduct was contumacious, citing\/TRG DrillingCorp.\/, 10 BNA OSHC 1268, 1981 CCH OSHD ? 25,837 (No. 80-6008, 1981)(after unexplained 39-day delay in filing complaint, contumacy foundwhere Secretary requested no extension of time and ignored employer’smotion to dismiss).[[3]] Though Ford claims no prejudice, it does arguethat the Secretary’s conduct in this case was \”contemptuous.\” [[4]] For her part, without conceding that TRG Drilling was correctly decided,the Secretary expresses acquiescence in the application of a contumacytest, but denies that the facts here reflect contumacious conduct.Under Commission Rule 41[[5]], the standard of review that theCommission uses is whether the judge abused his discretion in denying amotion to sanction the Secretary by vacating the citation. Under thisstandard of review, in evaluating the propriety of a dismissal sanctionas set forth in Duquesne Light Co., 8 BNA OSHC 1218, 1980 CCH OSHD ?24,384 (No. 78-5034, 1980) (consolidated cases), the Commissionconsiders the following factors:(1) the amount of time used by the trial court;(2) whether plaintiff’s claim necessarily lacks substance;(3) whether defendant is prejudiced;(4) whether there is a clear record of delay;(5) whether plaintiff’s attorney exhibited contumacious conduct;(6) whether there is a showing of willful default on the part of theplaintiff;(7) the rights of the defendants to be free from costly and harassinglitigation; and(8) the time and energies of the court and the right of would-belitigants awaiting their turn to have other matters resolved.Id. at 1222, 1980 CCH OSHD at pp. 29,718-19 (citations omitted). Ademonstration of prejudice to the employer or contumacious conduct bythe Secretary are among the more significant factors to take intoaccount. E.g., Texas Masonry, Inc., 11 BNA OSHC 1835, 1983-84 CCH OSHD? 26,803 (No. 82-955, 1984) (no finding of contumacy after 45-day delayin transmittal of NOC during ongoing settlement negotiations; caseremanded to determine any prejudice) and Pennsylvania Elec. Co., 11 BNAOSHC 1235, 1983-84 CCH OSHD ? 26,449 (No. 80-5211, 1983) (no finding ofcontumacy after 7-month delay in transmittal due to failure ofSecretary’s personnel to follow proper procedure; case remanded todetermine possible prejudice).The Commission will not condone the Secretary’s failure to comply withCommission Rule 33. The Secretary’s 15-day transmittal deadline, likeother filing deadlines established under the Act and the CommissionRules, are intended to streamline and expedite the administrativeprocess by which hazards are adjudicated and abated. None shall betaken lightly. See, e.g., Chartwell Corp., 15 BNA OSHC 1881, 1992 CCHOSHD ? 29,817 (No. 91- 2097, 1992), petition for review filed, No.92-2338 (4th Cir. October 26, 1992). Nevertheless, in the clear absenceof any showing of prejudice, we find that the conduct (a 7-daytransmittal delay which has been established to have been inadvertent)falls short of that necessary to have the citation dismissed. Nor doany of the other factors in this case indicate that such a harshsanction would be in order. Accordingly, while the Secretary is onnotice that the Commission expects adherence to its rules, we find thathere the judge did not abuse his discretion in denying Ford’s motion todismiss.II. Hazard Commission StandardsA. Citation No. 1, Item 1Material Safety Data Sheets (MSDS)At issue is whether Ford committed a serious violation of the standardat 29 C.F.R.? 1926.59(g)(8)[[6]], concerning material safety data sheets(MSDS’s). MSDS’s for gasoline and portland cement (the two hazardousmaterials on the site) were not kept at the construction site but atFord’s office, which employees usually visited twice a week to get workassignments and their paychecks. The judge affirmed the violation asserious.Ford admits that the sheets were not physically located on the jobsiteduring working hours but argues that its practice of making themavailable on a regular basis effectively fulfills the requirements ofthe standard. In the alternative, Ford acknowledges the potentialapplicability of Super Excavators, Inc., 15 BNA OSHC 1313, 1991 CCH OSHD? 29,498 (No. 89-2253, 1991), issued by the Commission after the judge’sdecision in this case. In Super Excavators, the Commission held thatthe standard was violated; there, the MSDS’s were kept at the employer’smain office, over 20 miles away from the worksite. The Secretary citesboth Super Excavators and Thomas Lindstrom Co., 15 BNA OSHC 1353, 1991CCH OSHD ? 29,526 (No. 90-1084, 1991), as compelling a finding ofviolation. We agree with the Secretary that both cases are controllingin this circumstance.Ford maintains that if the Commission does find Super Excavatorsapplicable to this case, the violation ought to be downgraded toother-than-serious, as it was in \/Super\/ \/Excavators\/, because thematerials at issue are \”common construction materials that pose nomystery as to their true composition or hazards.\”[[7]]We find the cases distinguishable, however. The hazardous materials inSuper Excavators were concrete, concrete pipe, PVC pipe, and waterplug;in Thomas Lindstrom, acetylene and oxygen; in this case, they are cementand gasoline. The nature of the materials here makes this case ahybrid of sorts.In \/Super Excavators\/, the Commission found that while the absence of anMSDS alone would not cause physical harm, it could result in anemployee’s being given inadequate or improper treatment for exposure toa hazardous substance. Noting three factors, (1) that the materialsinvolved were not particularly volatile, (2) that any harm would besuperficial, and (3) that the Secretary had stipulated to the adequacyof the overall hazardous communication program, the Commission foundthat any harm to employees would not be so exacerbated by the absence ofan MSDS that serious injury would result. The Commission thereforereduced the serious characterization to other-than-serious.In Thomas Lindstrom, on the other hand, the materials were quitevolatile and, if ignited, could cause more than just superficial harm tothe employees. The Commission noted that acetylene is a highlyflammable and explosive chemical and that oxygen, by promotingcombustion in other materials, can increase the severity of fires. Nevertheless, in that case, we affirmed the violation asother-than-serious, as originally characterized by the Secretary.The Secretary alleged that the violation of the standard here wasserious. The nature of the hazardous material affects thecharacterization and associated penalty. In Super Excavators, inaddition to downgrading the violation to other-than-serious, theCommission reduced the proposed penalty because of the \”low gravity\” ofthe violation. In\/Thomas\/ \/Lindstrom\/, no penalty was proposed and noneassessed. In this case, the Secretary proposed a total unallocatedpenalty of $500 for the failure to have the appropriate MSDS’s on thesite. Since portland cement is a common construction material thatposes no mystery as to its composition or the hazards it poses, we findthat the failure to have the appropriate MSDS on site constitutes another-than-serious violation for which we assess no penalty. Turningto the particular hazards associated with gasoline and applying theSuper Excavators factors (volatility, nature of expected harm, andadequacy of hazard communication program), we find that Ford committed aserious violation by failing to have the MSDS for gasoline at theworksite and assess a penalty of $500.*(B) Citation No. 3, Item 3**Employee Information and Training on Hazardous Chemicals*At issue is whether Ford committed a serious, repeated violation of thestandard at 29 C.F.R. ? 1926.59(h)[[8]], requiring employers to provideemployees with information and training on hazardous chemicals in theirwork area. The CO acknowledged that \”as a written program,\” Ford’s wasadequate. Although Ford had scheduled a number of training seminars andsafety meetings designed to supplement its written program, Ford’sprogram at the time of the inspection consisted of nothing more thanproviding its employees with copies of its hazard communication program,and requiring them at one point to review the program as a condition ofreceiving their paychecks. The judge found that in so doing Fordcomplied with the standard, and he therefore vacated the citation.The Secretary petitioned for review of that vacation, charging thatFord’s program fell short of compliance. Emphasizing the distinctionbetween information and training, and contending that the judge hereimproperly combined the two, the Secretary argues that Ford’s effortswere most deficient in the training aspect of the standard. Accordingto the Secretary, unless an employer informs its employees of thespecific hazards associated with workplace chemicals and tells them whatprotective measures to take, it is not in compliance with section1926.59(h). She cites ARA Living Centers of Texas, Inc., 15 BNA OSHC1417, 1992 CCH OSHD ? 29,552 (No. 89-1894, 1991). In that case, theCommission reversed a judge’s vacation of a similar citation involvingthe parallel general industry standard, holding the employer inviolation for failure to inform and train nursing home employees usingindustrial-strength cleaners and disinfectants containing certainhazardous chemicals. The evidence indicated that employees had accessto MSDS’s and product labels but that no written hazard communicationprogram was in place, and the employees had not received any training. In this case, the Secretary introduced no evidence about the labels onthe cement bags or gasoline containers. The evidence does establishthat Ford failed to provide ready access to the pertinent MSDS’s, andthat it conducted no specific training on how to handle portland cementin its various forms or on how to clean up gasoline spills, or avoid andtreat siphoning accidents, or prevent explosions or fires. On the otherhand, unlike the employer in ARA, Ford did have an adequate writtenprogram, one it required its employees to review.In the ARA case, the Commission reclassified the violation asother-than-serious: \”Based on the limited record presented to us, weconclude that the evidence of a possible skin rash is insufficient toestablish a substantial probability of serious physical harm within themeaning of section 17(k) of the Act.\” Id. at 1418, 1992 CCH OSHD at p.39,957. If cement were the only substance at hand in this case, the ARAcase might provide more guidance in how to classify the violation here. Because this case involves gasoline, however, a substantial probabilityexists that death or serious physical harm could result if an accidentwith gasoline occurred. The Secretary alleged that this violation wasserious. Considering the same factors as we did in characterizing theMSDS violation above, we find the information and training standardviolation other-than-serious with respect to the portland cement andserious with respect to the gasoline.Proposing a penalty of $2,000, the Secretary claims that \”at the time ofthe alleged repeated violation there was a Commission final orderagainst the same employer for a substantially similar violation,\” citingPotlatch Corp., 7 BNA OSHC 1061, 1063, 1979 CCH OSHD ? 23,294, p.28,171 (No. 16183, 1979). Ford resists the Secretary’s characterizationof the violation as \”repeated,\” pointing to certain \”exculpatory\”language in the settlement agreement and final order introduced by theSecretary. For our purposes, the 1989 settlement agreement incorporatedby the final order used to establish the \”repeated\” allegation in thiscase contains several critical provisions:(1) \”Respondent hereby withdraws its notice of contest….\”(2) \”Nothing contained herein should be construed as an admission byRespondent that it violated the Act….\”; and(3) \”The settlement is not to be taken as an admission of fault orliability and shall not affect any rights or defenses in the future thatRespondent may have in any….proceeding other than one arising underthe Act.\”Ford claims that under provision (2) above, the Secretary is precludedfrom using the agreement\/order to establish a repeated violation in theinstant case. In other words, Ford argues that since the parties agreedthat there was no violation of the Act in 1989, the violation in thiscase cannot be considered a second, repeated violation. Ford warns thata Commission finding of a repeated violation in this case would meanthat settlements have no future force and effect and are to be ignored,creating a \”chilling effect on the salutary goal of settlements.\”The Secretary, citing Stone Container Corp., 14 BNA OSHC 1757, 1987-90CCH OSHD ? 29,064 (No. 88-310,1990), argues that Ford’s withdrawal ofits contest in provision (1) above constitutes an agreement to theaffirmance of the citation and establishes the existence of a violationof the cited standard. She emphasizes the clear language of provision(3) above and adds that the settlement agreement was devoid of anylanguage expressly barring the use of the agreement in futurecitations. Cf. National Steel & Shipbuilding Co., 8 BNA OSHC 2023, 2023n. 1, 1980 CCH OSHD ? 24,748, p. 30,476 n.1 (No. 79-929, 1980)(settlement agreement contained a provision \”that the citation …giving rise to the above-captioned matter shall not be utilized as orform the basis of a future repeat citation\”).We note that the settlement agreement language on which Ford relies issimilar to that in another case, Dic-Underhill, A Joint Venture, 8 BNAOSHC 2223, 1980 CCH OSHD ? 25,959 (No. 10798, 1980). The language inthe Ford agreement echoes the following language contained in theDic-Underhill agreement:Respondent’s agreement to pay the proposed penalty, to take the proposedaction and the signing of this agreement are not admissions byrespondents of any violations of the Act or of the truth of any of theallegations …. [Nor are they to be] construed … as admissions offault or liability in any claim or proceeding which exists or may ariseand be pursued by any person … other than in any subsequentproceedings brought by the complainant before the [OSHRC] ….Id. at 2225,1980 CCH OSHD at p. 30,797 (emphasis added). TheCommission held in Dic-Underhill that the plain language of thesettlement agreement allows it to be used in a later proceeding as thebasis for finding a repeated violation. The same reasoning holds truethe instant case.[[9]] Based on the existence of a Commission finalorder for a violation of the same standard, we find that Ford’s seriousviolation of section 1926.59(h) is repeated.The Secretary proposed a penalty of $2,000 for this serious, repeatedviolation. Ford’s efforts to increase its safety training activitiesafter the inspection are impressive; indeed, some of these activitieswere described as \”scheduled\” at the time of the inspection. In ouropinion, this evidence of good faith on Ford’s part justifies a furtherreduction in the penalty. See Southern Indiana Gas & Elec. Co., 1 BNAOSHC 1569,1973-74 CCH OSHD ? 17,374 (No. 456, 1974) (commendingemployer’s ongoing efforts to reduce noise hazard both before and afterinspection, assessing no penalty). We therefore assess a penalty of $1,000.*Ill. Trench Standards **A. Citation No. 3, Item 1**Employee Training on Hazard Recognition and Avoidance*At issue is whether Ford committed a serious violation of the standardat section 1926.21(b)(2)[[10]], requiring employers to train eachemployee in hazard recognition and avoidance. On review, the Secretaryconcedes that this violation was not \”repeated\” as initially alleged andrequests a recharacterization as \”serious.\” The Secretary cited Fordfor failing to provide its foreman, David Neu, with adequate training inexcavation hazards, including failure to instruct Neu in appropriatemethods of soil evaluation he was to follow as the designated \”competentperson\” for the site. The term \”competent person\” is defined in section1926.650(b) as \”one who is capable of identifying existing andpredictable hazards in the surroundings, or working conditions which areunsanitary, hazardous, or dangerous to employees, and who hasauthorization to take prompt corrective measures to eliminate them.\”Neu, employed by Ford for three years, testified that during his eightyears with his prior employer, he learned, through on-the-job training,to observe changes in the ground and to gauge the power the backhoerequired in different types of soil. He testified that he was aware ofthe 5-foot trench-protection requirement, but when asked why he had notshored the 6-foot trench, he replied, \”The reason I didn’t use anyshoring was because this ground … was hard to pull through as I dugit.\” Neu also testified that he had attended a 1-day OSHA seminar ontrench safety about four years prior to the hearing, before he came towork for Ford. He admitted, however, that he had not learned when orhow to take any tests. For instance, he did not know that the standardcontains requirements such as manual testing and soil sampling. Moreover, Neu testified that he had received no training during thethree years he had been working for Ford.The Secretary argues that the standard provides no mechanism fortraining received from past employers to be \”credited\” or carried overto an employee’s current employer. Noting that the regulationsgoverning excavations had changed during Neu’s tenure with Ford,[[11]]she cites Archer-Western Contractors, Ltd., 15 BNA OSHC 1013, 1020, 1991CCH OSHD ? 29,317, p. 39,381 (No. 87-1067, 1991), aff’d withoutpublished opinion, No. 91-1311 (D.C. Cir. October 26, 1992) (employer’sduties are satisfied when the employer instructs its employees about thehazards they may encounter on the job and about the regulationsapplicable to those hazards) and other cases [[12]] in support of herposition that Ford violated the standard.Ford styles the Secretary’s dispute as being not with Mr. Neu’squalifications themselves, but with their source. Ford further assertsthat to hold Ford in violation for failing to duplicate the training Mr.Neu brought with him to the job when he was hired is to exalt form oversubstance.The Commission has recently examined the requirements of this standard. In A.P. O’Horo Co., 14 BNA OSHC 2004, 1991 CCH OSHD ? 29,223 (No.85-369, 1991), a case involving training in trench safeguards, theforeman testified that he had never been given instructions about soilmechanics or attended any lectures on soil, and that all his knowledgehad been gained through his 14 years’ experience working in trenches. Id. at 2010, 1991 CCH OSHD at p. 39,131. The Commission criticized theemployer for relying too heavily on experience and on-the-job trainingof the crew instead of providing specific trenching instructions andaffirmed the alleged violation of section 1926.21(b)(2), citing H.C.Nutting v. OSHRC, 615 F.2d 1360 (6th Cir. 1980) (unpublished) and JohnR. Jurgensen Co., 872 F.2d 1026 (6th Cir. 1989) (unpublished) (evidencethat employees were unaware of particular safety requirements, becauseof a lack of specific instruction, establishes a violation).Similarly, in R & R Builders, Inc., 15 BNA OSHC 1383, 1991 CCH OSHD ?29,531 (No. 88-282, 1991) (occasional correction of employees does notamount to systematic training) and Concrete Constr. Co., 15 BNA OSHC1615, 1992 CCH OSHD ? 29,681 (No. 89-2019, 1992) (employer thatprovides no training other than safety booklet violates standard), theCommission made clear that while the standard does not limit theemployer in the method by which it may impart the necessary training, anemployer that places too much trust in the quality of experience andtraining an employee has already acquired elsewhere runs the risk ofviolating the standard.The judge found not only that what little formal training Neu hadreceived years ago fell short of meeting the standard, but also thattraining by a previous employer does not fulfill the requirements of thestandard. He therefore affirmed the violation. We agree, while notingthat our decision should not be read as requiring employers always todemand that their employees undergo formalized training, nor ascompelling employers in every instance to gather written verification ofjob skills from their employee’s formal employer’s. Here, the plainlanguage of the standard requires some positive action on the part ofthe cited employer, and none was taken in this case.[[13]] The judge,still considering this violation as \”repeated,\” affirmed the proposed$3,600 penalty. While Ford continued to argue in its reply brief thatno violation existed, it did not dispute that a violation, if found,could result in serious physical harm or death. We find that thisviolation is serious, but not repeated. Constrained by the formerpenalty structure that places a maximum of $1,000 as applied to thiscase, we find a penalty in the amount of $1,000 to be appropriate.*B. Citation No. 2, Item 1**Trench Protective System*At issue is whether Ford committed a serious violation of the standardat section 1926.652(a)(1) [[14]], essentially requiring trenchprotection systems for excavations 5 feet deep and over unless they arecarved out of stable rock.The facts of the trench accident that prompted OSHA to conduct theinspection in this case are not entirely clear. A number of referencesare made to the \”collapse\” and to the material that \”gave way\” or \”letloose.\” The only eye-witness to the accident who testified, foremanNeu, described the scene this way:I was running the hoe at the time of the accident…. The guy was downin the ditch, and we set the pipe and was just getting ready to plug itfor the night…. The bank did not fall in. The bank slid in, wassheared in…. [W]hen the bank started to slide, I hollered and the guystarted to run. When he seen the bank was coming in, he stepped [up] onthe pipe…. He got his left foot up on top of the pipe, and he went tostep up; and before he could step up, it slid over and caught his rightfoot.Though the judge made no finding on whether a cave-in[[15]] actuallyoccurred, the record belies Ford’s continual assertions in its briefthat at no time was there a cave-in or failure of the soil. Normally,the fact that an accident occurred, let alone the details, is irrelevantto these proceedings. Here, however, the facts tend to establish asubstantive point: the unavailability of the solid rock exception. Therecord in this case tends to show that the trench wall broke down insome way, and as in other cases before the Commission, the very fact ofthe collapse seems to demonstrate an instability at the scene of theaccident. Bland Constr. Co., 15 BNA OSHC 1031, 1991 CCH OSHD ? 29,325(No. 87-992, 1991).It is undisputed that Ford made no efforts to comply with the standardby sloping or shoring the sides of the trench. Ford contends that thestandard did not apply to the trench in this case because it was carvedin stable rock and was under five feet deep. Again, under DoverElevator Co., see supra note 8, the party claiming the benefit of anexception bears the burden of proving that its case falls within thatexception.That the material at the site was hard clay and rock is undisputed. TheSecretary argues that ground which is partly clay is not \”stable rock.\” She further notes that her reasonable interpretation of her own standardis entitled to deference and cites a number of Commission decisions withwhich her position is fully consistent. Bland Constr. Co. (all unstablematerial such as fractured rock, clay, and topsoil must be sloped orshored); Woolston Constr. Co., 15 BNA OSHC 1114, 1991 CCH OSHD ? 29,394(No. 88-1877, 1991), aff’d, No. 91-1413, (D.C. Cir. May 22, 1992)(trench wall is only as stable as its weakest component). Ford, on theother hand, claims that \”clay\” fits into the definition of \”stable rock\”in paragraph (b) of the standard’s Appendix A: \”natural solid mineralmatter that can be excavated with vertical sides and remain intact whileexposed.\” Acknowledging that clay may not be rock, Ford suggests thatclay is nonetheless a natural solid mineral matter and, as such,constitutes a sufficiently stable substance for purposes of the term\”stable rock\” as used in the standard. The judge saw no merit in Ford’sargument, and we agree with the judge.The cited standard, when read in context with related definitions andtables in the appendices to Subpart P, amply supports findings that clayis soil and that soil is not stable rock. \”Soil\” and \”stable rock\” aremutually exclusive, not interchangeable. For instance, \”stable rock\”–one of four categories of material in the standard–is a classificationseparate from the three soil types. Gravel, crushed rock, and unstabledry or submerged rock are all classified within one of the soil types,but stable rock is not. The evidence is that the composition of theground at the site was some proportion of clay and rock. Therefore, wefind that the trench in this case does not meet the \”stable rock\” exception.Ford also claims that the \”depth\” exception to the standard applies tothis case. This exception only applies if the trench measures less thanfive feet deep and if a competent person who examines the ground findsno indication of a potential cave in.The evidence here indicates that the trench was too deep to meet theterms of the exception. Both CO Brunette and foreman Neu testified thatthe trench was approximately 6 feet deep. Even the specifications forthe trench called for 3 1\/2 to 4 feet of cover on top of the 12-inchpipe, which in turn was to be laid on 6 inches of sand, so the contractitself required a trench that was at the very least 5 feet deep, not\”less than 5 feet,\” in the words of the standard. The explanation Fordoffers, that since employees were supposed to stand on the pipe at alltimes their \”exposure\” was to the equivalent of a trench that was only 31\/2 feet deep, is unpersuasive. The standard speaks of the depth of thetrench, not of the position of employees in the trench. Therefore, thetrench in this case does not meet the depth exception to the standard.Ford has failed to establish that the trench in this case meets eitheravailable exception. Hence, we affirm the judge in finding a violationof the trench protection standard. The Secretary proposed a penalty of$10,000 for a willful violation of the standard. However, the judgefound that Neu did not act with reckless disregard for his crew’ssafety, but believed in good faith that the soil’s composition precludedthe necessity for sloping or shoring. The judge reclassified theviolation as serious and reduced the penalty to $1,000. We defer to thejudge’s assessment. E.L. Jones and Son, Inc., 14 BNA OSHC 2129, 2132,1991 CCH OSHD ? 29,264, p. 39,231 (No. 87-0008,1991); C. Kaufman, Inc.,6 BNA OSHC 1295,1297,1977-78 CCH OSHD ? 22,481, p. 27,099 (No.14249,1978). The judge’s findings are affirmed, and a penalty of $1,000is assessed.*IV. Conclusion*Accordingly, Ford’s motion to dismiss is denied. Item 1 of citation no.1 is affirmed as modified by this decision, and a penalty of $500 isassessed. Item 1 of citation no. 2 is affirmed as serious, and apenalty of $1,000 is assessed. Item 1 of citation no. 3 is affirmed asserious, and a penalty of $1,000 is assessed. Item 3 of citation no. 3is affirmed as modified by this decision, and a penalty of $1,000 isassessed for this repeated violation. Hence, a total penalty of $3,500is assessed.Edwin G. Foulke, Jr.ChairmanDonald G.WisemanCommissionerVelma MontoyaCommissionerDated: December 3, 1992————————————————————————SECRETARY OF LABOR,Complainant,v.FORD DEVELOPMENT CORPORATION,Respondent.OSHRC Docket No. 90-1505APPEARANCES:Kenneth Walton, Esquire, Office of the Solicitor, U. S. Department ofLabor, Cleveland, Ohio, on behalf of complainant.Kenneth Seifried, Esquire, Holbrook and Poston, Cincinnati, Ohio, onbehalf of respondent._DECISION AND ORDER_BRADY, Judge: Ford Development Corporation (Ford) is a constructioncompany whose principal place of business is located in Sharonville,Ohio. In March of 1990, Ford was under contract with the CincinnatiWater Works to lay a drainage pipe along Bridle Road, near Eight MileRoad, in Newton, Ohio (Tr. 22, 320). On March 22, 1990, an accidentoccurred at the worksite. A Ford employee’s foot was trapped betweenthe drainage pipe and one wall of the trench in which the pipe was beinglaid. The fire department eventually freed the trapped employee (Tr. 26).As a result of this accident, OSHA compliance officers Stephen Brunetteand Dennis Collins inspected the worksite. Pursuant to theirinspection, three citations were issued to Ford on May 2, 1990. Citation No. 1 alleged serious violations of 29 C.F.R. ?1926.59(g)(8)for failure to make material safety data sheets (MSDS’s) readilyaccessible to its employees, of 29 C.F.R. ? 1926.251(a)(1) for failureto remove defective rigging from service, of 29 C.F.R. ? 1926.651(d) forfailure to provide warning vests to employees exposed to publicvehicular traffic, and of 29 C.F.R. ? 1926.651(k)(2) for failure torequire a competent person to remove exposed employees from hazardousexcavations.Citation No. 2 alleged a willful violation of 29 C.F.R. ? 1926.652(a)(1)for failure to provide a protective system for employees in an excavation.Citation No. 3 alleged a repeat violation of 29 C.F.R. ? 1926.21(b)(2)for failure to train employees in the recognition and avoidance ofunsafe conditions, of 29 C.F.R. ? 1926.59(e)(1) for failure to maintainat the workplace a written hazard communication program, and of 29C.F.R. ? 1926.59(h) for failure to provide employees with informationand training on hazardous chemicals in their work.FORD’S MOTION TO DISMISS BASED ON THE SECRETARY’S_UNTIMELY NOTICE TO THE REVIEW COMMISSION_At the start of the hearing Ford moved to dismiss the Secretary’s casebased on her alleged failure to comply with 29 U.S.C. ? 659(c) byfailing to provide timely notice to the Review Commission. The motionwas held in abeyance until the issuance of this decision (Tr. 16).29 U.S.C. ? 659(c) provides in pertinent part:If an employer notifies the Secretary that he intends to contest acitation … the Secretary shall immediately advise the Commission ofsuch notification…Rule 2200.33(a) of the Rules of Procedure of the Occupational Safety andHealth Review Commission provides:Within 15 working days after receipt of–(a) notification that the employer intends to contest a citation orproposed penalty under section 10(a) of the Act, 29 U.S.C.? 659(a) …the Secretary shall notify the Commission of the receipt in writing andshall promptly furnish to the Executive Secretary of the Commission theoriginal of any documents or records filed by the contesting party andcopies of all other documents or records relevant to the contest.The Secretary received Ford’s notice of contest on May 10, 1990. Thelast working day which the Secretary could have provided the ReviewCommission with notice of her receipt of Ford’s notice of contest and bein compliance with ? 2200.33(a) was May 28, 1990.[[1]] The Secretary didnot give notice to the Review Commission until June 8, 1990 (Ex. R-14,Tr. 358).In response to Ford’s interrogatories, the Secretary stated that on June1, 1990, she had notified the Review Commission of its receipt of Ford’snotice of contest (Ex. R-1, Tr. 188). Dennis Collins, the complianceofficer who signed the Secretary’s responses to interrogatories, basedthis response on information he received from his supervisor, DennisSlessman, who based his information on a notation made on hissecretary’s calendar (Exs. R-3, R-4, Tr. 188, 189). Slessman’ssecretary was relatively new to her position at that time, andapparently was mistaken in her understanding of the procedure fornotifying the Review Commission (Tr. 295). The day before the hearing(in November of 1990), the Secretary supplemented its response, statingthat based upon additional information, notice to the Review Commissionwas not sent on June 1, 1990. The new information indicated that thenotice had been sent sometime between June 1 and June 11, 1990 (Ex. R-2,Tr. 190).At the hearing, Slessman stated that the week before the hearing began,he received a copy of the written notice to the Review Commission, whichestablished that the notice had been sent on June 8, 1990 (Ex. R-14, Tr.349, 350).The Secretary stipulated that \”Complainant failed to provide timelynotice to the Review Commission of her receipt of Ford Development’snotice of contest\” (Tr. 6-9).Ford contends that the Secretary’s delay in notifying the ReviewCommission of its receipt of Ford’s notice of contest is grounds fordismissing the case. Ford does not claim that it was prejudiced in anyway by the Secretary’s untimeliness. Rather, Ford contends that themotion to dismiss should be granted because violation of the citedstatute requires dismissal, and because the Secretary engaged in\”contumacious\” conduct.Regarding the first argument, that violation of the statute requiresdismissal, reference must be made to OSHRC’s Rules of Procedure ?2200.41(a) (Failure to Obey Rules):Sanctions. When any party has failed to plead or otherwise proceed asprovided by these rules or as required by the Commission or Judge, hemay be declared in default either: (1) on the initiative of theCommission or Judge, after having been afforded an opportunity to showcause why he should not be declared to be in default; or (2) on themotion of a party. Thereafter, the Commission or Judge, in theirdiscretion, may enter a decision against the defaulting party or strikeany pleading or document not filed in accordance with these rules. (Emphasis added)As ? 2200.41(a) makes clear, dismissal of a case because of proceduralerrors is discretionary with the judge. Dismissal is not mandated by afailure to comply with the rules.Ford cites TRG Drilling Corporation (Mid-Continent Division), 81 OSAHRC108\/D10, 10 BNA OSHC 1268, 1981 CCH OSHD ? 25,266 (No. 80-6008, 1981),as standing for the proposition that a citation should be vacated forfailure to comply with the Review Commission rules if there is eitherprejudice to the opposing party or if the Secretary engages incontumacious conduct. Actually what TRG states is: \”The Commissionprecedent is clear – the Secretary’s failure to file a timely complaintdoes not justify vacating a citation absent a finding of contumaciousconduct by the Secretary or prejudice to the employer.\” Id., 10 BNA OSHCat 1269 (dissenting opinion). Again, the discretionary aspect of thedismissal (here relating to the Secretary’s complaint, not its notice tothe Review Commission) is implied.In addition, Ford cites Secretary v. Barretto Granite Corporation, 830F.2d 396 (1st Cir. 1987), which also deals with the late filing of theSecretary’s complaint, and which states: \”The Secretary must file acomplaint within 20 days of the time the notice of contest has beenreceived, and may be subjected to dismissal of the case if an employercan establish that he was prejudiced by a delay in filing thecomplaint.\” Id., at 398. The noteworthy aspects of this statement arethe discretionary power implicit in the phrase \”may be subjected todismissal\” and the mention of prejudice as the sole basis for dismissal.Barretto does little to bolster Ford’s argument.\”Contumacious\” is defined as \”obstinately disobedient or rebellious;insubordinate.\” The American Heritage Dictionary 319 (2d College Ed.1982). Even construed in the worst light, the Secretary’s actions infiling the notice to the Review Commission do not rise to the level ofcontumaciousness. Instead, the Secretary’s delay is attributable tomiscommunication and inexperienced personnel, resulting in an innocuousclerical error.Despite Ford’s attempt to show otherwise, the record establishes onlythat a secretary, new to her position, did not forward the notice ofreceipt of Ford’s notice of contest to the Review Commission. Thisoversight was not caught immediately, resulting in the notice beingreceived by the Review Commission 11 days outside of the time limit setby OSHRC Rule of Procedure ? 2200.33. This 11-day delay did notprejudice Ford, nor was it the result of obstinately disobedient,rebellious, or insubordinate behavior by the Secretary. It was theresult of a clerical error, plain and simple.Furthermore, the conduct which Ford characterizes as contumacious hasnothing to do with the cause of the delay itself. Rather, Ford focuseson the subsequent events, when the Secretary attempted, in response toFord’s interrogatories, to ascertain the date that she gave notice tothe Review Commission. Granted, the Secretary’s procedures in tryingto pin down the date of the notice to the Review Commission do not callto mind the precision of a finely tuned machine, but neither do theyraise the suspicion of deliberate misrepresentations.The Secretary’s admitted untimely notice to the Review Commission of herreceipt of Ford’s notice of contest was the result of a clerical error,which was not contumacious in nature and which did not prejudice Ford. Ford’s motion to dismiss for untimely notice is denied._VALIDITY OF INSPECTION_Ford argues that its Fourth Amendment rights were violated by theSecretary because OSHA’s compliance officers made the inspections, overFord’s objections, without a warrant (Tr. 63-65, 110). Although Collinssubsequently obtained a warrant, the evidence on which the citationswere based was gathered before that time. Ford contends that OSHA’sinspection was unconstitutional and that the citations should be vacated.The site where the drainage pipe was to be laid was along Bridle Road, apublic roadway. At each end of the road (the top and the bottom of thehill) there were large orange construction signs marked \”Road Closed\”(Tr. 160, 263-264, 321). Despite these signs, local traffic was allowedon the road (Tr. 164). It was estimated that 15 to 20 cars a daytraveled on the road (Tr. 235).Ford’s argument is without merit. Under the \”open view\” exception tothe warrant requirement, a warrant is not needed if the worksite to beinspected is accessible to the public and open to view. Accu-Namics v.OSHRC, 515 F.2d 828, 833 (5th Cir. 1975), cert. denied 425 U.S. 903 (1976);Environmental Utilities Company, 77 OSAHRC 40\/A2, 5 BNA OSHC 1195, 1977CCH OSHD ? 21,709 (No. 5324, 1977).In the present case, Bridle Road was open to the public, despite the\”Road Closed\” signs. Fifteen to twenty cars passed by the worksite on adaily basis. There is no evidence that anyone was ever turned away whodesired to travel on that road. Ford had no reasonable expectation ofprivacy on the roadway. The placing of signs, which limited the flow oftraffic, did not convert a public road into a private one in this case. OSHA did not need a warrant to inspect the site.CITATION NO. 1_ITEM 1: 29 C.F.R. ? 1926.59(g)(8) _29 C.F.R. ? 1926.59(g))8) provides:The employer shall maintain copies of the required material safety datasheets for each hazardous chemical in the workplace, and shall ensurethat they are readily accessible during each work shift to employeeswhen they are in their work area(s).OSHA compliance officer Dennis Collins spoke with Ford’s foreman, DavidNew, on April 4, 1990. Collins asked New if he had copies of the MSDS’sfor gasoline and portland cement, both of which were being used by theemployees on the site, available at the worksite. New responded that hedid not (Tr. 123, 130). The MSDS’s for these materials were located atFord’s office in Sharonville, Ohio (Tr. 131).Ford contends that the presence of the MSDS’s at its Sharonville office,where, Collins was told, employees went at least twice a week, meets therequirements of the standard (Tr. 197). Even a cursory reading of ?1926.59(g)(8) shows that this is not the case.The standard requires that the MSDS’s be \”readily accessible during eachwork shift to employees when they are in their work area(s) (emphasisadded). If an employee only visits Ford’s company office twice a week,then the MSDS’s are not readily accessible to him during each workshift, and they are not accessible to him when he is in this work area. Ford was in violation of ? 1926.59(g)(8)._ITEM 2: 29 C.F.R. ? 1926.251(a)(1) _29 C.F.R. ? 1926.251(a)(1) provides:Rigging equipment for material handling shall be inspected prior to useon each shift and as necessary during its use to ensure that it is safe. Defective rigging equipment shall be removed from service.Collins observed a wire rope sling being used to lift and place thedrainage pipe into the trench. Some strands of the sling were brokenand were protruding from it (Ex. R-13, Tr. 132, 133).Ford concedes that the strands were broken but argues that the brokenstrands did not render the sling defective. The manufacturer’sspecifications for the sling demonstrated that it had a 1,940 poundcapacity (Ex. R-13, Tr. 329). The pipe which was being used to hoistweighed 965 pounds (Tr. 330). The sling was made up of seven braids,each of which contained 19 wires (Tr. 339-340). Ford argues that a fewbroken strands would not cause the sling to be defective.The word \”defective\” is not defined in the safety standards. WebstersThird New International Dictionary (1971) defines \”defective\” as\”wanting in something essential: falling below an accepted standard inregularity and soundness of form … or in adequacy of function.\” Id.at 591. The Secretary failed to establish that the few broken strandson the sling resulted in its being inadequate to hoist the pipe. Collins stated that the sling appeared to be functioning properly andthat he could not say that the sling’s built-in safety functions wereexceeded in this case (Tr. 223, 224, 226).The Secretary’s basis for alleging that the sling was defective was thepresence of a few broken strands. That, in light of the specificationsfor the sling and the weight being lifted, is insufficient to support afinding that a violation of the standard occurred. Ford was not inviolation of ? 1926.251(a)(1)._ITEM 3: 29 C.F.R.? 1926.651(d)_29 C.F.R. ? 1926.651(d) provides:Employees exposed to public vehicular traffic shall be provided with,and shall wear, warning vests or other suitable garments marked with ormade of reflectorized or high-visibility material.None of Ford’s employees on the worksite wore warning vests or otherreflectorized clothing (Tr. 133). Traffic passed by the employees asthey worked. Collins observed a saw operator who scored the pavementwhile standing near the center of the right lane while traffic used theleft lane (Tr. 134).Ford argues that it was not in violation of the standard because itapplies only to \”public vehicular traffic.\” Ford contends that becausethe road was \”closed\”, public traffic did not travel on the road.As discussed earlier in this decision, the roadway was public despitethe signs posted, and traffic on the roadway would be public. Thevehicles were driven by members of the public, and the employees wereexposed to the same dangers, whether or not the \”Road Closed\” signs wereposted. Ford was in violation of ? 1926.651(d)._ITEM 4: 29 C.F.R. ? 1926.651(k)(1) _29 C.F.R. ? 1926.651(k)(1) provides:Daily inspections of excavations, the adjacent areas, and protectivesystems shall be made by a competent person for evidence of a situationthat could result in possible cave-ins, indications of failure ofprotective systems, hazardous atmospheres, or other hazardousconditions. An inspection shall be conducted by the competent personprior to the start of work and as needed throughout the shift. Inspections shall also be made after every rainstorm or other hazardincreasing occurrence. These inspections are only required whenemployee exposure can be reasonably anticipated.David New was the designated competent person on the site (Tr. 138). New made daily inspections of the excavation site (Tr. 139, 249). Newevaluated the soil by visually examining it and by noting how hard thebackhoe had to work in order to dig the trench (Tr. 140).The Secretary argues that New’s inspection was inadequate to meet therequirements of the standard because New did not conduct any manualtests of the soil (Tr. 140-142, 249-250). Nowhere in the standard doesit require manual tests of soil to be made. The standard requires onlythat \”daily inspections be made\”, which New indisputably did. TheSecretary’s allegation is without merit. Ford was not in violation of? 1926.651(k)(1)._ITEM 5: 29 C.F.R. ? 1926.651(k)(2) _29 C.F.R. ? 1926.651(k)(2) provides:Where the competent person finds evidence of a situation that couldresult in a possible cave-in, indications of failure of protectivesystems, hazardous atmospheres, or other hazardous conditions, exposedemployees shall be removed from the hazardous area until the necessaryprecautions have been taken to ensure their safety.The Secretary contends that as the designated competent person, Newshould have noticed hazardous conditions that could result in a cave-inand removed the employees from the trench. New realized that the trenchwas increasing in depth and that the trench was progressing towards aculvert which would require the depth of the trench to increase evenmore (Tr. 143, 245-246).Ford argues that the standard requires that employees be removed \”wherethe competent person finds evidence of a situation that could result ina possible cave in,\” and that there is no evidence that New did findsuch evidence. New believed the soil was hard enough and that there wasno danger of its collapse (Tr. 260). The culvert to which the Secretaryrefers was not as deep as depicted in the plans (Ex. C-12, Tr. 143).The Secretary has failed to establish that New was aware of any evidenceindicating the possibility of a cave in. New believed that the dirt inwhich the excavation was made consisted mostly of hard clay and rock,and he thought the trench was \”okay\” (Tr. 143, 253). Ford was not inviolation of ? 1926.651(k)(2).CITATION NO. 2_29 C.F.R. ? 1926.652 (a)(1) [[2]]_The Secretary alleges a willful violation of 29 C.F.R. ? 1926.652(a)(1),which provides:According to Subpart P, Appendix A (b), \”stable rock\” means naturalsolid mineral matter that can be excavated with vertical sections andremain intact while exposed.The area of the trench where the employee’s foot was trapped wasmeasured to be 7 feet, 7 inches deep (Tr. 45-46). The evidence wasundisputed, however, that that area had been dug out by Ford’s crew inattempting to free the trapped employee (Tr. 70-71). New testified thatthe depth of the trench at the time of the accident was about 6 feet(Tr. 259). The sides of the trench were vertical; no attempt at slopinghad been made (Tr. 50).The evidence established that the soil was composed of hard clay androck (Tr. 176, 253). Ford argues that the hard clay and rock mixturemeets the definition in Appendix A of stable rock. This argument iswithout merit. In the words of Dennis Collins, \”Clay is not rock\” (Tr.186).Clay is not what Appendix A means by \”natural solid mineral matter.\” The fact that a hand shovel was used to help dig out the trench aroundthe trapped employee is evidence that the soil was not stable rock (Ex.C-13, Tr. 34-35, 49).The Secretary has established that Ford failed to slope or otherwiseprovide protection for a trench that was deeper than five feet and thatwas not excavated in stable rock. We must now turn to theclassification of the violation.A willful violation is one committed with intentional, knowing orvoluntary disregard for the requirements of the Act, or with plainindifference to employee safety. …It is differentiated from othertypes of violations by a \”heightened awareness\”–of the illegality ofthe conduct or conditions–and by a state of mind–conscious disregardor plain indifference.\” [Williams Enterprises, Inc., 13 CCH OSHD ?27,893, p. 36,589 (No. 85-355, 1987)]Calang Corporation, OSAHRC, 14 BNA OSHC 1789, 1791 CCH OSHD ? (No.85-319, 1970).The Secretary has failed to establish that Ford violated the citedstandard with either an intentional disregard for the requirements ofthe Act, or with plain indifference to employee safety. New testifiedcredibly that he believed the soil in which the trench was beingexcavated was hard enough so as not to require sloping. The depth ofthe trench for the most part was four and a half feet (Tr. 180-181).New’s belief that the trench did not require sloping was erroneous, buthis testimony is convincing that he believed in good faith that thesoil’s composition precluded the necessity for sloping. The violationof ?1926.652(a)(1) is appropriately classified as serious.CITATION NO. 3_ITEM 1: 29 C.F.R. ?1926.21(b)(2)_The Secretary alleges a repeat violation of 29 C.F.R. ?1926.21(b)(2)which provides:The employer shall instruct each employee in the recognition andavoidance of unsafe conditions and the regulations applicable to hiswork environment to control or eliminate any hazards or other exposureto illness or injury.New never received any training in trench safety from Ford (Tr. 242). He had received one day of training from a former employer four and ahalf years prior to the hearing (Tr. 242-243). Even if such minimaltraining at such a distant time was adequate (it is not), the trainingwould not comply with the standard, which specifies that \”[t]he employer[Ford] shall instruct each employee\” in safety training. Training by aprevious employer does not fulfill the requirement of the standard. Ford was in violation of ?1926.21(b)(2).The citation and complaint allege that Ford was previously cited for aviolation of ?1926.21(b)(2) on June 22, 1987, and that the citationbecame a final order on July 23, 1987. No documentary evidence wasadduced to support this allegation, but Ford does not dispute it. Accordingly, the violation will be classified as repeated._ITEM 2: 29 C.F.R. ?1926.59(e)(1)_29 C.F.R. ?1926.59(e)(1) provides:Employers shall develop, implement, and maintain at the workplace, awritten hazard communication program for their workplaces which at leastdescribes how the criteria specified in paragraphs (f), (g), and (h) ofthis section for labels and other forms of warning, material safety datasheets, and employee information and training will be met, and whichalso includes the following:At the time of the inspection, Ford had a written hazard communicationsprogram, which it maintained at its company office in Sharonville, Ohio(Tr. 197). Collins stated that the written program was adequate to meetthe requirements of the standard (Ex. R-5, Tr. 196). The writtenprogram was not maintained at the worksite (Tr. 149). Copies of theprogram were distributed to Ford’s employees several weeks prior to theOSHA inspection (Ex. R-6, Tr. 198-199). Ford contends that maintainingthe written program at its company office and distributing copies of theprogram to the employees satisfies the requirements of the standard.The standard specifically states that the program be maintained \”at theworkplace.\” There is a reason for this requirement. If an employee atthe worksite should need to consult the program for informationregarding a hazardous material that he is about to use, or has used, orthat has been spilled or otherwise caused an emergency situation, theprogram does him no good if it is located miles away at the companyoffice. Distributing personal copies to employees is a good idea, butthere is no guarantee that they will bring them to work each day, orthat they memorized the program’s contents. Ford was in violation of?1926.59(e)(1).In order to establish a repeated violation, the Secretary must showthat, at the time of the alleged repeated violation, there was aCommission final order against the employer for a substantially similarviolation. Potlach Corporation, 79 OSAHRC 6\/A2, 7 BNA OSHC 1061, 1979CCH OSHD ? 23,294 (No.16183, 1979).The Secretary introduced into evidence copies of four citations issuedto Ford on September 18, 1989, containing allegations of violations of?1926.59(e)(1) and (h) (Ex.C-15). She also introduced a copy of asettlement agreement entered into by the Secretary and Ford, disposingof the citations (Ex. C-14).Judge Edwin G. Salyers issued an order approving the settlement onFebruary 26, 1990. In the settlement agreement, the parties agreedthat Items 1 and 3 of Citation No. 3 \”shall be affirmed\” with a penaltyassessed of $100.00 for each item.Ford strenuously objected to the admission of Exhibits C-14 and C-15. Paragraph 10 of the settlement agreement states in pertinent part:Nothing contained herein shall be construed as an admission byRespondent that it violated the Act nor any of the regulations orstandards promulgated thereunder…Ford contends that this exculpatory language prohibits the Secretaryfrom using the settlement agreement as the basis for a repeatedviolation. But the quoted language does not function as Ford claims.A repeat violation requires a final order against the employer for asubstantially similar violation. In the present case, the previouscitation was for the same standard at issue here, ?1926.59(e)(1). TheJudge’s order was a final order of the Commission; and it wasundoubtedly an order against the employer, regardless of the language inparagraph 10. The three items of Citation No. 3 were affirmed andpenalties were assessed for them. The exculpatory language states thatnothing in the agreement \”shall be construed as an admission\”, that itviolated the standards, but such an admission is not necessary to base arepeated violation on the agreement. In a contested case that goes tohearing, the employer seldom admits it violated a standard at issue, yetif the judge affirms the citation, the final order can serve as apredicate to a repeated violation.In its brief, Ford argues that \”since in that Agreement the partiesagreed that no violations of the Act had occurred, there was no finalOrder upon which a repeat citation could have been based\” (Ford’s Brief,p. 34). Nothing in paragraph 10 of the settlement agreement can beconstrued as an agreement by the Secretary that no violations had occurred.The last sentence of the paragraph states: \”The settlement is not to betaken as an admission of fault or liability and shall not affect anyrights or defenses in the future that Respondent may have in any otherproceeding other than one arising under the Act\” (emphasis added). Thissentence can only be read to mean that in proceedings arising under theAct (such as the case at bar), Ford’s rights or defenses can be affectedby the settlement agreement. Such is the case.Ford was in repeated violation of 29 C.F.R. ?1926.59(e)(1)._ITEM 3: 29 C.F.R. ? 1926.59(h)_29 C.F.R. ? 1926.59(h) provides:Employers shall provide employees with information and training onhazardous chemicals in their work area at the time of their initialassignment, and whenever a new hazard is introduced into their work area.Ford established that it had provided its employees with copies of itshazard communications program (Exs. R-5, R-6). Employees were requiredto review the program in order to receive their paychecks (Tr. 306). The Secretary has failed to establish that these efforts were inadequateto meet the requirements of the standard. Ford was not in violation of?1926.59(h)._PENALTIES _Under 17(j) of the Act, the Commission is required to find and give \”dueconsideration\” to the size of the employer’s business, the gravity ofthe violation, the good faith of the employer, and the history ofprevious violations in determining the assessment of an appropriatepenalty. No evidence was adduced concerning the size of the employer’sbusiness.Upon due consideration of the other relevant factors, it is determinedthat the following are appropriate penalties:_CITATION NO. 1_ Item \tPenalty1 \t$500.003 \t700.00_CITATION NO. 2_Item \tPenalty1 \t$1,000_CITATION NO. 3_Item \tPenalty1 \t$3,600.002 \t500.00_ __FINDINGS OF FACT AND CONCLUSIONS OF LAW_The foregoing decision constitutes the findings of fact and conclusionsof law in accordance with Federal Rule of Civil Procedure 52(a)._ORDER _It is hereby ordered that the citations and their items will be disposedof as follows: _Citation No. 1 _ \t\tPenaltyItem 1 [29 C.F.R. ?1926.59(g)(8)] \tAffirmed \t$500.00Item 2 [29 C.F.R. ?1926.251(a)(1)] \tVacated \t00.00Item 3 [29 C.F.R. ?1926.651(d)] \tAffirmed \t700.00 Item 4 \t[29 C.F.R. 1926.651(k)(1)] \tVacated \t00.00Item 5 \t[29 C.F.R. 1926.651(k)(2)] \tVacated \t00.00 _Citation No. 2_ Item 1 [29 C.F.R. ?1926.652(a)(1) \tAffirmedas Serious \t1,000.00 _Citation No. 3 _ \t\tItem 1 [29 C.F.R. ?1926.21(b)(2)] \tAffirmed \t3,600.00Item 2 [29 C.F.R. ?1926.59(e)(1)] \tAffirmed \t500.00Item 3 [29 C.F.R. ?1926.59(h)] \tVacated \t00.00 PAUL L. BRADYJudgeDate: May 28, 1991————————————————————————FOOTNOTES:[[1]] Of those vacated, the Secretary petitioned only for review of thesection 1926.59(h) employee information and training item, and that itemwas directed for review. Ford petitioned for review of the judge’srulings on the Fourth Amendment issue, the motion to dismiss and thefive items affirmed. Directed for review were four of those fivecitation items and the motion to dismiss. The Secretary subsequentlywithdrew the citation item for failure to maintain a written hazardcommunication program at the workplace under section 1926.59(e)(1),leaving three affirmed items and one vacated item on review.[[2]] Ford claims that two alternative bases exist for dismissing theSecretary’s complaint: (1) failure to comply with the statute (under 29U.S.C. ? 659(c), Secretary shall \”immediately\” advise the Commission)and (2) failure to comply with the Commission rule (under 29 C.F.R. ?2200.33(a), Secretary shall \”within 15 working days\” notify theCommission). However, Ford does not seriously challenge the rule itselfas a reasonable interpretation of the statute. Therefore, especially inlight of the Secretary’s stipulation that transmittal was untimely, wetreat both statutory and regulatory grounds as one.[[3]] Ford also argues that the Secretary’s late transmittal deprivesthe Commission of jurisdiction over the matter. Ford cites no precedentto support its argument, however, and the Commission has not generallyconsidered the Secretary’s failure to transmit the NOC within theallotted period to be a jurisdictional question.[[4]] In its motion to dismiss, Ford mainly focuses not on the 7-daytransmittal delay, but on the Secretary’s conduct later, during thepretrial discovery process. Six weeks elapsed between the day LaborDepartment staff members erroneously responded to Ford’s interrogatoryabout the transmittal date and the day they became sufficiently aware ofthe existence, cause, and duration of the initial 7-day delay to respondaccurately to that interrogatory. It is the Secretary’s behavior duringthis six-week period which Ford claims sank to the level of contumacy. That the Secretary mentioned right in her cover letter accompanying thecomplaint that the untimely NOC transmittal date could pose a problemsuggests good faith, not–as Ford would have it–an attempt to cover upher error. The record or this point does not indicate obstinatedisobedience or disrespect for the Commission, and even if it did, theappropriate response on Ford’s part would have been to seek discoverysanctions.[[5]] Rule 41 provides in part:(a) Sanctions. When any party has failed to plead or otherwise proceedas provided by these rules or as required by the Commission or Judge, hemay be declared to be in default….(2) On the motion of a party. Thereafter, the Commission or Judge, intheir discretion, may enter a decision against the defaulting party orstrike any pleading or document not filed in accordance with these rules.(b) Motion to set aside sanctions. For reasons deemed sufficient by theCommission or Judge and upon motion expeditiously made, the Commissionor Judge may set aside a sanction imposed under paragraph (a) of this rule.[[6]] The standard provides:?1926.59 Hazard communication.(g) Material safety data sheets.(8) The employer shall maintain copies of the required material safetydata sheets for each hazardous chemical in the workplace, and shallensure that they are readily accessible during each work shift toemployees when they are in their work area(s).[[7]] Ford did not raise, and we do not address, the possibility thatthe gasoline on its site may not have constituted a \”hazardous material\”under the exception in section 1926.59(a)(6)(vii) or that some otherexception like section 1910.1028(a)(2)(i) might apply. To quality forthe \”normal consumer use\” exception, for example, the employer mustdemonstrate that its employee’s use and exposure is comparable to aconsumer’s. The record shows only that Ford employees used \”gasolinefor some of the equipment, including compactors.\” The Commission hasheld that the party claiming the benefit of an exception bears theburden of proving that its case falls within that exception. DoverElevator Co., 15 BNA OSHC 1378, 1381, 1991 CCH OSHD ? 29,524, p. 39,849(No. 88-2642, 1991). Ford has not shown that any exception applies.[[8]] The standard provides:?1926.59 Hazard Communication.(h) Employee information and training. Employers shall provideemployees with information and training on hazardous chemicals in theirwork area at the time of their initial assignment, and whenever a newhazard is introduced into their work area.(1) Information. Employees shall be informed of:(i) The requirements of this section;(ii) Any operations in their work area where hazardous chemicals arepresent; and,(iii) The location and availability of the written hazard communicationprogram, including the required list(s) of hazardous chemicals, andmaterial safety data sheets required by this section.(2) Training. Employee training shall include at least;(i) Methods and observations that may be used to detect the presence orrelease of a hazardous chemical in the work area (such as monitoringconducted by the employer, continuous monitoring devices, visualappearance or odor of hazardous chemicals when being released, etc);(ii) The physical and health hazards of the chemicals in the work area;(iii) The measures employees can take to protect themselves from thesehazards, including specific procedures the employer has implemented toprotect employees from exposure to hazardous chemicals, such asappropriate work practices, emergency procedures, and personalprotective equipment to be used; and(iv) The details of the hazard communication program developed by theemployer, including an explanation of the labeling system and thematerial safety data sheet, and how employees can obtain and use theappropriate hazard information.[[9]] The record contains no testimony that Ford representativesinvolved in the 1989 settlement were misled into believing that theSecretary could not use that agreement as the basis for a \”repeated\”violation in the future. On the other hand, we can see how a pro seemployer with an untrained eye might focus exclusively on the favorable,exculpatory language instead of reviewing the document as a whole. Wewould therefore admonish the Secretary that even the perception amongemployers that settlement agreements contain \”hidden\” traps may deteremployers from entering into settlement negotiations.[[10]] The standard provides:?1926.21 Safety training and education.(b) Employer responsibility(2) The employer shall instruct each employee in the recognition andavoidance of unsafe conditions and the regulations applicable to hiswork environment to control or eliminate any hazard or other exposure toillness or injury.[[11]] The revised excavation standards became effective on March 5,1990, a couple of weeks before the March 22,1990 inspection.[[12]] National Indus. Constr., Inc., v. OSHRC, 583 F.2d 1048 (8th Cir.1983) (agreeing with Commission’s finding in another case that thestandard is broad but clear, not void for vagueness) and H.C. NuttingCo. v. OSHRC, 615 F.2d 1360 (6th Cir. 1980) (unpublished) (standard doesnot outline any particular requirements, but requires that an employerinform employees of safety hazards addressed by specific OSHA regulations).[[13]] We note the distinction between the training standard here andthe one the Commission recently considered in Trinity Indus., Inc., 15BNA OSHC 1788,1992 CCH OSHD ? 29,773 (No. 89-1791, 1992). The standardin Trinity provided:?1910.178 Powered industrial trucks(1) Operator training. Only trained and authorized operators shall bepermitted to operate a powered industrial truck. Methods shall bedevised to train operators in the safe operation of powered industrialtrucks.The Trinity standard implies that it is employers who are to \”permit\”and to \”devise.\” The standard is the instant case, on the other hand,states in no uncertain terms that \”the employer shall instruct\” employees.[[14]] The standard provides:?1926.652 Requirements for protective systems.(a) Protection of employees in excavations. (1) Each employee in anexcavation shall be protected from cave-ins by an adequate protectivesystem designed in accordance with paragraph (b) or (c) of this section[sloping, shoring, shielding, and other systems] except when:(i) Excavations are made entirely in stable rock; or(ii) Excavations are less than 5 feet (1.52m) in depth and examinationof the ground by a competent person provides no indication of apotential cave-in.[[15]] Section 1926.650 (b) defines \”cave-in\” as \”the separation of amass of soil or rock material from the side of an excavation, or theloss of soil from under a trench shield or support system, and itssudden movement into the excavation, either by falling or sliding, insufficient quantity so that it could entrap, bury, or otherwise injureand immobilize a person.\”[[1]] That is, 15 days plus 3 days for service by mail. OSHRC Rule ofProcedure ? 2200.4.[[2]] At the hearing, Ford moved to dismiss Citation No. 2. Thatmotion was held in abeyance and is hereby denied (Tr. 285-288).”